Yearbook of Islamic and Middle Eastern Law
Volume 11 2004–2005
CIMEL Centre of Islamic and Middle Eastern Law School of Oriental and African Studies, University of London Chairman HH Professor Judge Eugene Cotran Directors Mr Ian Edge, Barrister and Lecturer in Law, SOAS Mr Nick Foster, Solicitor and Lecturer in Law, SOAS Deputy Director Dr Lynn Welchman, Senior Lecturer in Law, SOAS The Management Committee The Chairman The Directors The Deputy Director Professor M.A.S. Abdul Haleem, King Fahd Professor of Islamic Studies, SOAS; and Director, Islamic Studies Centre, SOAS Dr Mark Hoyle, Barrister and Editor, Arab Law Quarterly Mr Mushtaq Khan, Associate Dean of Research for the Faculty of Law and Social Science; Senior Lecturer in Economics, SOAS Dr Martin Lau, Barrister-at-Law, Reader in Law, Department of Law, SOAS Professor Michael Palmer, Professor of Law and Director of the Centre of East Asian Law, SOAS Professor Iain Scobbie, Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle East, SOAS The Advisory Council The Chairman The Director The Deputy Director The Management Committee HE Dr Husain M.Al Baharna, former Minister of State for Legal Affairs, Bahrain HE Judge Mohammed Bedjaoui, International Court of Justice, The Hague Dame Elizabeth Butler-Sloss, President of the Family Division, Court of Appeal, England Sir James Craig, former Ambassador of HMG to Saudi Arabia and Syria Mr Michael Davies, Partner, Nabarro Nathanson, Solicitors Sheikh Salah Al-Hejailan, President, Euro-Arab Arbitration Board of the Euro-Arab Arbitration System; founder, Law Firm of Salah Al-Hejailan Professor Enid Hill, Chairman, Department of Political Science, American University of Cairo HE Judge Awn el-Khassawneh, International Court of Justice, The Hague Professor Ahmed El-Kosheri, of Kosheri, Rashed & Riad of Cairo and ad hoc judge at the ICJ Professor Chibli Mallat, Attorney and Professor of Law, Sir Joseph University, Beirut Mr John Merrett, ICC Representative in the UK The Hon. Mamdouh Mareé, Chief Justice, Supreme Constitutional Court, Egypt Professor Abdullah An-Na'im, Professor of Law, Emory University, Atlanta, USA Mr Richard Price, Partner, Clifford Chance, Solicitors Dr Anis Al-Qasem, Barrister, Former Chairman, Legal Committee, Palestine National Council Mr Nabil Saleh, Middle East Legal Consultant, Beirut and London Dr Nageeb Shamiri, President, Criminal Chamber, Supreme Court of Yemen and Member of Yemen's Supreme Constitutional Court Dr Adel Omar Sherif, Deputy Chief Justice, Supreme Constitutional Court, Egypt Lord Slynn of Hadley, Lord of Appeal in Ordinary, England Dr Frank Vogel, Assistant Professor, Harvard Law School HE Dr Ratib al-Wazani, former Minister of Justice, Jordan Lord Woolf, Lord Chief Justice, England Mr Hatem Zu'bi, Legal Counsel and Arbitrator, Bahrain and London
Yearbook of Islamic and Middle Eastern Law Volume 11
2004–2005 General Editors Eugene Cotran, LLD Circuit Judge, Visiting Professor of Law, SOAS Chairman, CIMEL and
Martin Lau, MA, PhD Barrister-at-Law, Reader in Law, Department of Law, SOAS
Assistant Editor Victor Kattan, LLM (Leiden) Visiting Research Fellow, British Institute of International and Comparative Law Published for The Centre of Islamic and Middle Eastern Law at the School of Oriental and African Studies University of London
CIMEL
Leiden/Boston
Printed on acid-free paper
A Cataloging-in-Publication record for this book is available from the Library of Congress
This Publication is to be cited as Yearbook of Islamic and Middle Eastern Law, Volume 11 (2004-2005) ISBN 978 90 04 15148 2 ISBN 90 04 15148 6 © 2007 Koninklijke Brill NV Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. www.brill.nl This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.
Contents Biographical Notes
vii
Preface
xi
Part I – Articles An Intimate Disengagement: Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination Iain Scobbie
3
From Beirut to Brussels: Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres Victor Kattan
33
United Kingdom Response to Terrorism and the Response of the Courts to these Measures Susan C. Breau
83
Corrie et al v Caterpillar: Litigating Corporate Complicity in Israeli Violations of International Law in the U.S. Courts Grietje Baars
97
Effective Legal Representation in“Shari’ah” Courts as a Means of addressing Human Rights Concerns in the Islamic Criminal Justice System of Muslim States Mashood A. Baderin
135
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications Pawancheek Marican and Mohamed Azam Mohamed Adil
169
Le Nouveau Code Marocain de la Famille: Une Réforme dans la Continuité Mohamed Loukili and Michèle Zirari-Devif
205
The Concept of mahr (Dower) in Islamic Law: The Need of Statutory Recognition by English Law Mohamed Jindani
219
Establishment of Islamic Courts in Egypt Dawoud S. El-Alami
229
vi
Contents
Part II – Country Surveys Egypt – Kosheri, Rashed and Riad Syria – Jacques el-Hakim Jordan – Hamzeh Haddad Lebanon – Dr. Nayla Comair Obeid Libya – Mustafa El-Alem United Arab Emirates – Terence Witzmann Bahrain – Husain M. Al Baharna Oman – Emma Block Yemen – Nageeb Shamiri Iran – M. A. Ansari-Pour Morocco – Michèle Zirari-Devif Tunisia – Afif Gaigi Part III – Selected Documents Text of the Iraqi Constitution United Nations Security Council Resolutions regarding Iraq United Nations Security Council Resolutions regarding Lebanon Kingdom of Morocco – The Justice and Reconciliation Commission Three-part Summary of the Final Report Max Planck Institute Afghan Family Law Workshop Report Martin Haars Part IV – Selected Cases Palestine: High Court of Justice, Constitutional Challenge No. 5/2005 Anis Al-Qasem Pakistan: Legality of a Hisba Bill to introduce an Islamic Ombudsman in the North-West-frontier Province Makhdoom Ali Khan Part V – Book Reviews The Case of Ariel Sharon and the Fate of Universal Jurisdiction Victor Kattan Handbook on Protection of Palestinian Refugees in States Signatories to the 1951 Refugee Convention Victor Kattan Honour. Crimes, paradigms and violence against women Dr. Martin Lau Index
241 249 257 261 279 285 293 301 307 321 333 343
351 373 379 391 397
407
413
465
467 471
473
vii
Biographical Notes Mohamed Azam Mohamed Adil has an LLM and a PhD from and is a Lecturer at the Centre for Islamic Thought & Understanding (CITU) UiTM, Shah Alam, Selangor, Malaysia. Husain M. Al Baharna gained a doctorate in international law from the University of Cambridge, and is a Barrister-at-Law of Lincoln’s Inn and a member of the Bahrain Bar Society. He is a member of both the UN International Law Commission and the International Council for Commercial Arbitration (ICCA). He is the former Minister for Legal Affairs in the State of Bahrain, and is now an attorney and legal consultant in Bahrain. He is also a registered arbitrator. Anis Al-Qasem (LLM, PhD), a Barrister-at-Law of Lincoln’s Inn, was formerly Legal Adviser to the Government of Libya and Chairman of the Libyan Petroleum Commission during the monarchy. He is presently a practising lawyer and consultant in London in the laws of the Middle East, a licensed legal consultant in Dubai, a former visiting examiner and Associate Fellow of the Institute of Advanced Legal Studies, University of London, and Chairman of the Legal Committee of the Palestine National Council. M. A. Ansari-Pour (LLB, LLM, PhD) was a judge in the Iranian judiciary before coming to England to study for the LLM and a doctorate. He is the Chairman of the Iranian Law Institute and he has written widely (including both articles and books) in English and Persian. He is now a Legal Adviser and Attorney in Iran. Grietje Baars is a Visiting Researcher at Birzeit University’s Institute of Law, where she is setting up a research unit on international criminal law. She teaches international humanitarian law and is the co-founder of the first university law clinic in Palestine, at Al Quds University. Grietje holds an MA in English Literature from Utrecht University and an LLM in international law from University College London, where she is currently completing her PhD on corporate liability in international criminal law. She has presented papers at many international conferences on the subject. Prior to moving to the Middle East, Grietje qualified as a U.K. solicitor and practised commercial law with a City law firm and a multi-national company. Mashood A. Baderin (LLM, PhD (Notts.) is Professor of Law at the School of Law, Brunel University, Uxbridge, West London. He is an expert in international human rights and Islamic law. He is the author of International Human Rights and Islamic Law (OUP, 2003, 2005) and a founding co-editor of the Muslim Journal of Human Rights.
viii
Biographical Notes
Emma Block is a Senior Assistant with the Oman office of Trowers & Hamlins. Emma has worked on a wide range of banking and finance transactions. She is also admitted to practise law in California and has experience of acting for both lenders and borrowers in respect of secured and unsecured loans in the U.K., United States and Oman. Susan C. Breau, formerly the Dorset Fellow in Public International Law at the British Institute of International and Comparative Law, is a Reader in Law at the University of Surrey conducting research on the International Protection of Human Rights. She was awarded her doctorate from the London School of Economics and Political Science for her research into humanitarian intervention. In her academic career, she has taught at Queen’s University Belfast, the London School of Economics, Pepperdine University and King’s College London. Dr. Breau practised as a Barrister and a Solicitor in Canada for 18 years. She is the author of Humanitarian Intervention: The United Nations and Collective Responsibility (Cameron May in 2005) and is currently writing a book entitled Sovereignty as Responsibility: The International Law implications of the Responsibility to Protect. Nayla Comair-Obeid is Doctor of Laws of the Pantheon-Assas University, Paris, Attorney at the Beirut Bar, and Professor of the Lebanese Faculty of Law. Her speciality is international commercial law, in which connection she has made comparative studies in the field of law of arbitration, particularly arbitration in Arab countries. This research has led her to make a detailed comparative study of the civil and commercial codes of the states of the Middle East. She is the author of important works in the field, notably Les contrats en droit musulman des affaires (Economica, Paris, 1995 ); The Law of Business Contracts in the Arab Middle East (Kluwer, 1996); and Arbitration in Lebanese Law: A Comparative Study (Delta, 1999). Eugene Cotran (LLD) has been a circuit judge in England since 1992. He is a Visiting Professor of Law at the School of Oriental and African Studies, University of London, and the Chairman of the Centre of Islamic and Middle Eastern Law within the School. He was formerly a practising Barrister-at-Law in England and the Commonwealth, a Law Commissioner and High Court judge in Kenya and an international arbitrator. He is also a Board Member of the Palestinian Independent Commission for Citizens’ Rights. He has produced numerous publications on the laws of Africa, the Commonwealth, the Middle East and international and immigration law. Dawoud S. El-Alami has a Licence en Droit from Cairo University and a doctorate from Glasgow University. He was formerly a Research Fellow at the universities of Kent and Oxford and an Assistant Professor, Al al-Bayd University in Jordan. He has practised law in Egypt and Saudi Arabia and is now a lecturer in Islamic Studies at the University of Wales at Lampeter. He has various publications on the personal status laws of the Arab countries. Mustafa El-Alem (LLB, LLM) is a Libyan practising lawyer and legal adviser and a member of the Libyan Bar Association. He is a member of the Board of Directors of the Arab Association for International Arbitration and the Libyan member of the Alliance of Arab Lawyers and a full Member of the Euro-Arab Arbitration Board in London.
Biographical Notes
ix
Jacques el-Hakim (LLD) is agrégé from the French Faculties of Law and has graduated in law in Syria, Lebanon and the United States. He is a member of the Damascus Bar and is currently a Professor and Head of the Commercial Law Department, Faculty of Law of Damascus University and an Attorney-at-Law. He has produced several publications on Syrian and other laws and on economics. Afif Gaigi is Avocat à la cour de cassation, Tunis; Enseignant universitaire. Martin Haars studied at the Universities of Heidelberg, Leuven and Hamburg, where he obtained a “Bac. Jur.” in 2003 and a “Mag. Jur.” in 2005. Currently, he works as a legal research assistant at the Max Planck Institute of Comparative and Private International Law in Hamburg, Germany, and does research for his doctoral thesis. Hamzeh Haddad was educated at Cairo University, from which he graduated as a Doctor of Laws, and the University of Bristol, where he gained a doctorate. He is the author of numerous books and articles and a speaker at many regional and international conferences. He is a member of the Jordan Bar Association and of the Arbitration Board of the Arab-Swiss Chamber of Commerce, and a practising attorney and arbitrator. Mohamed Jindani was born in Zanzibar and first came to England in 1952. He has been a practising lawyer for over 35 years, first as a Barrister then as a Solicitor. In 1980, he was appointed a part-time immigration adjudicator by the Home Office. He enrolled for the degree of Master of Laws in 1993, graduated with Merit and accepted the position of Visiting Lecturer at the School of Oriental and African Studies, University of London (SOAS). In 2006, Mohamed was awarded the degree of Doctor of Philosophy by the University of Wales. He hopes to convert his thesis, “The Concept of Dispute Resolution in Islamic Law” into a book. Victor Kattan is the Assistant Editor of this Yearbook, a Visiting Fellow at the British Institute of International and Comparative Law and formerly a Research Associate at the Institute for Advanced Legal Studies. He graduated from Brunel University with an honours degree in Business and Finance law and with a Masters degree in European Community Law from Leiden University. His current areas of interest include the law of self-determination, U.N. law and international criminal, humanitarian and human rights law. He has a particular interest in the question of Palestine and is writing a book on the conflict from an international law perspective. His previous publications include scholarly articles in the Palestine Yearbook of International Law, the Nordic Journal of International Law and the Mediterranean Journal of Human Rights. Makhdoom Ali Khan is a Senior Advocate of the Supreme Court of Pakistan. He has been the Attorney General for Pakistan since September 2001. He is a Graduate in Law from the University of Karachi, Pakistan and the University of Cambridge and obtained his LLM from the London School of Economics and Political Science. He enrolled as an advocate at the High Court of Sindh in 1977 and became a Barrister at Law in England and Wales in 1978. Martin Lau is a Barrister and Reader in Law at the School of Oriental and African Studies, University of London, where he teaches South Asian law. He studied at the University of Heidelberg, Germany, and at the University
x
Biographical Notes
of London. He has published extensively on South Asian law and frequently acts as an expert in proceedings for the International Chamber of Commerce and English courts. He was the Chair of the Department of Law at the School of Oriental and African Studies (SOAS), University of London, from 2002 until 2005. Mohammed Loukili is a Professor at the Faculty of Legal, Economic and Social Sciences, University Mohammed V, Rabat-Agdal, Morocco. He is also a consultant for various national and international organisations. Pawancheek Marican graduated with an LLB (Hons.) and an LLM from Malaya, and is an Advocate and Solicitor at the High Court of Malaya. Iain Scobbie is the Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle East at the School of Oriental and African Studies, University of London. Professor Scobbie was formerly Reader in International Law at the University of Glasgow, and studied at the Universities of Edinburgh and Cambridge, and at the Australian National University. His most recent publications include scholarly papers in the American Journal of International Law, Law and Practice of International Courts and Tribunals, and the Chinese Journal of International Law. He recently contributed an article, “Wicked heresies or legitimate perspectives? Theory and international law”, in Evans, M. (Ed.), International Law (Oxford: OUP, 2006, 2nd Edn.). Nageeb Shamiri (LLD) is a member of the Supreme Judicial Council of Yemen and of the Constitutional Division of the Supreme Court of Yemen. He was formerly the Chief Justice of South Yemen. He is the Chairman of the Judicial Inspection Commission, the Secretary of the Law Reform Unit at the Ministry of Legal and Parliamentary Affairs and contributed to the drafting of the Republic’s main unified laws. He is a member of the National Committee regarding the Arbitration with Eritrea, and of the Joint Commission with Saudi Arabia regarding Maritime Boundaries. Terence Witzmann is Head of Middle East Litigation and Dispute Resolution Practice, Clifford Chance, Dubai. Michèle Zirari-Devif is a Professor at the Faculty of Legal, Economic and Social Sciences, University Mohammed V, Rabat-Agdal, Morocco. She is also a legal consultant for various organisations, including FAO and UNICEF and a member of the National Counsel of Transparency-Maroc.
xi
Preface In last year’s Preface it was “democratic change” which dominated the agenda with new constitutions having been introduced in Iraq and Afghanistan and elections having taken place in various Arab countries. Much has happened since and, regrettably, resulting, as we write, in the war in Lebanon. The U.N.’s inaction, backed, disappointingly, by the U.S. and Britain, has led to the destruction of the Lebanese infrastructure and the displacement of some 900,000 Lebanese from the south of the country. Although the U.N. has been slow to act, a resolution has finally been passed, resolution 1701 (see the Documents section, p. 387).1 Despite the initial reluctance of some European countries to send troops, this is now being built up. A fragile peace remains. The action taken by Israel is a subject which will certainly be a dominant feature in next year’s volume. So far as the introduction of democracy is concerned, the parliamentary elections in Palestine were certainly democratic with the result of Hamas winning them. Unfortunately, however democratic, it was not to the liking of the U.S., Europe and Israel, with the former cutting funding and the latter refusing to enter into any talks with the new government. The new “peace plan” of unilaterally withdrawing from Gaza, originally conceived by Sharon and since adopted by Olmert and his new government, reviewed in Iain Scobbie’s article in this volume, was an utter failure. The road map is certainly dead. Gaza itself receives the same punishment in recent events as in Lebanon. Iraq’s transition to democracy finally, after much discussion, resulted in a new constitution, which might look good on paper, and which may well be the answer to the different ethnic groups, given that it provides for a type of federal government. Although this bodes well for the unity of Iraq as one nation, the situation has regrettably worsened and a civil war is repeatedly being predicted, though some commentators are of the opinion that it is actually taking place. As reported last year, the presidential elections in Egypt resulted in the reelection of President Mubarak and parliamentary elections have resulted in a majority for his party with a substantial increase in seats going to the only real opposition, i.e. the Muslim Brotherhood, who were not allowed to stand as a party. Fractures in the new democracy have already started with problems with the judiciary over the arrest and conviction of Mubarak’s only real rival.
1 Israeli troops have now left Southern Lebanon.
xii
Preface
Despite the death of John Garang, the peace agreement with the South in the Sudan has resulted in the formation of a new government with a slower implementation of its remaining parts. Unfortunately, the Darfur atrocities continue, although there was a glimmer of a hope with the new peace agreement, which has, however, not seen the light of day, having been rejected by one of the Darfur parties. On the surface, Afghanistan offers a rosier picture with both presidential and parliamentarian elections having taken place and the first democratically elected government in power in some three decades. However, many legal problems remain, as illustrated in the report of a workshop on family law in this volume. On the issue of family law, Mrs. Zirari-Devif and Mr. Loukili have dealt with the new family law of Morocco in their article, which brings in many innovations and reforms of classical Islamic law, and which can be expected to be a model for other Islamic countries. In this connection we have included in the Documents section a report on the Moroccan Truth Commission, certainly an innovation in an Arab country. We have also an article by Susan Breau on the British court’s response to the measures adopted by the British government in relation to the threat from terrorism. Innovations in Egypt’s family courts’ system are analysed in Dr. Dawoud El-Alami’s article, whereas the application of Islamic family law in the U.K. is the subject of Dr. Mohamed Jindani’s article. Islamic criminal law is the focus of two articles in this volume: Pawancheek Marican and Mohamed Azam Mohamed Adil examine in detail the offence of apostasy under Malaysian law whilst Mashood Baderin offers an overview of the theory and practice of Islamic criminal law. Grietje Baars’s article on the U.S. Caterpillar case examines the issue of civil liability for the export of machinery used by Israel in the demolition of Palestinian houses. The Cases section this year includes an article and commentary by Anis Qasim on a constitutional challenge in Palestine, and the decision of the Pakistani Supreme Court on the legality of a Bill to introduce an Islamic Ombudsman in the NWFP, introduced by Makhdoom Ali Khan. We welcome as our new Assistant Editor Victor Kattan, who has contributed an article on the 1982 Sabra and Chatila massacres in Lebanon and universal criminal jurisdiction in the light of the World Court’s decision in the Arrest Warrant case between Belgium and Congo. He has written two book reviews as well on the legal status of Palestinian refugees in countries outside the Middle East and on the 2001 Belgian case against Ariel Sharon. Thanks to all our contributors without whose input this volume would not have been possible, to the Hotung Foundation for its continued financial assistance and to Ruth Eldon, our book editor.
Eugene Cotran, Martin Lau, Victor Kattan
August 2006
Part I Articles
2
3
An Intimate Disengagement: Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination Iain Scobbie *
1 INTRODUCTION As the final text of this article was being prepared, Israel launched Operation Summer Rain on 28 June 2006 in response to the taking of Corporal Gilad Shalit by Palestinian militants following an attack on Israel Defence Forces on 25 June 2006. At the time of writing (July 2006), Israel’s military operations in Gaza are continuing, and the final outcome cannot yet be discerned. This is not the appropriate place to discuss the legality of these actions – whether those of Israel or those of armed Palestinian groups. As matters are still in a state of flux, it is premature to reach a definitive legal conclusion. Nevertheless, the deployment of Israel Defence Forces in Gaza has an obvious pertinence to the issue examined in this article, the international status of Gaza following Israel’s apparent withdrawal in August 2005. Consequently, where necessary and relevant, a provisional and tentative legal assessment of the implications of Operation Summer Rain will be attempted.
2 THE ISSUE IN QUESTION In August 2005, Israel evacuated its settlements and withdrew its land forces from Gaza. This was in accordance with its Revised Disengagement Plan of 6 June 2004,1 the implementation of which was intended to ensure that: In any future permanent status arrangement, there will be no Israeli towns and villages in the Gaza Strip. On the other hand, it is clear that in the West Bank, there
* Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies, University of London. 1 Available at: <www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Revised+ Disengagement+Plan+6-June-2004.htm>.
Articles
4
are areas which will be part of the State of Israel, including major Israeli population centers, cities, towns and villages, security areas and other places of special interest to Israel.2
To this end, Israel claimed that its evacuation of Gaza had the consequence that there was no longer any permanent presence of Israeli security forces within Gaza.3 Sub-section 1 of Section 3 (Security Situation following the Relocation), however, provides: 1. The State of Israel will guard and monitor the external land perimeter of the Gaza Strip, will continue to maintain exclusive authority in Gaza air space, and will continue to exercise security activity in the sea off the coast of the Gaza Strip. 2. The Gaza Strip shall be demilitarized and shall be devoid of weaponry, the presence of which does not accord with the Israeli-Palestinian agreements. 3. The State of Israel reserves its fundamental rights of self-defense, both preventive and reactive, including where necessary the use of force, in respect of threats emanating from the Gaza Strip.
The primary implication of the Disengagement Plan was set out in Principle Six (Political and Security Implications) of the Revised Disengagement Plan. This provides: The completion of the plan will serve to dispel the claims regarding Israel’s responsibility for the Palestinians within the Gaza Strip.
The meaning of Principle Six is intentionally ambiguous: it refers to the termination of Israel’s responsibility for the population of Gaza, but says nothing about the status of the territory itself. Before the implementation of the Revised Disengagement Plan, Gaza was territory occupied by Israel: did the implementation of the plan entail a change in the international status of Gaza? In particular, once Israeli troops and settlers were withdrawn, was Gaza no longer occupied?
3 GAZA – OCCUPIED OR NOT OCCUPIED? In anticipation of the implementation of the Revised Disengagement Plan, the Canadian Government’s International Development Research Centre commissioned a report – the Aronson Report4 – to examine the implications of disengagement. This noted that when then-Prime Minister Sharon initially announced the unilateral withdrawal plan in April 2004, one of the declared objectives was to end Israel’s role and responsibility as the occupying power in Gaza. In particular, Article 2 of the 18 April 2004 Disengagement Plan provided that, the completion of withdrawal would mean that there would be “no permanent Israeli civilian or military presence” in the evacuated areas, and 2 Revised Disengagement Plan, Section 1 (Political and Security Implications), Principle Three. 3 Revised Disengagement Plan, Section 2.A (Main Elements: The Process), Article 3.1, The Gaza Strip. 4 A “lightly edited version” of this report has been published as Aronson, G., Issues arising from the implementation of Israel’s disengagement from the Gaza Strip, 34 Journal of Palestine Studies 49 (2005).
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination
5
therefore there would “be no basis for the claim that the Gaza Strip is occupied territory”.5 This express reference to Gaza as “occupied territory” was deleted in the 6 June 2004 Revised Disengagement Plan which was approved by the Cabinet. The Aronson Report argues that one of the reasons for this deletion was that the Israeli Cabinet had received legal advice to the effect that any claim regarding the end of occupation could not be maintained while Israel remained in control of the Philadelphi corridor (the Salah al Din border road), essentially a buffer zone along the Egypt/Gaza border, and arguably also ports and airports. Retaining control of these areas was seen as enough to give Israel de facto control over the territory and thus maintain the occupation.6 In the event, Israel reached an agreement with Egypt which took over security functions in the Philadephi Corridor,7 but Israel remains in effective control of Gaza’s airspace and maritime zones. Further, passage through the Rafah crossing between Gaza and Egypt is regulated by an agreement concluded between Israel and the Palestinian Authority, subject to an annexed statement of principles, and under the supervision of the European Union Border Assistance Mission.8 Nevertheless, in a Ha’aretz article pubished in December 2004, Shavit Matias, the deputy to Israel’s Attorney-General for international law was quoted as saying: When we quit Philadelphi, even if the Palestinians don’t yet have a port or airport, the responsibility will no longer be ours. The area will not be considered occupied territory. When the Palestinians have a crossing to Egypt and additional options for transferring merchandise, even if there is no port yet, we have no responsibility.9
The question under consideration in this article is quite simple: is this view correct?
5 Available at:
; and also: <www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Disengagement+Plan++General+Outline.htm>. 6 Aronson, above n. 4, pp. 49-50: see also Roy, S., Praying with their eyes closed: reflections on the disengagement from Gaza, 34 Journal of Palestine Studies 64 (2005), p. 70. 7 For an account of the basic principles of the Israel-Egypt “military arrangement” on the deployment of Egyptian border guards on the Egyptian side of the corridor, see the Israeli Cabinet Communique of 28 August 2005, available at: <www.mfa.gov.il/MFA/Government/ Communiques/2005/Cabinet+Communique+28-Aug-2005.htm>. 8 The instruments dealing with the Rafah crossing – the 15 November 2005 Israel-PA Agreement on Movement and Access and annexed Agreed Principles for Rafah Crossing, and 23 November 2005 Agreed Arrangement on the European Union Border Assistance Mission at the Rafah Crossing Point on the Gaza-Egyptian Border (concluded at the invitation of Israel and the Palestinian Authority) may be found at: <www.nad-plo.org/listing.php?view=palisraeli_ roadagree>; and at: <www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Agreed+ documents+on+movement+and+access+from+and+to+Gaza+15-Nov-2005.htm>. See also, the EU Council press release 15011/05 (Presse 322) which gives an account of the mission of the Border Assistance Mission, available at: . The crossing was closed by Israel following the capture of Cpl. Shalit. Israel claimed this was done to prevent him being smuggled into Egypt. 9 See Aronson, above n. 4, p. 51.
6
Articles
Commentators are divided on this. Some, such as Aronson, argue that because Israel retains a “security envelope” around Gaza, controlling who and what goes in and out of the territory, disengagement did not terminate occupation.10 In contrast stand the revised views of Bruderlein on the nature of effective military control.11 Bruderlein states that effective military control is essentially a question of fact, and is not dependent on the size and distribution of the occupying forces within a territory. He cites the Tsemel case before the Israel Supreme Court which held that occupation forces do not need to be in actual control of all the territory and population, but simply have the potential capability to do so.12 This ruling is in accordance with the decision in the List case by the U.S. Military Tribunal at Nuremberg,13 and also with the Naletili and Martinovi case before the International Criminal Tribunal for the Former Yugoslavia. In the latter, the Trial Chamber referred to an occupant having “a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt”.14 Nevertheless, Bruderlein continues, and this is the change introduced into the revised version, that, some form of military presence on land remains a necessary condition for an occupation, i.e. a military occupation cannot be solely imposed by the control of the national airspace by a foreign air force...or of the national seashore by a foreign navy. The law of occupation belongs historically to the law of land warfare which requires, at its core, a land-based security presence.15
Again the question arises: which view is correct? Is the question wider than one that is dependent simply on the law of land warfare? Bruderlein’s positioning of occupation questions solely within this context may be seen as rather formalistic. It is important to bear in mind that the situation is not one of creating an occupation, which as a practical matter would appear to require 10 Aronson, above n. 4, p. 51; see pp. 51-53. 11 See Bruderlein, C., Legal aspects of Israel’s disengagement plan under international humanitarian law: . This paper was initially issued in, and is dated, November 2004 but at some later point it was revised, modifying the original analysis of “effective military control”. The paper does not indicate that it has been amended and, moreover, it retains its original date. I am grateful to Anne Massagee for drawing this to my attention. 12 See Bruderlein, above n. 11, p. 9, n.14. Tsemel v. Minister of Defence, HCJ 102/82, 37(3) Piskei Din 365: also cited employing a more extended quotation in Lein, Y., One big prison: freedom of movement to and from the Gaza Strip on the eve of the Disengagement Plan (B’Tselem/HaMoked: Jerusalem: 2005; and <www.hamoked.org.il/items/12800_eng.pdf>) pp. 73-74. Tsemel is summarised in 13 Israel Yearbook on Human Rights 360 (1983), see pp. 362-363 in particular. This and the following cases dealing with “effective occupation” are discussed in more detail below. 13 See Trial of Wilhelm List and others (the Hostages trial), VIII Law Reports of Trials of War Criminals 34 (1949), pp. 55-56. 14 Prosecutor v. Naletili and Martinovi, Case No.IT-98-34-T (trial judgment, 31 March 2003), available at: <www.un.org/icty/naletilic/trialc/judgement/nal-tj030331-e.pdf>, p. 74, para. 217. In support of this ruling, the Trial Chamber cited as authority the United Kingdom’s Manual of military law of war on land, Part III, paras. 502 and 506 (1958); the United States’ The law of land warfare: Field manual No.27-10, Chapter 6, para. 356 (1956); and the New Zealand Defence Force’s Interim law of armed conflict manual, paras. 1302.2, 1302.3 and 1302.5 (1992). 15 Bruderlein, above n. 11, p. 9.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination
7
the use of ground forces to create and maintain control,16 but rather is whether an existing occupation has been terminated or maintained. Termination could well involve different considerations: the conditions required to end an occupation are not as clearly delineated in the governing instruments as those which determine whether and when an occupation has been established. As von Glahn comments, “most books on international law make little mention of the intricate and numerous problems arising at the end of...military occupation”.17
4 IS THE END OF OCCUPATION PURELY A FACTUAL QUESTION? Occupation has been described as “a transitional period following invasion and preceding the cessation of hostilities” which “imposes more onerous duties on an occupying power than on a party to an international armed conflict”.18 The term is not defined in 1949 Geneva Convention IV relative to the Protection of Civilian Persons in Time of War: on the whole it relies on the definition contained in the Regulations annexed to 1907 Hague Convention IV respecting the Laws and Customs of War on Land which have the status of customary international law.19 It is settled that the test which determines the start of an occupation is essentially a question of fact,20 albeit one which must be distinguished from invasion pure and simple: Invasion is the marching or riding of troops – or the flying of military aircraft – into enemy country. Occupation is invasion plus taking possession of enemy country for the purpose of holding it, at any rate temporarily. The difference between mere 16 von Glahn raises the hypothesis of an occupation being created through control of a territory’s airspace: “Since international law does not contain a rule prescribing the military arm through which an effective belligerent occupation is to be exercised, it might be theoretically possible to maintain necessary control through the occupant’s air force alone”. Nevertheless he comments that the practical problems which would arise in this type of occupation “would seem to rule out such an experiment”. See von Glahn, G., The occupation of enemy territory: a commentary on the law and practice of belligerent occupation (University of Minnesota Press: Minneapolis: 1957), pp. 28-29. 17 von Glahn, above n.16, p. 257. 18 Prosecutor v Naletili and Martinovi: <www.un.org/icty/naletilic/trialc/judgement/nal-tj030331e.pdf>, p. 73, para. 214. 19 See Prosecutor v Naletili and Martinovi: <www.un.org/icty/naletilic/trialc/judgement/naltj030331-e.pdf>, p. 73, para. 215. The customary nature of the Hague Regulations was declared by the International Criminal Tribunal at Nuremberg in the Trial of German major war criminals, Cmd. 6964 (1946) p. 65. The customary status of the Regulations has since been affirmed by various other courts, see, e.g. In re Krupp (U.S. Military Tribunal at Nuremberg), 15 Annual Digest 620, p. 622; R. v. Finta (Canadian High Court of Justice), 82 ILR 425, p. 439; Affo v. IDF Commander in the West Bank (Israel High Court), 83 ILR 122, p. 163; Polyukhovich v. Commonwealth of Australia (Australian High Court), 91 ILR 1, p. 123. See also Meron, T., Human Rights and Humanitarian Norms as Customary Law (Clarendon Press: Oxford: 1989), pp. 38-40. 20 See McNair, A. and Watts, A.D., The Legal Effects of War (Cambridge UP: Cambridge: 1966, 4th Edn.), pp. 377-378; and Schwarzenberger, G., International Law as applied by International Courts and Tribunals. Vol.II: The Law of Armed Conflict (Stevens: London: 1968), p. 324.
8
Articles invasion and occupation becomes apparent from the fact that an occupant sets up some kind of administration, whereas the mere invader does not.21
This distinction flows clearly from the terms of Articles 42 and 43 of the Hague Regulations, which provide: 42. Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.22 43. The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. Thus, in the List case, the U.S. Military Tribunal ruled that an occupation indicates the exercise of governmental authority to the exclusion of the established government. This presupposes the destruction of organised resistance and the establishment of an administration to preserve law and order. To the extent that the occupant’s control is maintained and that of the civil government eliminated, the area will be said to be occupied.23
Traditionally, the test for the termination of an occupation was seen as a simple corollary of this, and likewise a question of fact – “Occupation comes to an end when an occupant withdraws from a territory, or is driven out of it”:24
21 Oppenheim, L., International Law: a Treatise. Vol.II: Disputes, War and Neutrality (Longman: London: 1952, 7th Edn. by Lauterpacht, H.) (hereinafter Oppenheim-Lauterpacht), p. 434: see also, Re Lepore, 13 Annual Digest of Public International Law Cases 354 (Supreme Military Tribunal, Italy: 1946) at p. 355; Disability pension case, 90 International Law Reports 400 (Federal Social Court, F.R. Germany: 1985) at p. 403; and von Glahn, above, n.16, pp. 28-29. See also below on the notion of effective control of occupied territory. 22 Given Operation Summer Rain, it is worth emphasising that Geneva Convention IV comes into operation in relation to the civilian population earlier than the provisions of Section III of the Hague Regulations which deal with belligerent occupation. Article 6 of Geneva Convention IV provides that it applies “from the outset of any conflict or occupation mentioned in Article 2”. The International Committee of the Red Cross’ commentary to Article 6 states that this language was employed to indicate that the Convention “became applicable as soon as the first acts of violence were committed...Mere frontier incidents may make the Convention applicable, for they may be the beginning of a more widespread conflict. The Convention should be applied as soon as troops are in foreign territory and in contact with the civilian population.” Accordingly, the term “occupation” in Article 6 bears a wider meaning than in Article 42 of the Hague regulations: “So far as individuals are concerned, the application of the Fourth Geneva Convention does not depend upon the existence of a state of occupation within the meaning of Article 42...The relations between the civilian population of a territory and troops advancing into that territory, whether fighting or not, are governed by the present Convention. There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. Even a patrol which penetrates into enemy territory without any intention of staying there must respect the Convention in its dealings with the civilians it meets.” Pictet, J. (ed), Commentary to Geneva Convention IV relative to the protection of civilian persons in time of war (ICRC: Geneva: 1958) pp. 59-60. See also Mettraux, G., International Crimes and the Ad Hoc Tribunals (Oxford U.P.: Oxford: 2005) pp. 64-71; and Prosecutor v. Naletili and Martinovi: <www.un.org/icty/naletilic/trialc/judgement/nal-tj030331e.pdf>, pp. 74-75, paras. 219-221. 23 VIII Law Reports of Trials of War Criminals 34 (1949), pp. 55-56.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination
9
the moment the invader voluntarily evacuates [occupied] territory, or is driven away by a levée en masse, or by troops of the other belligerent, or of his ally, the former condition of things ipso facto revives. The territory and individuals affected are at once, so far as International Law is concerned, considered again to be under the sway of their legitimate sovereign. For all events of international importance taking place on such territory the legitimate sovereign is again responsible towards third States, whereas during the period of occupation the occupant was responsible.25
This traditional test depends entirely upon factual criteria to the exclusion of normative considerations. This approach now appears inadequate – for instance, it fails to take into account the possibility, far less the legitimacy, of the termination of an occupation under the auspices of the Security Council, as occurred in Iraq.26 Also, during the drafting of the Geneva Conventions, the view was expressed that in prolonged occupations there could be a gradual transfer of powers to the administrative departments of the occupied power, but that this would not alter the fact of occupation.27 Facts are undoubtedly important to determine when an occupation ends – “Who effectively exercises the authority? Is it the new government? Or is it still the former occupying power? International recognition by states and the United Nations is likely to play an important role”28 – but is a test which is essentially dependent on an instrument a centur y old still fitted for contemporary conditions?29 At the Diplomatic Conference which culminated in the adoption of the 1977 Additional Protocols to the 1949 Geneva Conventions, the majority of participating States emphasised that, in order to maintain the unity of international law, international humanitarian law could not be isolated and self-contained but had to take into account the rules of general international 24 Oppenheim-Lauterpacht, above, n. 21, p. 436: see also Heintschel von Heinegg, W., Factors in war to peace transitions, 27 Harvard Journal of Law and Public Policy 843 (2003-2004), at p. 845: “The end of an occupation is a question of fact. It will be brought about by any loss of authority over the territory in question”. 25 Oppenheim-Lauterpacht, above n. 21, p. 618. 26 See Security Council resolution 1546 (8 June 2004), reproduced 43 International Legal Materials 1459 (2004); and also Carcano, A., End of occupation in 2004? The status of the multinational force in Iraq after the transfer of sovereignty to the interim Iraqi government, 11 Journal of Conflict and Security Law 41 (2006); McCarthy, C., The paradox of the international law of military operations: sovereignty and the reformation of Iraq, 10 ibid 43 (2005); and Roberts, A., The end of occupation: Iraq 2004, 54 International and Comparative Law Quarterly 27 (2005). For critical accounts of the conduct of the occupation of Iraq, see, Afsha, E., Limits and limitations of power: the continued relevance of occupation law, 7 German Law Journal 563 (2006) available at: <www.germanlawjournal.com>; and Fox, G.H., The occupation of Iraq, 36 Georgetown Journal of International Law 195 (2005). 27 See Pictet, above n. 22, pp. 62-63: for the travaux, see Final Record of the Diplomatic Conference of Geneva of 1949 (Federal Political Department: Berne: 1949), Vol. IIA, pp. 623-625, 775-776 and 815-816, and Vol. IIB, pp. 386-388. Compare Dinstein, Y., The international legal status of the West Bank and the Gaza Strip–1998, 28 Israel Yearbook on Human Rights 37 (1998). 28 Lavoyer, J.P., Jus in bello: occupation law and the war in Iraq, 98 ASIL Proc 121 (2004), p. 123. On the importance of the recognition of the termination of occupation, see Pictet, above n. 22, p.63; and also Aronson, above n. 4, pp. 59-61. 29 Article 6 of 1949 Geneva Convention IV does not deal with the end of occupation per se, but with the conditions under which the Convention ceases to apply, whether in whole or in part: see, Pictet, above n. 22, pp. 58-64.
10
Articles
law. In this connection, emphasis was placed on the need to adapt international humanitarian law to conform with the principle expounded by the International Court of Justice in the Namibia Advisory Opinion,30 namely that “an international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time of the interpretation”.31 Accordingly, can it be argued that developments in international law since 1907 have amended the traditional test used to determine the end of occupation by introducing normative factors? The assumption embedded in the traditional test is that occupation terminates when authority passes back into the hands of the displaced sovereign. This must be a genuine transfer and not simply a pretence which masks a retention of authority by the occupant. To employ Roberts’ phrase, “it is the reality not the label that counts”,32 as: the withdrawal of occupying forces is not the sole criterion of the ending of an occupation; and the occupant has not necessarily withdrawn at the end of all occupations.33
The nature of the authority that must be exercised by a post-occupation government in order to establish that the occupation has effectively ended can only be sovereignty, the classic formulation of which is that of Judge Huber in the Island of Palmas case: Sovereignty in the relations between States signifies independence. Independence in relation to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.34
The determination whether a post-occupation entity is truly sovereign, able to exercise actual independence over the territory in question, is not a simple matter of fact but introduces normative factors into the issue.35 Further, self-determination, which has been termed “one of the essential principles of contemporary international law”,36 may also be relevant. It should be recalled that in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory advisory opinion,37 the International Court of Justice authoritatively affirmed the entitlement of the Palestinian people to 30 See Sandoz Y et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC: Geneva: 1987), pp. 51-52. 31 Legal consequences for States of the continued presence of South Africa in Namibia (South West Africa), notwithstanding Security Council resolution 276 (1970) advisory opinion, ICJ Rep, 1971, 16 at p. 31, para. 53. 32 Roberts, above, n. 26, p. 47. 33 Roberts, above n. 26, p. 28. 34 Island of Palmas case (United States/Netherlands, 1928), 2 Reports of International Arbitral Awards 829, p. 838. The “classic” judicial definition of independence is that of Judge Anzilotti in the Austro-German Customs Union advisory opinion, PCIJ, Ser.A/B, No.41, pp. 57-58 (1931). 35 On the disjunction between formal and actual independence in the context of Statehood, see Crawford, J., The Creation of States in International Law (Clarendon Press: Oxford: 2006, 2nd Edn.), pp. 62-89. 36 East Timor case (Portugal v. Australia), ICJ Rep, 1995, 90 at p. 102, para. 29. 37 Legal consequences of the construction of a wall in the occupied Palestinian territory advisory opinion, 9 July 2004: text available on the website of the International Court of Justice: <www.icj-cij.org>, and also as UN Doc.A/ES-10/273 (13 July 2004), and at 43 International Legal Materials 1009 (2004).
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 11 the right of self-determination, ruling that this had also been recognised by Israel.38 The Court further held that self-determination was a right erga omnes, whose realisation all U.N. Member States, by virtue of General Assembly resolution 2625 (XXV) (24 October 1970),39 as well as all States parties to the U.N. Covenants on Human Rights by virtue of common Article 1 of these Covenants, had the duty to promote.40 Further, as Roberts notes, the “essential feature of the ending of an occupation is often, though not always, an act of self-determination”, although he cautions that this cannot be “the sole decisive criterion for determining when an occupation ends”.41 Self-determination has had a direct influence on specific treaty provisions that unequivocally form part of international humanitarian law per se. This is particularly true of 1977 Additional Protocol I:42 self-determination provided an important part of the substantive normative backdrop to the negotiation of this instrument. Before the convening of the Diplomatic Conference that led to the conclusion of Additional Protocol I, the General Assembly adopted resolution 3103 (XXVIII) (12 December 1973), which was entitled Basic principles of the legal status of the combatants struggling against colonial and alien domination and racist régimes. This recalled in its penultimate preambular paragraph that there was a “need for the elaboration of additional international instruments and norms envisaging, inter alia, the increase of the protection of persons struggling for freedom against colonial and alien domination and racist régimes”. The fourth preambular paragraph reaffirmed that such struggles were undertaken in exercise of the right of self-determination. A consequence of the influence of self-determination on Additional Protocol I was the adoption of Article 1.4 which extended the definition of international armed conflict to encompass “armed conflicts in which peoples are fighting against colonial domination and alien occupation43 and against racist régimes in the exercise of their right of self-determination”. Wilson notes that this provision demonstrated widespread support for self-determination as an established legal right.44 Governments which opposed or abstained in the vote 38 Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004), pp. 1041-1042, para.118. 39 In the Nicaragua case, the International Court ruled that resolution 2625 expressed rules of customary international law – see Military and paramilitary activities in and against Nicaragua case: merits judgment (Nicaragua v. United States), ICJ Rep, 1986, 14 at pp. 99-100, para.188: see also Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004), p. 1034, para.87. 40 Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004) 1034, para. 88: see also, p. 1053, paras. 155-156. 41 Roberts, above n. 26, p. 8. 42 1977 Protocol I Additional to the Geneva Conventions of 12 August 1949: Israel is not a party to this treaty, although a number of its provisions express customary international law. 43 Sandoz, above n. 30, p. 54 notes: “The expression ‘alien occupation’ in the sense of this paragraph – as distinct from belligerent occupation in the traditional sense of all or part of the territory of one State being occupied by another State – covers cases of partial or total occupation of a territory which has not yet been fully formed as a State.” Notes omitted: see also Cassese, A., Self-determination of Peoples: a Legal Reappraisal (Cambridge U.P.: Cambridge: 1995), 90 et seq. 44 Wilson, H., International Law and the Use of Force by National Liberation Movements (Clarendon Press: Oxford: 1988), pp. 77-78.
Articles
12
on Article 1.445 did so because they thought that the criteria it employed were arbitrary and subjective, and feared that it would lead to an unequal and partial application of international humanitarian law. No delegation argued that the use of force in pursuit of self-determination was, in itself, illegitimate.46 Accordingly, self-determination has been recognised as a relevant factor in international humanitarian law, but its constituent treaties do not determine its consequences, if any, in the termination of an occupation. This is a matter which must be determined by examining the import, contours and interrelationship of the doctrines in issue: The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. The law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.47
5 EFFECTIVE CONTROL – THE TRADITIONAL DOCTRINE Article 42 of the Hague Regulations provides that territory is occupied when it is actually under the authority of the adversary, but that occupation extends only to the territory where that authority “has been established and can be exercised”. As Oppenheim-Lauterpacht observes, this definition “is not at all precise” but that when an occupant is able to assert authority over territory “it matters not with what means, and in what ways, his authority is exercised”.48 The test is one of effective control, but the conditions by which this is established varies with the nature of the territory. An occupant need only deploy troops strategically to occupy a larger area:49 for occupation of an area it is not necessary to keep troops permanently stationed throughout that area. It is sufficient that the national forces have withdrawn, that the inhabitants have been disarmed, that measures have been taken to protect life and property and to secure order, and that troops are available, if necessary to enforce authority in the area.50 45 Article 1.4 was adopted by 87 votes to 1, with 11 abstentions – only Israel cast a negative vote: the abstaining States were Canada, Federal Republic of Germany, France, Guatemala, Ireland, Italy, Japan, Monaco, Spain, the United Kingdom, and the United States – see Wilson, above n. 44, p. 165. 46 Wilson, above, n. 44, p. 128. 47 List trial, VIII Law Reports of Trials of War Criminals 34 (1949), p. 54. 48 Oppenheim-Lauterpacht, above, n. 21, p. 435. 49 See, e.g. Lein, above, n. 12, p. 74; Oppenheim-Lauterpacht, above, n. 21, p. 435; and also the separate opinion of Judge Kooijmans in the Armed activities on the territory of the Congo case, Democratic Republic of the Congo v. Uganda, 19 December 2005, available on the International Court’s website: <www.icj-cij.org>, and at 45 International Legal Materials 353 (2006), p. 360, paras.42-49: compare the judgment of the Court, ibid, pp. 310-311, paras.172-179. 50 U.K. Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford U.P.: Oxford: 2004), p. 276, para. 11.3.2.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 13 As Benvenisti notes, however, although an occupant has the legal duty to establish an administration of territory it occupies, today this “is the rare exception rather than the rule”.51 Thus, in the Armed activities on the territory of the Congo case, Judge Kooijmans noted in his separate opinion: Occupants feel more and more inclined to make use of arrangements where authority is said to be exercised by transitional governments or rebel movements or where the occupant simply refrains from establishing an administrative system.52
Further, as the U.S. Military Tribunal held in the List case, when considering the effect of resistance to occupation: While it is true that the partisans were able to control sections of these countries [Greece, Yugoslavia and Norway] at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country. The control of the resistance forces was temporary only and did not deprive the German Armed Forces of its status of an occupant.53 Similarly, in the Tselem case, which was heard before the Israel High Court and dealt with the internment of individuals by the IDF in Southern Lebanon in 1982, Justice Shamgar ruled that the application of the laws of war, including Geneva Convention IV, to an occupied area was not dependent on the existence of a durable belligerent occupation or the creation of a military administration in the area,54 but rather: One of the tests is whether the military forces are capable of entering into the shoes of the previous governing bodies, and not just that they did so in practice...Applicability of the third chapter of the Hague Regulations and applicability of the comparable provisions of the Fourth [Geneva] Convention are not dependent on the existence of a special organized system that takes the form of a military government. The duties and powers of the military forces, resulting from effective occupation of a particular territory, arise and are created as a result of military control of the territory, that is, even if the military forces maintain control only by means of regular combat units, without having a special military framework for the [military] government’s needs.55
This ruling is supported by the judgment of the International Court in the Armed activities in the Congo (D.R.C. v. Uganda) case. The Court ruled that a Ugandan occupation of Congolese territory would be established if its forces “had substituted their own authority for that of the Congolese Government”, and it would be irrelevant “whether or not Uganda had established a structured military administration of the territory occupied”.56 51 Benvenisti, E., The International Law of Occupation (Princeton U.P.: Princeton: 1993) pp. 4-5: see also, U.K. Manual, above, n. 50, p. 276, para. 11.3.1; Prosecutor v. Tadi?, Case No. IT-94-1-T (trial judgment, 7 May 1997): <www.un.org/icty/tadic/trialc2/judgement/tad-tsj70507JT2e.pdf> pp. 204-205, para.584; and Prosecutor v. Blaški, Case No. IT-95-14-T (trial judgment 3 March 2000): <www.un.org/icty/blaskic/trialc1/judgement/bla-tj000303e.pdf> p. 51, para. 149. 52 45 International Legal Materials 271 (2006), 353 at p. 359, para. 41. 53 VIII Law Reports of Trials of War Crimes Trials 34 (1949), p. 56. 54 13 Israel Yearbook on Human Rights 318 (1983), p. 363. 55 Tselem judgment, as translated and quoted in Lein, above, n. 12, pp. 73-74. 56 45 International Legal Materials 271 (2006), p. 310, para.173.
Articles
14
The view that effective occupation could lie in the capacity to assert control was also affirmed by the Yugoslav Tribunal in Prosecutor v Naletili and Martinovi where it ruled that one of the guidelines to determine whether an occupation was established was whether “the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt”.57 Indeed, there is arguably even some authority that occupation can arise when a threat of force is followed by capitulation: It is not necessary to discuss here the question whether Germany was technically a belligerent power at all in relation to Czechoslovakia when control was assumed by the former country without any armed resistance on the part of the latter. If submission by the victim to a threat of immediate invasion relieves the other party of the character of a belligerent, the case for the application in our Courts of the same rules as to the consequences of control would appear to be an a fortiori one.58
Probably little weight should now be placed on this ruling, as the situation it envisages was subsequently expressly regulated by Article 2.2 of Geneva Convention IV, which provides that the Convention applies to all instances of the partial or total occupation of the territory of a High Contracting Party, even if this “meets with no armed resistance”.59 Nevertheless, the authorities are agreed that occupation can be established and maintained when the occupant has the capacity to exert control over territory. Once established, does this require a physical presence on the ground, or can an occupation be maintained by other means?
6 EFFECTIVE CONTROL AND THE CHANGED NATURE OF WARFARE When the Hague Regulations were adopted in 1907, aerial warfare was (at most) rudimentary, although Article 25 prohibited the attack or bombardment of undefended towns, villages, dwellings and buildings “by whatever means”. This phrase was intended to encompass aerial warfare. On the same day the Conference adopted its various Conventions, 18 October 1907,60 it also adopted Declaration XIV prohibiting the Discharge of Projectiles and Explosives from Balloons. This prohibited “the discharge of projectiles and explosives from balloons or by other new methods of a similar nature”. Although technically still in force, this Declaration has few parties and has been rendered obsolete by subsequent practice.
57 Prosecutor v. Naletili and Martinovi: <www.un.org/icty/naletilic/trialc/judgement/nal-tj030331e.pdf>, p. 74, para. 217. 58 Anglo-Czechoslovak and Prague Credit Bank v. Janssen (Australia: Supreme Court of Victoria, 1943), 1943-45 Annual Digest 43, p. 47. 59 On the interpretation of this provision, see Pictet, above, n. 22, pp. 21-22. 60 The Wright brothers’ first flight of 39 metres, which lasted 12 seconds at an altitude of just over 3 metres, took place on 17 December 1907.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 15 Oppenheim-Lauterpacht indicates that international law is indifferent as to the manner by which authority is exercised over occupied territory,61 and von Glahn thinks it at least theoretically possible that an occupation may be maintained through the control of the adversary’s airspace.62 Bruderlein, on the other hand, argues that land-based forces are indispensable for an occupation, which cannot be created by an adversary’s control of airspace or maritime zones.63 There is some virtue in Bruderlein’s claim; he correctly notes that the no-fly zone over southern Iraq64 did not amount to belligerent occupation, but should there not be a difference between the creation of an occupation and its subsequent maintenance? If, once an occupation is established, effective control lies in the capacity to make the authority of the occupying power felt within a reasonable time or, in the words of Israel’s High Court, to “maintain control only by means of regular combat units”, then is there any reason why this should not be done through aerial warfare? Indeed, the importance of air power was stressed by Major General Amos Yadlin in 2004 after he became head of Israeli military intelligence. An Israeli air force officer, he stated: Our vision of air control zeroes in on the notion of control. We’re looking at how you control a city or a territory from the air when it’s no longer legitimate to hold or occupy that territory on the ground.65
Further, at least in the circumstances of Gaza, only to consider Israel’s withdrawal of ground troops and continued control of its airspace in isolation is to ignore the wider context.
7 EFFECTIVE CONTROL AND GAZA – THE WIDER CONTEXT Apart from the military method by which effective control may be exercised and Israel’s enforcement of its “security envelope” around Gaza – its control of terrestrial borders, whether as principal or through the agency of Egypt and the E.U.’s Border Assistance Mission, and of Gaza’s maritime zones and airspace – other issues are relevant to determine whether Gaza remained occupied after implementation of the Disengagement Plan. An assessment of these issues must proceed at two distinct normative levels. General international law is relevant to the analysis of the situation not simply for Israel and Palestine but, importantly, also for third States. Equally pertinent, however, are the specific bilateral obligations assumed by Israel and Palestine 61 62 63 64
Oppenheim-Lauterpacht, above, n. 21, p. 35. von Glahn, above, n. 16, pp. 28-29. Bruderlein, above, n. 11, p. 9. For an account, see Malone, D.M., The International Struggle over Iraq: Politics in the U.N. Security Council 1980-2005 (Oxford U.P.: Oxford: 2006) 97-101; and also Schmitt, M.N., Clipped wings: effective and legal no-fly zone rules of engagement, 20 Loyola LA International and Comparative Law Journal 727 (1997-98). 65 Quoted in Li, D., The Gaza Strip as laboratory: notes in the wake of disengagement, 35 Journal of Palestine Studies 38 (2006), p. 48.
16
Articles
as a result of the instruments adopted during the Oslo process.66 The 1969 Vienna Convention on the Law of Treaties does not govern the Oslo instruments because one of the parties, the Palestine Liberation Organisation, is not a State. The Vienna Convention consciously adopted a restricted definition of treaties for its purposes, reflected in Article 1 which expressly provides: “The present Convention applies to treaties between States.”67 Further, Article 2.1.a defines a treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”. Article 3 of the Vienna Convention, however, provides that the Convention does not prejudice the legal force of “international agreements concluded between States and other subjects of international law”, nor the application to them of rules contained in the Convention which have customary status.68 On the basis of customary law, Watson convincingly argues that the Oslo instruments are binding bilateral treaties.69 Further, neither Israel nor Palestine has claimed that the 1995 Israel-Palestine Liberation Organisation Interim Agreement, in particular, has terminated as the result of the operation of the customary law of treaties following alleged material breach or by the operation of the clasula rebus sic stantibus.70 Indeed, Section 1 (Political and Security Implications) Principle Seven of the Disengagement Plan expressly contemplates the continued applicability of these instruments: The process set forth in the plan is without prejudice to the relevant agreements between the State of Israel and the Palestinians. Relevant arrangements shall continue to apply.
66 Principally, the 1993 Israel-Palestine Liberation Organisation Declaration of Principles on Interim Self-Government Arrangements, 32 International Legal Materials 1525 (1993); 1994 Israel-Palestine Liberation Organisation Agreement on the Gaza Strip and Jericho Area, 33 ibid 622 (1994); 1995 Israel-Palestine Liberation Organisation Interim Agreement on Implementation of the Declaration of Principles, 36 ibid 551 (1997); 1997 Israel-Palestine Liberation Organisation Protocol concerning the Redeployment in Hebron, 36 ibid 650 (1997); 1998 Israel-Palestine Liberation Organisation Wye River Memorandum, 37 ibid 1251 (1998); and 1999 Israel-Palestine Liberation Organisation Sharm el-Sheikh Memorandum on Implementation Timeline of Outstanding Commitments Signed and the Resumption of Permanent Status Negotiations, 38 ibid 1465 (1999). 67 See the Final Draft Articles and Commentary on the Law of Treaties adopted by the International Law Commission in 1966, reproduced Watts, A., The International Law Commission 1949-1998 (Oxford U.P.: Oxford: 1999), Volume II, p. 619, Commentary to draft Article 1, para. 2. 68 See Commentary to draft Article 3, Watts, above, n. 67, pp. 626-627. 69 See Watson, G.R., The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements (Oxford U.P.: Oxford: 2000) pp. 57-102, and his The “wall” decisions in legal and political context, 99 American Journal of International Law 6 (2005), pp. 22-24: see also Benvenisti, E., The Israeli-Palestinian Declaration of Principles: a framework for future settlement, 4 European Journal of International Law 542 (1993); but compare Sabel, R., Review of Watson’s “The Oslo Accords”, 95 American Journal of International Law 248 (2001), pp. 249-251. 70 See, e.g. Watson, above, n. 69 (Wall decisions), p. 23.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 17 Nevertheless, the implementation of the Disengagement Plan expressly contemplates a unilateral change by Israel of the legal status of Gaza – “the State of Israel is required to initiate moves not dependent on Palestinian cooperation”71 – which, as Principle Six states, aims to “dispel the claims regarding Israel’s responsibility for the Palestinians within the Gaza Strip”. A belligerent occupant bears duties in relation to the territory and its people; for instance, under Article 43 of the Hague Regulations, the duty to maintain public order within the territory, and under Articles 55 and 56 of 1949 Geneva Convention IV, the duties of ensuring that food and medical supplies are available to the population and of ensuring and maintaining public health and hygiene within the territory “to the fullest extent of the means available to it”. As implementation of the Revised Disengagement Plan aimed to divest Israel of these and its other responsibilities, Principles Six and Seven are surely contradictory. For instance, Article XXXI.7 of the 1995 Israel-Palestine Liberation Organisation Interim Agreement on the West Bank and the Gaza Strip, which was re-affirmed in Article V of the Wye River Memorandum,72 provides: Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.
If Principle Six envisages a unilateral change effected by Israel in the status of Gaza, then this entails a breach of Article XXXI.7. It is difficult to see what guarantee against prejudice Principle Seven may afford in this eventuality.73 Crawford comments that the Oslo instr uments “are remarkably unforthcoming on issues of status, no doubt because of fundamental disagreements between the parties”.74 That Israel did not relinquish authority within the Occupied Territories is clear from the provisions of the 1995 Interim Agreement which established and yet simultaneously circumscribed the powers of the Palestinian Interim Self-Government Authority (styled “the Council” in the Agreement). Pending its creation, these powers are to be exercised by the
71 Revised Disengagement Plan, Section 1 (Political and Security Implications), Principle One. 72 The Israeli Cabinet approved the Wye River Memorandum on 11 November 1998. This decision is available at: <www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ Government+Decision+on+the+Wye+River+Memorandum+N.htm>. It is worth noting that paragraph 8 of this decision provided: “The government asserts that a unilateral declaration by the Palestinian Authority on the establishment of a Palestinian state, prior to the achievement of a Final Status Agreement, would constitute a substantive and fundamental violation of the Interim Agreement. In the event of such a violation, the government would consider itself entitled to take all necessary steps, including the application of Israeli rule, law and administration to settlement areas and security areas in Judea, Samaria and Gaza as it sees fit. Israel reiterates its position, in accordance with the Agreement with the Palestinian Authority, that the final status must be the result of free negotiations between the parties without the implementation of unilateral steps which will change the status of the area.” For commentary on this, see Crawford, above, n. 35, p. 445. 73 It should also be recalled that Section 1 (Political and Security Implications), Principle Three envisages the maintenance of settlements in the West Bank and thus contradicts, e.g. Interim Agreement Article XXXI.5 which expressly reserves the question of settlements for the permanent status negotiations. 74 Crawford, above, n.35, p. 433.
18
Articles
Palestinian Authority.75 In implementing the 1993 Declaration of Principles, the 1995 Interim Agreement did not transfer sovereignty to the PLO but simply created a temporary régime until the outcome of the final status negotiations.76 This is clear at the outset of the Interim Agreement, as Article I.1 provides: Israel shall transfer powers and responsibilities as specified in this Agreement from the Israeli military government and its Civil Administration to the Council in accordance with this Agreement. Israel shall continue to exercise powers and responsibilities not so transferred.
Article III.6 restricts the jurisdiction of the Council to those matters specified in Article XVII. In principle, the Council’s jurisdiction is specified in Article XVII.1: In accordance with the [Declaration of Principles], the jurisdiction of the Council will cover West Bank and Gaza Strip territory as a single territorial unit, except for: (a) issues that will be negotiated in the permanent status negotiations: Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis: and (b) powers and responsibilities not transferred to the Council.
In relation to paragraph (a), Crawford points out that although this ostensibly defines the jurisdiction of the Palestinian Authority in “normal territorial terms”, in practical effect its competence is restricted to “jurisdiction over Palestinians (and visitors)”.77 Further, Article XVIII.2 restricts the legislative power of the Council to matters over which it has jurisdiction, subject to the exigencies of paragraph 4.a: Legislation, including legislation which amends or abrogates existing laws or military orders, which exceeds the jurisdiction of the Council or which is otherwise inconsistent with the provisions of the [Declaration of Principles], this Agreement, or of any other agreement that may be reached between the two sides during the interim period, shall have no effect and shall be void ab initio.
These provisions clearly demonstrate that the Palestinian Authority does not possess the exclusive governmental powers which are characteristic of sovereignty. One can only concur with the opinion of a former Legal Adviser to the Israeli Ministry of Foreign Affairs that, under the Declaration of Principles and thus throughout the interim period, “the Palestinian Council will not be independent or sovereign in nature”. Moreover:
75 1995 Interim Agreement, Article I.2 provides: “Pending the inauguration of the Council, the powers and responsibilities transferred to the Council shall be exercised by the Palestinian Authority established in accordance with the Gaza-Jericho Agreement, which shall also have all the rights, liabilities and obligations to be assumed by the Council in this regard. Accordingly, the term ‘Council’ throughout this Agreement shall, pending the inauguration of the Council, be construed as meaning the Palestinian Authority.” 76 On the status and powers of the Palestinian Authority under the Interim Agreement, see Dajani, O.M., Stalled between seasons: the international legal status of Palestine during the interim period, 26 Denver Journal of International Law and Policy 27 (1997), pp. 60-74. 77 Crawford, above, n. 35, p. 444.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 19 the military government will continue to be the source of authority for the Palestinian Council and the powers and responsibilities exercised by it in the West Bank and Gaza Strip.78
Of particular note is the retention by Israel of competence over foreign relations by virtue of Articles IX.5 and XVII.1.a. Singer argued that this was crucial in denying Statehood to the Palestinian entity pending the outcome of the final status negotiations.79 Consequently, the Palestinian Authority – “an interim local government body with restricted powers”80 – may best be seen as an administration to which the occupant has devolved competence. The drafters of Geneva Convention IV had envisaged that this could occur during a prolonged occupation, without terminating that occupation.81 As Bruderlein notes, the end of occupation requires the termination of the military control of the Occupying Power over the governmental affairs of the occupied population that limits that people’s right to self-determination.82 This resonates with Judge Huber’s definition of independence in the Island of Palmas case, namely “the right to exercise therein, to the exclusion of any other State, the functions of a State”.83 Obviously occupation turns this on its head, as occupation lies in the exclusion of the right of the territorial sovereign to exercise power on its territory. Thus, for instance, in his separate opinion in the Armed activities on the territory of the Congo case, Judge Kooijmans quoted with approval from the United States’ Manual on the Law of Land Warfare: occupation presupposes a hostile invasion, resisted or un-resisted, as a result of which the invader has rendered the invaded government incapable of exercising its authority, and [secondly] that the invader is in a position to substitute its own authority for that of the former government.84
Given the restrictions on the powers of the Palestinian Authority in the Interim Agreement, if Principle Seven of the Disengagement Plan is to be taken at face value in its avowal that “the plan is without prejudice to the relevant 78 Singer, J., The Declaration of Principles on Interim Self-Government Arrangements: some legal aspects: , on file with author. This article was also published by the International Association of Jewish Lawyers and Jurists in 1 Justice 4 (1994). 79 See Singer, J., Aspects of foreign relations under the Israeli-Palestinian Agreements on interim selfgovernment arrangements for the West Bank and Gaza, 26 Israel Law Review 268 (1994), pp. 269273. 80 Crawford, above, n. 35, p. 444. 81 See Pictet, above, n. 22, pp. 62-63, and pp. 272-276. As Dajani notes, above, n.76, pp. 77-78, there is a presumption against the creation of a new State on a territory under belligerent occupation. These are generally seen as puppet States which lack independence. See also Crawford, above, n. 35, pp. 78-83 and pp. 156-157; and Marek, K., Identity and Continuity of States in Public International Law (Droz: Geneva: 1968, 2nd Edn.), pp. 110-120. Dajani (at pp. 90-91) argues that separation between the PLO and Palestinian Authority preserves Palestinian negotiators’ independence from Israel, and thus avoids the application of this presumption. 82 Bruderlein, above, n. 11, p. 1. 83 Island of Palmas case (United States/Netherlands, 1928), 2 Reports of International Arbitral Awards 829, p. 838. 84 Separate opinion of Judge Kooijmans, 45 International Legal Materials (2006) p. 360, para. 45.
Articles
20
agreements”, then the Plan contains an intractable contradiction. It cannot both efface Israel’s responsibilities for Gaza and yet maintain the legal integrity of the Oslo instruments. If, however, implementation of the Disengagement Plan were to amount to a unilateral termination of occupation, all other things being equal, breach of treaty probably would not be fatal to an Israeli claim that it had successfully divested itself of responsibility for Gaza’s population, even although this had been effected unlawfully in a manner which engaged Israel’s responsibility. The legal consequences of breach of the Interim Agreement would, however, in principle only be relevant in the bilateral relations between Israel and Palestine. Palestine could choose either to pursue remedies available under Article XXI of the Interim Agreement,85 or simply disregard the breach. For third States (and international organisations), breach of a bilateral agreement is a res inter alios acta in which they have no legal interest, and which entails no mandatory legal consequences for them.
8 TERMINATION OF OCCUPATION – A NEW NORMATIVITY? Israel’s obligations towards Gaza are not delimited solely by the law of occupation and the bilateral Olso instruments, but also by general international law.86 It may be recalled that in the Legal consequences of a wall Advisory Opinion, the International Court of Justice authoritatively affirmed the entitlement of the Palestinian people to the right of self-determination, ruling that this had been recognised by Israel,87 and moreover was a right erga omnes whose realisation all U.N. Member States had the duty to promote.88 Disengagement concerns a possible change in the international status of territory. Given its status as an “essential principle” of contemporary international law, the principle of self-determination must play a significant role in the legal appraisal of disengagement, particularly in evaluating the implications for third States and international organisations.
85 Article XXI (Settlement of differences and disputes) provides: “Any difference relating to the application of this Agreement shall be referred to the appropriate coordination and cooperation mechanism established under this Agreement. The provisions of Article XV of the [Declaration of Principles] shall apply to any such difference which is not settled through the appropriate coordination and cooperation mechanism, namely: 1. Disputes arising out of the application or interpretation of this Agreement or any related agreements pertaining to the interim period shall be settled through the Liaison Committee; 2. Disputes which cannot be settled by negotiations may be settled by a mechanism of conciliation to be agreed between the Parties. 3. The Parties may agree to submit to arbitration disputes relating to the interim period, which cannot be settled through conciliation. To this end, upon the agreement of both Parties, the Parties will establish an Arbitration Committee.” 86 See Crawford, above, n. 35, pp. 448, n. 286. 87 43 International Legal Materials (2004), pp. 1041-1042, para. 118. 88 43 International Legal Materials (2004), pp. 1034, para. 88: see also, p. 1053, paras.155-156.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 21 The International Law Commission’s exegesis of the Court’s jurisprudence argues that self-determination is not simply an obligation erga omnes which all States must respect, but also that it has ius cogens status. In other words, that it is peremptory – States cannot derogate from its exigencies in their international relations.89 Doctrine affirms that there is a conceptual connection between the two categories of obligations erga omnes and ius cogens norms, but does not conclusively affirm their coincidence.90 De Hoogh underlines that obligations erga omnes are essentially connected with remedies available to States following a breach of international law, whereas the notion of ius cogens norms places emphasis on their substantive content.91 When considering the impact of selfdetermination on the law of occupation, the issue is that of the influence of its substantive content – in particular all States’ duty to promote respect for and realisation of this right – rather than the remedies to which they may have recourse following a denial of self-determination. Termination of occupation, to be legally effective, must be in conformity with the requirements of self-determination. This is a matter of concern to all States. If the exigencies of self-determination are disregarded, then this breach of self-determination can only entail a duty for States of non-recognition of the illegal situation thus created, as well as a duty not to render aid or assistance in maintaining that illegal situation.92 Nor would States be absolved of their duty to promote, through joint and separate action, the actual realisation of the right of the people entitled to self-determination.93 In the Legal consequences of a wall Advisory Opinion, the Court’s elucidation of the implications of the Palestinian people’s right to self-determination is rather terse and couched abstractly. This attracted criticism from within the Court itself. For instance, while endorsing the Court’s affirmation of the Palestinian people’s right to self-determination, Judge Higgins thought it “quite detached from reality for the Court to find that it is the wall that presents a ‘serious impediment’ to the exercise of this right”.94 Nevertheless, elsewhere
89 International Law Commission, Report of the work of the 53rd session, U.N. Doc.A/56/10, Commentary to Article 40 of its 2001 Articles on Responsibility of States for Internationally Wrongful Acts, ibid 282 at p. 284, para. 5: reproduced at: , and also, Crawford, J, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge U.P.: Cambridge: 2002), pp. 246247. 90 See, for instance, de Hoogh, A., Obligations Erga Omnes and International Crimes (Kluwer: The Hague: 1996), pp. 53-56, p. 91; and Ragazzi, M., The Concept of International Obligations Erga Omnes (Clarendon Press: Oxford: 1997), Chapter Three, p. 182 and p. 190. See also, Scobbie, I., Unchart(er)ed waters?: consequences of the advisory opinion on the legal consequences of the construction of a wall in the Occupied Palestinian Territory for the responsibility of the UN for Palestine, 16 European Journal of International Law 941 (2005), pp. 949-952. 91 de Hoogh, above, n. 90, p. 53: compare Ragazzi, above, n. 90, p. 203 et seq. 92 Compare Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004) p. 1053, para. 159. 93 Compare Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004), p. 1034, para.88 and p. 1053, para. 156. 94 Legal consequences of a wall Advisory Opinion, separate opinion of Judge Higgins, 43 International Legal Materials 1058 (2004), pp. 1062-1063, para. 30: see pp. 1062-1063, paras. 28-31.
Articles
22
and also in the context of an argument on self-determination, Judge Higgins cautioned against: the pursuance of a policy of legal deconstructionism – the systematic attempt to empty everything of all substance and meaning. Resolutions must be shown to say nothing. Findings must be shown not to have been made. The substantive rights of others must be shown to amount to nothing more than United Nations procedures that may or may not be invoked, but which have no objective existence of their own.95
The question is therefore that of identifying the content of self-determination – the aspects of the “objective existence” of this right – relevant to the termination of occupation. Like many legal concepts, self-determination designates a core content and an associated, yet integral, bundle of rights and duties. The core content is clear: all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.96
Further: The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.97
Following Drew’s analysis,98 self-determination has two distinct vectors. The classic formulation of its core content emphasises self-determination as process – the right freely to determine a political status – but this entails that selfdetermination must have a substantive content: the right to a process does not exhaust the content of the right of self-determination under international law. To confer on a people the right of “free choice” in the absence of more substantive entitlements – to territory, natural resources, etc – would simply be meaningless. Clearly, the right of self-determination cannot be exercised in a substantive vacuum. This is both explicit and implicit in the law. For example, implicit in any recognition of a people’s right to self-determination is recognition of the legitimacy of that people’s claim to a particular territory and/or set of resources...[T]he following can be deduced as a non-exhaustive list of the substantive entitlements conferred on a people by virtue of the law of selfdetermination...: (a) the right to exist – demographically and territorially – as a
95 Professor Higgins, advocate for Portugal, East Timor case (Portugal v. Australia), Pleadings, CR.1995/13 (13 February 1995), p. 8, para. 1. 96 General Assembly resolution 2625 (XXV) (24 October 1970), Declaration on principles of international law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations: affirmed Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004), pp. 1034-1035, paras. 88-89. 97 General Assembly resolution 2625. 98 Drew C, The East Timor story: international law on trial, 12 European Journal of International Law 651 (2001).
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 23 people; (b) the right to territorial integrity; (c) the right to permanent sovereignty over natural resources; (d) the right to cultural integrity and development; and (e) the right to economic and social development.99
In connection with the Israeli planned withdrawal from Gaza, two aspects of self-determination take on particular importance: the exercise of the process, of the free determination by the Palestinian people of its political status; and the substantive issue of the integrity of the self-determination unit. Drew notes that: Despite its text book characterization as part of human rights law, the law of selfdetermination has always been bound up more with notions of sovereignty and title to territory that what we traditionally consider to be “human rights”.100
This uncontroversial view also found expression in Palestine’s written statement to the International Court during the Legal consequences of a wall Advisory Opinion proceedings. Palestine repeatedly spoke of “the territorial sphere over which the Palestinian people are entitled to exercise their right of selfdetermination”.101 Similarly, in the East Timor case proceedings, Portugal underlined that selfdetermination has a territorial basis, and that its exercise simultaneously decides both the destination of the people and of the territory. Portugal described the relationship between the people and the territory as a “principle of individuality”. This entails that the territory which is the basis of the right is legally distinct from any other territory and, moreover, is entitled to territorial integrity. It forms a single unit which must not be dismembered. Further: un territoire qui constitute l’assise du droit d’un peuple á disposer de lui même...ne peut changer de statut juridique que par un acte d’autodétermination de ce peuple. La Résolution 1541 du 17 décembre 1960 de l’Assémblée générale précise bien cette norme.102
Leaving to one side East Jerusalem, which Israel has purported to annex despite the protests of other States and the United Nations that this is illegal,103 Israel and the Palestine Liberation Organisation have agreed that the West Bank 99
100 101 102 103
Drew, above, n. 98, p. 663: paragraph break suppressed and notes omitted: for a similar affirmation of a substantive core content of self-determination, see Orakhelashvili, A., The impact of peremptory norms on the interpretation and application of United Nations Security Council resolutions, 16 European Journal of International Law 59 (2005), p. 64. Drew, above, n. 98, p. 663. See, e.g. Legal consequences of a wall Advisory Opinion Pleadings, Palestine Written Statement, p. 239, para. 548 and p. 240, para. 549. East Timor Pleadings, Portuguese Memorial (18 November 1991), p. 195, para. 7.01: emphasis suppressed in quotation. See also Legal consequences of a wall Advisory Opinion Pleadings, League of Arab States Written Statement, p. 62, para. 8.2 and p. 76, para. 8.28. For instance, for the views of the European Union, see, e.g. Marston, G. (ed.), United Kingdom materials on international law, 61 British Yearbook of International Law 463 (1990) p. 624; ibid, 62 British Yearbook 535 (1991), pp. 696, 697; and ibid, 64 British Yearbook 615 (1993), p. 724; for the United States’ view, see 1976 United States practice in international law, p. 634, and for a consensus statement issued by the Security Council on 12 November 1976, see ibid, 711 at p. 712; see also, in particular, Security Council resolutions 476 (30 June 1980) and 478 (20 August 1980), and the review of Security Council action at Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004), p. 1031, para. 75.
24
Articles
and Gaza form “a single territorial unit” whose integrity is to be preserved pending the conclusion of permanent status negotiations.104 Consonant with the International Court’s finding that the Interim Agreement affirmed the Palestinian people’s right to self-determination,105 this simply records the status and integrity of the West Bank and Gaza as a single self-determination unit, upon which the Palestinian people are entitled to exercise that right. Further, relying on the Interim Agreement, the Israel High Court has affirmed Israel’s recognition of the unity of the West Bank and Gaza as a single territorial unit.106 In the case of withdrawal from Gaza, two aspects of self-determination assume fundamental importance: the substantive aspect of the territorial integrity of the self-determination unit; and the process aspect of the free expression of the will of the Palestinian people. As Portugal declared in the East Timor case proceedings, the fundamental idea that dominates the exercise of the right of self-determination is that of freedom of choice: au sens où le choix accompli par la population concernée doit s’être effectué en l’absence de toute contrainte extérieure, notamment militaire.107
A situation imposed unilaterally by an occupant involves no choice on the part of the population entitled to self-determination, and thus cannot under any circumstances be considered as an exercise of that right. This does not obser ve – indeed it brazenly disregards – the process aspect of selfdetermination, and consequently cannot change the status of the territory in question. As Australia affirmed during the East Timor case proceedings, a State will: breach the obligation to respect the right of a people to self-determination if its conduct prevents or hinders the exercise by the people of a non-self-governing territory of their right freely to determine their future political status.108
Consequently, any claim that the international status of Gaza may be changed by virtue of unilateral action undertaken by Israel which does not take into account the free choice of the indigenous population is manifestly a breach of self-determination, in addition to a breach of the provisions of the Interim Agreement. 104 See the 1993 Declaration of Principles on Interim Self-Government Arrangements, Article IV; and the 1995 Washington Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Article XI.1: for commentary, see Shehadeh, R., From occupation to Interim Accords: Israel and the Palestinian Territories (Kluwer: London: 1997), pp. 35-37. The question of Jerusalem is, of course, a matter reserved for the permanent status negotiations, see the Agreed minutes to the Declaration of Principles on Interim SelfGovernment Arrangements, Understanding in relation to Article IV; and 1995 Interim Agreement, Articles XVII.1 and XXXI.5. 105 Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004), pp. 1041-1042, para.118. 106 Ajuri v. IDF Commander, HCJ 7015/02 (3 September 2002), [2002] IsrLR 1, opinion of President Barak, pp. 17-18, para. 22. See also Lein, above n. 12, pp. 20-21, who notes, inter alia, that Israel incorporated the Interim Agreement in its entirety into its military legislation in both the West Bank and Gaza, and that this legislation has not been revoked. 107 East Timor Pleadings, Portuguese Memorial, p. 91, para. 4.22. 108 East Timor Pleadings, Australian Counter-Memorial (1 June 1992), p. 167, para. 375.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 25 To evaluate the self-determination issues that might be implicated in Israel’s withdrawal by concentrating solely on Gaza is, however, to adopt too narrow a focus. To note that no self-determination process has taken place in Gaza is to consider only the procedural aspect of the right: it fails to consider its substantive content. One substantive aspect is decisive in evaluating the disengagement plan: the population of Gaza alone cannot exercise a right of self-determination. It possesses no such right: in the case of Palestine, that right belongs to the population of the territorial self-determination unit as a whole which comprises the West Bank (including occupied East Jerusalem) as well as Gaza. The territorial integrity of a self-determination unit109 cannot be disrupted, particularly by a belligerent occupant: If an occupant controlled only part of a state and that part was not considered to be a distinct unit entitled to self-determination, the occupant would not be entitled to effect the secession of the occupied area (as in Northern Cyprus). Similar considerations imply that the occupant would not be entitled to establish a new government in such a region even if its inhabitants supported such an act.110
Whether one considers either the process aspect of self-determination, or the substantive aspect of the occupant’s duty to maintain the integrity of the territory, Israel’s unilateral withdrawal – insofar as this aims to change the international status of Gaza – either fails to observe the requirements of the former, or threatens to breach the latter, or both.111 Accordingly, Israel’s withdrawal does not respect the right of the Palestinian people to selfdetermination and thus is in breach of international law, whether respect for self-determination is conceived of as an obligation erga omnes incumbent upon all States or as a peremptory norm. Within the compass of the law of selfdetermination, what consequences flow for the international legal status of Gaza after Israel’s withdrawal?
9 THE NORMATIVE CONSEQUENCES OF SELF-DETERMINATION If it is correct to conclude that Israel’s unilateral attempt to change the international status of Gaza is in breach of the Palestinian people’s right to self-determination, then other States have a duty not to endorse the result Israel seeks to achieve. Even if self-determination is regarded only as an obligation erga omnes, as opposed to a ius cogens norm, then its breach entails a 109 On the territorial integrity of self-determination units, albeit within the context of decolonisation, see, e.g. Cassese, above n. 43, p. 72 and pp. 78-79. 110 Benvenisti, above, n. 51, 183: see also, Roberts, above, n. 26, pp.28-29; and Sassòli, M., Article 43 of the Hague Regulations and peace operations in the twenty-first centur y: , 14. In the separate opinion he appended to the Legal consequences of a wall Advisory Opinion, Judge Koroma expressed this point more bluntly: “Under the régime of occupation, the division or partition of an occupied territory by the occupying Power is illegal”, 43 International Legal Materials 1056 (2004), p. 1057, para. 4. 111 As noted above, it will also be in breach of the obligation Israel assumed under Article XXXI.7 of the 1995 Interim Agreement.
26
Articles
duty of non-recognition for third States.112 Further, in its commentary on Article 6 of Geneva Convention IV regarding the conditions under which the Convention ceases to apply, the ICRC indicated that where a termination of occupation involves a change in the international status of the occupied territory: The Convention could only cease to apply as the result of a political act, such as the annexation of the territory or its incorporation in a federation, and then only if the political act in question had been recognized and accepted by the community of States; if it were not so recognized and accepted, the provisions of the Convention must continue to be applied.113
Non-recognition of any change in Gaza’s status is thus doubly mandated. This, however, is based on the assumption that Israel has withdrawn from Gaza and no longer exerts effective control over the discharge of governmental functions. If this is so, then at least an initial supposition must be that the exercise of sovereignty resides with the Palestinian Authority—that it has gained “the right to exercise...to the exclusion of any other State, the functions of a State”.114 As von Glahn observes, in all cases of the termination of belligerent occupation of enemy territory “it can be assumed that the legitimate sovereign will be in control of the territory in question as soon as the occupation ends”.115 Aronson saw this as a further complication in the post-withdrawal puzzle of Gaza’s status which he raised with “a senior member of Israel’s national security establishment”. Aronson thought that there were three possible solutions: Palestinian sovereignty; Egyptian rule; or some third-party administration. He was informed that there was a fourth option, “None of the above”: In other words, an acceptable scenario for Israel would be the continuation of the control and authority exercised by Palestinian institutions created by Israel and the PLO under the Oslo accords, but now expanded de facto by an end to occupation. Without the creation of a sovereign successor in the wake of Israel’s withdrawal, the Gaza Strip under this scenario would belong to no state (terra nullius). This is an extraordinary proposition.116
This indeed would be anomalous: international law prefers sovereignty over territory to rest somewhere or other, and preferably with a State. The principal contemporary exception of territory unclaimed by any State or putative State is Antarctica, but that is regulated by treaty, as indeed are the West Bank and Gaza by virtue of the Oslo instruments whose force and legal validity the Disengagement Plan avowedly preserves. Neither Egypt nor any third party have claimed rights of sovereignty or administration over Gaza following disengagement. It therefore must be considered whether withdrawal constitutes a devolution of authority to the
112 Legal consequences of a wall Advisory Opinion, 34 International Legal Materials (2004), p. 1053, para. 159. 113 Pictet, above, n. 22, p. 63. 114 Judge Huber, Island of Palmas case (1928), 2 Reports of International Arbitral Awards 829, p. 838. 115 von Glahn, above, n. 16, p. 257. 116 Aronson, above, n. 4, p. 54.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 27 Palestinian Authority, causing it to become the presumptive government of an independent Gaza, which is perceived as the initial, if partial, emergence of Palestine as a State. Accordingly, simply by unilaterally removing its presence from Gaza, has Israel propelled Gaza into the world of States? The validity of this assumption depends on whether Gaza fulfils the internationally recognised requirements for Statehood. The classic account of the basic criteria for Statehood is that contained in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States. This provides: The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.117
These criteria constitute the minimum elements of Statehood118 and, as Crawford notes, they are based on the principle of effectiveness of territorial units,119 which is essentially a factual test. Manifestly, a permanent population inhabits Gaza, and its borders are reasonably well-defined. The requirement of territory for the purposes of the criteria of Statehood does not entail that the territory in question has exactly defined or undisputed borders. If this were the case, then Israel itself would not be a State. As the International Court of Justice observed in the North Sea continental shelf cases, there is: no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations (Monastery of Saint Naoum, Advisory Opinion, 1924, PCIJ, Series B, No.9, at p.10).120
In broad terms, the requirement of government entails that there is an authority which is “in general control of its territory, to the exclusion of other entities not claiming through or under it”.121 This formulation is obviously influenced by Judge Huber’s definition of independence in the Island of Palmas case. Indeed Crawford, like other doctrinal writers, substitutes independence
117 Reproduced, 29 American Journal of International Law: Document supplement 75 (1934). 118 See, for instance, Brownlie, I., Principles of Public International Law (Oxford U.P.: Oxford: 2003, 6th Edn.), pp. 70-72; Crawford, above, n. 35, pp. 45-62; Higgins, R., The Development of International Law through the Political Organs of the United Nations (Oxford U.P.: London: 1963), pp. 17-42; Jennings, R.Y. and Watts, A., Oppenheim’s International Law: Volume One, Peace (Longmans: London: 1992, 9th Edn.), pp. 120-123; Lauterpacht, H., Recognition in International Law (Cambridge U.P.: Cambridge: 1947), pp. 26-32; and Okeke, C.N., Controversial Subjects of Contemporary International Law (Rotterdam U.P.: Groningen: 1974), p. 87. On Palestine and Statehood, see Boyle, F.A., The creation of the State of Palestine, 1 European Journal of International Law 301 (1990): the better view is expressed by Crawford and Watson – see Crawford, J., The creation of the State of Palestine: too much too soon?, 1 European Journal of International Law 307 (1990), his Israel (1948-1949) and Palestine (1998-1999): two studies in the creation of States, in Goodwin-Gill, G. and Talmon, S. (eds.), The Reality of International Law: Essays in Honour of Ian Brownlie (Clarendon Press: Oxford: 1999), p. 95, and above, n. 35, pp.421-448; and Watson, above, n. 69 (Oslo Accords), pp. 60-63. 119 Crawford, above, n. 35, p. 6. 120 North Sea continental shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. the Netherlands), ICJ Rep, 1969, 3 at p. 32, para. 46. 121 Crawford, above, n. 35, p. 59; see pp. 55-62.
28
Articles
for the traditional criterion of the capacity to enter into relations with other States. As he correctly observes, this capacity is not confined to States and is better seen as a consequence of, rather than a criterion, for Statehood.122 Independence is the central requirement of Statehood, which is dependent on the existence of an effective government.123 A distinction must, however, be drawn between formal and actual independence.124 Formal independence denotes the situation when an entity apparently possesses the outward signs of Statehood: actual independence describes the factual ability of the relevant authorities to exercise governmental powers – in other words, whether the government in fact fulfils Judge Huber’s definition of independence. Formal independence can mask a relationship of dependence, where an ostensibly independent government acts under the direction of another State. This relationship is frequently associated with some form of occupation, such as Japan’s creation of Manchukuo in occupied Manchuria in the early 1930s.125 If, for the purposes of argument, we assume that disengagement has terminated occupation in terms of the (traditional) law of armed conflict, and an effective and independent government emerges, may that government legitimately be able to claim that Gaza is a State? The traditional criteria for Statehood – population, territory, government and independence – are based on the notion of (factual) effectiveness, but in contemporar y international law Statehood is tempered by normative considerations. If an entity, ostensibly qualified to be a State according to the traditional criteria, emerges into the international arena in breach of a normative component of Statehood, then its existence is tainted by illegal creation. Consequently it cannot claim to be a State. A clear example of the denial of Statehood to an entity that apparently fulfilled the traditional descriptive requirements was Rhodesia, which emerged as a result of the Unilateral Declaration of Independence promulgated by its minority racial government in 1965. This was seen as the creation of an entity in violation of the right to self-determination which thus could not be recognised as a State.126 Breach of self-determination has also been adduced as a reason for the nonrecognition of the “homeland-States” or bantustans created by the South
122 Crawford, above, n. 35, pp. 61-62: see also, Brownlie, above n. 118, pp. 71-72; and Jennings and Watts, above, n. 118, p. 122. In relation to Palestine’s ability to conduct foreign relations under the Oslo instruments, see Singer, above, n. 79 (Aspects of foreign relations). 123 See, e.g. Crawford, above, n. 35, p. 62; Higgins, above, n. 118, p. 25; Lauterpacht, above, n. 118, pp. 27-28; and Marek, above, n. 81, p. 162. 124 See, for instance, Brownlie, above, n. 118, pp. 71-72; Crawford, above, n. 35, pp. 67-89; Higgins, above, n. 118, pp. 26-27; Lauterpacht, above, n. 118, pp. 26-30; and Marek, above, n. 81, pp. 165-180. 125 See, e.g. Crawford, above, n. 35, pp. 74-76, pp. 78-83; Dugard, J., Recognition and the United Nations (Grotius: Cambridge: 1987), pp. 27-35; Lauterpacht, above, n. 118, pp. 46-47; and Marek, above, n. 81, pp. 110-122, and pp. 173-179. Article 47 of Geneva Convention IV attempts to guard against the formation of ostensibly independent, but nonetheless puppet, authorities in occupied territory, see the materials cited above, n. 81. 126 See, for instance, Crawford, above, n. 35, pp. 128-131; Dugard, above, n. 125, pp. 90-98; Okeke, above, n. 118, p. 81 et seq; and Wilson, above, n. 44, p. 69.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 29 African government during the apartheid period.127 This consequence follows logically from the status of self-determination as a peremptory norm of international law which cannot be disregarded in international relations. Entities which purport to be States but which have been created in violation of self-determination are legal nullities: they are without legal effect as States, not because they fail to meet the essential requirements of statehood but because their existence violates a peremptory rule of international law.128
Accordingly, even if we assume that Israeli disengagement terminated its occupation and that Gaza fulfils the traditional descriptive requirements of Statehood, it cannot claim to be nor can it be regarded as a State by other international actors. Israel’s Disengagement Plan violated the process aspect of the Palestinian people’s right to self-determination because of the absence of popular consultation. Further, were the claim to be made that Gaza alone had emerged as the putative State of Palestine, this would breach the substantive aspect of self-determination which prohibits the dismemberment of the selfdetermination unit. Consequently, any claim that Gaza can achieve Statehood as a result of the disengagement is the assertion of a legal nullity: An act offending against jus cogens cannot be voidable or relatively invalid but only void. All acts and transactions, such as treaties, unilateral acts and actions of states that offend again jus cogens are void and not voidable.129
Any consideration of the factual effectiveness of the territorial entity is overridden by the circumstance of illegal creation arising from the breach of the peremptory norm of self-determination. Whether seen as a norm with ius cogens status or as an obligation erga omnes, third States are under a duty not to recognise Gaza as a State. This argument is, however, redundant because it is clear that Gaza is not formally or actually independent. A State’s sovereignty extends over its territorial sea, and to the airspace above its territorial sea and land territory.130 The Disengagement Plan expressly states that Israel will continue to exercise control of Gaza’s maritime zones and airspace. If a State claims to possess a discretionary authority to intervene in the internal affairs of a putative State, whether or not this claim is based in consent, this is inconsistent with the
127 See Crawford, above, n. 35, pp. 338-348; Dugard, above, n. 125, pp. 98-108: and also, more generally, deKieffer, D. and Hartquist, D., Transkei: a legitimate birth, 13 New England Law Review 428 (1978); Dugard, J., South Africa’s “independent” homelands: an exercise in denationalization, 10 Denver Journal of International Law and Policy 11 (1980); Heydt, D., Nonrecognition of the independence of Transkei, 10 Case Western Reserve Journal of International Law 167 (1978); Norman, G., The Transkei: South Africa’s illegitimate child, 12 New England Law Review 585 (1977), and his The Transkei revisited, 13 New England Law Review 792 (1978); Richardson, H., Self-determination, international law and the South African bantustan policy, 17 Columbia Journal of Transnational Law 185 (1978); and Rogers, B., Divide and rule: South Africa’s bantustans (International Defence and Aid Fund: London: 1980, 2nd Edn.). 128 Dugard, above, n. 125, p. 131, see pp. 127-131; and also Crawford, above, n. 35, pp. 97-107. 129 Orakhelashvili, above, n. 99, p. 83. 130 See, e.g. Jennings and Watts, above, n. 118, p. 479, p. 573, pp. 600-601 and pp. 650-655.
Articles
30
latter’s formal independence.131 While Article XXXI.13 of the Interim Agreement contained arrangements for effective Israeli control of the maritime areas off Gaza, which one can only assume are maintained in the Disengagement Plan, the usurpation of authority over airspace appears to be unilateral. Either way, Gaza is unable to exercise “to the exclusion of any other State, the functions of a State” in these areas, which is fatal to any claim to independence. As Israel continues to exercise governmental functions in Gaza, how can it be claimed that occupation has ended? It is impossible to accept at face value and in good faith the provisions of the Revised Disengagement Plan because of the contradictions it contains. It is at once a claim both to divest Israel of responsibilities for Gaza’s population while retaining powers over the territory that would otherwise fall to be exercised by the legitimate government. Principle Six, that completion of the plan will dispel claims regarding Israel’s responsibility for the Palestinians within Gaza, clearly contemplates that Israel will either divest itself of responsibility for Gaza completely, or that it will remain as occupant of the territory, but without the concomitant obligations, mandated by international law, owed to its inhabitants. The latter is a legal impossibility: a State cannot unilaterally absolve itself from the performance of its duties under international law. It can, of course, act as if these obligations did not exist and thus breach them, but a State cannot unilaterally cancel its obligations and declare that they no longer exist. The former option, that disengagement has terminated occupation, is not borne out by an analysis of the terms and implications of the Disengagement Plan. The Plan is a disingenuous manifesto whereby Israel seeks to foist onto the Palestinian Authority the dual status of sovereign government in Gaza while maintaining it as a local administration in the West Bank whose authority is ultimately derived from the military government. It is a classic example of an occupant “inclined to make use of arrangements where authority is said to be exercised by [a] transitional government”132 in an attempt to disguise the truth in the hope of evading responsibility.
10 THE REALITIES OF EFFECTIVE CONTROL – OPERATION SUMMER RAIN This assessment of the post-disengagement status of Gaza is only reinforced by Operation Summer Rain which was launched on 28 June 2006 in response to the seizure of IDF Corporal Gilad Shalit on 25 June 2006 by Palestinian militants. The IDF stated that the purpose of its military intervention in Gaza was:
131 See Crawford, above, n. 35, pp. 71-72. 132 Separate opinion of Judge Kooijmans, Armed activities on the territory of the Congo case, 45 International Legal Materials (2006), p. 359, para. 41.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 31 to prevent the kidnappers from transferring the soldier within or out of the Gaza Strip and otherwise disrupt their activity, and to send a clear message to the terror organizations holding the soldier captive that if he is not released safely and quickly, further operational means remain available to the IDF.133
This communique also noted that, inter alia, that armoured forces had entered into the Dahaniya area which “represents a strategic control and observation point over the area of Rafah and the Southern Gaza Strip”. This is not the place to examine the legality of the capture of Corporal Shalit, the military response by Israel, or the conformity of the conduct of the hostilities with international humanitarian law. It is enough to note that the re-entry of Israeli ground forces demonstrates that the Disengagement Plan did not end the occupation, even if one applies the traditional doctrine of effective control. The ease with which the IDF re-established a physical presence on the ground in Gaza clearly fulfils the ruling in Prosecutor v Naletili and Martinovi that a guideline to determine whether an occupation exists is whether “the occupying power has...the capacity to send troops within a reasonable time to make the authority of the occupying power felt”.134 This test was not a legal innovation created by the Yugoslav Tribunal but simply re-stated established law, following the U.S. Military Tribunal at Nuremberg in the List case. An occupation subsists when the military forces of the adversary can “at any time they desired assume physical control of any part of the country”,135 as the IDF did during Operation Summer Rain in Gaza.
133 IDF communication, Operation Summer Rain: IDF enters southern Gaza Strip to secure release of abducted soldier, 28 June 2006: <www.mfa.gov.il/MFA/Government/Communiques/2006/ IDF%20enters%20southern%20Gaza%20Strip%20to%20secure%20release%20of%20 abducted%20soldier%2028-Jun-2006>: see also the Political-security Cabinet communique, 5 July 2006, <www.mfa.gov.il/MFA/Government/Communiques/2006/Political-Security%20 Cabinet%20Communique%205-Jul-2006>. 134 Naletili and Martinovi: <www.un.org/icty/naletilic/trialc/judgement/nal-tj030331-e.pdf>, p. 74, para.217. 135 VIII Law Reports of Trials of War Crimes Trials 34 (1949), p. 56.
32
33
From Beirut to Brussels: Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres Victor Kattan*
1 UNIVERSAL JURISDICTION AND THE ISRAELI-PALESTINIAN CONFLICT Despite recent developments at the International Court of Justice (hereafter “ICJ”),1 the Israeli-Palestinian conflict has, and continues to be, dominated by * Assistant Editor, Yearbook of Islamic and Middle Eastern Law. 1 See the Advisory Opinion on the Construction of a Wall in the Occupied Palestinian Territory, 43 International Legal Materials (2004), pp. 1009-1098. See also “Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory” 99 American Journal of International Law (2005), pp. 1-140 with contributions from Watson, Pomerance, Falk, Wedgwood, Murphy, Scobbie, Kretzmer, Imseis and Dennis. See further Roger O’Keefe, “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: A Commentary” 37 Revue Belge De Droit International (2004), pp. 92-149; Iain Scobbie, “The Wall and International Humanitarian Law” 9 Yearbook of Islamic and Middle Eastern Law (2002-2003), pp. 495-506; Pieter H.F. Bekker, “The World Court’s Ruling Regarding Israel’s West Bank Barrier and the Primacy of International Law: An Insider’s Perspective” 38 Cornell International Law Journal (2005), pp. 553-568; Aeyal M. Gross, “The Construction of a Wall between The Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation” 19 Leiden Journal of International Law (2006), pp. 1-48; Marco Pertile, “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: A Missed Opportunity for International Law?” 4 Italian Yearbook of International Law (2004), pp. 121161; Andrea Bianchi, “Dismantling the Wall: The ICJ’s Advisory Opinion and Its Likely Impact on International Law” 47 German Yearbook of International Law (2004), pp. 343-391; Paul J. I. M. De Waart, “International Court of Justice Firmly Walled in the Law of Power in the IsraeliPalestinian Peace Process” 18 Leiden Journal of International Law (2005), pp. 467-487; Michael Lynk, “Down by Law: the High Court of Israel, International Law, and the Separation Wall” 35 Journal of Palestine Studies (2005), pp. 6-24; and Susan Akram, Michael Link, “The Wall and the Law: a Tale of Two Judgements” 24 Netherlands Quarterly of Human Rights (2006), pp. 61106. The Israel Law Review dedicated a special double issue to discuss the domestic and international legal issues arising from the construction of the “separation barrier” in volume 39, numbers 1-2. The Palestine Yearbook of International Law has also done something similar reprinting the advisory opinion and Palestine’s submission. The current author’s paper, “The Wall, Obligations Erga Omnes and Human Rights: The Case for withdrawing the European Community’s Terms of Preferential Trade with Israel”, appears in Volume 13 of that Yearbook, pp. 71-89.
34
Articles
politics.2 Since the early 20th century extra-judicial executions, assassinations, acts of terror and war crimes have characterised the course of the conflict, seriously undermining the rule of law.3 Although both sides have committed appalling atrocities against civilian populations there remains a gross disparity in the application and enforcement of criminal law in Israel and the occupied Palestinian territories (hereafter “OPTs”).4 Whilst Israel can try Palestinians in its courts, Palestinians are not permitted to try Israeli nationals in West Bank or Gaza courts for any infringement of the criminal law.5 Due to the general failure of the Israeli legal system to provide adequate remedies for Palestinians harmed by Israeli nationals, the courts of third States have, in recent years, invoked jurisdiction on the principle of universality to hold Israelis accused of war crimes to account for their actions.6 On 10 September 2005,
2 In 2005, an interesting series of lectures were organised by the Sir Joseph Hotung Programme on Law, Human Rights and Peace Building in the Middle East at the School of Oriental and African Studies (SOAS), University of London, to examine the role of law and politics in the Middle East Peace Process. Participants included former and current Palestinian and Israeli negotiators such as Omar Dajani, Stephanie Koury, Leila Hilal and Moty Cristal, among others. 3 For a discussion of the legal issues involved in extra-judicial assassinations, see David Kretzmer, “Targeted Killings of Suspected Terrorists: Extra-Judicial Executions or Targeted Killings?” 16 European Journal of International Law (2005), pp. 171-212; Orna Ben-Naftali and Keren R. Michaeli “We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings” 36 Cornell International Law Journal (2003-2004), pp. 233-292. 4 Within Israel there have been relatively few prosecutions of Israeli soldiers who are alleged to have carried out “shoot to kill orders” which has led some to argue that there is a culture of impunity for atrocities committed against Palestinian civilians. See the report by the Israeli human rights organisation B’Tselem, “Take No Prisoners: The Fatal Shooting of Palestinians by Israeli Security Forces during “Arrest Operations” (May 2005) at: http://www.btselem.org/ Download/200505_Take_No_Prisoners_Eng.pdf (last accessed 7 October 2005) and “Promoting Impunity: The Israeli Military’s Failure to Investigate Wrongdoing”, Human Rights Watch, June 2005, available at their website: http://hrw.org/reports/2005/iopt0605/ iopt0605text.pdf (last accessed 7 October 2005). 5 According to Article 1. 2. b of Annex IV, Protocol Concerning Legal Affairs, Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, signed in Washington D.C. on 28 September 1995 between the State of Israel and the Palestine Liberation Organisation, Israel has sole criminal jurisdiction over “offences committed in the Territory by Israelis”. The Territory refers to the West Bank and Gaza Strip. For the text of the Interim Agreement see 36 International Legal Materials (1997), pp. 557-649. 6 For an article in the print media arguing that the U.K. has an obligation under the Geneva Conventions Act of 1957 to “seek out and prosecute” alleged war criminals in OPTs, Kuwait and East Timor, see Daniel Machover and Kate Maynard, “The U.K.’s duty to ‘universal jurisdiction’” in the law supplement of The Times, 4 October 2005. This article is also available via: www.timesonline.co.u.k./legalarchive. On 7 December 2005, The Center for Constitutional Rights and the Palestinian Center for Human Rights brought a class action lawsuit against Avi Dichter, the former Director of Israel’s General Security Service, on behalf of the Palestinians who were killed or injured in an air strike on 22 July 2002, when the Israeli Air Force dropped a one-ton bomb on al-Daraj, a residential neighbourhood in Gaza City in the OPT. In the complaint, the plaintiffs claimed that: “… no adequate remedies are available to Plaintiffs under the laws or in the courts of the OPT, which is the place in which the conduct giving rise to the claim occurred, nor is any adequate remedy available in the State of Israel”. See the class action law suit; Ra’ed Mohamad Ibrahim Matar v. Avraham Ditcher, United States District
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
35
Judge Timothy Workman, Chief Stipendiar y Magistrate at Bow Street Magistrates’ Court (who is one of several judges in the U.K. dealing with the special jurisdiction of Extradition and Terrorism Act cases), issued an arrest warrant for Major General (retired) Doron Almog on suspicion that he committed a grave breach of the Fourth Geneva Convention in Relation to the Protection of Civilian Persons in Times of War of 1949 (hereafter Geneva Convention IV), which is a criminal offence in England and Wales under the Geneva Conventions Act of 1957.7 The warrant was issued in relation to the destruction of 59 houses in the Rafah refugee camp on 10 January 2002.8 This was not, however, the first time this principle of jurisdiction has been invoked in relation to international crimes arising during the course of the IsraeliPalestinian conflict or as a result of conflict elsewhere. On 19 July 2005, the B.B.C. reported that the Afghan warlord Faryadi Zardad had been successfully
Court, Southern District Court of New York, 7 December 2005 (on file with author). Similarly, in an international law opinion prepared by Oxford Public Interest Lawyers for the Association for Civil Rights in Israel (ACRI) on the wall being built in the OPT they found that while Israeli civilian courts are organizationally independent of the military they “cannot be regarded as providing an opportunity for an effective remedy, in an impartial and substantively independent setting, for Palestinians” (emphasis in original). See the Legal Consequences of Israel’s Construction of a Separation Barrier in the Occupied Territories (University of Oxford, February 2004) available at http://www.law.ox.ac.U.K./opbp/OXPIL%20Israel%20Barrier%20Opinion.pdf (last accessed 17 November 2005) at para. 227. 7 See “Israeli war crimes suspect evades British Justice after U.K. court issues arrest warrant”, Press Release, Hickman and Rose Solicitors, 11 September 2004: “This unprecedented arrest warrant against a senior Israeli soldier was issued after years of failed efforts to obtain justice through the Israeli judicial system because of the failure of the Israeli judiciary to combat impunity…” For a commentary to the Geneva Conventions Act of 1957 see Elihu Lauterpacht 7 International and Comparative Law Quarterly (1958), pp. 133-142. He writes “the United Kingdom has interpreted the obligation to provide effective penal sanctions as entitling, and presumably as obliging, it to confer upon its courts ‘universal’ jurisdiction only over the crime of piracy jure gentium … This appears to be the first occasion on which the courts have been granted jurisdiciton over acts committed abroad by persons who are not British subjects.” 8 According to Hickman and Rose solicitors, Almog is also implicated in the killing of several other people. He was due to speak at a synagogue in Solihull, Birmingham, on 11 September. The police were unable (or unwilling) to make a decision whether to arrest Doron Almog in the time available (i.e. before Mr Almog’s visit), but the police agreed to be neutral in relation to any application to Bow Street Magistrates’ Court for an arrest warrant. See Daniel Machover and Kate Maynard, “Prosecuting Alleged Israeli War Criminals in the U.K.” (draft article, 21 October 2005, on file with author). According to a report in an Israeli newspaper (Yuval Yoaz, “IDF chief may also face legal proceedings in Britain”, Ha’Aretz, 13 September 2005) members of the Israeli Yesh Gvul movement “were in contact recently with solicitor Daniel Machover of the London-based law firm Hickman and Rose. They asked that the organisation’s name be added to the complaint filed against Halutz and Ya’alon by the Palestinian Center for Human Rights. The Israeli group also passed on ‘incriminating’ material it had amassed on incidents in the Gaza Strip that were allegedly Almog’s responsibility”. Yishai Menuhin, a spokesperson for the Israeli Yesh Gvul told the paper that: “We have lost our faith in the Supreme Court, and in its ability to deliberate matters related to the IDF’s activities as an occupying power. We are approaching instances abroad only after we have tried everything possible in Israel”.
36
Articles
prosecuted at the Old Bailey9 for torture and hostage taking in his home country of Afghanistan.10 Britain’s Attorney-General Lord Goldsmith said that Britain had decided to try the case because his crimes were so “merciless” and such “an affront to justice” that they could be tried in any country.11 Judge Treacy told Zardad that his crimes were so serious they “transcended national boundaries”.12 He then told Zardad that the gravity of his crimes: … is demonstrated by the fact that most unusually a person who has committed them in another country can be tried and punished for them by the courts of this country…It is clear to me from the evidence that for a period of over three years you, as a powerful warlord, presided over a brutal regime of terror in areas under your control. You represented the only real form of authority, law and government in the areas under your control and you grossly abused your power (emphasis added).13
In late October 2002, Israel’s Chief of Staff, Shaul Mofaz, fled Britain after being tipped off that Michel Abdel Massih Q.C., a British barrister, passed a 17-page dossier to the Director of Public Prosecutions alleging breaches of the Geneva Conventions by forces under his command.14 This dossier was subsequently passed on to Scotland Yard’s crimes against humanity unit for an investigation.15 When Mofaz returned to Israel he was offered the position of Defence Minister after Benjamin Ben-Elezier resigned.16 The Metropolitan Police said that as Israel’s Defence Minister he was entitled to diplomatic immunity17 and therefore a warrant was never issued for his arrest.18
9 10 11 12 13 14
15 16
17
18
The Central Criminal Court in England and Wales. “Afghan Zardad jailed for 20 years”, B.B.C. News, 19 July 2005. Ibid. Ibid. Ibid. Stephen Farrell, “General Accused of War Crimes”, The Times, 30 October 2002. The British solicitor Imran Khan acted as the solicitor in the case. See “Too much prima facie evidence”, an interview with Dianne Luping, Palestine Report Online, 30 October 2002 (last accessed 10 April 2006). Justin Huggler and Ian Burrell, “Scotland Yard Will Examine Claims of Israeli War Crimes”, The Independent, 31 October 2002. Justin Huggler, “General Linked to Jenin Atrocities Named Defence Chief”, The Independent, 1 November 2002. Huggler reported that, “General Mofaz had been advised to return to Israel from Britain by the Israeli embassy after Scotland Yard opened an investigation into his role in alleged war crimes.” Chris McGreal, “Sharon’s ally safe from arrest in Britain” The Guardian, 11 February 2004. McGreal wrote: “But Kathleen Cavanaugh, a professor of international law and author of an Amnesty International report on Israel and the occupied territories, said diplomatic immunity for crimes against humanity applied only to heads of state.” According to a telephone conversation with Michel Abdel Massih QC on 3 May 2006, there were two separate attempts to issue a warrant against Mofaz. It was argued that there was prima facie evidence that targeted killings were a part of Israeli government policy and that there was a link between these killings and Mofaz. At a two-day hearing, the Court did not reject this contention, but merely ruled that on the basis of an analogy by reason to the Belgium v. Congo case in the Hague, he was entitled to immunity. During the second attempt to issue an arrest warrant District Judge CL Pratt ruled on 12 February 2004 that: “I recognise that I am working in somewhat unchartered waters but having given the matter very considerable consideration overnight and today I conclude that a Defence Minister would automatically acquire [S]tate immunity in the same way as that pertaining to a Foreign Minister.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
37
These series of high-profile-diplomatic incidents all occurred after 23 survivors of the Sabra and Chatila massacres, of whom 15 were stateless, filed a complaint in a Belgian court on 28 June 2001, against Prime Minister of Israel Ariel Sharon, Director-General of Israel’s Defence Ministry Amos Yaron and a number of senior Lebanese officials, including former Lebanese Forces (hereafter “LF”) leader Elie Hobeika for genocide, crimes against humanity and grave breaches of Geneva Convention IV.19 The breakthrough in this case came on 12 February 2003, when the Brussels Cour De Cassation (hereafter “Belgium’s Supreme Court”) overruled a prior ruling by the Chambre Des Mises en Accusation (hereafter, “Brussels Court of Appeals”) which held that prosecution was not admissible against the alleged perpetrators of the Sabra and Chatila massacres on the grounds that Belgian law required the presence of the accused on Belgian territory.20 The Supreme Court ruled that although the case could not go ahead against Ariel Sharon because he was entitled to status immunity (i.e. immunity ratione personae) as the Prime Minister of Israel, it could proceed against the other defendants in their absence under a Belgian law which provided for universal jurisdiction in the case of genocide, crimes against humanity and war crimes.21 Following this decision the Brussels Appeals Court ruled on 10 May 2003 that Belgian courts shall have jurisdiction over crimes provided for in this statute, “irrespective of where such offences were
Given that finding, I decline to issue the warrant requested”. For the text of the judgment, see current developments in public international law, case comment by Colin Warbrick, 53 International and Comparative Law Quarterly (2004), pp. 771-773. 19 See the complaint lodged by the survivors against “Messrs. Ariel Sharon, Amos Yaron, and other Israelis and Lebanese responsible for the massacre, killing, rape, and disappearance of civilians that took place in Beirut between Thursday 16 and Saturday 18 September 1982 in the camps of Sabra and Chatila and the surrounding area” in English at www.indictsharon.net/ cmptENen.pdf; for the original French version visit http://www.mallat.com/articles/ complaint.htm (last accessed 22 August 2005). 20 The defendants were based in Israel and Lebanon. See Belgian Court of Cassation Ruling No. P.02.1139.F/1, 12 February 2003. 21 On the difference between status immunity and subject immunity see Lord Millet in Regina v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen’s Bench Division), House of Lords, 24 March 1999. According to Lord Millet, an individual who enjoys status immunity does so because of his official status: “It applies only so long as he holds office” (emphasis added). On the different conclusions reached by the ICJ and the Cassation on the immunities accruing to former senior state officials, see Antonio Cassese, “The Belgian Court of Cassation v. the International Court of Justice: the Sharon and others Case” 1 Journal of International Criminal Justice (2003), pp. 437-452. According to Article 27 of the Rome Statute of the International Criminal Court, “official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility”. For the Belgian statute see “Act Concerning the Punishment of Grave Breaches of International Humanitarian Law” (promulgated on 10 February 1999); “Act Amending Belgium’s Act of 16 June 1993 Concerning the Punishment of Grave Breaches of International Humanitarian Law” (promulgated on 23 April 2003); and finally, “Act Amending Belgium’s Act Concerning Serious Violations of International Humanitarian Law” (promulgated 5 August 2003), all reproduced in English in 12 Palestine Yearbook of International Law (2002/2003), pp. 191-218.
38
Articles
committed and even if the alleged offender is not present in Belgium”.22 However, on 24 September 2003, the Supreme Court was obliged to order the cessation of all cases filed against the defendants concerning the Sabra and Chatila massacres due to a number of legislative amendments made to the Belgian statute which revoked its universal character.23 These changes were made after senior U.S. officials threatened to relocate NATO meetings to Poland if Belgium’s Parliament did not repeal those sections of the statute which provided for universal jurisdiction.24 Likewise, Israeli officials reacted with anger to the law suit brought against Almog for war crimes in Britain by demanding a change to the law.25 This case was not the first attempt by the survivors of the Sabra and Chatila massacres to seek justice outside Israel, nor was it the first court case to take place as a result of Ariel Sharon’s alleged involvement in the massacres. In 1989 the U.S. District Court of Columbia ruled that Amos Yaron (who was nominated as Israel’s Military Attaché to the U.S. and Canada on 1 August 1986) was immune from civil proceedings in United States courts irrespective of whether or not he would be immune from criminal proceedings in some other forum for his role in the Sabra and Chatila atrocity (interestingly, Canada
22 Judgment of the Brussels Court of Appeals, Chambre Des Mises En Accusation, 10 June 2003, reproduced in 12 Palestine Yearbook of International Law (2002/2003), pp. 285-288. 23 See “the statement by the lawyers for the Sabra and Chatila survivors concerning the 24 September 2003 ruling by the Belgium Supreme Court” reproduced in 12 Palestine Yearbook of International Law (2002/2003), 289. The lawyers were Chibli Mallat, Luc Walleyn, Michaël Verhaeghe and Raf Verstraeten. 24 Secretary of Defence Donald Rumsfeld and Secretary of State Colin Powell made it clear that if Belgium’s Parliament did not strike down its law allowing anyone to bring war crimes charges in its courts under the principle of universal jurisdiction, they would find another venue for NATO meetings. At a press conference on 12 June 2003 Rumsfeld said: “I will leave it to the lawyers to debate the legalities. I am not a lawyer. But the point is this. By passing this law, Belgium has turned its legal system into a platform for divisive, politicised lawsuits against her NATO Allies. Now, it’s obviously not for outsiders, non-Belgians, to tell the Belgian government what laws it should pass. And what it should not pass. With respect to Belgium’s sovereignty, we respect it. Even though Belgium appears not to respect the sovereignty of other countries”. For the full transcript, see the link: http://www.defenselink.mil/transcripts/2003/tr20030612secdef0271.html (last accessed 21 September 2005). 25 On 3 February 2006, The Guardian reported that the British government was considering giving into Israel pressure and amending the law. See Vikram Dodds, “U.K. considers curbing citizens’ rights to arrest alleged war criminals”, The Guardian, 3 February 2006. Attorney Irit Kahan, formerly a Director of the International Department at the State Prosecutor’s Office in Israel, was quoted to have told a Ha’Aretz journalist, supra note 8: “What needs to be done is that the government must iron out the matter with the authorities in Britain, because under current circumstances, there is the danger that things could even come to the severing of diplomatic ties. The government there, like in all democratic countries, does not have the authority to tell the courts how to act, but it can pass legislation that would prevent such use of the universal power (my emphasis).” According to a report in the Daily Telegraph: “The Israeli Justice Minister, Tzipi Livni, said she would seek to persuade countries such as Britain to amend their laws, suggesting that they could otherwise be used against British military commanders over incidents in Iraq”. See Joshua Rozenburg, “Justice should begin at home” The Telegraph, 15 September 2005.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
39
declined to accept his credentials).26 In 1985 Ariel Sharon sued Time magazine for libel in a New York Federal District Court over a paragraph written by the Israeli journalist David Halevy which suggested that Sharon was directly responsible for the massacres.27 After the trial, the jury returned a verdict that left both Sharon and Time claiming victory. Because of the intricacies of American libel law and the procedural framework for libel suits, the ultimate issue of Sharon’s responsibility for the massacres was never resolved before the Federal District Court.28 In the following pages, international humanitarian law (hereafter “IHL”) including grave breaches of the Geneva Conventions, universal jurisdiction, statelessness, the Arrest Warrant case29 and the Eichmann case30 will be examined in the context of the Sabra and Chatila massacres and the case in Belgium. Despite the misgivings scholars and practitioners have on the nature and the extent of the principle of universal jurisdiction in international law, it is submitted that it is an appropriate basis of jurisdiction for the Palestinian people who are precluded from prescribing or enforcing jurisdiction due to their lack of statehood. Moreover, for the reasons set out below, Palestinians cannot at present use the courts in Israel or in the Lebanon to prosecute those responsible for the Sabra and Chatila massacres. Consequently, jurisdiction for genocide, crimes against humanity and war crimes in the Lebanon cannot be invoked on the basis of the territorial, national, protective or passive personality principles of jurisdiction. The vulnerability of Palestinian refugees in camps spread throughout the Middle East and their lack of legal protection due to a difference of interpretation relating to Article 1D of the
26 672 Fed. Supp. 516 (D.D.C. 1987). See the Introductory Note, Memorandum and Declarations by Jordan A. Paust and Frank C. Newman compiled by Francis Boyle in “The Yaron Case”, reproduced in 5 Palestine Yearbook of International Law (1989), pp. 254-289. Interestingly, exactly one year after the Israeli government press office had quietly announced the appointment of Yaron, the Jerusalem Post of 1 August 1987 reported that Yaron was to resign his diplomatic position, “for reasons related to a lingering controversy” about his role in the 1982 Sabra and Chatila massacre. According to the Jerusalem Post, although the Reagan administration initially accepted Yaron’s posting to Washington, it had since been actively trying to encourage Israel to recall him. Eventually Yaron returned home to Israel. 27 Sharon v. Time, Inc, 599 F.Supp. 538 (S.D.N.Y. 1984). For a fascinating article on the case with extracts from the court between the Judge and Israel’s current prime minister, Ehud Olmert, discussing the contents of the secret Appendix B to the Kahan Commission’s Report, see Amir Oren, “Not deep, but plenty of throat” Ha’Aretz, 5 March 2006. 28 See Linda A. Malone, “Sharon vs. Time: The Criminal Responsibility under International Law for Civilian Massacres” 3 Palestine Yearbook of International Law (1986), pp. 41-74. 29 See International Court of Justice, Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 41 International Legal Materials (2002), Judgment of 14 February 2002, for the text of the decision see pp. 536-653. 30 See 36 International Law Reports (1968) pp. 5-342 for both the Jerusalem District Court and the Israel Supreme Court judgments translated and edited from Hebrew into English.
40
Articles
1951 Refugee Convention,31 are also additional factors worth taking into consideration when assessing whether universality is an appropriate basis of jurisdiction for the crimes committed in Beirut. Nobody knows exactly how many civilians were killed in Sabra and Chatila. Estimates have varied from 800 to over 3,500 persons of various nationalities (mostly Palestinian and Lebanese) for those killed, presumed dead and missing.32 Five separate commissions of inquiry (whose roles were to establish the facts, rather than make findings of law or pass judgment against the accused) were established to look into the massacres and Israel’s invasion of the Lebanon. Namely, the Commission of Inquiry into the Events at the Refugee Camps in Beirut33 (hereafter “Kahan Commission”); the Report of the Prosecutor Jermanos on the Sabra and Chatila Massacre34 (the “Jermanos 31 See 189 United Nations Treaty Series No. 2545, p. 137. This treaty entered into force on 28 July 1951. Article 1 D provides: “This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. “When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention”. Those who drafted the Convention were of the view that the purpose of Article 1D was to provide a non-permanent bar to Convention protection. They expected that the Palestine refugee problem would be resolved on the basis of the principles laid down in U.N. General Assembly resolution 194 (III), of 11 December 1948, through return, repatriation and compensation in accordance with paragraph 11, and that protection under the 1951 Convention would ultimately be unnecessary. However, as is clear from the wording of Article 1D, they also sought to anticipate a situation of no settlement, and to avoid a lacuna in the provision of international protection. For further reading, see Susan Akram and Terry Rempel, “Temporary Protection as an Instrument for implementing the Right of Return of Palestinian Refugees” 22 Boston University International Law Journal (2004), pp. 1-162. 32 The most up-to-date and comprehensive list is provided in the first ever Arabic account of the massacre told through the stories of the survivors by Bayan Nuwayhed al-Hout and now available in English. See Sabra and Shatila, September 1982 (London: Pluto Press 2004). According to AlHout at p. 296: “Unofficial numbers for victims, on the part of the Lebanese government, the International Committee of the Red Cross and the Lebanese Red Cross, reached around 2,000, 2,750, and 3,000 respectively … To reach ‘estimate figures’, we followed two different patterns: first, through the numbers of victims as determined by reviewing the lists of names; and second, through an overall estimate of the people buried in cemeteries, mass graves and death pits, and buried beneath the rubble. The two taken together led us to conclude a minimum figure of 3,500 victims”. A list of names is provided in Appendix 2 at pp. 359-402. 33 Israel: Final Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut, 7 February 1983 reproduced in 22 International Legal Materials (1983) pp. 473-520. This Commission was comprised of Judge Yitzhak Kahan, Judge Aharon Barak and Major General (Res.) Yona Efrat. 34 A Lebanese Phalangist military investigating Judge, Ass’ad Jermanos, presided over the commission of inquiry. His report was never officially published by the Lebanese government. However, the Israeli newspaper Yedioth Ahronoth published extracts, along with a summary, as soon as it was issued on 2 December 1982 (Shlomo Nikdimon, “Report of the Prosecutor Jermanos on the Sabra and Chatila Massacre”, Yedioth Ahronoth, 2 December 1982). According to al-Hout, supra note 32 at p. 292 the Lebanese Al-Safir newspaper then published a summary and other Lebanese papers subsequently published material along the same lines. She wrote: “The impression gained from all these writings is that the report was finalized on 29 September, that is, eleven days after the end of the massacre” (my emphasis). According to the report’s findings
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
41
Report”); the Report of the International Commission to Enquire into Reported Violations of International Law by Israel During its Invasion of the Lebanon35 (hereafter “MacBride Commission of Enquiry”); the Testimony Given to the Nordic Commission of Enquiry36 (hereafter “Oslo Enquiry”); and the Inquiry by the International People’s Tribunal, Tokyo37 (hereafter “Tokyo Inquiry”). There have also been several books by academics, diplomats, journalists and photographers on the massacres.38 Hundreds of reels of archival footage of the massacres are available for research in public libraries in Europe and the United States and many survivors, witnesses and killers remain alive and are speaking more openly to journalists and filmmakers about the extent of alleged Israeli involvement in the operation.39
35
36 37 38
39
there was no evidence for the leadership of the Phalange party or of the Lebanese Forces (not to be confused with the Lebanese army. The LF were a motley collection of various Christian Lebanese militias with broadly similar political objectives) having any prior knowledge of what occurred. In addition, the investigation did not find that any orders were given by either leadership to their fighters to support or take part in the massacres. At the time the report was issued, the LF who were chiefly accused of committing the massacres, had assumed general control of government cadres. See al-Hout, supra note 32 at pp. 316-317. The Jermanos Report was widely discredited and it will not be referred to in the remainder of this paper. Israel in Lebanon: Report of the International Commission to enquire into reported violations of International Law by Israel during its invasion of the Lebanon (London: Ithaca Press 1983), pp. 162-186. This Commission was comprised of Sean MacBride S.C., Professor Richard Falk, Dean Kader Asmal, Dr Brian Bercusson, Professor Géraud de la Pradelle and Professor Stefan Wild. Witness War Crimes in Lebanon Testimony given to the Nordic Commission, Oslo, October 1982 (London: Ithaca Press 1983), pp. 114-134. This Commission was comprised of Professor Anders Bratholm, General Odd Bull, Professor Ole Esperson, Professor Ole Krarup and Mr Hans Gøoran Franck. Reproduced in Itagaki Yuzo and Oda Makoto (eds.) The Israeli Invasion of Lebanon, 1982: Inquiry by the International People’s Tribunal, Tokyo (Tokyo: Sanyusha 1983), pp. 113-188. See Beirut 1982: from the Israeli invasion to the massacre of Palestinians at Sabra and Chatila camps, photographed and edited by Ryuichi Hirokawa, additional photographs by Hiromi Nagakura (Damascus: PLO Central Council’s Ad Hoc Committee on Sabra and Chatila, 1982); Franklin P. Lamb, International Legal Responsibility for the Sabra-Chatila Massacre (TIPE: 42, rue Lebour 93100 Montreuil, 1983, France); Amnon Kapeliouk, Sabra and Chatila Inquiry into a Massacre (Association of Arab-American University Graduates 1984); The Beirut Massacre: Press Profile (New York: Claremont Research and Publications 1984); Franklin P. Lamb and John E. Dockham, Reason Not Need: Eyewitness Chronicles of Israel’s War in Lebanon (Nottingham: Betrand Russell Peace Foundation 1984); Robert Fisk, Pity the Nation: Lebanon at War (London: André Deutsch 1990); Rosemary Sayigh, Too Many Enemies: The Palestinian Experience in Lebanon (London: Zed Books 1994) and Leila Shahid, “The Sabra and Shatila Massacres: Eye-Witness Reports” 125 Journal of Palestine Studies (2002), pp. 36-58. See Inigo Gilmore, “Militias boasts of role in Sabra massacre”, The Observer, 30 October 2005. Gilmore writes: “One of the most controversial revelations in the film [Massaker] is the alleged extent of Israeli involvement in the preparation and execution of the operation, down to providing body bags before the killings began. ‘You’ll be needing these,’ one of the militiamen is told by an Israeli officer.”
Articles
42
2 UNIVERSAL JURISDICTION, THE GENEVA CONVENTIONS AND THE BEIRUT MASSACRES 2.1 Grave breaches of the Geneva Conventions Universal jurisdiction is applicable only to the most serious international crimes and most scholars agree that those crimes should include those set forth in the Rome Statute of the International Criminal Court, namely: genocide, crimes against humanity and war crimes.40 However, the only crimes which actually provide a basis for States to apply universal jurisdiction are grave breaches of the Geneva Conventions of 1949.41 This is the position of the
40 See Articles 6 (Genocide), 7 (Crimes against humanity) and 8 (War crimes) of the Rome Statute of the International Criminal Court, available at: www.un.org/law/icc/statute/english/ rome_statute(e).pdf, (last accessed 18 October 2005). See also the commentary to the Princeton Principles on Universal Jurisdiction in Stepehen Macedo (ed.) Universal Jurisdiction National Courts and the Prosecution of Serious Crimes under International Law (Philadelphia: University of Pennsylvania Press 2004), pp. 30-31. Higgins writes: “… universal jurisdiction today exists over war crimes, crimes against peace, and crimes against humanity, committed immediately before, or during, war”. See Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon Press 1994), p. 61. Meron argues that: “Increasingly, violations of the laws and customs of war, genocide, and crimes against humanity are recognized as justifying third-country prosecution in accordance with the principles of universal jurisdiction”. See Theodor Meron, “The Humanization of Humanitarian Law”, 94 American Journal of International Law (2000), pp. 238-278 at p. 253. See also by Meron “International Criminalization of Internal Atrocities” 89 American Journal of International Law (1995), p. 576. 41 See Article 49, second paragraph, (I) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 United Nations Treaty Series p. 31 (1950); Article 50, second paragraph, (II) Geneva Conventions for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 United Nations Treaty Series p. 85 (1950); Article 129, second paragraph, (III) Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, 75 United Nations Treaty Series p. 135 (1950); Article 146, second paragraph, (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 United Nations Treaty Series p. 287 (1950). Yingling and Ginnane write: “… by analogy to the law of piracy, this provision [Article 146] would impose upon even a neutral country the duty to hunt out and try, or permit the extradition of, persons accused of ‘grave breaches’ regardless of their nationality or the nationality of their victims”. See Raymond T. Yingling and Robert W. Ginnane, “The Geneva Conventions of 1949” 46 American Journal of International Law (1952), pp. 393-727 at p. 426; According to Lauterpacht: “All Parties to the Conventions, whether belligerents or neutrals are bound to seek out persons alleged to have committed grave breaches of the Conventions and to bring them for trial before their courts, regardless of the nationality of the accused. No more emphatic affirmation of the principle of universal jurisdiction with regard to the punishment of war crimes could be desired”. See Hersch Lauterpacht, “The Problem of the Revision of the Law of War” 29 British Yearbook of International Law (1952), pp. 360-382 at p. 362; Carnegie observes that: “The penal provisions common to all the [Geneva] Conventions confer a universal jurisdiction over grave breaches of any of the Conventions”. See A.R. Carnegie, “Jurisdiction over Violations of the Laws and Customs of War” 39 British Yearbook of International Law (1963), pp. 402-424 at p. 408. Akehurst considers that: “The Geneva Conventions of 1949 are generally interpreted as permitting (and indeed obliging) the exercise of universal jurisdiction, at least in the case of grave breaches; and national legislation passed to give effect to the Conventions often provide for universal jurisdiction”. See Michael Akehurst, “Jurisdiction in International Law”, British Yearbook of International Law (1972-1973), pp. 145-257 at p. 160. According to Brownlie:
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
43
United Kingdom’s authoritative and updated Manual of the Law of Armed Conflict42 and the United State’s Law of Land Warfare43 which both provide for universality in the case of grave breaches of these Conventions. In fact, the U.S. Army Field Manual provides that the jurisdiction of U.S. Military Tribunals extends to all war crimes “committed against nationals of allies and of cobelligerents and stateless persons”44 (emphasis added). According to the U.K. Manual of Armed Conflict:
“It is now generally accepted that breaches of the laws of war, and especially of the Hague Convention of 1907 and the Geneva Conventions of 1949, may be punished by any state which obtains custody of persons suspected of responsibility … Certainly universality in respect of war crimes finds expression in the Geneva Conventions of 1949. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998), p. 308. According to Cassese “the jurisdiction provided by the 1949 Geneva Conventions is universal in that those suspected of being responsible for grave breaches come under the jurisdiction of all states parties, regardless of their nationality or the locus commissi delicti”. See Antonio Cassese, “On Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law”, 9 European Journal of International Law (1998), pp. 2-17 at p. 4; According to Goodwin-Gill: “Crimes under international law include, as a minimum, genocide, crimes against humanity, and war crimes. The reach and content of such crimes have been amply developed in State practice, in conventions, and in the literature, and are still evolving. Each is said to be subject to universal jurisdiction, in the sense that any State having custody over the alleged offender is entitled to try him or her. Indeed, in certain circumstances, there is a clear duty to prosecute; thus, the 1949 Geneva Conventions obliged State parties both ‘to enact legislation necessary to provide effective penal sanctions’ and ‘grave breaches’, and to ‘search for’ and bring such persons before their own courts, regardless of their nationality’”. See Guy S. Goodwin-Gill, “Crime in International Law: Obligations Erga Omnes and the Duty to Prosecute” in Guy S. Goodwin-Gill and Stefan Talmon (eds.) The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford: Oxford University Press 1999) at p. 206. Elst writes: “The Geneva Conventions contain an obligation to prosecute which is unmatched in any other Convention relating to crimes against international law. It includes not only an obligation to search for suspects, but also includes an obligation to establish universal jurisdiction”. See Richard Van Elst, “Implementing Universal Jurisdiction over Grave Breaches of the Geneva Conventions” 13 Leiden Journal of International Law (2000), pp. 815-854 at p. 850. Reydams writes that: “The common jurisdiction clause of the 1949 Geneva Conventions and Additional Protocol 1 is thus rightly considered an example of universal jurisdiction”. See Luc Reydams, Universal Jurisdiction International and Municipal Legal Perspectives (Oxford: Oxford University Press 2002), p. 55. 42 The Manual of the Law of Armed Conflict: U.K. Ministry of Defence (Oxford: Oxford University Press 2005). This manual (hereafter “U.K. Manual of Armed Conflict”) is the first major statement of the British approach to the law of armed conflict since 1958. The Preface provides that: “This Manual is a reference for members of the United Kingdom’s Armed Forces and officials within the Ministry of Defence and other departments of Her Majesty’s Government. It is intended to enable all concerned to apply the law of armed conflict when conducting operations and when training or planning for them”. 43 The Law of Land Warfare (Department of the Army, July 1958), FM 27-10 (hereafter “U.S. Army Field Manual”). 44 The U.S. Army Field Manual provides in para. 507a under the heading “Universality of Jurisdiction” for victims of war crimes at p. 182 that: “The jurisdiction of United States military tribunals in connection with war crimes is not limited to offences committed against nationals of the United States but extends also to all offences of this nature committed against nationals of allies and of cobelligerents and stateless persons”.
Articles
44
The Geneva Conventions 1949 introduced a new concept, that of “grave breaches”. These are war crimes of such seriousness as to invoke universal jurisdiction. Universal jurisdiction entitles any state to exercise jurisdiction over any perpetrator, regardless of his nationality or the place where the offence was committed. In the case of grave breaches, states are obliged to introduce legislation to this effect.45
However, as Bassiouni writes: [n]o convention dealing with the law of armed conflict contains a specific provision on universal jurisdiction … The recognition of universal jurisdiction for war crimes is essentially driven by academics and expert’s writings. These confuse the universal reach of war crimes with the universality of jurisdiction over such crimes (my emphasis).46
It has also been argued that even the heinous nature of the crimes which makes them stand out from mere domestic criminal offences (and the crimes committed at Sabra and Chatila would most certainly be described as heinous) are not enough per se to invoke universal jurisdiction.47 This is because universal jurisdiction – as it was originally conceived – rests on an assessment of sovereignty. The reason why States may prescribe certain crimes as being subject to universal jurisdiction arises from the nature of the crime being beyond any single State’s capacity to punish the perpetrators. Traditionally, therefore, universal jurisdiction arose not because the crimes in question were especially “heinous” (although they may have been) but because they were committed in terra nullius (vacant land).48 In its modern application, however, it is submitted 45 Supra note 42, U.K. Manual of Armed Conflict, para. 16.23. 46 M. Cherif Bassiouni, “The History of Universal Jurisdiction and its Place in International Law” in Stephen Macedo (ed.) Universal Jurisdiction, supra note 40 at p. 51. 47 Steven W. Becker, “Universal Jurisdiction: How Universal Is It? A Study of Competing Theories” 12 Palestine Yearbook of International Law (2002/2003), pp. 49-75; and Anthony Sammons, “The ‘Under-Theorization” of Universal Jurisdiction: Implications for Legitimacy on Trials of War Criminals by National Courts” 21 Berkley Journal of International Law (2003), pp. 111-143. 48 Sammons, ibid, pp. 127-128; and Becker, Ibid, pp. 57-61. See also the Harvard Draft Convention on Jurisdiction with Respect to Crime 29 American Journal of International Law (Supplement) (1935), pp. 439-593, at pp. 585-592. Eugene Kontorovich in his article, “The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation”, 45 Harvard International Law Journal (2004), pp. 183-37 at p. 190 correctly points out that piracy upon which the modern concept of universal jurisdiction is based was, and is not, particularly heinous (according to today’s standards). It is merely robbery on the high seas. However, he erroneously writes that: “Some commentators have mistakenly suggested that universal jurisdiction existed merely because the traditional jurisdictional categories did not cover piracy. The high seas lay outside the territorial jurisdiction of any nation, a global commons. But the ships that pirates attacked were registered in a particular nation and thus were within that nation’s flag jurisdiction; those on board the victim ship were nationals of some state and hence within its passive personality jurisdiction”. This was not necessarily the case. Pirates were considered the enemy of mankind or hostis humanis generis by virtually all maritime nations. In R. v. Waina and Swatoa (1874) 2 N.S.W.L.R. 403, it was held that a British ship’s long-boat was not a British ship for jurisdictional purposes. It was therefore questioned whether pirate ships retained a national character. See Harvard Draft Convention, p. 586. The principle of passive personality which would have given those on board the victim ship jurisdiction is a relatively recent concept that only came to the fore in the 20th century. There was strong opposition to it in the U.S. in the 19th century. See the Cutting case (1887), Foreign Relation. 751 (1888). Passive personality was not adopted as a basis for jurisdiction in the Brussels Convention of 1952, 439 United Nations Treaty Series p. 217; the Geneva Convention on the High Seas of 1965, 450 United
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
45
that universal jurisdiction should be interpreted figuratively to allow courts to invoke it when the States on whose territory serious international crimes have occurred are unable or unwilling to prosecute, as there are hardly any places remaining in the world today which could be described as terra nullius – if they ever could have been.49 Universal jurisdiction would be especially relevant in the situation where law and order has broken down or where the State’s organs have ceased to function effectively. 2.2 The factual situation in Occupied Lebanon Universal jurisdiction would therefore be applicable to the crimes committed in Sabra and Chatila which have gone unpunished due to the power vacuum created by a lack of central governmental control in Lebanon during the civil war (1975-1990). Although this vacuum would be subsequently filled by both Israeli and Syrian armed forces50 that would go on to occupy substantial parts of the country, the result was that the government of Lebanon was not in Nations Treaty Series p. 82, or the U.N. Convention on the Law of the Sea, A/CONF./62/121, 1982. According to Article 101 of the UNCLOS piracy includes acts directed “against a ship, aircraft, persons or property in a place outside the jurisdiction of any State [my emphasis]”. There is a difference between piracy and privateering. Although the latter was state sponsored, the former was not. As David J. Starkey writes: “… pirates and privateers were essentially a distinct species of predator in the post-1700 maritime world … they lived and worked in different environments. Pirates, by going ‘on the account’, put themselves beyond the law to live in outlaw communities … Privateersmen, on the other hand, deployed their labour in the vessels and with the … capital owned by merchants and shipowners, and it was back to work as seafarers that most returned to once their commerce-raiding diversion had ended (emphasis added).” See David J. Starkey, E.S. Van Eyck Van Heslinga, J.A. De Moor (eds.) Pirates and Privateers (Exeter: Exeter University Press 1997), p. 3. 49 For more on terra nullius see the Legal Status of Eastern Greenland (1933) PCIJ Reports, Series A/B no 53 at pp. 45-46 which is available at the website of the ICJ in the section on the PCIJ at: h t t p : / / w w w. i c j c i j . o r g / c i j w w w / c d e c i s i o n s / c c p i j / s e r i e _ A B / A B _ 5 3 / 01_Groenland_Oriental_Arret.pdf (last accessed 15 October 2005); and the Western Sahara Advisory Opinion (1975) ICJ Reports, p. 12. As Vice-President Fouad Ammoun (the Lebanese Judge) noted in his Separate Opinion at pp. 86-87: “… the concept of terra nullius, employed at all periods, to the brink of the twentieth century, to justify conquest and colonization, stands condemned. It is well known that in the sixteenth century Francisco de Vittoria protested against the application to the American Indians, in order to deprive them of their lands, of the concept of res nullius. This approach by the eminent Spanish jurist and canonist, which was adopted by Vattel in the 19th century, was hardly echoed at all at the Berlin Conference of 1885. It is, however, the concept which should be adopted today”. For a discussion of the concept of terra nullius see also John Dugard, International Law, A South African Perspective (Western Cape: Rustica 2000), pp. 118-122. 50 Rather than confronting each other directly, Israel and Syria fought a war by proxy in the territory of the Lebanon with the support of their super-power rivals, the United States and the former Soviet Union. Israeli troops maintained a “security zone” in southern Lebanon from 1985 until 2000. Syrian soldiers occupied the remainder of the country from 1975-2005 when it was forced to pull outs its forces following the assassination of Rafiq Hariri on 14 February 2005 which was blamed on Syria. See Ewen MacAskill, Rory McCarthy and Brian Whitaker, “Middle East tension rises as UN prepares to accuse Syria of Hariri Assassination” The Guardian, 23 September 2005. See UNSC resolution 1595. See also the Report of the International Independent Investigation Commission established Pursuant to Security Council Resolution 1595 (hereafter the “Mehlis Report”). The report can be located at the following link: http:/ /www.un.org/news/dh/docs/mehlisreport (last accessed 21 October 2005).
46
Articles
control of all its territory (and was not in a position to reassert its control).51 On 2 September 2004, the U.N. Security Council in resolution 1559 called upon “all remaining foreign forces to withdraw from Lebanon”.52 The only major “foreign force” present at the time was Syrian.53 The resolution also called for “the disbanding and disarmament of all Lebanese and non-Lebanese militias” which included Hizbollah and armed Palestinian groups.54 Although the Council reaffirmed its call for the “strict respect for the sovereignty of Lebanon” it is difficult to see how the Lebanese executive, judiciary and parliamentary organs of the State could have exercised sovereign powers when it was under foreign occupation and alien subjugation for three decades. A score of U.N. Security Council resolutions attest to this (in response to the Israeli invasions of Lebanon in 1978 and 1982).55 It is therefore submitted that throughout these long periods of foreign occupation, the Lebanese government was not in effective control of all of its territory. In these circumstances it is questionable whether it could have exercised any sovereign powers as a government even though it continued to be a State for the purposes of international law.56 Even under the terms of the 1989 Ta’if Accord it did not seem that the Lebanese government was able to act independently (i.e. without outside interference from its larger neighbour Syria). 57 So although
51 The preamble to UNSC resolution 1559 reaffirms “the importance of the extension of control of the Government of Lebanon over all Lebanese territory”. Operative paragraph 4 “supports the extension of the control of the Government of Lebanon over all Lebanese territory”. 52 Ibid. 53 Operative paragraphs 1 and 2 of UNSC resolution 1559 provides the following: “1. Reaffirms its call for the strict respect of the sovereignty, territorial integrity, unity, and political independence of Lebanon under the sole and exclusive authority of the Government of Lebanon throughout Lebanon; 2. Calls upon all remaining foreign forces to withdraw from Lebanon”. 54 See operative paragraph 3 of UNSC 1559. Palestinian Prime Minister Mahmoud Abbas (Abu Mazen) told reporters in Paris after a meeting with Lebanon’s Prime Minister that he is prepared to hold talks without preconditions on the issue of Palestinian weapons in Lebanon. He said Palestinians in Lebanon should remember that they were guests and are not above the law. See “Abbas Discusses Arms in Lebanon”, B.B.C. News Online, 18 October 2005. 55 See UNSC resolution 425 (1978) which called “for strict respect for the territorial integrity and political independence of Lebanon within its internationally recognized boundaries”; resolution 509 (1982) which in the preamble reaffirmed “the need for strict respect for the territorial integrity, sovereignty and political independence of Lebanon within its internationally recognized boundaries”; and resolution 520 (1982) which in operative paragraph 4 “calls again for the strict respect for the sovereignty, territorial integrity, unity and political independence of Lebanon under the sole and exclusive authority of the Government of Lebanon through the Lebanese Army throughout Lebanon”. Israel also attacked Lebanon several times in 1972-73, see UNSC resolutions 313 (1972), 26 June; 316 (1972), 26 June; 332 (1973), 21 April and 337 (1973), 15 August. 56 “The long period of de facto partition of the Lebanon did not hinder its appearance as a State.” See Michael Akehurst, Peter Malanczuk, Akehurst’s Modern Introduction to International Law (London: Routledge 1997), p. 77. 57 An English translation of the Ta’if Accord is available at: www.al-bab.com/arab/docs/lebanon/ taif.htm (last accessed 17 October 2005). For criticism of these accords see Joshua Slomich, “The Ta’if Accord: Legalizing the Syrian Occupation of Lebanon”, 22 Suffolk Transnational Law Review (1999), pp. 619- 640; and Sandra M. Sasreen, “The Ta’if Accord and Lebanon’s Struggle to Regain its Sovereignty”, 6 American University Journal of International Law & Policy (1990), pp. 57-75. Article 1.A of the Ta’if Accord provides that: “Lebanon is a sovereign, free
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
47
theoretically Lebanon could have exercised jurisdiction under the territorial and national principles over the Sabra and Chatila massacres, the reality was that it could not have done so for political and practical reasons.58 This is because during Lebanon’s civil war many parts of the country were run by feudal families and their militias59 who set up civil administrations to run their respective affairs.60 Even the Palestinian refugee camps in the Lebanon were controlled by the Palestine Liberation Organisation (hereafter the “PLO”) from 1969-1982. During the Lebanese civil war the PLO was the only effective authority in those camps (the area adjacent to Sabra and Chatila called Fakhani was the closest thing Palestinians ever had to a political, intellectual, financial and administrative capital since 1948).61 Since militias, feudal families and national liberation movements do not constitute States for the purposes of
58 59
60
61
and independent country and a final homeland for all its citizens”. However, according to Section Two, D: “Considering that the objective of the State of Lebanon is to spread its authority over all the Lebanese territories through its own forces, represented primarily by the internal security forces, and in view of the fraternal relations binding Syria to Lebanon, the Syrian forces shall thankfully assist the forces of the legitimate Lebanese government to spread the authority of the State of Lebanon within a set period of no more than 2 years, beginning with ratification of the national accord charter, election of the president of the republic, formation of the national accord cabinet, and approval of the political reforms constitutionally … An agreement shall also be concluded by the two governments to determine the strength and duration of the presence of Syrian forces in the above-mentioned area and to define these forces’ relationship with the Lebanese state authorities where the forces exist” (emphasis added). It remains to be seen whether this will remain the case in the future. For all intents and purposes the Lebanese government was for many years effectively a puppet or surrogate government for Syria. The big Lebanese families during the war included Chamoun (Tiger militia), Franjieh (Marada militia), Gemayel (Phalangists) and Jumblatt (the “Leftist Alliance”). According to the website of the Lebanese Forces (http://www.lebaneseforces.com/): “The Phalangists, The National Liberal Party, Al-Tanzeem Party and the Guardians of The Cedars, … took a multi-lateral decision on August 1976 to consolidate the war efforts and to establish a unified resistance military council under the command of the late Lebanese president ‘Bachir Gemayel’. The Lebanese Forces were primarily responsible for the Sabra and Chatila atrocity.” “On October 1, 1983, Druze leader Walid Jumblatt announced the formation of the People’s Authority for Civil Administration, an autonomous body to govern the Chouf. Composed of a general congress, committees from villages of the region, a planning committee, and an administrative body, its stated aim was to provide basic social services to the people of the Chouf … In much the same manner as the Phalange assumed responsibility for administering the day-to-day affairs of East Beirut … this body discharged various quasi-governmental functions in the Chouf, with subcommittees on water, roads, electricity, schools and hospitals. See Toward Legal Order and Respect for Human Rights: A Report of the Advisory Committee on Human Rights in Lebanon (ACHRL); reprinted in 1 Palestine Yearbook of International Law (1984), pp. 218-263 at p. 222. The ACHRL is a project of the Middle East Program of the American Friends Service Committee prepared by a group of lawyers, historians, aid officials and others which included Francis Boyle, Wallace Collet, Dan Connel, James Fine, Everett Mendelsohn, David Sconyers, Burns H. Weston and Rabbi Arnold Jacob Wolf. On 3 November 1969, the PLO signed the Cairo Accords with the government of the Lebanon. These Accords gave the PLO de facto control over the Palestinian refugee camps in Lebanon for over a decade. See Uri Davis, Citizenship and the State: A Comparative Study of Citizenship Legislation in Israel, Jordan, Palestine, Syria and Lebanon (Reading: Ithaca Press 1997), p. 162; and Lex Takkenberg, The Status of Palestinian Refugees in International Law (Oxford: Clarendon Press 1998), p. 146.
48
Articles
international law, it could be said that during the war, parts of the Lebanon were not subject to the authority of any State at all.62 Hall writes: During the Middle Ages, northern Italian city states exercised universal jurisdiction over brigands who were suspected of committing crimes outside the borders of the city state, based on the argument that there was no effective state control in the area where they committed their crimes and that if the city state did not exercise jurisdiction the brigands would have complete immunity (emphasis added).63
The description above by Hall is analogous to the situation in the Lebanon during the years of civil war. This was even the case in Lebanon’s capital city of Beirut in 1983 (i.e. after the Israelis had pulled out) where, according to a report by the Middle East Program of the American Friends Service Committee: … political stability in the area has not yet been fully restored. Explosions, car bombings, and random sniper fire, while less frequent than they once were, still occur with some regularity … Recent examples of such incidents include the bombing of a Palestinian-owned grocery store in Sabra refugee camp in late June 1983, the April 18, 1983, explosion at the U.S. Embassy in which 63 died, and the February 5, 1983, car bombing outside the Palestine Research Center which damaged the offices, destroyed the archives, killed at least 18 and wounded 115 persons … During the past eight years of civil strife; the perpetrators of most such violent incidents have never been apprehended or brought to justice. The Lebanese judicial system is only now being gradually reestablished and it will take time before it is able to serve effectively.64
It is therefore submitted that universal jurisdiction would be applicable in cases of war crimes committed by any of the above entities in areas where the Lebanese government was unable to exercise control (which at the time seemed to include most of the country).65 However, this would not necessarily remain 62 According to the commentary to Article 10 (c) of the Harvard Draft Convention on Jurisdiction with Respect to Crime, supra, note 48, which provides universal jurisdiction for “crimes committed in a place not subject to the authority of any State” it was said: “It is not possible to exhaust, within the scope of this comment, the meaning of ‘a place not subject to the authority of any State’. One hundred years ago considerable land areas would have fallen within this category; today States have asserted a territorial authority over most of the land areas of the world. Nevertheless certain areas may remain so imperfectly organized for the administration of criminal justice as to be in effect ‘not subject to the authority of any State’; and other areas now sufficiently organized may return, with changing circumstances, to such a condition” (emphasis added). Under these circumstances universal jurisdiction would be appropriate. 63 Christopher Keith Hall, “Universal Jurisdiction: New Uses for an Old Tool” in Mark Lattimer and Philippe Sands QC (eds.) Justice for Crimes Against Humanity (Oxford: Hart Publishing 2003), pp. 47-71 at p. 50. As Akehurst notes: “… in many continental countries the universality principle is as ancient as the territorial principle in England. It existed in medieval Italy, sixteenth-century Brittany, seventeenth- and eighteenth-century France until 1782, and seventeenth- and eighteenth-century Germany. It was supported by Grotius, Vattel, Paul Voet, Huber and Bynkershoek, not to mention lesser-known writers in sixteenth- and seventeenthcentury Belgium”. See Akehurst supra note 41 at p. 163 (footnotes omitted). 64 (Emphasis added.) See Toward Legal Order and Respect for Human Rights: A Report of the Advisory Committee on Human Rights in Lebanon, supra, note 60 at p. 252. 65 In an Austrian case concerning Dusko Cvjetkovic, a Bosnian Serb accused of committing genocide, the Austrian Supreme Court found that it was obliged to act where there was no functioning criminal justice system in the state where the crimes were committed. See the website of REDRESS – Seeking Reparation for Torture Survivors – on Universal Jurisdiction in Europe at the following link: http://www.redress.org/documents/annex.html (last accessed 24 March 2006).
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
49
the case in territories controlled by Arab Deterrent Force (“ADF”) or the Israeli army.66 In those areas, occupying powers are obliged to take all the measures to restore, and ensure, as far as possible, public order and life, while respecting, unless absolutely prevented, the laws in force in the country.67 It therefore becomes necessary to determine whether or not the Sabra and Chatila camps were considered occupied territories in September 1982, to establish whether its inhabitants were considered to be protected persons as defined in Article 4 of Geneva Convention IV. This Article extends the protection of the Convention to all “who at a given moment … find themselves, in the case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”.68 The majority of Palestinians are not nationals of Israel because those who fled or were expelled during the 1947-1949 hostilities were stripped of their prior nationality status (i.e. denationalised) after they had their properties confiscated from them in 1952.69
66 At the Arab summit in Fez, Morocco, in the fall of 1982, it was agreed that the mandate of the ADF would not be extended and that the Syrian withdrawal from Lebanon be arranged through negotiations. According to the report of the American Friends Services Committee, supra, note 60 at p. 230: “With the failure to renew the ADF’s mandate, the status of Syrian forces in Lebanon has become ambiguous. They no longer possess a regional sanction, nor has the Lebanese government repeated its original request to the Syrians to play a peace-keeping role in the country. The Lebanese have not, however, formally requested Syria to withdraw its forces from Lebanon. Whether or not it is proper to consider the Syrian forces as an occupying army, the Advisory Committee is convinced that the international law governing occupation is the minimum standard against which Syrian actions in Lebanon should be judged”. For most of 1983 Syrian troops controlled the area around Tripoli and the Bekáa Valley and the Israeli army controlled the area south of the Bekáa Valley, the Chouf Mountains and southern Lebanon. The Israelis could also move about freely in the mountains around East Beirut and Mount Lebanon where the Phalange operated. 67 See Article 43 of Hague Convention IV Respecting the Laws and Customs of War on Land and its Annex: Regulations Respecting the Laws and Customs of War on Land, Treaty Series No. 539, Bevans, p. 631, signed at The Hague, 17-18 October 1907, entry into force 26 January 1910. According to Edmund Schewnk a comparison of the original French text of the Hague Regulations with the English translation of “la vie publique” has been translated into “safety”. The literal translation of “la vie publique” is “public life”. See Edmund Schewnk, “Legislative Power of the Military Occupant under Article 43, Hague Regulations” 54 Yale Law Journal (1945), p. 393 at footnote 1. 68 See Geneva Convention IV, supra note 41. 69 See Israel’s Nationality Law 5712-1952. Published in Hebrew in Sefer Ha-Chukim No. 95, 8 April 1952, at p. 146; 11 Laws of the State of Israel at p. 50. Reproduced in English in Joseph Badi (ed.) Fundamental Laws of the State of Israel (New York: Twayne 1961). For further reading see Victor Kattan, “The Nationality of Denationalized Palestinians” 74 Nordic Journal of International Law (2005), pp. 67- 102 at pp. 83-87. On property confiscation see Israel’s Absentee Property Law, (14 March 1950) in 4 Laws of the State of Israel: Authorized Translation from Hebrew (Jerusalem: Government Printer, 1948-1987) pp. 62-82. For further reading see Sabri Jiryis, “Settler’s Law: Seizure of Palestinian Lands” 2 Palestine Yearbook of International Law (1985), pp. 17-36 and Gail J. Boling, “‘Absentees’ Property law’ and Israel’s Confiscation of Palestinian Property: A Violation of UN General Assembly Resolution 194 and International Law” 11 Palestine Yearbook of International Law (2003), pp. 73-130.
Articles
50
2.3 The applicability of Geneva Convention IV to West Beirut in September 1982 According to Article 42 of the Fourth Hague Convention regarding the Laws and Customs of War on Land of 1907 (hereafter “Hague Regulations”): Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.70
According to the U.K. Manual of Armed Conflict: To determine whether a state of occupation exists, it is necessary to look at the area concerned and determine whether two conditions are satisfied: first, that the former government has been rendered incapable of publicly exercising authority in that area; and, secondly, that the occupying power is in a position to substitute its own authority for that of the former government.71
As previously noted, the government of the Lebanon was not capable of “publicly exercising authority” in many areas of Beirut (or the rest of Lebanon for that matter), including in the Palestinian refugee camps – even a year after the departure of the Israeli army. On 25 August 1982 a multinational force (hereafter “MNF”) arrived in Beirut to supervise the withdrawal of PLO and Syrian forces trapped in West Beirut, and to offer assurances to the inhabitants of West Beirut that neither Israelis nor the Phalangists (which dominated the Lebanese Forces) would enter.72 On 1 September 1982, 8,300 PLO guerrillas and 3,600 Syrian and Palestine Liberation Army troops were evacuated from Beirut in accordance with an agreement brokered by Philip C. Habib, Emissary of the President of the United States of America.73 On 3 September, Israel violated the Habib agreement by moving its troops into Bir Hasan, a southern suburb of Muslim West Beirut, establishing observation posts and dismantling PLO defences.74 On 10-13 September, the MNF
70 Supra, note 67. 71 See supra note 42 para. 11.3 at p. 275. 72 See Farooq Hassan, “The Legal Implications for the United States in the PLO Evacuation from Beirut” 18 Texas International Law Journal (1983), pp. 509-545. Hassan writes at p. 521 that: “… only the United States had procured from Israel the necessary guarantee of protection towards the safety of the Palestinians. It seems reasonable to conclude that these behind-thescene assurances from all concerned parties were really obtained by the United States. The feeble Government of Lebanon was in no position to give such a guarantee to anyone. Thus, while the Agreement does speak of Lebanon as being one of the guarantors of protection, it is obvious that it was the position and status of the United States in the eyes of the concerned parties that brought forth the assurances for the safety of the Palestinians from the Israelis and from other armed groups referred to in the Plan. It also stands to reason that the PLO agreed to leave peacefully because in essence the United States was behind the Plan, not merely Lebanon”. 73 According to the MacBride Commission of Enquiry, supra note 35 at p. 164 Israel had accepted the numbers that should leave should be 7,100 PLO guerrillas and 2,500 from PLA units. So, as is apparent, more Palestinian troops actually departed than originally required. 74 Ibid.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
51
departed.75 On 14 September, a large bomb exploded in Phalangist Party Headquarters in Ashrafiyeh in Christian East Beirut killing the LF leader Bachir Gemayel and 26 others days before he was due to be sworn in as President.76 On 15 September, Israeli Generals Rafael Eitan and Amir Drori met with the general staff of the LF in East Beirut and agreed that they should enter Sabra and Chatila to ‘mop up’ the remaining ‘terrorists’.77 On 16 September, Elias Hobeika, the intelligence chief of the LF and the man who had been in charge of Gemayel’s security was put in charge of the militiamen assigned to enter the camps.78 In a meeting that day with the Israelis, Hobeika and Fadi Frem, Chief of Staff of the LF said there would be a kasach (chopping or slicing operation) in the camps. 79 Later that day according to the MacBride Commission:
75 Ibid. According to the MacBride Commission of Enquiry: “This departure was ahead of schedule and was fiercely opposed by Muslim leaders and the Lebanese community in general. Under the Habib plan, the multinational force was due to stay for one month and had not been expected to leave before 26 September. The text of the Habib Agreement and the schedule for departures of the PLO and PLA units were reproduced by the Tokyo Commission of Enquiry in its published report, supra note 37 at pp. 143-160. In negotiations over their withdrawal from Beirut, the PLO had been very wary of the massacres at the Palestinian refugee camp of Tal al-Za’tar which took place on 12 August 1976 (where hundreds of civilians were slaughtered by Lebanese right-wing militias after the fall of the camp and despite the presence on the scene of representatives of the International Committee of the Red Cross). According to Khalidi: “In view of this tragic history, what the Palestinians feared was that after the departure of PLO forces the IDF [that is, the Israeli army] would allow the same militias to finish in the refugee camps of Beirut in 1982 what they had started in Tal al-Za’atar and other Palestinians camps in 1976. See Rashid Khalidi, Under Siege: PLO Decisionmaking During the 1982 War (New York: Columbia University Press 1986), p. 169. Consequently after the withdrawal, the Palestinians remaining behind in the camps were left to the mercy of the Lebanese militias and invading powers without any physical protection even though Arafat had contemplated the aforementioned scenario in the 11-point plan he presented to the Americans in June 1982. Arafat had specifically requested that an international force guarantee the security of the camps. As Khalidi writes at p. 124: “Not surprisingly, the American response to these PLO terms was negative. It was conveyed to Abu Lutf (i.e. Farouq al-Qaddoumi, the PLO’s Foreign Minister) during a meeting … with a senior French emissary. The U.S. Under Secretary of State, Lawrence Eagleburger, had told the French Ambassador in Washington that the U.S. considered this proposal “under the circumstances to be unrealistic, essentially because according to the U.S.A. the P.L.O. does not provide firm commitments, and therefore [it] cannot be considered the basis for serious negotiation”. Arafat’s plan provided that the withdrawal would be coordinated with the PLO “in order to avoid what happened in the Palestinian camps of the South of Lebanon, and in Tal al-Zaatar camp [in 1976], at hands of Israeli and Phalangist forces.” Point 11 of the plan provided: “D-day is the day when the commander of the international force notifies us of his force’s readiness to execute this mission, this being: a. protecting the Palestinians camps against any aggression …” See Text of 11point PLO position, as distributed to offices abroad, 8 July 1982. From Chairman Arafat to Souss, Tarazi, Ramlawi, Abu Shaker and Abu al-Tayyeb. These were PLO representatives in Paris, New York and London, Fateh Central Committee member Rafiq al-Natshe, located in Saudi Arabia and PLO Executive Committee member Dr. Ahmed Sidqi Dajanu, located in Egypt at the time. The 11 points are reproduced in Khalidi at pp. 183-184. 76 Noura Boustany and Reginal Dale, “Israelis move after Gemayel assassination”, The Financial Times, 16 September 1982. 77 MacBride Commission of Enquiry, supra, note 35 at p. 165. 78 Ibid. 79 Ibid at p. 166.
52
Articles … Israeli forces occupied the commercial districts of Hamra and Corniche Mazra, brushing aside resistance by the Mourabitoun.80 By Thursday evening, West Beirut was fully under Israeli control, except for the Muslim Districts of Barbir and Tarik alJadida. The districts where fighting continued were sealed off by the Israelis on Thursday night. Israel completed its encirclement of West Beirut on Thursday, 16th and took control of all Beirut’s main roads, junctions and strategic heights. Israeli infantry and armour units were eliminating the last pockets of resistance in the Hamra commercial quarter that evening. An indefinite curfew was imposed on all areas under Israeli control, including Sabra and Chatila … An Israeli army spokesman said: “The Israeli Defence Force is in control of all key points in Beirut. Refugee camps harbouring ‘terrorist’ concentrations remain encircled and closed ...”81
The MacBride Commission of Enquiry established that: “After the quelling of such Muslim resistance as there was on 15 September, Israel became an occupying power in West Beirut. Israel must be designated the occupying power from 15 September until its eventual withdrawal from that section of the city” (Sabra and Chatila are situated in West Beirut).82 According to the Kahan Report: “If the territory of West Beirut may be viewed at the time of the events as occupied territory … then it is the duty of the occupier, according to the rules of usual and customary international law, to do all it can to ensure the public’s well-being and security”.83 There is consequently a prima facie case to be made that the Sabra and Chatila refugee camps were under the authority of the Israeli army when the massacres occurred from the 16-18 September 1982. Many eyewitness reports given to the Oslo Commission claimed that: Wednesday morning 15 September the Israelis moved northwards with soldiers and tanks. They moved to the Kula and Fakhani areas and blocked the west side of the two camps … At noon, Wednesday 15 September, the Israelis moved up along the east side of Chatila. The Israelis could move forward very easily without facing any resistance from the inhabitants of the camps. So at noon on Wednesday Sabra and Chatila were completely surrounded with Israeli tanks (emphasis added).84 When we returned to the camp on 15 September at about 5 p.m., the whole area was surrounded by Israeli tanks and soldiers.85 On the street west of Chatila there were Israeli tanks with guns pointed towards the camp. From that street you can have a perfect view over the camp which lies about 150 metres from the street in a valley.86
80 The Mourabitoun was a Muslim-Lebanese leftist militia known as the “Independent Nasserites Movement”. 81 Supra, note 35 at p. 166. 82 Ibid, p. 169. 83 The Kahan Commission stated, supra, note 33 at p. 2: “we do not determine that such indeed is the case from a legal perspective”. This was, because, as the Commission itself noted at p. 5: “Our procedures are not those of a criminal court; and therefore the criterion of criminal courts that stipulates that in order to convict someone his guilt must be proven beyond a reasonable doubt, does not apply in this case.” 84 See the Oslo Enquiry, supra, note 36, Testimony given by Astrid Barkved at p. 116. 85 Ibid, testimony given by Vera Talseth at p. 119. 86 Ibid, testimony given by Dr Juhani Pajula at p. 122.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
53
… the Israeli tanks surrounded the area and shelled the houses. They controlled everybody who went out or into the camps. At the same time they could look into the camps from their headquarters. During the night the camp was lit up by these flares all the time, so nobody could flee away from this area until the mass murder stopped.87 They [the Israeli army] came down the main street, they fanned out into the small streets and alleys, they met no resistance, they formed a phalanx inside the camp approximately 100 yards from the house of Safi Halid Hamud. The phalanx which they established then was used as a screen through which the militia units entered, the phalanx closing behind the militia units protecting their rear flank. The militia proceeded to slaughter people systematically with the Israeli forces present.88
The U.K. Manual of Armed Conflict provides that territory can be under effective control even if that control is only temporary. Therefore it is not necessary for Israel to have kept troops permanently stationed in the refugee camps.89 Likewise, the US Army Field Manual provides: “It is sufficient that the occupying force can, within a reasonable time, send detachments of troops to make its authority felt within the occupied district. It is immaterial whether the authority of the occupant is maintained by fixed garrisons or flying columns, whether by small or large forces, so long as the occupation is effective.”90 Although the Kahan Commission did not determine conclusively that the Sabra and Chatila refugee camps were considered territories occupied by Israel on 15 September 1982, the Israel Supreme Court (hereafter “Supreme Court”) did hold in a significant judgment in 1983 that Geneva Convention IV was applicable to southern Lebanon where Israeli forces were detaining a number of individuals at the Ansar camp.91 After quoting the British Military Manual 92 the Supreme Court held:
87 Emphasis added. Ibid, testimony given by Dr Per Maehlumschlagen at p. 126. 88 Emphasis added. Ibid, testimony given by Ralph Schoenman at p. 129: “It should be pointed out also that the Kate’eb [i.e. Phalangists] and Haddadi [Israel’s proxy army in southern Lebanon] militias are not to be found at any check point without an Israeli soldier and/or officer present. They are armed by the Israelis. They are barracked with the Israelis. They get their shoelaces from the Israelis. This is an area wholly under the control of the Israeli armed forces, an area sealed off not only to prevent people from escaping it, an area sealed off to prevent any from entering it, except with the control and authority of the Israeli armed forces.” 89 Supra, note 42, para. 11.3.2 at p. 276. 90 See the U.S. Army Field Manual, supra, note 43 at para 356. 91 See HCJ 593/82, Leah Tsemel, Attorney, et al v. Minister of Defence and Commander of the Ansar Camp (1983) Piskei Din, Vol. 37, part 3, pp. 365-380 in Hebrew. Translated into English and reprinted in 1 Palestine Yearbook of International Law (1984), pp. 164-174. This judgment was significant because the judges who heard the case consisted of M. Shamgar (who was formerly Israel’s Attorney-General and who had written an academic article claiming that the Geneva Convention IV did not apply to the OPT’s in “The Observance of International Law in the Administered Territories” 1 Israel Yearbook of Human Rights (1971), pp. 262-277). The other judges were A. Barak and S. Natanyahu. Aharon Barak, the current President of the Israel Supreme Court, must have been aware of the significance of this judgment as he was appointed to the Kahan Commission of Enquiry on 28 September 1982. 92 The Law of War on Land, being Part III of the Manual of Military Law, (London: H.M.S.O. 1958)
54
Articles … if the army has taken actual and effective control of territor y “X”, the temporariness of its stay on the territory or its intention to maintain only temporary military control does not detract from the reality that de facto conditions have been created compelling application of those ordinances of the laws of war relating to the consequences of belligerent occupation. Furthermore, application of the third chapter of the Hague rules or of the parallel provisions of the Fourth Geneva Convention is not dependent on the establishment of a special organizational apparatus bearing the character of a military administration.93
Presumably the same principles would apply if territory “X” was West Beirut in September 1982. It is therefore not necessary to demonstrate that Israel had established a special organisational apparatus bearing the character of a military administration. The mere presence of a significant number of Israeli troops in the area, and the quelling of any resistance to its authority, is enough to establish that the territory was – at the time of the massacres – under effective Israeli control, and consequently it was incumbent upon Israel as the occupying power to ensure respect for those ordinances of the laws of war relating to the consequences of belligerent occupation, namely the Hague Regulations, Geneva Convention IV and its Additional Protocol.94 As the ICJ held in the recent Wall case, international human rights law (and not only international humanitarian law) is applicable to occupied territory.95 The European Court of Human Rights (hereafter “ECtHR”) in Loizidou v. Turkey held that the presence of a large number of troops engaged in active duties in northern Cyprus was sufficient to demonstrate that the Turkish army “exercises effective overall control over that part of the island” (my emphasis).96 Those persons affected by the policies and actions of the Turkish Republic of Northern Cyprus were held to be within the “jurisdiction” of Turkey for the purposes of Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.97 This provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms enshrined in section 1 of the Convention.” Of course, Israel, Lebanon and the PLO are not Member States of the Council of Europe and are therefore not bound by this Convention. But if both the ICJ and the ECtHR consider European and international human rights law to be applicable to 93 Supra, note 91 at p. 169. 94 Although Israel is not a signatory to API it would be bound by those provisions of the treaty which codify customary norms of international law. See Jean-Marie Henckaerts and Louis Doswald-Beck, Customary International Humanitarian Law: Volume 1 Rules (ICRC: Cambridge University Press 2005). It is noteworthy that the U.N. General Assembly’s request for an advisory opinion on the legal consequences of the construction of a wall, A/RES/ES-10/14, 12 December 2003 and the Assembly resolution adopted in the aftermath of the ICJ’s advisory opinion, A/RES/ES-10/15 of 2 August 2004, both refer to AP1. 95 The ICJ held supra, note 1 at paras. 111-113, that the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child are applicable to the Occupied Palestinian Territories. 96 See Loizidou v Turkey (merits and just satisfaction, 28 November 1996) 40/1993/435/514 available on HUDOC at para. 56. See also the decision as to the admissibility of Bankoviæ v Belgium and 16 other contracting parties, Application no. 52207/00, 43 International Legal Materials (2002), p. 517, paras. 70-71. Turkey has occupied northern Cyprus since 20 July 1974. 97 As amended by Protocol 1 available at the following website: http://conventions.coe.int/ treaty/en/Treaties/Html/005.htm (last accessed 25 November 2005).
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
55
occupied territories, then it should not matter if those territories are in Cyprus, Palestine or the Lebanon and there is nothing in the text of the treaties that would exclude this interpretation.98 Even Israel’s own Supreme Court has gone so far as to “assume” that human rights law applies to the occupied West Bank.99 However, since Israel only signed the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child in 1991, it could not be bound for violations committed before that date.100 However, its nationals could be held liable for violations committed after it signed and ratified these treaties such as the attack by the Israeli army on the U.N. compound in Qana in southern Lebanon in 1996. 101 On 15 December 2005, the Centre for Constitutional Rights served process papers on Lt. General (retired) Moshe Ya’alon, former Head of the Intelligence Branch and former Chief of Staff of the Israeli army, for war crimes and other human rights violations committed at a U.N. compound in Qana.102 Even after Israel withdrew its armed forces from Lebanon in May 2000 the U.N. Committee on the Rights of the Child expressed concern in its concluding observations on Israel in October 2002 “about the insufficient cooperation of the State party in relation to demining efforts in southern Lebanon and the lack of redress available to the child victims” of Israeli army operations there.103 It recommended that Israel provide 98 Article 28 of the ICESCR provides: “The provisions of this present Convention shall extend to all parts of the federal States without any limitations or exceptions”; Article 2 (1) of the ICCPR provides: “Each State Party to the present Covenant undertakes to respect and ensure respect to all individuals within its territory and subject to it jurisdiction the rights recognized in the present Covenant …” 1 Article 1 to the Second Optional Protocol to the ICCPR provides: “No one within the jurisdiction of a State Party to the present Protocol shall be executed”; and Article 2 of the CRC provides: “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” Israel is a signatory to all these Conventions. See infra, note 101. 99 See para. 27 of H.C.J. 7957/04, Ma’arabe v. The Prime Minister of Israel (2005) available online and translated into English at the website of the Israel Supreme Court at: http:// elyon1.court.gov.il/eng/verdict/framesetSrch.html (last accessed 5 December 2005). 100 With the exception of those provisions with reflected customary international law before then. 101 Israel signed the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights on 19 December 1966. On 3 July 1990 Israel signed the Convention on the Rights of the Child. It ratified all three treaties on 3 October 1991. 102 The complaint was filed at the U.S. District Court for the District of Columbia. It can be viewed at the following web site: http://www.ccr-ny.org/v2/legal/human_rights/docs/ Complaint_Qana.pdf (last accessed 5 January 2006). For further reading on the Qana incident see W. Michael Reisman, “The Lessons of Qana”, 22 Yale Journal of International Law. (1997), pp. 391-399 and David Turns, “Some reflections on the conflict in Southern Lebanon: The Qana Incident and International Humanitarian Law” 5 Journal of Conflict & Security Law (2000), pp. 177-209. 103 See the Concluding Observations of the Committee on the Rights of the Child: Israel, 9 October 2002 in UN Doc. CRC/C/15/Add.195 at paras. 58 and 59 available at the following website: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/7b3bc74d6890921bc1256c7f0033e 856?Opendocument (last accessed 5 December 2005).
56
Articles
full support and cooperation for demining efforts in southern Lebanon, and possibilities for adequate compensation, recovery and rehabilitation to the child victims of Israeli army actions.104 It is noteworthy that the extraterritorial effect of the United Kingdom’s Human Rights Act was recently acknowledged by the Court of Appeal in relation to a case that concerned the British army’s occupation of southern Iraq.105 In any event, common Article 1 to the 1949 Geneva Conventions requires the Contracting Parties to undertake “to respect and to ensure respect for the present Convention in all circumstances” (emphasis added).106 The International Committee of the Red Cross (hereafter “ICRC”) interprets common Article 1 of the Geneva Conventions as involving obligations beyond those of the parties to a conflict.107 The U.N. Security Council in a resolution adopted in 1990 called on States parties to Geneva Convention IV to ensure respect by Israel
104 Ibid. 105 See The Queen (on the application of Mazin Mumaa Galteh Al-Skeini and Others) and The Secretary Of State for Defence, in the Supreme Court of the Judicature Court of Appeal (Civil Division) on Appeal from the Administrative Court Divisional Court, [2004] EWHC 2911 (admin), 21 December 2005. This is available online at: www.bailii.org/ew/cases/EWCA/Civ/2005/ 1609.rtf (last accessed 13 January 2006). See, in particular, Lord Justice Sedley’s concurring opinion at paras. 191-197 where he disagrees with the leading judgment of Lord Justice Brooke. According to Sedley (at paras. 196-7: “If effective control in jurisprudence of the ECtHR marches with international humanitarian law and the law of armed conflict, as it clearly seeks to do, it involves two key things: the de facto assumption of civil power by an occupying state and a concomitant obligation to do all that is possible to keep order and protect essential civil rights. It does not make the occupying power the guarantor of rights; nor therefore does it demand sufficient control for all such purposes. What it does is place an obligation on the occupier to do all it can … If this is right, it is not an answer to say that the U.K., because it is unable to guarantee everything, is required to guarantee nothing. The question is whether our armed forces’ effectiveness on the streets in 2003-4 was so exiguous that despite their assumption of power as an occupying force they lacked any real control of what happened hour to hour in the Basra region. My own answer would be that the one thing British troops did have control over, even in the liable situation described in the evidence, was their own use of lethal force.” 106 See supra, note 41. As Georges Abi-Saab notes: “… to ensure their effective application in all circumstances, the Conventions expressly prohibit the taking of reprisals against persons, installations or property protected by their provisions. This prohibition of reprisals operates however grave and persistent may have been the enemy’s prior disregard of the law of war, whether in combat or in maltreatment of those war victims it had the duty to protect. Thus, the standards of protection set by the Conventions cannot be eroded by pretexting reprisals, i.e. reciprocity in violation” (emphasis in original). See Georges Abi-Saab, “The Specificities of Humanitarian Law” in Christophe Swinarski (ed.) Studies and Essays on International Humanitarian Law and Red Cross Principles (Geneva: ICRC and Martinus Nijhoff 1984), pp. 265-280 at p. 267. 107 According to the ICRC the obligation to “ensure respect” is not limited to behaviour by parties to a conflict, but includes the requirement that States do all in their power to ensure that international humanitarian law is respected universally. States may not encourage violations of international humanitarian law by parties to an armed conflict. They must exert their influence, to the degree possible, to stop violations of humanitarian law. State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. See Jean-Marie Henckaerts and Louis Doswald-Beck, ICRC Study on Customary International Humanitarian Law, supra note 94, Rule 144 at pp. 509-510.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
57
for its obligations, in accordance with Article 1 of the Convention.108 The U.N. General Assembly has adopted several resolutions to the same effect.109 Some commentators have suggested that each State party to the Convention has a direct legal right or interest (or even a legal obligation) in safeguarding these common interests.110 On the basis of having effective control of West Beirut on 15 September 1982 Israeli courts may invoke jurisdiction for the crimes committed in Sabra and Chatila.111 However, should Israel fail to live up to its responsibilities and prosecute the perpetrators of the massacres on its soil, all States required to ensure respect for the Geneva Conventions could do this through the application of universal jurisdiction. 2.4 The attribution of the conduct of the Lebanese forces to the State of Israel On the basis of the facts presented above, it is submitted that Geneva Convention IV would most likely have been applicable to Israel’s occupation of West Beirut in September 1982. It therefore becomes necessary to determine who was responsible for the conduct of the Lebanese Forces. In the Tadiæ case the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (hereafter “ICTY”) held: In order to attribute the acts of a military or a paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountable for any misconduct of the group. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law.112
108 UNSC resolution 681, (1990). 109 UNGA resolution 32/91 A, 37/123A, 38/180A and 43/21. 110 See Abi-Saab supra note 106 at p. 270. However, the British government in a letter (sent to Hickman and Rose Solicitors who wrote to Jack Straw, the British Foreign Secretary on behalf of War on Want, and the Dove and the Dolphin Charity about U.K. and E.U. actions regarding Israeli human rights violations in the OPT, and construction of the wall) wrote: “In our view, Article 1 of the Fourth Geneva Convention does not constitute an obligation in international law to ensure that other High Contracting Parties also respect the Convention, although, as a matter of policy, the U.K. will take such steps as are appropriate in the circumstances to encourage universal respect for its provisions”. Nick Banner, Letter, “U.K. Policy on the Occupied Palestinian Territories”, 20 September 2005 (on file with author). 111 In 1990, the U.N. Security Council acting under Chapter VII of the Charter in resolution 674 (19 October 1990) reaffirmed that Geneva Convention IV applies to Kuwait and that Iraq, as a High Contracting Party to that Convention, was bound to comply fully with all its terms “and in particular is liable under the Convention in respect of the grave breaches committed by it, as are individuals who commit or order the commission of grave breaches”. Presumably, the same principle would apply to Israel, Lebanon and Syria. 112 Case IT-94-1, Prosecutor v. Tadiæ, 38 International Legal Materials (1999), p. 1544 at para. 131.
58
Articles
According to the findings of the Kahan Commission: “Israel extended significant aid to the Christian armed forces, supplying arms, uniforms, etc., and also training and instruction” (my emphasis).113 The uniforms Israel supplied to the Phalangists bore an emblem with the inscription “Keta’ib Lubnaniyeh” (i.e. the Phalangists who dominated the LF at the time) and the drawing of a cedar, embroidered over the shirt pocket.114 Cooperation between Israel and the LF was well established. As Franklin P. Lamb writes: Many officers and troops received extensive training inside Israel, including several of the unit [sic] used in the massacre, including the Tigers, the Guardian of the Cedars, and the Damour Brigade. Since 1975, Israel has operated closely with the Phalangists and, according to Menachem Begin, has given the Phalangists $ 100 million during this period. The CIA estimates the figure closer to $ 300 million.115
Israeli Military Intelligence and the Mossad handled relations between the Phalangists and Israel, with Mossad representatives maintaining close contact with the Phalangist leadership in the Lebanon.116 Both the Mossad and Military Intelligence were required to draw up evaluations on the Phalangists and they were obligated to bring these to the attention of “all interested parties”.117 In the middle of June 1982, Israel and the LF formulated a plan to take control of Muslim West Beirut.118 The Israeli army was not to take part in the operation; only in the event that it became necessary would the Israeli army help the Phalangists with long-range artillery fire.119 As events transpired the plan was never implemented as originally conceived since the threat posed by the presence of the PLO dissipated when they were evacuated by the MNF.120 The evidence uncovered by the Kahan Commission during its investigation pointed to a well-established pattern of Israeli-Phalangist cooperation in coordinating and helping each other in the general planning of military activity in the Lebanon. This was not a relationship between equals however. The Israelis were by far the stronger side numerically and militarily. Israeli soldiers had the power to give orders to soldiers from the LF and dismiss them. As Ellen Siegel, an American nurse working in Beirut, told the Tokyo Commission:
113 See Kahan Commission, supra note 33 at p. 6. The Commission went on to note: “Over the course of time, a considerable number of meetings were held between leaders of the Phalangists and representatives of the Government of Israel and the I.D.F. [that is, the Israeli army]. In the course of these meetings, the ties between the leaders of the two sides grew stronger. The Institute for Intelligence and Special Assignments (henceforth, the Mossad) was made responsible for the link with the Phalangists; and representatives of the Mossad maintained – at various times, and in various ways – a rather close connection with the Phalangist leadership”. 114 Ibid. 115 Franklin P. Lamb, International Responsibility for the Sabra and Chatila Massacres, supra, note 38, pp. 73-74. 116 See Kahan Commission, supra note 33 at p. 7. 117 Ibid. 118 Ibid at p. 8. 119 Ibid. 120 Ibid.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
59
… I observed the extensive and constant use of walkie-talkies. The Israelis had occupied the [former] UN building and apparently turned it over to the Phalangists to be used for interrogation. The Israeli soldiers I saw observing the camps from their command posts could see at least parts of Chatila. An Israeli soldier had the power to dismiss soldiers of the Lebanese militia because the IDF was in control of the area.121
During questioning at the same commission of enquiry, Hirokawa Ryuichi, a Japanese photo-journalist commented: …anyone who was in Lebanon would have noticed that most of the checkpoints, such as those on Damascus road, were controlled jointly by Israeli forces and Phalangist militia. When I was being examined at one checkpoint, I saw that Israeli forces were able to give orders to the Phalangist militia concerning their moves in the area.122
Not only did Israeli soldiers have the power to give orders to the LF; the latter also obeyed these commands. At the Oslo Commission of Enquiry, Dr. Philomena McKennon testified that after she and her colleagues were interrogated by the Israeli army they were granted safe passage to the Gaza hospital by being issued with a pass written in Hebrew: I in my innocence said, “Nobody will understand that, you must write it in Arabic”, and as a matter of fact the officer said, “No, it’s OK, it will be understood.”123
After weighing all the evidence the MacBride Commission of Enquiry concluded: Throughout the operation Israel provided essential assistance to the killers. The militias were sent into a sealed area; the surrounding Israeli units are reported to have prevented civilians from escaping from the camps on several occasions. Logistical aid was given to the Lebanese militia forces within the camps by way of flares and supplies. Most significant is the failure of the IDF to intervene as soon as information became available as to the actual character of the operation. The IDF were slow in removing the militiamen despite evidence that people were still being killed as late as 8 am on Saturday 18. This basically amounts to assistance by omission.124
The International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts provides in Article 2 that: “There is an internationally wrongful act of a State when conduct consisting of an act or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State” (emphasis added).125 As the commentary notes: 121 122 123 124
See Tokyo Inquiry, supra, note 37 at p. 176. Ibid, p. 124. See the Oslo Enquiry, supra, note 36 at p. 124. See the MacBride Commission of Enquiry, supra, note 35 at p. 180, (footnotes omitted): “Article 86 of Protocol 1, 1977 states: ‘the parties to the conflict shall repress grave breaches … of the Conventions and of this Protocol which result from a failure to act when under a duty to do so’”. 125 See James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Texts and Commentaries (Cambridge: University of Cambridge Press, 2002), pp. 81-85.
60
Articles Cases in which the international responsibility of a State has been invoked on the basis of an omission are at least as numerous as those based on positive acts, and no difference in principle exists between the two. Moreover it may be difficult to isolate an “omission” from the surrounding circumstances which are relevant to the determination of responsibility”.126
It is apparent that Israel exercised a very high degree of control over the LF, to the extent that the massacres could not have taken place without its assistance.127 After word of the massacres spread, around 100 Israeli Generals held a stormy meeting with Ariel Sharon.128 According to a report by David Lennon, who was the Financial Times correspondent in Tel Aviv at the time, the officers were concerned by what they perceived as an attempt by the Israeli government to place responsibility for what had happened on the army. Speakers at the meeting emphasised that the two crucial decisions, to send the army into West Beirut and to allow the Phalangist forces into the refugee camps, were both taken at the political level.129 According to another report by the same correspondent, the Israeli cabinet approved at a meeting on Thursday 17 September 1982 the decision to send in units of the LF into the refugee camps (even though by that time the militias were already in the camps committing atrocities).130 However, according to Ariel Sharon’s public testimony to the Kahan Commission (most of the sessions were held in camera) a general decision to involve the Phalangists in the fighting had been taken as early as 15 June 1982. He said: “The political decision was taken long before. This was a military decision, or the implementation of a political one.”131 General Sharon told the Commission that he approved the Phalangists’ entry after consultation with General Rafael Eitan, Chief of Staff of the Israeli army.132 He also held consultations in Beirut on 15 September with the head of the LF which was also attended by the Israeli Chief of Staff, the directors of military intelligence, the Shin Beth (security services) and representatives from the Mossad.133 These high level meetings and contacts all point to a general pattern of collaboration and coordination in the execution of military operations between the Israeli government and the LF in the Lebanon. For the purposes of State responsibility a decision by a government constitutes an “act of the State”. The Israeli
126 Ibid at p. 82, citing the Corfu Channel and the Diplomatic and Consular Staff cases. 127 According to Tim Llewellyn, a former B.B.C. Middle East Correspondent (1976-1982 and 1987-1992) and one of the first journalists to enter the Sabra and Chatila camps on the Saturday morning: “The Israelis, I would say, had three sides of the camp. They may have had the whole camp surrounded, I couldn’t tell. Certainly, the Israelis had the high positions dominating the camp. It was impossible to get in to the main entrance to the camp because these were guarded by the Israelis ... This atrocity took place under the eyes of the Israelis. You could say almost under their supervision. It would not have happened without them”. Quote taken from a taped interview with Tim Llewellyn, 22 March 2005 (tape on file with author). 128 David Lennon, “Generals in clash with Sharon over massacre”, Financial Times, 4 October 1982. 129 Ibid. 130 David Lennon, “Israel approved entry into camps”, Financial Times, 21 September 1982. 131 David Lennon, “Sharon: I approved Phalangist entry”, Financial Times, 26 October 1982. 132 Ibid. 133 Ibid.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
61
government is therefore liable for the decision to send the militias into the camps, and for failing to stop the massacres. Thus, there is a double responsibility (an act and an omission). From the evidence provided by these enquiries it would seem that the degree of Israeli control over the LF would satisfy both the test established by the ICTY in the case of individual criminal responsibility and the test for the attribution of state responsibility for the conduct of groups and individuals established by the ICJ in Nicaragua v. United States of America.134 In the latter case the Court held: … even the general control by the respondent State [i.e. the U.S.A.] over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State [i.e. Nicaragua]. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State has effective control of the military or paramilitary operations in the course of which the alleged violations were committed (emphasis added).135
The Sabra and Chatila massacres would never have occurred had Israel not introduced the LF militias into the camps, offering them advice, assistance and protection. Food and drink, bulldozers and lines of communication were provided by the Israelis. The militias entry into, and their exit, from the camps was facilitated by the Israeli army who fired flare shells throughout the nights to light up the camps. According to al-Hout’s book, the most extensive to date on the massacres, one Israeli soldier admitted to firing two flare shells every two minutes all through the night, from dusk till dawn, with a view to supporting the LF.136 He said that further flare shells were fired from planes.137 It is telling that during the massacres, Morris Draper, the U.S. Envoy in Beirut held Israel responsible for the killings. His message to Ariel Sharon said: You must stop this horrible massacre. I have an officer in the camps who is counting bodies. The situation is terrible. They are killing children. You should be ashamed. You have absolute control of the area and you are therefore responsible for what is happening there (emphasis added).138
The Israelis established lookout posts in the vicinity of the camps to monitor the militias’ progress. LF leader Elie Hobeika was the man in charge of liaising between his forces and the Israeli army. According to the Kahan Commission, a Mossad liaison officer was also present at the Phalangist headquarters.139 Two days after Hobeika agreed to testify against Ariel Sharon in Belgium, he
134 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), available at: http://www.icj-cij.org/icjwww/icases/inus/inus_ijudgment/ inus_ijudgment_19860627.pdf (last accessed 10 December 2005). 135 Ibid, Merits, pp. 64-65 at para. 115. 136 See al-Hout, supra note 32 at p. 108. 137 Ibid. 138 David Lennon, “‘U.S. blamed Israel’ on killings”, Financial Times, 22 November 1982. 139 See Kahan Commission, supra, note 33 at p. 11.
62
Articles
was blown up in his car by 100 kilos of explosive.140 Less than a month later two of his former associates were found dead.141 These killing could have been coincidental, but the fact that a number of prominent individuals who partook in the killings are murdered in different countries, around the same time, after threats were made to “speak the truth”, raises suspicions. Only an open and transparent investigation into the Sabra and Chatila massacres, followed by a proper trial will draw these events to a close. As things stand, even if Israel and the Lebanon could claim jurisdiction to try the perpetrators of the Sabra and Chatila massacres, the continuing state of war between Israel and Lebanon would render judicial cooperation in the field of international criminal justice almost impossible in the absence of a peace treaty.142 The same situation applies to the Syrians who also played a prominent role in the Lebanese civil war. The fact that no extradition agreement exists between Israel and Lebanon (or between Israel and Syria) would make a potential trial in either country rather difficult.143 Under these circumstances it is not surprising that the Lebanese and Palestinian survivors of the Sabra and Chatila massacres brought a case against the perpetrators before a competent, fair, impartial and independent
140 See Robert Fisk, “The man who would testify against Ariel Sharon is blown up. Was this another targeted killing?” The Independent, 25 January 2002. 141 Michael Nassar was assassinated by a masked gunman using a silencer in Sau Paulo, Brazil. He was shot five times and his wife seven times. Jean Ghanem died in a mysterious car crash after suffering a heart attack. For further reading, see James Burnet, “Phalangist’s murder may be part of a pattern”, The Scotsman, 12 March 2002; and Robert Fisk, “Third former militiaman with links to Sabra and Chatila is murdered” The Independent, 11 March 2002. 142 Cooperation between the two counties is rare. An exception to this was the exchange of prisoners and bodies between the government of Israel and the Lebanese Shiite resistance movement Hizbollah (Party of God) in January 2004 facilitated by the German Federal Republic acting as an intermediary. See Ravi Nessman, “Israel-Hizbollah prisoner swap to take place Thursday”, The Age, 27 January 2004. Even today there are no public telephone lines linking the two countries. It is still a criminal offence to do business with Israel as the Arab boycott is still in effect. See resolution 70 passed by the League of Arab States on the boycott of Zionist products and goods, 12 June 1946 reproduced in English in Muhammad Khalil (ed.) The Arabs States and the Arab League: A Documentary Record, Vol. II International Affairs (Beirut: Kayats 1962), p. 162. For further reading see Preston. L. Greene, “The Arab Economic Boycott of Israel: The International Law Perspective”, 11 Vanderbilt Journal of Transnational Law (1978), pp. 77-94. U.S. pressure has led to some Gulf States abandoning the anti-Zionist boycott. 143 Even if a trial was to take place in absentia either country would find it difficult to gather evidence and summon witnesses whilst a state of war continues to exist. Lebanon would be in a better position to conduct a trial as it is the State on whose territory the crimes occurred and whose nationals were primarily involved in the actual killings. Having said this, a trial in Lebanon without the cooperation of the Israelis would reveal only half the story. As the U.N. General Assembly highlighted in a resolution it adopted on 3 December 1973 (3074, XXXVIII, Principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity): “3. States shall cooperate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity, and shall take the domestic and international measures necessary for that purpose”. This resolution recognises that as a general rule the persons implicated in the said offences shall be subject to trial and punishment in the country in which they committed those crimes.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
63
tribunal in the country of a third State (which happened to be Belgium) under the doctrine of universal jurisdiction.144
3 UNIVERSAL JURISDICTION AND STATELESSNESS It is a well-established principle of international law that the jurisdictional competence of a State is primarily territorial.145 International law recognises the extra-territorial jurisdiction of States, although the basis of such jurisdiction (nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States.146 It is not disputed that the Sabra and Chatila massacres took place within the territory of the Lebanon. Nor is it seriously disputed that the Israeli army did not have effective control of West Beirut when the massacres occurred. Israel and the Lebanon can therefore both invoke jurisdiction on the basis of territoriality. The fact that the killers were Lebanese and their accomplices Israeli implies that both of these countries can claim jurisdiction on the basis of nationality concurrently with territoriality. Theoretically, the Palestinians could invoke jurisdiction on the basis of passive personality (so too could the other countries whose nationals fell victim to this atrocity, which was not limited to Palestinians, but included Iranians, Libyans and others), but in practice this would not be possible. 3.1 The jurisdictional competence of Israel and Palestine Israel, like all sovereign and independent States, is in a position to prescribe jurisdiction in its own territory by passing legislation in the Knesset (Israel’s Parliament).147 It can also summon the perpetrators of crimes that occur within its territory or that affect its citizens or its security interests to its law courts
144 One can envisage various creative solutions. A mixed tribunal with Israeli, Lebanese and Palestinian Judges augmented by specialists from Western countries similar to the Lockerbie case could take place in the country of a third state. Interestingly, the U.N. Security Council in Resolution 1664, 29 March 2006, requested the U.N. Secretary-General to “negotiate an agreement with the Government of Lebanon aimed at establishing a tribunal of an international character based on the highest international standards of criminal justice” to “try all those who are found responsible for this terrorist crime [i.e. the assassination of Rafiq Hariri]”. For further information on the tribunal visit: http:// w w w. s e c u r i t y c o u n c i l r e p o r t . o r g / s i t e / c . g l K W L e M T I s G / b . 1 3 8 7 8 2 7 / k . 3 3 4 4 / February_2006brLebanonSyria.htm (last accessed 31 March 2006). There is talk that the tribunal may be located in Cyprus. 145 Ian Brownlie, Principles of Public International Law, supra, note 41 at p. 303. 146 See the European Court of Human Rights, Grand Chamber decision as to the admissibility of Bankoviæ and others v. Belgium and 16 other contracting States, supra, note 96, at para. 59. 147 On Israeli legislation regarding issues relating to the jurisdiction of its courts in the first decade of its existence, see Theodor Meron, “Public International Law Problems of the Jurisdiction of the State of Israel”, 88 Revue Generale de Droit International Public (1961), pp. 986-1063.
64
Articles
(enforcement jurisdiction).148 Palestine, on the other hand, does not have these rights as it is not a State.149 Of the five traditional bases of criminal jurisdiction set out in the 1935 Draft Convention on Jurisdiction with Respect to Crime (hereafter “Harvard Research”), only one option is feasible in the case of Palestine: universal jurisdiction.150 This is because Palestine – as a non-state entity – cannot prescribe jurisdiction based on the passive personality principle (i.e. by reference to the nationality of those killed and injured at Sabra and Chatila) since most Palestinians are stateless and go without nationality unless they have acquired this through naturalisation in a third State.151 Palestinian 148 This might occur through a process of extradition, rendition or even extraordinary rendition (which would be illegal). On extraordinary rendition, see Stephen Grey “United States: trade in torture” Le Monde Diplomatique, April 2005 (English-language edition), pp. 4-5; On rendition, see Silvia Borelli, “The Rendition of Terrorist Suspects to the United States: Human Rights and the Limits of International Cooperation” in Andrea Bianchi (ed.) Enforcing International Law Norms against Terrorism (Oxford: Hart 2004), pp. 331-373; Joan Fitzpatrick, “Rendition and Transfer in the War against Terrorism”, 25 Loyola of Los Angeles International & Comparative Law Review (2003), pp. 457-492; and M. Cherif Bassiouni, “Unlawful Seizures of Persons by States as Alternatives to Extradition” in Bassiouni (ed.) International Terrorism and Political Crimes (Illinois: Charles C. Thomas 1975), pp. 343-368. 149 On 31 March 2005, the U.S. Court of Appeals for the District of Rhode Island held in Ungar v. PLO, 402 F. 3d 274 (1sr. Cir. 2005) that Palestine has not at any point in time “satisfied the requirements of statehood under the applicable principles of international law”. A similar decision has been reached a decade earlier by the U.S. Court of Appeals in Klinghoffer v. Achille Lauro, 937 F.2d 44,47 (2d Cir. 1991). In Ungar the Court of Appeals reached this conclusion by looking at the definition of statehood according to international law which is to be determined by questions of law and fact. This case can be accessed without a fee through http://www.findlaw.com/casecode/index.html. The Appeals Court cited books and articles by Crawford and Dajani who have written extensively on statehood and the question of Palestine. For further reading on the subject, see Jean Salmon, “Declaration of the State of Palestine” 5 Palestine Yearbook of International Law (1989), pp. 48-82 (this article originally written in French is available in 33 Annuaire Français de Droit International (1988), pp. 37-62); Francis A. Boyle, “The Creation of the State of Palestine” and James Crawford, “The Creation of the State of Palestine: Too much too soon?” both in European Journal of International Law (1990), pp. 201-306 and pp. 307-313; James Crawford, “Israel (1948-1949) and Palestine (1998-1999): two studies in the creation of states” in Goodwin-Gill and Talmon (eds.) The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford: Clarendon Press 1999), pp. 95-124; and Omar Dejani, “Stalled between Seasons: the International Legal Status of Palestine during the Interim Period” 26 Denver Journal of International Law and Policy (1997), pp. 27-92. Counsel for the PLO attempted to argue before the Court that Palestine was a State according to international law and was therefore entitled to sovereign immunity under the Foreign Sovereign Immunities Act. They resorted to this line of argumentation because of a suit filed by the plaintiffs on 13 March 2000 against the PLO pursuant to the Anti-Terrorism Act (hereafter “ATA”). On 9 June 1996, three members of the Islamic Resistant Movement (popularly known as Hamas) shot dead Yaron Ungar, his wife and infant son. Yaron was a U.S. citizen. The ATA provides a cause of action in favour of any U.S. citizen injured in his or her person, property, or business by reason of an act of international terrorism. However, according to the ATA a suit may not be maintained against a foreign State or an agency of a foreign State which is why the defendants were attempting to argue that Palestine was a State for the purposes of international law. 150 According to the Harvard Research there are five general principles “on which a more or less extensive penal jurisdiction is claimed by States”. These are the “territorial principle”, the “nationality principle”, the “protective principle”, the “universality principle” and the “passive personality principle”. See supra, note 48 at p. 445. 151 On Palestinian nationality from the Ottoman period through the British mandate to the present day, see Victor Kattan on denationalisation, supra note 69.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
65
refugees in Lebanon (or anywhere else) would find it difficult to seek redress before Israeli courts because they are prevented from returning to their former homeland.152 Nor can Palestine prescribe jurisdiction on the national, protective or territorial principles because to rely on these basis of jurisdiction there needs to be a sovereign and viable State with sovereign courts of law. The lack of Palestinian statehood also precludes Palestine from resorting to enforcement jurisdiction.153 This is because extradition agreements usually proceed on the basis of a formal treaty or a reciprocal agreement concluded between States concerning their nationals.154 3.2 The jurisdictional competence of the Lebanon In 1991, the government of Lebanon pardoned all Lebanese nationals alleged to have committed war crimes during that country’s civil war (1975-1990), effectively barring any prosecution attempts in that country.155 Unlike the 152 On 1 January 2001, Israel’s Knesset (Parliament) passed the Ensuring Rejection of the Right of Return Law which prevents “a person who left the borders of the State of Israel at a time of war and is not a national of the State of Israel, including persons displaced in 1967 and refugees of 1948 or a member of his family” to return “to the territory of the State of Israel except with the approval of a majority of members of the Knesset”. See Sefer Hahukim (Laws of Israel), Booklet 1172 (10 January 2001), p. 116. 153 Jurisdiction to prescribe refers to a State’s authority to criminalise given conduct. Jurisdiction to enforce refers to a State’s authority to arrest and detain, to prosecute, to try and sentence, and to punish persons for the commission of acts so criminalised. See Roger O’Keefe, “Universal Jurisdiction: Clarifying the Basic Concept”, 2 Journal of International Criminal Justice (2004), pp. 735-760, at pp. 736-737. 154 There is no provision for extradition between Israel and the PLO in the sense in which it is normally understood (i.e. based on reciprocity) in the Protocol Concerning Legal Affairs contained in Annex IV to the Israeli-Palestinian Interim Agreement on the West Bank and Gaza, supra, note 5. As Watson notes: “As a general matter, Israel is required to extradite only non-Israelis, whereas the PA is obliged to extradite all individuals, including Palestinians. Most extradition treaties either oblige both sides to extradite their nationals or oblige neither side to do so. Thus the extradition agreements strike the Palestinians as one-sided.” See Geoffrey Watson, The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements (Oxford: Oxford University Press 2000), pp. 226-234 at p. 228. 155 See General Amnesty Law No. 84 of 26 August 1991 (‘al-‘afou al-‘aamm) which granted immunity to any and all Lebanese individuals and groups for war crimes and crimes against humanity committed between February 1975 and March 1991. For further reading, see Amnesty International, Lebanon: Human Rights Development and Violations, October 1997, p.7 (AI Index: MDE 18/19/97). Although as Cassese notes, “no customary rule having a general purport has yet emerged imposing upon States the obligation to prosecute and punish the alleged authors of any international crime … if such a rule could be held to have taken shape, one could infer from it that granting amnesty would conflict with such a rule”. See Antonio Cassese, International Criminal Law (Oxford: Oxford University Press 2003), pp. 312-316 at p. 315. According to Principle 15 of the Cairo-Arusha Principles of Universal Jurisdiction in Respect of Gross Human Rights Offences: An African Perspective: “While amnesties for gross human rights offences granted to individuals may, in certain cases, be politically expedient, such amnesties are generally incompatible with international law and do not have any effect outside the borders of the country in which they are granted; nor do they absolve other States of their responsibility and their duty to prosecute or to transfer for trial such individuals”. The Principles can be accessed at the following web site: www.afla.unimaas.nl/en/act (last accessed 5 September 2005). According to Article 5 of Continued overleaf
66
Articles
recent Algerian amnesty which, according to President Bouteflika excludes persons implicated in “collective massacres, rape, and bomb attacks on public places”, the Lebanese amnesty only excludes massacres and assassinations of “political leaders, religious figures and diplomats”.156 The Sabra and Chatila massacres took place almost 20 years before the Statute of the International Criminal Court entered into force on 1 July 2002, rendering inapplicable the jurisdictional competence of that body.157 Despite the recommendations to “set up a special international tribunal to investigate and prosecute individuals charged with crimes of state, especially in connection with the Chatila and Sabra massacres [sic]”, by the MacBride Commission of Enquir y, no
the International Law Association’s Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences (2000) (hereafter the “Kamminga” Report): “No immunities in respect of gross human rights offences subject to universal jurisdiction shall apply on the grounds that crimes were perpetrated in an official capacity”. According to Article 5: “The Obligation or the entitlement of states to bring perpetrators of gross human rights offences to justice on the basis of universal jurisdiction is not affected by amnesties awarded in the territorial state”. To access the Kamminga Report, visit the following web site: http://www.ilahq.org/html/layout_committee.htm (last accessed 7 September 2005). 156 The amnesty was agreed upon by national referendum on 29 September 2005. See “Algerian voters back peace plan”, B.B.C. News Online. According to Yazid Zerhouni, Algeria’s Interior Minister, 97 per cent of voters backed the plan to grant amnesty to Islamist militants though this figure was questioned by journalists who only saw “a trickle of voters going into polling stations”. For criticisms of the amnesty, see “Impunity in the Name of Reconciliation: Algerian President’s Peace Plan Faces National Vote September 29” Human Rights Watch Background Briefing Paper available at: http://hrw.org/backgrounder/mena/algeria0905/index.htm (last accessed 17 October 2005). According to HRW the Lebanese Amnesty “applies to all crimes committed before March 28, 1991, except for massacres and assassinations or attempted assassinations of political leaders, religious figures and diplomats. The amnesty thus absolves all those responsible for a range of killing, torture, hostage-taking and other abuses”. See the report on “Human Rights Developments in Syria and Syrian-Controlled Lebanon” in Human Rights Watch World Report 1992 available at: http://www.hrw.org/reports/1992/ WR92/MEW2-03.htm (last accessed 17 October 2005). In Prosecutor v. Furundzija, 38 International Legal Materials (1998), pp. 349-350, the ICTY ruled that acts prohibited by a peremptory norm of international law such as torture (or for that matter, acts of genocide or war crimes) serve to de-legitimise any legislative, administrative or judicial act authorising it. The Court noted that: “It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a state say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law” (emphasis added). 157 According to Article 11: “The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute”. Israel and Lebanon are not signatories to the Rome Statute. On 17 July 1998, Judge Eli Nathan explained Israel’s negative vote on the adoption of the Statute of the ICC by saying that his country could not comprehend why it had been considered necessary to insert into the list of the most heinous and grievous war crimes, the action of transferring population into occupied territory, as it appears in Article 8, paragraph 2 (b), sub-para. Viii. This speech can be located in its entirety at the U.N. website on the Rome Statute at: www.un.org/icc/speeches/717isr.htm (last accessed 20 August 2005).
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
67
international tribunal was established.158 In other words the territorial State where the crimes took place and the State with the nationality of the coconspirators refuse to initiate criminal proceedings in their respective countries against the perpetrators of the massacres. 3.3 The jurisdictional competence of Belgium On 10 February 1999, the Belgian Parliament passed an amendment to its 16 June 1993 Act Concerning the Punishment of Grave Breaches of International Humanitarian Law that gave its court’s extraterritorial jurisdiction over genocide, crimes against humanity and war crimes.159 This Act, which replicated parts of the Rome Statute, provides that: “The Belgian Courts shall be competent to deal with breaches provided for in the present Act, irrespective or where such breaches have been committed” (my emphasis).160 Moreover, the Act provides that immunities “attributed to the official capacity of a person, does not prevent the application of the present Act”.161 Nor does the “fact that the defendant acted on the order of his/her government or a superior … absolve him/her from responsibility where … the order could clearly result in the commission of a crime of genocide … a crime against humanity … or a grave breach of the Geneva Conventions…”162 The raison d’être of this Act as it was originally conceived was the punishment and prevention of grave breaches of IHL.163 The Belgian legislature wanted to place itself at the forefront of those countries which had amended their legislation to fight “the most odious crimes”.164 Some senators feared that Belgium could become a place of refuge for the perpetrators of the Rwandan genocide if it did not enact legislation dealing with those cases not involving Belgian nationals. 165 It was therefore clearly apparent to the lawyers representing the victims and survivors of the Sabra and Chatila atrocity that
158 See the MacBride Commission of Enquiry, supra, note 35 at p. 193. At the U.N. the Lebanese government opposed an Austrian proposal to have a U.N. commission of inquiry into the massacres which was called for by the U.N. Security Council. Fakhri Sagieh, the Vice-President of the Lebanese Diplomatic Mission to the U.N. said on 24 September 1982: “We did not ask for the formation of this commission, and there will be no commission of inquiry. We will be satisfied with the procedures the government undertakes. We have no wish to dig graves for old skeletons”. 159 38 International Legal Materials (1999), pp. 921-925. 160 Ibid, Article 7. 161 Ibid, Article 5 (3). 162 Ibid, Article 5 (2). 163 See the Introductory Note, Stefaan Smiss and Kim Van der Borght, “Belgium: Act Concerning the Punishment of Grave Breaches of International Humanitarian Law”, 38 International Legal Materials (1999) pp. 918-920, at p. 919. 164 Ibid, at p. 920. 165 Ibid.
Articles
68
Belgium was a suitable venue for filing a complaint against the accused.166 As a sovereign nation Belgium was perfectly entitled to enact such legislation which, after all, was in line with its international commitments and responsibilities.167 Therefore, the accusations levelled at Belgium of bias, racism and anti-semitism were unwarranted.168 3.4 The ICJ’s decision in Arrest Warrant The Belgian law was first put to the test in the Valentine’s Day decision in the Arrest War rant case. 169 This was the first time the extent of a state’s extraterritorial criminal jurisdiction was addressed by an international court since the “Lotus” case between France and Turkey in 1926-27.170 In “Lotus”, the Permanent Court of International Justice (hereafter, “PCIJ”) held: Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable (emphasis added).171
The PCIJ then qualified this by stating: “all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests on its
166 As Chibli Mallat wrote: “From the perspective of the victims, the bottom line is simple: they have not been compensated in any way, and those responsible for the massacres, Lebanese and Israeli, have not been tried for the crime. It does not really matter where they were tried at last, so long as it was before a neutral and professional judge. In Lebanon the problem is acute, and it is no coincidence that the most controversial conference since the end of the civil war in 1990 discussed memory and accountability and that the reflection which caused the greatest stir at the meeting was that of a lawyer. It was no coincidence either that some of the heaviest criticism was directed at the 1991 Lebanese amnesty law, designed as it was to wipe out crimes against humanity and to respond exclusively to political designs, thereby leaving the victims with no judicial recourse. The argument is simple: if the Lebanese legal system, or the Israeli judiciary, or the American courts, or an international tribunal could do the job by hearing the victims and rendering justice, this surely would be fine”. See Chibli Mallat, Accountability in the Middle East: The Sharon Case Polysemy” in John Boreman (ed.) The Case of Ariel Sharon and the Fate of Universal Jurisdiction (Princeton University: Princeton Institute for International and Regional Studies 2004), pp. 31-53 at pp. 40-41 (footnotes omitted). 167 Belgium had signed the 1951 Genocide Convention but had never enacted implementing legislation. See Smitts and Van der Borght, supra, note 163. 168 Conal Urquhart, “Israel scorns ‘anti-semitic little Belgium’”, The Guardian, 14 February 2003. According to the report: “Binyamin Netanyahu, Israel’s foreign minister, summoned the Belgian ambassador yesterday and told him that the action of the court was equivalent to a ‘blood libel’ against the Jewish people. He also asked the Israeli ambassador to Belgium to return for consultations.” 169 Ibid. 170 France v. Turkey (1927) PCIJ (Ser. A) No. 10, available on the ICJ’s website at: http://www.icjcij.org/cijwww/cdecisions/ccpij/serie_A/A_10/30_Lotus_Arret.pdf (last accessed 19 February 2006). 171 Ibid at p. 19.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
69
sovereignty”.172 In Arrest Warrant the ICJ avoided addressing the issue of universal jurisdiction in its decision, after Belgium advanced the argument that the Court should limit its jurisdiction to those issues which formed the subject of Congo’s final submissions by applying the non ultra petita rule.173 The Congo, which had initially challenged the basis of Belgium’s universal jurisdiction law, did not do so in its final submission or oral arguments.174 The Court held that although it would not rule on the question of whether the disputed arrest warrant issued by the Belgian investigating judge in exercise of “his purported universal jurisdiction”, complied with the rules and principles of international law governing the jurisdiction of national courts: “This does not mean … that the Court may not deal with certain aspects of that question in the reasoning of its Judgment, should it deem this necessary or desirable.” Indeed, the issue was discussed at length by several judges – who all had diverging opinions on the issue – in their separate and dissenting opinions.175 In the event, the principles established in the “Lotus” case are still applicable today and it should be noted that in 1926 the PCIJ did find that “[t]he territoriality of criminal law … is not an absolute principle of international law and by no means coincides with territorial sovereignty”.176 It might therefore be concluded that the Belgian Act could not be contrary to international law even though its provisions had extra-territorial effect and even though in absentia trials are anathema in common law countries.177 Nevertheless, Judge Guillaume, the President of the Court, objected strongly to the principle of universal jurisdiction, especially when applied in absentia.178 Yet it is interesting to note that he based his arguments against the universality of jurisdiction in Arrest Warrant on the development of international criminal law since the adoption of the Charter of the United Nations in 1945.179 In his separate
172 Ibid. 173 This is when a court does not address arguments not raised by the parties themselves. As Judge Koroma pointed out in his Separate Opinion: “this entitled the Court to apply its well-established principle that it has a ‘duty . . . not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions’ (Asylum, Judgment, I.C.J. Reports 1950, p. 402). In other words, according to the jurisprudence of the Court, it rules on the petitum, or the subject-matter of the dispute as defined by the claims of the Parties in their submissions; the Court is not bound by the grounds and arguments advanced by the Parties in support of their claims, nor is it obliged to address all such claims, as long as it provides a complete answer to the submissions”. See para. 41 of the ICJ’s decision, supra, note 29. On ultra petita see Belgian arguments at para. 41 of the judgment and especially para. 43 and the Joint Separate Opinion of Higgins, Kooijmans and Buergenthal at paras. 11-14. 174 Ibid at para. 42. 175 See Guillaume, paras. 9-17; Koroma, para. 9; Al-Khasawneh, paras. 7-8; Higgins, Kooijmans and Buergenthal, paras. 20-46; and Van den Wyngaert, paras 40-67. The separate and dissenting opinions can also be found at the following website: http://www.icj-cij.org/icjwww/ idocket/iCOBE/iCOBEframe.htm (last accessed 21 February 2006) as well as in International Legal Materials and ICJ Reports. 176 Supra, note 170 at p. 20. 177 In this respect see Michael Kirby, “Universal Jurisdiction and Judicial Reluctance: A New ‘Fourteen Points’” in Stephen Macedo, Universal Jurisdiction, supra, note 40 at pp. 240-259. 178 See Guillaume, Separate Opinion, supra, note 29 at para. 15. 179 Ibid.
70
Articles
opinion he argued that the international legal system has changed substantially since 1926. He wrote: “The adoption of the United Nations Charter proclaiming the sovereign equality of States, and the appearance on the international scene of new States, born of decolonization, have strengthened the territorial principle”.180 He then found that although international criminal law has undergone considerable development since 1945, “it has never been envisaged that jurisdiction would be conferred upon the courts of every State in the world to prosecute such crimes, whoever their authors and victims and irrespective of the place where the offender is to be found”. He continued: To do this would … risk creating total judicial chaos. It would also be to encourage the arbitrary for the benefit of the powerful, purportedly acting as agent for an illdefined “international community”. Contrary to what is advocated by certain publicists, such a development would represent not an advance in the law but a step backward.181
Clearly, Guilliame had in mind the frivolous attempts by certain persons to abuse the Belgian law by filing a number of cases against Western and nonWestern leaders.182 However, the cases against Ariel Sharon and Saddam Hussein did have merit. For both the Kurds and the Palestinian peoples are stateless. In the absence of a State of their own, these peoples have no territories in which to exercise criminal or civil jurisdiction and they therefore cannot rely on the territorial principle or for that matter any principle of jurisdiction other than universal jurisdiction.183 Surely it would be ludicrous to suggest that just because these people are stateless, international criminal law which regulates the conduct between human beings as opposed to States cannot apply to them? Israel, Iran, Iraq, Kuwait, Syria, Morocco and Turkey have not ratified the Rome Statute of the International Criminal Court and within their borders there are many stateless persons (Ahwazis, Bidoon, Palestinians, Kurds and Sahrawis). In Palestine and Western Sahara, in particular, the United Nations has failed to secure their right of self-determination.184 In the case of
180 Ibid. 181 Ibid. 182 Subsequently, it emerged that Tariq Azziz, Iraq’s former Foreign Minister currently on trial in Iraq was behind the case brought against former U.S. president George H.W. Bush on 18 March 2003. 183 For example, 300,000 Kurds in Syria are denied Syrian citizenship. Stateless Kurds are not allowed passports, cannot vote or own property and are forbidden as “foreigners” from working in the public sector and in many professions. They are not entitled to the same education or health care as Syrian citizens, and their lack of the standard Syrian identity card means they cannot receive state benefits, travel internally or stay in a hotel. For further reading, see Robert Lowe, The Syrian Kurds: A People Discovered, Chatham House Briefing Paper, MEP BP 06/01, January 2006, available at: http://www.riia.org/pdf/research/mep/ BPSyrianKurds.pdf (last accessed 20 February 2006), at p. 3. Recently, the Syrian government has said it will grants Kurds in Syria citizenship. 184 On Palestine, see UNGA resolution 2787 (XXXVI) entitled, “Importance of the universal realization of the right of peoples to self-determination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights”. Article 1: “Confirms the legality of the people’s struggle for selfdetermination and liberation from colonial and foreign domination and alien subjugation, notably in southern Africa and in particular that of the peoples of Zimbabwe, Namibia,
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
71
Western Sahara, by postponing the referendum; in the case of Palestine, by not securing an Israeli withdrawal from occupied territories in line with Security Council resolutions. 185 Yet, Guilliame accepts that the legislation and jurisprudence in the State of Israel providing for universal jurisdiction “constitutes a very special case”.186 This may be so and many writers have cautioned against referring to the Israeli experience as precedent for the application of universal jurisdiction in other situations.187 But with the greatest of respect, one cannot divorce the Israeli experience from the Palestinian reality. Israel was not created in a territorial vacuum. The Israeli legislature has given its courts wide powers of criminal jurisdiction yet these laws do not apply to its own nationals who have been implicated in acts of atrocities against Palestinians. Something is clearly amiss. Surely if a State is incapable of addressing serious crimes committed by its own nationals, the exercise of universal jurisdiction is appropriate?188 In their Joint Separate Opinion, Judges Higgins, Kooijmans and Buergenthal traced the development of universal jurisdiction, looking at recent case law
185
186 187 188
Angola, Mozambique and Guinea (Bissau), as well as of the Palestinian people, by all available means consistent with the Charter of the United Nations” (emphasis added). The Palestinian people’s right of self-determination has its genesis in Article 22 of the Covenant of the League of Nations. For further reading, see John A. Collins, “Self-Determination in International Law: The Case of the Palestinians” 12 Case Western Reserve Journal of International Law (1980) pp. 137-167. See also, the ICJ’s advisory opinion on the construction of a wall in the occupied Palestinian territory, supra, note 1 at para. 118. According to the ICJ the right of self-determination is an obligation erga omnes (paras. 155-56). For a commentary on the Palestinian people’s right of self-determination in light of the ICJ advisory opinion, see Jean-François Gareau, “Shouting at the Wall: Self-Determination and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”, 18 Leiden Journal of International Law (2005), pp. 489-521. On Western Sahara, see U.N. General Assembly resolutions 2229 (XXI), 2428 (XXIII), 2591 (XXIV), 2711 (XXV), 2983 (XXVII), 3162 (XXVIII) and the ICJ’s advisory opinion on Western Sahara, ICJ Reports (1975) pp. 40-68. According to para. 162, “the Court has not found legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the territory” (emphasis added). For case comment, see B.O. Okere, “The Western Sahara case” 28 International and Comparative Law Quarterly (1979), pp. 296312. On the issue of autonomy in Western Sahara, see the illuminating article by the Honourable Frank Ruddy, United States Ambassador (retired) presented at Georgetown University, Washington, D.C. on 16 February 2002, entitled “The United States Mission for the Referendum in Western Sahara: Lofty Ideals and Gutter Realities” available at the following website: http://www.wsahara.net/fruddy.html (last accessed 21 February 2006). On Israel and Palestine, see UNSC 242, (1967) and 338, (1973). See Guillaume, Separate Opinion, supra, note 29 at para. 12. For a discussion of Israeli legislation on universal jurisdiction, see Luc Reydams, Universal Jurisdiction, supra note 41 at pp. 158-163. In this regard, see Sandra Day O’Connor, “Vindicating the Rule of Law: Balancing Competing Demands for Justice” in Norman Dorsen and Prosser Gifford (eds.) Democracy and the Rule of Law (Washington DC: Congressional Quarterly Press 2001), p. 37. O’Connor writes: “… the argument could be made that local states should have the flexibility to address transgressions of the law before the international community exercises universal jurisdiction. Of course, nation-states are not subordinate sovereign nations as are states in the United States. When a nation-state fails or is incapable of addressing the crimes of a former or current regime, however, then the exercise of universal jurisdiction is more appropriate.”
Articles
72
on the subject.189 Although no territorial or nationality link is envisaged by Article 146 of Geneva Convention IV, they note that Pictet’s authoritative commentary contends that this obligation was understood as being an obligation upon States parties to search for offenders who may be on their territory.190 They conclude that “[a]s no case has touched upon this point, the jurisdictional matter remains to be judicially tested”.191 After reviewing national legislation on the issue of universal jurisdiction the judges opined: National legislation may be illuminating as to the issue of universal jurisdiction, but not conclusive as to its legality. Moreover, while none of the national case law to which we have referred happens to be based on the exercise of a universal jurisdiction properly so called, there is equally nothing in this case law which evidences an opinio juris on the illegality of such a jurisdiction. In short, national legislation and case law, – that is, State practice – is neutral as to exercise of universal jurisdiction.192
The judges were also of a view that universal criminal jurisdiction for certain international crimes is clearly not regarded as unlawful.193 They point out that the duty to prosecute under those treaties which contain the aut dedere aut prosequi provisions (such as the Geneva Conventions and Additional Protocol 1) “opens the door to a jurisdiction based on the heinous nature of the crime rather than on links of territoriality or nationality”.194 Indeed, it is the heinous nature of war crimes, crimes against humanity and genocide that dictates that persons implicated in such atrocities should not find a place of refuge in the community of nations. Instead, they should be investigated and prosecuted. According to Judge ad hoc Van Den Wyngaert: Despite uncertainties that may exist concerning the definition of universal jurisdiction, one thing is very clear: the ratio legis of universal jurisdiction is based on the international reprobation for certain very serious crimes such as war crimes and crimes against humanity. Its raison d’être is to avoid impunity, to prevent suspects of such crimes finding a safe haven in third countries.195
After recalling the “Lotus” decision, Van den Wyngaert drew a distinction between prescriptive (what a state may do on its own territor y when investigating and prosecuting crimes abroad) and enforcement jurisdiction (what a State may do on the territories of other States when prosecuting such crimes).196 She found that the issuing and circulation of the Belgian arrest warrant “violated neither the rules on prescriptive jurisdiction nor the rules on enforcement jurisdiction”.197 The learned judge then correctly concluded:
189 190 191 192 193 194 195 196 197
See Joint Separate Opinion, paras. 20-41, supra note 29. Ibid, para. 31. Ibid, para. 32. Ibid, para. 45. Ibid, para. 46 Ibid. Dissenting Opinion, Judge ad hoc Van den Wyngaert, supra, note 29 at para. 46. Ibid, para. 49. Ibid para. 50.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
73
It follows from the “Lotus” case that a State has the right to provide extraterritorial jurisdiction on its territory unless there is a prohibition under international law. I believe that there is no prohibition under international law to enact legislation allowing it to investigate and prosecute war crimes and crimes against humanity committed abroad.198
Indeed, the ICJ’s decision in Arrest Warrant has been harshly criticised by commentators for not addressing the questions of universal jurisdiction, immunities and trials in absentia in a substantive manner in the merits.199 On the question of universal jurisdiction Higgins, Kooijmans and Buergenthal were of the opinion that such trials are not unlawful provided certain safeguards are in place.200 Even Guillaume qualified his reservations on trials in absentia when he wrote: “Universal jurisdiction in absentia as applied in the present case is unknown to international law”.201 It must be said that although neither customary nor conventional international law explicitly provide a legal basis for the exercise of universal jurisdiction in absentia, none of these sources of law provide for an explicit prohibition of its exercise either.202 This was also the opinion of Alain Winants, Advocate-General at the Brussels Court of Appeal who, after citing the “Lotus” case wrote: “Universal jurisdiction in absentia is not prohibited by international law and does not per se require the presence of the offender on the territory of the prosecuting state. It goes without saying that the presence of the offender, certainly at the moment of judgment, is extremely desirable, but it is not a rule of international law”.203 In fact, many civil law countries like Germany and Switzerland have legislation that provides
198 Ibid, para. 51 (emphasis in original). 199 See M. Cherif Bassiouni, “Universal Jurisdiction Unrevisited: The International Court of Justice Decision in Case Concerning the Arrest Warrant of 11 April 2000” 12 Palestine Yearbook of International. Law (2002/2003), pp. 27-48; Max du Plessis and Shannon Bosch, “Immunities and Universal Jurisdiction – the World Court Steps in (or on?)” 28 South African Yearbook of International Law (2003), pp. 246-262; Kevin Hopkins, “The International Court of Justice and the Question of Sovereign Immunity: Why the Yerodia Case is an Unfortunate Ruling for the Development of Public International Law”, 27 South African Yearbook of International Law (2002), pp. 256-263; and Jan Wouters, “The Judgment of the International Court of Justice in the Arrest Warrant Case: Some Critical Remarks” 16 Leiden Journal of International Law (2003), pp. 253-267. See also, William A. Schabas in his Foreword to Reydam’s book on universal jurisdiction, supra, note 41 at x-xi. 200 See Joint Separate Opinion, supra, note 29, paras. 45 and 59. 201 Guillaume, Separate Opinion, supra, note 29, para. 13 (emphasis added). 202 See Alexander Poels, “Universal Jurisdiction in Absentia” 25 Netherlands Quarterly of Human Rights (2005), pp. 65-84, at p. 80. However, see Rabinovitch who writes: “While it is true … that no custom has yet emerged permitting the exercise of universal jurisdiction in absentia, this hardly amounts to evidence that there is a custom prohibiting such exercise. The most that can be said is that states have rarely exercised such jurisdiction”. See Ryan Rabinovitch, “Universal Jurisdiction in Absentia” 28 Fordham International Law Journal (2005), pp. 500530 at p. 510. 203 Alain Winnants, “The Yerodia Ruling of the International Court of Justice and the 1993/ 1999 Belgian Law on Universal Jurisdiction” 16 Leiden Journal of International Law (2003), pp. 491-509 at p. 505.
74
Articles
for universal jurisdiction in absentia in the case of serious international crimes.204 So does New Zealand.205 As Judge Van Den Wyngaert observed: 53. … The term “universal jurisdiction” does not necessarily mean that the suspect should be present on the territory of the prosecuting State. Assuming the presence of the accused, as some authors do, does not necessarily mean that it is a legal requirement. The term may be ambiguous, but precisely for that reason one should refrain from jumping to conclusions. The Latin maxims that are sometimes used, and that seem to suggest that the offender must be present (judex deprehensionis – ubi te invenero ibi te judicabo) have no legal value and do not necessarily coincide with universal jurisdiction. 54. There is no rule of conventional international law to the effect that universal jurisdiction in absentia is prohibited. The most important legal basis, in the case of universal jurisdiction for war crimes is Article 146 of the IVth Geneva Convention of 1949, which lays down the principle aut dedere aut judicare. A textual interpretation of this Article does not logically presuppose the presence of the offender, … For war crimes, the 1949 Geneva Conventions, which are almost universally ratified and could be considered to encompass more than mere treaty obligations due to this very wide acceptance, do not require the presence of the suspect. Reading into Article 146 of the IVth Geneva Convention a limitation on a State’s right to exercise universal jurisdiction would fly in the face of a teleological interpretation of the Geneva Conventions. The purpose of these Conventions, obviously, is not to restrict the jurisdiction of States for crimes under international law.206
In fact there are important precedents that have been overlooked by many scholars writing on the issue; such as the trial of Martin Bormann at Nuremberg.207 He was tried by the tribunal in absentia after it was argued that the Nuremberg Charter permitted such trials if Bormann could not be found (the Charter was silent on the issue of trials in absentia).208 The trial proceeded without his presence after 200,000 copies of the notice were distributed throughout Germany to inform him of the right to a fair hearing.209 Bormann was never located, and he was officially pronounced dead by a West German 204 See Articles 108 and 109 of the Swiss Military Penal Code; Belgium’s 1993/1999 Statute, supra, note 159 and Germany’s Code of Crimes against International Law (CCIL). For an English translation of the CCIL, visit the homepage of the Max Planck Institute for Foreign and International Criminal Law at: www.iuscrim.mpg.de/forsch/legaltext/VStGBengl.pdf (last accessed 14 October 2005). See also Andreas Fischer-Lescano, “Torture in Abu Ghraib: The Complaint against Donald Rumsfeld under the German Code of Crimes against International Law”, 6 German Law Journal (2005), pp. 689-724 which is also available at: http://www.germanlawjournal.com/article.php?id=583 (last accessed 14 October 2005). 205 See New Zealand’s International Criminal Court Act 2000 at the following website: http:// rangi.knowledge-basket.co.nz/gpacts/public/text/2000/an/026.html (last accessed 21 February 2006). 206 Dissenting Opinion, Van den Wyngaert, supra, note 29, paras. 53 and 54 (footnotes omitted). 207 Ann Tusa and John Tusa, The Nuremberg Trial (New York: Cooper Square Press 1983), p. 119. 208 The Trials of Major War Criminals, Agreement and Principal Speeches, Treaty Series No. 27 (1946), Prosecution and Punishment of the Major War Criminals of the European Axis, and the Charter of the International Military Tribunal, London, 8 August 1945. 209 Supra, Tusa, note 207. The notice was broadcast once a week for four weeks on radio stations in the four Zones and published in newspapers in Berlin and other cities where Bormann had lived.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
75
court in April 1973.210 Mention should also be made of the trial and sentencing in absentia of several leaders of the Ittihad party, which included a number of ministers in Turkey’s wartime cabinet for the Armenian genocide.211 Be that as it may, Abi-Saab points out that such an unlimited extension of the doctrine of universal jurisdiction would be unworkable “in the still largely interstate system of present-day international law” since it does not “tally with the origins of the doctrine which turned on captus as the ratio of the exercise of universal jurisdiction by the forum deprehensionis. Thus, neither in terms of practicality or of legal reasoning, nor in those of positive law can such an extension be justified.”212 But as Luc Walleyn, one of the Belgian lawyers for the Sabra and Chatila survivors, noted: It is true that Belgian law permits not only investigation but also trial in absentia. For serious crimes, however, such trials are not usual, and generally the prosecution seeks arrest and extradition of the accused before starting trial, in order to avoid a second procedure after arrest occurs.213
It would therefore seem that the issue is rather academic. Even in jurisdictions which allow for trials in absentia, attempts will be made within the bounds of the law to seek extradition of the accused. However, in the event that extradition fails there is no reason why in principle a trial should not take place, providing that the State of which the accused is a national is first offered the opportunity to act upon the charges concerned, and provided of course, that the tribunal is widely perceived to be fair and independent.214
210 Ibid at p. 494. 211 See William A. Schabas, Genocide in International Law (Cambridge: Cambridge University Press 2000) p. 21, citing Vahakn N. Dadrian, “Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporar y Legal Ramifications”, 14 Yale Journal of International Law (1989), p. 307. 212 Georges Abi-Saab, “The Proper Role of Universal Jurisdiction”, 1 Journal of International Criminal Justice (2003), pp. 596-602 at p. 601. 213 See Luc Walleyn, “The Sabra and Shatila Massacre and Belgian Universal Jurisdiction” in John Boreman (ed.) The Case of Ariel Sharon and the Fate of Universal Jurisdiction supra note 166, pp. 54-69, footnote 19 at p. 63 (emphasis added). 214 Had Israel tried Adolf Eichmann in absentia instead of abducting him, would anyone have protested as the U.N. Security Council did? See operative paragraph 1 of UNSC resolution 138, 23 June 1960 (S/4349) which “declares that acts such as that under consideration [i.e. the abduction], which affect the sovereignty of a Member State and therefore cause international friction, may, if repeated, endanger international peace and security”. On the legality of the abduction, see Michael H. Cardozo, “When Extradition Fails, Is Abduction the Solution?” 55 American Journal of International Law (1961), pp. 127-135; and Bassiouni, supra note 148 at p. 347-351. As Judge Oda noted in Arrest Warrant, supra note 29, para. 13: “It is clear that a State cannot arrest an individual outside its territory and forcibly bring him before its courts for trial.”
Articles
76
4 CONCLUSION During the course of writing this article, Ariel Sharon was declared “permanently incapacitated” after suffering a massive stroke on 4 January 2006.215 Consequently it is highly unlikely that he will ever see the inside of a court room for his role as Defence Minister when the Israeli army occupied West Beirut in September 1982. However, this case was not only about Mr. Sharon. It was also about obtaining justice for the victims of the Sabra and Chatila massacres; and bringing closure to an appalling episode in IsraeliPalestinian history. Only when past wrongs are addressed can peace, justice and reconciliation between Jews and Arabs in the Middle East ever be contemplated.216 Many of Sharon’s former Israeli comrades and Lebanese allies who played a direct role in the massacre remain alive and well to this very day. It is only natural that Palestinians feel aggrieved.217 If Saddam Hussein can be placed on trial for crimes he is accused of committing in the Iraqi village of alDujail in 1982 then logically so can Israeli and Lebanese nationals implicated in an atrocity which occurred during that same year.218 Many of the Israeli military commanders219 implicated in the Sabra and Chatila massacres had a command responsibility to ensure that civilian
215 “Cabinet declares Sharon permanently incapacitated”, International Herald Tribune, 11 April 2006. 216 See Leila Nadya Sadat, “Universal Jurisdiction, National Amnesties, and Truth Commissions: Reconciling the Irreconcilable” and Diane F. Orentlicher, “The Future of Universal Jurisdiction in the New Architecture of Transnational Justice”, both in Stephen Macedo (ed.) Universal Jurisdiction, supra note 40 at pp. 193-239. See also John Dugard, “Reconciliation and Justice: The South African Experience”, 8 Transnational Law and Contemporary Problems (1998) pp. 277-311. 217 Especially when Israel makes a mockery of the Palestinian criminal justice system by sending in its army to demolish a Palestinian prison and arrest persons alleged to have committed crimes against Israeli citizens. See “Abbas denounces Israeli Jail raid” B.B.C. News, 15 March 2006. According to the Ramallah Agreement of 3 May 2002 (on file with author): “The GOI will take no action which threatens the security of the PA detention facility and of the six detainees for as long as they remain in PA custody verified by the U.S. and U.K.” (emphasis added). In return for the incarceration of six individuals alleged to have been involved in the 17 October 2001 assassination of Israel’s tourism minister, Rehavam (“Gandhi”) Zeevi in East Jerusalem’s Hyatt Hotel, the Israeli government agreed with the British and Americans immediately to withdraw its forces from the Muqata’a and Ramallah; and immediately to lift the restrictions imposed on the travel of Chairman Arafat within PA-controlled territories in and between Gaza and the West Bank, and to permit his travel to and return from third countries. Israel never did allow Arafat the freedom to move from his Ramallah compound in the last years of his life where he was to fall gravely ill. See Brian Whitaker, “Arab world mourns ‘father of nation’” The Guardian, 12 November 2004. 218 For further information on the Al-Dujail case, see the website of the Iraqi Special Tribunal at: http://www.iraqispecialtribunal.org/en/press/releases/0014a.htm (last accessed 19 March 2006). See also, Peter Beaumont, “Saddam: Witnesses for the Prosecution”, The Observer, 9 October 2005. 219 Such as Lieutenant General Rafael Eitan, Major General Amir Drori and Division Commander Brigadier General Amos Yaron.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
77
populations under their control were not harmed.220 The Kahan Commission found all these individuals in “breach of duty”, although they were not held to account for their actions.221 This is because the Kahan Commission was not a judicial commission.222 As a prominent international lawyer pointed out in a lecture he gave at Leeds University: The Israeli Commission of Inquiry and the Lebanese Administrative Commission on the 1982 Beirut massacres hardly measure up to the minimum requirements of military courts for the trial of alleged war criminals under the laws and customs of war, nor can they be regarded as tribunals or courts in the meaning of the 1948 Genocide Convention or the 1949 Conventions on Victims of War (emphasis added).223
Similarly, Richard Falk noted that the MacBride Commission of Enquiry “had no authority to undertake its mission either from governments or international institutions … it was created in a normative vacuum”. He elaborated: No constituted organization of the State system was investigating what appeared to many private observers of that war as clear patterns of flagrant violations of the laws of war. This societal or populist initiative responded to the failure of constitutional governments and international institutions, for a variety of political reasons, to undertake an appropriate investigation of the charges against Israel.224
On 29 May 1962, the Israel Supreme Court upheld a decision by the Jerusalem District Court to have Adolf Eichmann executed for crimes he committed against the Jewish people during the Second World War contrary to that country’s Nazi and Nazi Collaborators (Punishment) Law 1950 which applied 220 See Lieutenant Commander Weston. D. Burnett, “Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra”, 107 Military Law Review (1985) pp. 71-190; especially pp. 160-190; Linda A. Malone, “The Kahan Report, Ariel Sharon, and the Sabra/Shatila Massacres: Responsibility under International Law of Massacres of Civilian Populations” 29 Utah Law Review (1985) pp. 373-433; and by the same author, “The Appointment of General Yaron: Continuing Impunity for the Sabra and Shatila Massacres” 32 Case Western Reserve Journal of International Law. (2000), pp. 287-305. See also, Yuval Shany and Keren R. Michaeli, “The Case against Ariel Sharon: Revisiting the Doctrine of Command Responsibility” 34 New York Journal of International Law and Politics (2001-2002), pp. 797-886. 221 See the Kahan Commission, supra note 33, pp. 35-44. 222 As it noted in its report, ibid, p. 5: “Our procedures are not those of a criminal court” (emphasis added). 223 See Georg Schwarzenberger, Focus on Beirut, Montague Burton Lecture given at Leeds on 7 February 1983, p. 7, reprinted in a pamphlet by Leeds University Press and made available by the author at the Institute of Advanced Legal Studies, 17 Russell Square, London, WC1B 5DR. See also Abi Saab, supra note, 212, who wrote at p. 596: “…the Kahan Commission (with all due respect for its admirable work) was not a judicial body … and its work was not grounded exclusively in law …” Judge Richard Goldstone, a former Chief Prosecutor of the U.N. War Crime Tribunals from 1994-1996 told Fergal Keane, a B.B.C. journalist in the B.B.C Panorama documentary The Accused: “Well, clearly justice requires that criminals should be brought to book and if people, regardless of who they are, are shown by an investigation to have been in breach of the law, then clearly criminal prosecution should follow, and in the case of Sabra and Shatila, clearly the Kahan Commission found that very serious crimes had been committed and I have no doubt any decent person would regret the fact that not a single criminal prosecution followed.” 224 Richard Falk, “The Rights of Peoples (In Particular Indigenous Peoples)” in James Crawford (ed.) The Rights of Peoples (Oxford: Clarendon Press 1988), pp. 17-37 at p. 27.
78
Articles
with retroactive effect.225 The Israeli courts relied on the doctrine of universal jurisdiction to try Eichmann, as the crimes he was implicated in had taken place before the State of Israel came into existence, and concerned people who were not its nationals.226 The Supreme Court cited the “Lotus” case extensively.227 It relied on two propositions to base its findings: (1) The crimes created by the Nazi and Nazi Collaborators Law [which include war crimes] must be deemed as having always borne the stamp of international crimes, banned by the law of nations and entailing individual criminal responsibility; and (2) It is the particular universal character of these crimes that vests in every State the authority to try and punish anyone who participated in their commission.228
The Supreme Court held that crimes contrary to the laws and customs of war (which would, of course, include grave breaches of the Geneva Conventions) “are deemed to constitute in essence international crimes”.229 The Supreme Court explained: Those crimes entail individual criminal responsibility because they challenge the foundations of international society and affront the conscience of civilized nations. When a belligerent State punishes for such acts, it does so not only because persons who were its nationals – be they soldiers taken prisoner by the enemy or members of the civilian population – suffered bodily harm or material damage, but also, and principally, because they involve the perpetration of an international crime which all nations of the world are interested in preventing.230
The Israeli court then invoked the piracy rationale, which is applicable to the situation in Sabra and Chatila. It noted: … the basic reason for which international law recognizes the right of each State to exercise such jurisdiction in piracy offences – notwithstanding the fact that its own sovereignty does not extend to the scene of the commission of the offence (the high seas) and the offender is a national of another State or is stateless – applies with even greater force to the above-mentioned crimes. That reason is, it will be recalled, that the interest to prevent bodily and material harm to those who sail the seas and to persons engaged in trade between nations, is a vital interest common to all civilised States and of universal scope … (emphasis added).231
According to historians specialising in piracy and privateering, there were two principal reasons historically for invoking universal jurisdiction over piracy: (1) lone ships on the high seas were vulnerable and (2) there was little chance 225 For the text of the judgment of the Supreme Court translated in English, see 36 International Law Reports (1968) pp. 277-342. 226 Ibid pp. 283-304. The jurisdictional aspects of the case provoked quite a debate in the literature. For further reading see J.E.S. Fawcett, “The Eichmann Case”, 27 British Yearbook of International Law (1962), pp. 181-215; L.C. Green, “The Eichmann Case” 23 Modern Law Review (1960) pp. 507-515; Ian Brownlie, “Eichmann: A Further Comment” The Criminal Law Review (1962), pp. 817-819; and Georg Schwarzenberger, “The Eichmann Judgment” 15 Current Legal Problems (1962), pp. 248-265. 227 Supra, note 225 at pp. 283-285 and p. 292. 228 Ibid, p. 287. 229 Ibid, p. 293 (emphasis in original). 230 Ibid. 231 Ibid. p. 299.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
79
of redress for the victims of piracy after the event.232 Undoubtedly Palestinians, as stateless persons and refugees, are vulnerable, especially in wartime. In the Lebanon, in particular, Palestinian refugees are extremely vulnerable due to their dire political predicament in that country (demographically they are seen as a threat to Christian-Lebanese hegemony).233 The majority of the Palestinian victims of the Sabra and Chatila massacres were refugees registered with the United Nations Relief and Works Agency for Palestinian Refugees in the Near East (hereafter the “UNRWA”); though not all Palestinian refugees are registered with that agency.234 Their legal status is precarious precisely because they are the only known refugee group in the world – currently numbering some five million persons – that are not offered protection by the Office of the United Nations High Commissioner for Refugees (hereafter “UNHCR”).235 This is due to a difference of opinion between academics, practitioners and the UNHCR over the interpretation of Article 1D of the U.N. Refugee Convention, which provides that the Convention shall not apply to persons who are presently receiving protection or assistance from other U.N. organs.236 As the U.N. agency charged with protecting the Palestinian 232 As Charles E. Davies, an expert on piracy, writes in The Blood-Red Arab Flag: An Investigation into Qasimi Piracy 1797-1820 (Exeter: University of Exeter Press 1997) at pp. 63-64: “In the days of the sail, and before the introduction of modern means of communication, a lone ship upon the ocean was a very vulnerable thing. Only good fortune or participation in a convoy could offer the individual, lightly armed, merchant vessel true security against the unwelcome attentions of a determined aggressor. Furthermore, prior to the spread of international law and the development of closer, more regular, contact between nationstates, there was often little chance of succour or redress for the victims of piracy after the event” (my emphasis). 233 See the report by the International Federation for Human Rights Investigative International Mission (known by its French acronym FIDH), Lebanon Palestinian Refugees: Systematic Discrimination and Complete Lack of Interest on the part of the International Community. No. 356/ 2 March 2003. This document is available online at: http://www.fidh.org/magmoyen/ rapport/2003/lb356a.pdf (last accessed 21 March 2006). For literature, see Wadie Said, “The Obligations of Host Countries to Refugees under International Law: The Case of Lebanon” in Naseer Aruri (ed.) Palestinian Refugees: The Right of Return (London: Pluto Books 2001) pp. 123-151; and Lena El-Malak, “Betrayed and Forgotten: Palestinian Refugees in Lebanon” 9 This Yearbook (2002-2003) pp. 131-168. 234 According to Al-Hout, supra note 32, the victims included Arabs of many nationalities: Turks, Bangladeshis and a British national simply known as “Uthman”. 235 The UNHCR was established by U.N. General Assembly resolution 428 (V) of 14 December 1950. On the same day the General Assembly adopted resolution 394 (V) on Palestine: Progress report of the United Nations Conciliation Commission for Palestine; Repatriation or resettlement of Palestine refugees and payment of compensation due to them. Paragraph 2 (c) of that resolution directs the UNCCP to establish an office which, under the direction of the Commission, shall: “Continue consultations with the parties concerned regarding measures for the protection of the rights, property and interests of the refugees” (emphasis added). According to paragraph 3, the governments concerned are to undertake measures “to ensure that refugees, whether repatriated or resettled, will be treated without any discrimination in law or in fact” (emphasis added). 236 According to a UNHCR Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian refugees: “While paragraph 1 of Article 1D is in effect an exclusion clause, this does not mean that certain groups of Palestinian refugees can never benefit from the protection of the 1951 Convention. Paragraph 2 of Article 1D contains an inclusion clause ensuring the automatic entitlement of such refugees to the Continued overleaf
Articles
80
refugees, the United Nations Conciliation Commission on Palestine (hereafter, “the UNCCP”) is defunct, they lack legal protection.237 This is because the mandate of the remaining agency, the UNRWA, is primarily concerned with providing relief rather than protection.238 And it was this lack of protection, which prompted the U.N. General Assembly to pass a resolution in the aftermaths of the Sabra and Chatila massacres urging the organisation’s Secretary-General Javier Pérez de Cuéllar: …to undertake effective measures to guarantee the safety and security and the legal and human rights of the Palestinian refugees in the occupied territories.239
Universal jurisdiction is hardly universal if stateless persons cannot avail themselves of it. The attempt by a number of survivors to seek justice in the courts of Belgium was a brave attempt, but alas politics at the end of the day, as it always does in the Israel-Palestine conflict, prevailed.240 But perhaps for
237
238
239 240
protection of the 1951 Convention if, without their position being definitively settled in accordance with the relevant U.N. General Assembly resolutions, protection or assistance from UNRWA has ceased for any reason. The 1951 Convention hence avoids overlapping competencies between UNRWA and UNHCR, but also, in conjunction with UNHCR’s Statute, ensures the continuity of protection and assistance of Palestinian refugees as necessary.” This Note is available online at: http://www.unhcr.org/cgi-bin/texis/vtx/publ/ opendoc.pdf?tbl=RSDLEGAL&id=3da192be4&page=publ (last accessed 24 March 2006). The problem with the UNHCR Note, ibid, is over the issue of protection. The drafters of the 1951 Refugee Convention intended the word “protection” in Article 1D to be a reference to the UNCCP; hence the language “protection or assistance” in Article 1D (supra, note 31) refers both to the UNCCP as providing protection and the UNRWA as providing assistance. This interpretation is supported by the plain language of Article 1D which speaks of “organs and agencies of the United Nations” in the plural, which indicates that the drafters referred to more than one U.N. organ or agency to provide those benefits. The drafters of the U.N. Refugee Convention were aware that there were two agencies of the U.N. other than the UNHCR mandated to provide protection and assistance. The travaux préparatoires show that for the drafters of the 1951 Refugee Convention, protection, rather than assistance, was the critical and necessary ongoing requirement. For further reading see Susan M. Akram and Terry Rempel, “Recommendations for Durable Solutions for Palestinian Refugees: A Challenge to the Oslo Framework” 11 Palestine Yearbook of International Law (2000/2001), pp. 1-71. See also, the excellent Handbook on Protection of Palestinian Refugees in States Signatories to the 1951 Refugee Convention (researched and co-authored by Elna Søndergaard with a preface by Dr. Guy Goodwin-Gill) by the Badil Resource Center for Palestinian Residency and Refugee Rights (Ramallah: al-Ayyam / Badil 2005) pp. 74-105, especially pp. 90-93. The U.N. in General Assembly resolution 302 (IV) of 8 December 1949: “Establishes the United Nations Relief and Works Agency for Palestinian Refugees in the Near East: (a) To carry out in collaboration with local governments the direct relief and works programmes as recommended by the Economic Survey Mission; (b) To consult with the interested Near Eastern Governments concerning measures to be taken by them preparatory to the time when international assistance for relief and works projects is no longer available.” (Emphasis added._ See U.N. General Assembly resolution 37/120 J, entitled, “Protection of Palestinian Refugees”. This resolution also called upon Israel “to release forthwith all detained Palestine refugees, including the employees of the” UNRWA. For a fascinating account of the impact of the “Israel lobby” on U.S. foreign policy, see John Mearsheimer and Stephen Walt, The Israel Lobby and U.S. Foreign Policy, Faculty Research Working Paper Series, John F. Kennedy School of Government, Harvard University, March 2006, available at: http://ksgnotes1.harvard.edu/Research/wpaper.nsf/rwp/RWP06-011
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres
81
Palestinians the “tyranny of judges”, to coin a phrase from Dr. Henr y Kissinger,241 would be preferable to the current tyranny they face on a daily basis in the refugee camps of Burj el-Barajneh, Ein el-Helwe, Mieh Mieh, Nahr elBared and Rashidieh, to name just a few of the refugee camps in the Lebanon, where the rule of law is seldom applied. When Sabra and Chatila were stormed by the LF in September 1982 (Sabra no longer exists) they did not represent the State of Lebanon. That militia was equivalent, as were the others, to brigands which have been assimilated by many jurists to pirates.242 As Cowles notes in one of the first published works to appear on the concept of universal jurisdiction: Both brigandism and piracy stem from the fundamental fact of the lack of governmental control in the areas of their operations. Often the area, in the real sense, is a “place not subject to the sovereignty of any State”. As regards the probable impunity from punishment, the conditions under which both piracy and brigandage have grown and flourished are essentially the same. Like the brigand on land, the pirate operates along sea trade lines; he is equipped for attack and escape; and the high seas, in and of themselves, are places where the enforcement of law is difficult … …war crimes are very similar to piratical acts, except they take place usually on land rather than at sea. In both situations there is … a lack of any adequate judicial system operating on the spot where the crimes take place – in the case of piracy it is because the acts are on the high seas and in the case of war crimes because a chaotic condition or irresponsible leadership in time of war. As regards both piratical acts and war crimes there is often no well-organized police or judicial system at the place where the acts are committed, and both the pirate and the war criminal take advantage of this fact, hoping thereby to commit their crimes with impunity”.243
The Israeli and Lebanese authorities have had ample time, nearly a quarter of a century in fact, to punish the perpetrators of the Sabra and Chatila massacres on their territories. They have chosen not to do so. Since it is highly unlikely that the Israeli or Lebanese authorities will agree to any extradition requests, it is submitted that the universality of jurisdiction is appropriate. While it would be preferable to seek the arrest and extradition of the accused before trial,
(last accessed 21 March 2006). An edited version of this paper is available on the website of the London Review of Books at: http://www.lrb.co.U.K./v28/n06/mear01_.html (last accessed 21 March 2006). See also Michael Massing, “The Storm over the Israel Lobby”, 54 The New York Review of Books (2006), available at: http://www.nybooks.com/articles/19062 (last accessed 29 May 2006). 241 Henry Kissinger, “The Pitfalls of Universal Jurisdiction”, Foreign Affairs, July/August 2001. He wrote at p. 86: “To be sure, human rights violations, war crimes, genocide, and torture have so disgraced the modern age in such a variety of places that the effort to interpose legal norms to prevent or punish such outrages does credit to its advocates. The danger lies in pushing the effort to extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts”. 242 See Willard B. Cowles, “Universality of Jurisdiction over War Crimes” 33 California Law Review (1945) pp. 177-218 at pp. 188-194. 243 Ibid, pp. 193-194.
82
Articles
this should not be used as an excuse for not applying the law at all. There is no reason in principle why a trial could not take place in absentia, providing all the safeguards are met.244
244 Indeed, it could be argued that all States have an obligation erga omnes to see to it that the perpetrators of these heinous crimes face justice for what they are alleged to have done in Beirut in September 1982. On the relationship between international crimes and obligations erga omnes, see M. Cherif Bassiouni, “International Crimes: Jus Cogens and Obligations Erga Omnes” 59 Law and Contemporary Problems (1996), pp. 63-80.
83
United Kingdom Response to Terrorism and the Response of the Courts to these Measures Susan C. Breau* One of the major concerns expressed by the United Nations High Commissioner of Human Rights, the Council of Europe and shared by many States around the world is the legislative and administrative measures being employed in many countries to combat terrorism in the wake of the September 11 attacks in the United States. In his speech before the sixty-first session of the United Nations Commission on Human Rights, Professor Ekmeleddin Ihsanoglu, Secretary-General of the Organization of the Islamic Conference stated: The fallout of the outrageous terrorist attacks of September 11, 2001 was a turning point which exacerbated emotions of hate against Muslims, and allowed the stereotypes to become entrenched in so many minds especially in the West. The noble values of Islam, a religion of peace, mercy and compassion were demonized, and the way of life of one fifth of the humanity was subverted. This wave of prejudice is, unfortunately, not fading away and that is what prompts me to dwell on this disturbing issue… The war on terrorism, and the draconian measures which accompanied it contributed to make the plights of many Muslims around the world profoundly disturbing. In certain cases this war had no frontiers, no rules, no laws, no binding international conventions. New harsh measures were introduced that allow people to be held, detained, or even tortured without any need for any evidence, let alone proof, of guilt being shown.1
This article argues that in one of the major countries that has attempted a draconian approach to counter-terrorism, the United Kingdom, the legal system is significantly moderating the effects of the legislative and administrative acts being employed against terrorists. It is compelling legislators to bring their actions into compliance with international human rights standards. The * Dorset Fellow in Public International Law, British Institute of International and Comparative Law. 1 Speech of H.E. Professor Ekmeleddin Ihsanoglu, Secretary-General of the Organization of the Islamic Conference at the sixty-first session of the United Nations Commission on Human Rights Geneva Switzerland 15 March 2005.
84
Articles
concerns expressed by Ihsanoglu above are echoed in the United Kingdom courts, most particularly by the House of Lords who at this juncture are refusing to allow legislation to stand that allows people to be detained without trial or permits evidence to be adduced that was obtained by torture. The United Kingdom has four main pieces of legislation in response to the threat of international terrorism. These are: • Terrorism Act 2000; • Anti-terrorism, Crime and Security Act 2001; • Prevention of Terrorism Act 2005; and • the recently adopted Terrorism Act 2006. The English legal system allows for significant challenges to these pieces of legislation if they do not comply with international human rights standards. Although the United Kingdom does not have a written constitution, there is a vibrant unwritten constitution which includes the common law as enhanced by the adoption of the Human Rights Act incorporating the human rights obligations in the European Convention on Human Rights (“E.C.H.R.”). Many human rights scholars and non-governmental groups have expressed serious concerns with some elements of these pieces of legislation.2 However, there have now been successful court challenges to some of the more troublesome parts of the counter-terrorism legislation. There are three main legal challenges that echo Ihsanoghu’s concerns which will be discussed in this article. The first is to detention without trial provisions and the concept of unlimited detention both within the United Kingdom and abroad. The second is to the admissibility of evidence obtained by torture in hearings to deport suspected terrorists. The third is to argue the applicability of the E.C.H.R. to the territory that Britain controls in Iraq in order that terrorist suspects and civilians have the same rights as citizens on British soil to freedom from unlimited detention and torture. This extra-territorial argument is to ensure that the British armed forces comply with the United Kingdom’s human rights obligations in situations of armed conflict and occupation.3 Finally, this article argues that there is active and successful opposition in parliament including the House of Lords to changes in the legislation. The latest proposal for detention without charge for 90 days was defeated in Parliament with members of the Labour party being prepared to vote against the government.
2 In the U.K., Shami Chakrabarti of Liberty has been a leading critic of the measures. 3 Due to limitations of space this article does not attempt to analyse the relationship between human rights and international humanitarian law.
United Kingdom Response to Terrorism
85
1 DETENTION PROVISIONS 1.1 Detention in the United Kingdom The first major issue under the Anti-Terrorism Crime and Security Act was the unlimited detention of terror suspects within the United Kingdom pursuant to Article 23 in Part IV of this Act. In the derogation from the Article 5 liberty and security of the person provisions in the E.C.H.R. which was filed in the Council of Europe following the 11 September attacks, the government outlined the scope of this provision: …an extended power to arrest and detain a foreign national which will apply where it is intended to remove or deport the person from the United Kingdom but where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic law powers. The extended power to arrest and detain will apply where the Secretary of State issues a certificate indicating his belief that the person’s presence in the United Kingdom is a risk to national security and that he suspects the person of being an international terrorist. That certificate will be subject to an appeal to the Special Immigration Appeals Commission (“S.I.A.C.”), established under the Special Immigration Appeals Commission Act 1997, which will have power to cancel it if it considers that the certificate should not have been issued. There will be an appeal on a point of law from a ruling by S.I.A.C. In addition, the certificate will be reviewed by S.I.A.C. at regular intervals.4
Under Article 15 (1) of the E.C.H.R., where a public emergency threatening the life of the nation is shown to exist, a Member State may lawfully derogate from some human rights protections, provided that the measures taken are strictly required by the situation. No other European country has taken such a step in the wake of the 11 September attacks. This derogation from the E.C.H.R. has been the focus of sustained legal challenge in the U.K. In July 2002, the Special Immigration Appeals Commission (S.I.A.C.) considered the derogation from the E.C.H.R. as a preliminary issue to appeals by nine detainees against their certification as “suspected international terrorists”. S.I.A.C. is the equivalent of a High Court and presided over by senior judges. S.I.A.C. held that the derogation from Article 5(1) was unlawful on the ground that it breached the non-discrimination provision under Article 14 of the E.C.H.R., from which the U.K. government had not derogated. Since the derogation was unlawful, the S.I.A.C. held that the detention provisions breached E.C.H.R. Articles 5 and 14. In the words of the judgment: “[a] person who is irremovable cannot be detained or kept in detention simply because he lacks British nationality.”5 S.I.A.C., however, did agree that there was a public emergency within the meaning of Article 15 of the E.C.H.R.6 The committee based its decision on classified intelligence material and publicly available evidence. 4 Note Verbale from the Permanent Representation of the United Kingdom, dated 18 December 2001, registered by the Secretariat General on 18 December 2001. 5 S.I.A.C., A, X and Y and others v. Secretary of State for the Home Department, para. 94. 6 S.I.A.C., A, X and Y and others, para. 35: “We are satisfied that what has been put before us in the open generic statements and the other material in the bundles which are available to the parties does justify the conclusion that there does exist a public emergency threatening the life of the nation within the terms of Article 15.”
86
Articles
In October 2002, the Court of Appeal heard the cross appeal from this decision by both the government and the detainees. The appeal was limited to reviewing potential errors of law. The Court of Appeal reversed S.I.A.C.’s finding on discrimination, accepting the government’s arguments that foreign nationals had no right to remain in the U.K., thereby making differential treatment permissible. It also rejected the detainees’ appeal against S.I.A.C.’s conclusion that a public emergency did exist. The Court of Appeal was overruled in the Opinion of the Lords of Appeal in the House of Lords in the A.(F.C.) and others (F.C.) (Appellants) v. Secretary of State for Home Department (Respondent) which was decided on 16 December 2004.7 The case concerned the nine appellants, all of whom were detained under section 23 of the Anti-terrorism, Crime and Security Act. The legal issue again was the argument that the detention was inconsistent with the obligations binding on the United Kingdom by the E.C.H.R. and given domestic effect by the Human Rights Act 1998 (“HRA”). Lord Bingham, speaking for the majority, referred to a previous influential decision on detention, Chahal v. United Kingdom in which the European Commission on Human Rights unanimously rejected qualification of the Article 3 prohibition against torture for security reasons.8 The Commission had held that if a person could not be deported due to risk of torture and there were no criminal changes pending, then he or she should not be detained.9 Lord Bingham agreed with S.I.A.C. and the Court of Appeal that the emergency triggered by the 11 September attacks caused a public emergency that threatened the ‘life of the nation’ and therefore, derogation from the detention provisions in the European Convention on Human Rights might be justified. However, even though the derogation might be permissible the actual measure of unlimited detention was not. Part of the material relied upon in making this decision was the Privy Counsellor Review Committee, known as the Newton Committee’s recommendation, that the detention provisions be replaced. Lord Bingham held that even if there was a public emergency threatening the life of the nation, measures that derogate from Article 5 of the E.C.H.R. were permissible only to the extent strictly required by the exigencies of the situation. Amongst his reasons were that the state had not proved that the measures were proportional as they had not explained why the measures were directed only to foreign nationals and why a terrorist, if a serious threat to the U.K., ceases to be so elsewhere. He held later that these measures also violated Article 14, the discrimination provision of the E.C.H.R..
7 House of Lords, A. (F.C.) and others (F.C.) (Appellants) v. Secretary of State for Home Department (Respondent), 16 December 2004. 8 European Commission on Human Rights, Chahal v. United Kingdom (1996) 23 EHRR 413, paras. 79 and 80. 9 Ibid., para. 113.
United Kingdom Response to Terrorism
87
Lord Bingham ruled: 73. I would allow the appeals. There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation Order 2001). There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act is incompatible with Articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status. The Secretary of State must pay the appellants’ costs in the House and below.
Most of the other members of the House of Lords Appellate Committee were equally eloquent and supported Lord Bingham’s order, save for Lord Walker of Gestingthorpe, who would have dismissed the appeal. Ever since this ruling the government has been trying to determine how best to deal with terror suspects but unlimited detention of asylum seekers is no longer an option. Part of the basis of the decision was the Privy Counsellor Review Committee, established to review the Anti-terrorism, Crime and Security Act. While the Act was being debated in the House of Lords, Lord Rooker, then a Minister in the Home Office, explained to the Lords that “[t]he committee will complete a review of the operation of the Act with full access to all the information including that from the security services and so forth”.10 The Committee was known as the Newton Committee. Their report was released in December 2003. The Committee’s conclusions were given particular weight in court as the members of the Committee were all Privy Counsellors, a title given to ministers and other senior parliamentarians with security clearances enabling them to review classified intelligence material. The Committee had access to such information for the purposes of its review. The Newton Committee report stated that, “we have taken evidence from the police, the security and intelligence agencies and other counter-terrorist officials”.11 The report contained significant findings. First of all, the Privy Counsellors agreed that counter-terrorism legislation may be justified because of the way terrorists operate but any such legislation had to contain proper protection for the privacy and liberty of the individual.12 Their major recommendation was that the powers allowing foreign nationals to be detained potentially indefinitely as set out in Part IV of the Act should be replaced as a matter of urgency.13 The Committee would not, and indeed could not, have made such a recommendation had it believed that the derogation was warranted. 14 The Newton Committee strongly recommended that “Part 4 powers which allow foreign nationals to be detained potentially indefinitely should be replaced as
10 Hansard, House of Lords, volume 376, 10 December 2001, Cols 1203-1204 (cited in: Privy Counsellor Review Committee, “Anti-terrorism, Crime and Security Act 2001 Review”, para. 444). 11 Privy Counsellor Review Committee, “Anti-terrorism, Crime and Security Act 2001 Review,” Foreword, p.5. 12 Privy Counsellor Review Committee, “Anti-terrorism, Crime and Security Act 2001 Review: Report”, (London: House of Commons, 2003) p.4. 13 Ibid. p.8. 14 http://www.hrw.org/backgrounder/eca/uk/4.htm, accessed 20 May 2006.
88
Articles
a matter of urgency. New legislation should…not require derogation from the European Convention on Human Rights.”15 The Parliamentary Joint Human Rights Committee had also expressed doubts about the necessity of derogation from the right to liberty under the E.C.H.R. In their first report on the Anti-Terrorism Crime and Security Act, published in November 2001, the Committee stated that there were not enough safeguards “to ensure that the measures in the Bill could be said to be strictly required by the exigencies of the situation” and concluded that “we are not persuaded that the circumstances of the present emergency or the exigencies of the current situation meet the tests set out in Article 15 of the E.C.H.R…”16 The report of the Committee in February 2004 stated: “we continue to doubt whether the very wide powers conferred by Part 4 are, in Convention terms, strictly required by the exigencies of the situation.”17 As a result of this case and the critical Committee reports, the government introduced new legislation and the Prevention of Terrorism Act 2005 came into force on 11 March 2005. The Act replaced section 4, the unlimited detention provision of the Anti-Terrorism, Crime and Security Act 2001. This Act gave the Home Secretary power to make Control Orders in respect of suspected terrorists, whether British or foreign nationals. These Control Orders include a range of possible conditions such as a ban on mobile phone or internet use, restrictions on movement and travel, restrictions on associations with named individuals, and the use of tagging for the purposes of monitoring curfews. This is not an ideal situation and will be the subject of court challenges in the future. Furthermore, after the 7 July 2005 bombings in London, the government attempted to introduce longer detention provisions from the current 14 days without a hearing up to three months.18 This effort was not successful but a compromise was adopted of 28 days’ detention without review. This is far outside of the allowable limit in the E.C.H.R. jurisprudence and it will likely face further challenge.19 1.2 Detention of terror suspects abroad The second major issue in counter-terrorism has been the detention of terror suspects abroad, either in secret detention facilities or in Guantanamo Bay. The courts in the United Kingdom have also faced litigation dealing with this issue with respect to citizens of the United Kingdom. This litigation has on first glance not yielded the same positive results but has resulted in significant pressure on politicians to deal with the issue. In the case of Abbasi and Another
15 Privy Counsellor Review Committee, “Anti-terrorism, Crime and Security Act 2001 Review,” para. 25 16 Joint Committee on Human Rights, “Second Report, 2001-02 session”, 16 November 2001, paras. 30 and 78. 17 Joint Committee on Human Rights, “Sixth Report, 2003-04 session”, 24 February 2004, para. 34. 18 The Guardian, ‘Government Publishes Anti-Terror Bill’, 12 October 2005. 19 European Court of Human Rights, Brannigan and MacBride v. United Kingdom, Appl. 1453/89; 1453/89, 26 May 1993, Series A, 258-B.
United Kingdom Response to Terrorism
89
v. Secretary of State for Foreign and Commonwealth Affairs,20 the Court of Appeal rejected the request of Mr. Abbasi, a United Kingdom national held in Guantanamo Bay, to compel the Foreign and Commonwealth Office to “make representations on his behalf to the United States government or to take other appropriate action or at least to give an explanation as to why this has not been done”.21 The court agreed with the submissions for Mr. Abbasi that at present he was being arbitrarily detained “in present contravention of fundamental principles recognised by both jurisdictions and by international law”. The court memorably described this phenomenon as a “legal black-hole”.22 The court went on to say: What appears to us to be objectionable is that Mr. Abbasi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal.23
Regrettably, the court held that it could not do anything about the situation stating that international law had not recognised that a State was under a duty to intervene by diplomatic or other means to protect a citizen who IS (if) suffering or threatened with injury in a foreign State.24 The court also analysed the decisions of the European Court of Human Rights in Al-Adsani25 and Bankovic26 and held that they stood for the following principles: • that the jurisdiction referred to in Article 1 of the E.C.H.R. would normally be territorial; • where a State enjoyed effective control of a foreign territory that territory would fall into the jurisdiction for the purposes of Article 1; and • where under the principles of international law, a state enjoyed extraterritorial jurisdiction over an individual and acted in the exercise of that jurisdiction, that individual could be deemed to be within the jurisdiction of the State. None of these criteria applied to Mr. Abbasi. The court held that the E.C.H.R. and HRA did not afford any support to the contention that the Foreign Secretary owed Mr. Abbasi a duty to exercise diplomacy on his behalf.27 Another significant part of the judgment discussed the discretion of the Foreign Office in protecting British citizens. This was a very wide discretion both to exercise the right to protect citizens in the first place and what measures to take if it decided to intervene. Decisions to make representations on a diplomatic level were “intimately connected with decisions relating to this country’s foreign policy”.28 20 Court of Appeal (U.K.), Abbasi and Another v. Secretary of State for Foreign and Commonwealth Affairs, [2002] EWCA Civ. 1598 21 Ibid. para. 1. 22 Ibid., para. 64 23 Ibid., para. 66. 24 Ibid., para. 69. 25 ECtHR, Al-Adsani v. United Kingdom (2002) 34 EHRR 11. 26 ECtHR, Bankovic and Others v. Belgium and Others 11 BHRC 435. 27 Ibid., para. 79. 28 Ibid., para. 106.
90
Articles
This decision was made in spite of evidence in the First Report on Diplomatic Protection, from the United Nations Special Rapporteur on diplomatic protection, Professor Dugard. The Dugard Report proposed that a State should have a legal duty, “to exercise diplomatic protection on behalf of an injured [national] upon request, if the injury results from a grave breach of a jus cogens norm attributable to another State.”29 Although this decision was clearly disappointing for the advocates for Guantanamo Bay prisoners, the phrase “legal black-hole” has been adopted in a subsequent influential address by Lord Steyn: “Guantanamo Bay: The Legal Black Hole”. In a speech made at the British Institute of International and Comparative Law, Lord Steyn engaged in a blistering attack on the lawfulness of detention and urged the United States court system to take into account the statement of Master of the Rolls, Lord Phillips of Worth Matravers, who called the lack of challenge to the legitimacy of detention ‘objectionable’.30 Steyn stated: By denying the prisoners the right to raise challenges in court about their alleged status and treatment, the United States government is in breach of the minimum standards of customary international law.31
Addressing the issue of military commissions he stated that they were not independent courts or tribunals, and that the term “kangaroo court” sprang to mind, conveying the idea “of a pre-ordained arbitrary rush to judgment by an irregular tribunal which makes a mockery of justice”.32 These are eloquent words from a member of the Law Lords. Nevertheless, as Javaid Rehman has eloquently stated: Since the detainees are predominantly Muslim by faith, their continued detention is also a major concern for British minority communities. Their detention has heightened concern over a foreign policy based on racial and religious discrimination. Muslim human rights organisations regard the Guantánamo captivities as evidence of the United Kingdom government pursuing an Islamophobic agenda. Representations and legal challenges…have ended largely in disappointment.33
It has to be noted that the British government was able to secure the release of all the United Kingdom detainees from Guantanamo Bay by diplomatic negotiations and the pressure of the dicta in Abassi, and from various parliamentarians and Law Lords who proved to be influential.
29 30 31 32 33
Ibid,. para. 41. J. Steyn, “Guantanamo Bay: The Legal Black Hole”, (2004) 53 ICLQ 1, p.11. Ibid., p.12. Ibid., p.13. J. Rehman, Islamic State Practices, International Law and the Threat from Terrorism, (Oxford: Hart Publishing, 2005)
United Kingdom Response to Terrorism
91
2 TORTURE OF TERRORISM SUSPECTS The second important human rights concern is the issue of torture of terrorist suspects. This has a significant extra-territorial aspect. It is clear that no legislation in the United Kingdom permits torture of any kind. In the landmark case of Ireland v. United Kingdom,34 the United Kingdom was found to have committed acts of cruel and unusual punishment (not torture) in dealing with terrorist suspects in the Irish troubles but the practices described had already been discontinued by the United Kingdom. Since that case there had been a clear commitment on the part of the United Kingdom government not to tolerate torture of any kind on its territory. However, the current legal issue is whether a court in the United Kingdom can use evidence in hearings that might have been obtained by torture elsewhere. The House of Lords considered this issue in a case with the same name as a case on detention; A. (F.C.) and others (F.C.) (Appellants) v. Secretary of State for the Home Department (Respondent).35 This decision was released on 8 December 2005. The question before the Lords was: May the Special Immigration Appeals Commission (S.I.A.C.), a superior court of record established by statute, when hearing an appeal under section 25 of the Antiterrorism, Crime and Security Act by a person certified and detained under sections 21 and 23 of that Act, receive evidence which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of the British authorities?
Lord Bingham (in the minority in this case) analysed this question from three perspectives: English common law; the E.C.H.R.; and, international law. He first summarised the common law position stating: “It is, I think, clear that from its very earliest days the common law of England set its face firmly against the use of torture”.36 He also relied upon section 78 of the Police and Criminal Evidence Act of 1984 which gave effect to the intent of Article 15 of the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT). In considering the E.C.H.R., Bingham indicated that as S.I.A.C. was a public authority within the meaning of section 6 of the Human Rights Act 1998 and therefore, was forbidden to act or condone any actions that contravened European Convention rights. The two primary rights affected were the Article 3 – absolute prohibition against torture and the Article 6 – fair trial guarantee. Although Bingham acknowledged that the European Court of Human Rights had consistently declined to articulate evidential rules to be applied, the Court did mandate that proceedings be fair which it would not be if evidence was obtained by torture. The third consideration was public international law and the proposition that the prohibition of torture enjoyed the highest normative force recognised by international law. Bingham held that the prohibition against torture imposed 34 European Court of Human Rights, Ireland v. United Kingdom, (1978) 2 EHRR 25. 35 House of Lords, A. (F.C.) and others (F.C.) (Appellants) v. Secretary of State for the Home Department (Respondent), 8 December 2005. 36 Ibid., para 11.
92
Articles
on states’ obligations towards all other members of the international community, and that there would be a claim to compliance on the part of all states (even if the torture took place elsewhere). Furthermore, torture had acquired the status of a peremptory norm of customary international law and thus one of the most fundamental standards of the international community. Bingham held that there was a duty on states to reject the fruits of torture inflicted in breach of international law. This discussion of the binding force of international legal obligations will be an important precedent in subsequent decisions. Although the sentiments expressed by Bingham on evidence obtained by torture abroad was shared by all the Law Lords, they disagreed on the burden of proof needed to establish that this torture had occurred. Bingham, who was joined by Lord Nicholls and Lord Hoffman, did not agree with the Secretary of State that it was for the party seeking to challenge the admissibility of evidence based on it being obtained by torture to prove the factual grounds on which to base the challenge. Bingham proposed that all the appellant should have to do is advance some plausible reason why the evidence may have been procured by torture and then the Special Immigration Appeals Committee would have to make enquiries to conclude that there is not a real risk that the evidence was obtained by torture. Lord Hope, who was joined by Lord Rodger, Lord Carswell and Lord Brown for the majority, on the other hand proposed the following test: is it established by means of such diligent enquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture? This would mean that the onus remains with the person seeking to exclude the evidence as Lord Nicholls stated, to “place on the detainee a burden of proof which, for reasons beyond his control, he can seldom discharge”.37 This is a most disappointing aspect of the judgment as it will be very difficult to establish torture and thus to exclude evidence. In spite of the disagreement on the test for proving torture, it is clear that British courts will not accept evidence obtained by torture from third countries. The other positive aspect of the judgment was the extensive reference to international standards for fair trial and on the prohibition against torture. This issue will face further litigation in the aspect of rendition. The United Kingdom government has been negotiating agreements with other countries to return non-citizens to face terrorism charges or investigation in their home countries. Unlike the United States and the concept of “extraordinary rendition” it is not proposed that suspects simply be returned without guarantees that the suspect will not be tortured. However, human rights groups challenge the validity of these memorandums of understandings in actually protecting suspects from torture. Human Rights Watch argues that these agreements will violate the non-refoulement obligations under the 1954 Refugee Convention.38 37 Ibid. para. 80. 38 Human Rights Watch, HRW Concerns Regarding Jordan-UK Rendition Policy, Letter to the Prime Minister of Jordan, 1 August 2005
United Kingdom Response to Terrorism
93
3 EXTRA-TERRITORIAL APPLICATION OF HUMAN RIGHTS PROVISIONS A third issue occupying the British courts is another extra-territorial one, namely whether the obligations under the E.C.H.R. that the United Kingdom is subject to, are applicable to the territories they exercise control over. The current applicable case is The Queen (on the application of Mazin Mumaa Galteh Al-Skeini and Others) v. The Secretary of State for Defence, decided by the Court of Appeal on 21 December 2005. This case was an appeal by the families of five Iraqi civilians from an order made by the Divisional Court that the E.C.H.R. and the Human Right Act did not apply in their cases. All of these claims arose out of the deaths of members of the civilian population in Basrah City, in south-east Iraq between August 2003 and November 2003 while the United Kingdom was an occupying power under international humanitarian law. In none of these cases were there any ballistics tests, any autopsy report, any post mortem and most significantly, any investigation by anyone outside the battalion. The key legal test turned on the territorial application of the European Convention. Lord Brooke’s leading judgment ruled against most of the appellants, relying on the European Court of Human Rights case of Bankovic and other case law to rule that the U.K. did not possess Article 1 of the E.C.H.R. jurisdiction in relation to those killed in the first five incidents. This was because those individuals did not have their liberty restricted, nor did the U.K. have effective control over the territory in Southern Iraq where these incidents took place. But permission to appeal to the House of Lords against these two findings has been granted to the families. There was one victim, Baha Mousa, aged 26, who died in the actual custody of the British Army. The Secretary of State for Defence conceded that the U.K. was exercising extra-territorial jurisdiction for E.C.H.R. purposes. The Court of Appeal upheld the High Court’s finding that the Human Rights Act and the E.C.H.R. applied to Mr Mousa’s case on the basis that he came within the authority and control of British forces in Iraq. The Court of Appeal went further and held that not only those in British prisons were protected by the Human Rights Act and the E.C.H.R., but individuals whose liberty had been restricted by British forces were also covered, regardless of whether they were detained in a prison, as they came under British authority and control. The Court of Appeal further highlighted the defects in military investigations, in particular, the role of the Commanding Officer and the inherent problems resulting from investigations lacking independence from the military chain of command. The Court recognised the important and unique protection provided by the E.C.H.R., through the positive obligation under Articles 2 and 3, to conduct an independent investigation and that such protection could extend to territory outside Europe where a State Party was found to have effective control over such territory. Therefore, although the decision may not go far enough in terms of civilian victims’ families, those who are held in custody may be under the protection of the E.C.H.R. and the Human Rights Act. This is being further litigated in the case of Al-Jedda in which a joint Iraqi/United Kingdom citizen was held
Articles
94
without charge in Iraq under suspicion of terrorist activities. This case has also been argued in the Court of Appeal. Although the court again failed to find extra-territorial jurisdiction, they gave permission for the case to be heard in the House of Lords.39 The complicating factor in Iraq is Security Council Resolution 1546, in which the U.N. Security Council decided “that the multinational force shall have all the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution”.40 The House of Lords will have the opportunity to consider the relationship between the E.C.H.R. and international obligations as set out in Security Council resolutions. Given the decision in the A. cases in which they overruled the Court of Appeal, the human rights community awaits the decisions of the House of Lords with interest. These cases are also likely to reach the European Court of Human Rights in spite of the Bankovic decision as Al-Skeini and Al-Jedda may be distinguished from that decision based on the principle of effective control as discussed in the A. v. Secretary of State torture case.
4 FURTHER CHANGES TO TERRORISM LEGISLATION In addition to the above court challenges, anti-terrorism legislation is under close scrutiny in both the House of Commons and House of Lords as was seen in the influential Newton report. In addition, Lord Carlisle of Berriew Q.C. has been appointed as an Independent Reviewer pursuant to section 14 of the Prevention of Terrorism Act 2005. His reports have been critical of the control order provisions in the legislation. After the 7 July 2005 bombings in London, amendments to the terrorism legislation proposed that suspects arrested under suspicion of having conducted, or being engaged in planning, terrorist crimes could be held for a period of 90 days before being charged with a crime. This was a large increase over the existing period permitted by the Terrorism Act 2000, which allowed for a maximum of 14 days detention before charges were laid. At the report stage, Parliament rejected the proposed 90 days and voted through an amendment for 28 days’ detention, thereby doubling the period allowed under the Terrorism Act 2000. The Terrorism Act 2006 came into force in April 2006 but did include the amended detention provisions. Even without the detention provisions it now faces opposition from civil liberties groups such as Liberty. However, any future increase to a 28-day detention period is likely to be challenged under the Human Rights Act and the E.C.H.R., both in the British courts and the European Court of Human Rights.
39 AI Index: EUR 45/024/2005 (Public) News Service No: 197, 19 July 2005 and R (Al-Jedda) v. Secretary of State for Defence [2006] EWCA Civ 327. 40 Security Council Resolution 1546 (2004) of 8 June 2004
United Kingdom Response to Terrorism
95
5 CONCLUSION Counter-terrorism legislation and administrative action has to be subject to constant monitoring for compliance with a State’s obligations under various human rights conventions. The common law system within the United Kingdom as enhanced by the protections in the Human Rights Act 1998 allows for vigorous examination of the various provisions in regard to their compliance with international human rights standards. It can be concluded that unlike the legislators, the court and parliamentary system of the United Kingdom is living up to this challenge of systematic and critical review. Some of the decisions may be disappointing in that they do not go as far as the interveners would like, but they do make critical statements about the necessity to ensure human rights compliance even in the face of the threat of terrorist attacks. However, the fact that some of this legislation has been held to be discriminatory does not address the valid charge of Rehman and the Secretary-General of the Organisation of the Islamic Conference of specific discrimination against Islamic peoples. It remains to be seen whether a United Kingdom court will address this specific issue in the many court challenges that will continue to arise so long as the government deals with the issue of counter-terrorism. In the long run, the fact that international law has come to the forefront of domestic litigation will represent an important development not only in United Kingdom litigation but for the study of international law. The reasoning in the House of Lords, particularly the type of analysis employed by Lord Bingham, will stand as a model of how international law should be considered in domestic courts.
96
97
Corrie et al v. Caterpillar: Litigating Corporate Complicity in Israeli Violations of International Law in the U.S. Courts Grietje Baars*
1 INTRODUCTION1 In 2005 an attempt was made at enforcing international law against an American corporation said to be complicit in war crimes, extrajudicial killing and cruel, inhumane and degrading treatment committed by the Israeli military. The civil suit, brought in a U.S. court, was dismissed without a hearing, in a brief statement mainly citing reasons of political expedience. The claimants in Corrie et al v. Caterpillar2 include relatives of several Palestinians, and American peace activist Rachel Corrie, who were killed or injured in the process of house demolitions carried out using Caterpillar’s D9 and D10 bulldozers. They brought a civil suit in a U.S. court under the Alien Tort Claims Act,3 for breaches of international law, seeking compensatory damages and an order to enjoin Caterpillar’s sale of bulldozers to Israel until its military stops its practice of house demolitions. An appeal is pending and will be decided on in the latter half of 2006.
* PhD Candidate, University College London and Coordinator, International Criminal Law at the Institute of Law, Birzeit University. 1 The author thanks Victor Kattan, Jason Beckett, Jörg Kammerhofer, Akbar Rasulov, André de Hoogh, Anne Massagee, Reem Al-Botmeh and Munir Nuseibah for their helpful comments and suggestions, and Maria LaHood of the Center for Constitutional Rights in New York for providing the documentation. Any mistakes are the author’s own. This article is an elaboration of a paper presented at the conference, “The Question of Palestine in International Law” at the School of Oriental and African Studies in London, on 23-24 November 2005. 2 Cynthia Corrie and Craig Corrie, et al v. Caterpillar, Inc., a Foreign Corporation (“Caterpillar”) Case No. CV-05192-FDB. Documents on file with the author, and available from: http://www.ccrny.org/v2/legal/corporate_accountability/corporateArticle.asp?ObjID=nCtI8ofbFg& Content=546 3 28 U.S.C. § 1350.
Articles
98
2 THE CATERPILLAR CASE IN ITS CONTEXT The idea of a number of Palestinian and American families taking the manufacturer of the machines, that were used in the killing or injury of their relatives by the Israeli military, to court in the United States, may seem far fetched in more than one way. Why sue a foreign supplier to the Israeli army, in a foreign court? What did the U.S. company have to do with deaths and injuries that occurred half-way around the world? This introductory section shows how such actions are feasible, and plausible. I will discuss the context in which the facts complained of occurred, and the legal and political reasons (such as the “Intifada Law”4) why a Palestinian claimant may resort to a foreign court. Caterpillar commenced in March 2005. The plaintiffs are represented by the Center for Constitutional Rights in New York, and the Seattle University Ronald A. Peterson Law Clinic. On 29 November 2005 the District Court for the Western District of Washington, Tacoma Division, dismissed the case.5 The plaintiffs filed a Notice of Appeal on 20 December 2005 and on 20 March 2006 filed their Appellants’ Opening Brief with the United States Court of Appeal for the Ninth Circuit.6 The defendant company, Caterpillar, is due to file its response in June 2006 but has been granted an extension. The Caterpillar litigation takes place in the context of house demolitions and civilian deaths and injuries caused by the Israeli military in the Occupied Palestinian Territories (“OPT”).7 In particular, the complaints that form the basis of the litigation arose during the April 2002 Israeli incursions into the West Bank population centres of Nablus and Jenin Refugee Camp, and two major operations in Gaza, in Rafah in March 2004, and Khan Yunis Refugee Camp in July 2004. The plaintiffs in the Caterpillar case are four Palestinian families and the parents of Rachel Corrie, the American peace activist who was killed in Rafah in March 2003. Rachel Corrie’s death has been much publicised and has even formed the subject of a play, “My Name is Rachel Corrie”, that was directed by Alan Rickman, a famous U.K. actor, and has toured theatres around the world, although it was recently barred from appearing in New York City.8 Rachel was one of a number of “Western” volunteers who use the privilege of their 4 The popular nickname of the Civil Wrongs (State Responsibility) (Amendment No. 7) 2005, 5712-1952, Available in English from Adalah, The Legal Centre for Arab Minority Rights in Israel, at http://www.adalah.org/eng/complaw.php . 5 Order granting defendant Caterpillar’s motion to dismiss, USDC Western District of Washington at Tacoma, filed 11/22//2005 (“Order”). 6 Appellants’ Opening Brief, United States Court of Appeals for the Ninth Circuit (“AB”): available from the Center for Constitutional Rights: http://www.ccr-ny.org/v2/legal/ corporate_accountability/corporateArticle.asp?ObjID=nCtI8ofbFg&Content=546. 7 For a detailed description of the Israeli military’s activities in the Occupied Palestinian Territories, see, for example, the daily, weekly, and annual reports of the Palestinian Centre for Human Rights in Gaza, available at http://www.pchrgaza.org, and the Palestinian Monitoring Group: http://www.nad-plo.org/main.php?view=pmg_pmg. 8 “A Message Crushed Again – Three years after American activist Rachel Corrie died under an Israeli bulldozer in Gaza, her words are being censored for political reasons.” LA Times, by Katharine Viner, 1 March 2006.
Corporate Complicity and Israeli Violations of International Law
99
nationality for the benefit of the victims of this conflict who would otherwise largely escape mainstream media attention.9 Rachel’s death has helped bring out the stories of other, far more common, occurrences in the OPT. 2.1 The complaints The facts alleged in the case against Caterpillar are set out in the Plaintiffs’ Complaint in some detail. They start with the demolition of the home of the “Nablus Plaintiffs” in April 2002, as part of a large scale incursion into the West Bank: …the home of Plaintiff Mahmoud Al Sho’bi who lived in Nablus in the OPT (West Bank) was demolished by upon information and belief, by a Caterpillar bulldozer. Mahmoud’s 85 year old father Umar, 2 sisters – Fatima and Abir ages 57 and 38 respectively, brother Samir, age 48, his pregnant sister-in-law Nabila, age 40, along with Samir and Nabila’s three children Anas, Azzam, and Abdallah ages 4, 7, and 9 respectively, were killed by a Caterpillar bulldozer when the family home was demolished and they were not given sufficient time to leave. After the Al Sho’bi family home was demolished, the IDF kept the area under strict curfew for days, denying access to rescue workers, and it was not until a week later … that the families’ bodies were found under the rubble of the house by relatives and neighbors.10
As part of the Jenin Refugee Camp incursion in 2002, Jamal Fayed was killed: Before the home was bulldozed, Jamal’s mother and sister informed the IDF that Jamal was in the house, was paralyzed, and needed assistance to leave. Jamal’s mother and sister and other women were permitted to enter the home to remove Jamal. The bulldozer then started demolishing the house while they were inside. … The women ran outside and yelled at the driver of the bulldozer to stop. The Caterpillar bulldozer continued moving forward, demolished the home, and killed Jamal.11
In Rafah, in September 2002, [t]he destruction began without warning at approximately 5:00 in the morning. The falling ceiling and walls injured members of their family. After being warned of those inside, IDF soldiers operating and/or assisting the bulldozer halted active demolition, but fired on neighbours or relatives trying to evacuate those who remained in the demolished house. Eventually, the entire Abu Hussein family was
9 See, e.g. Pollock, M.: “Using and Disputing Privilege: U.S. Youth and Palestinians Wielding ‘International Privilege’ To End the Israeli-Palestinian Conflict Nonviolently”; this article appeared in the 2005 issue of Working Papers, Centre for Public Leadership, John F. Kennedy School of Government, Harvard University. 10 Plaintiffs’ First Amended Complaint (“FAC”), para. 57. This event and the Jenin event below took place between 29 March-21 April, as part of the IDF’s “Operation Defensive Shield”, an incursion into major West Bank urban centres following an increase in violence from both sides. Nearly 500 civilians are reported to have died in the time surrounding this operation. See, e.g. the Jenin Inquiry Report (available from http://www.jenininquiry.org/); Human Rights Watch: Jenin: IDF Military Operations, May 2002, Vol. 14, No. 3, available from http:/ /hrw.org/reports/2002/israel3/ ) and see also HRW press release of 2 August 2002, “The UN Report is seriously flawed” at http://hrw.org/english/docs/2002/08/02/isrlpa4185.htm; the Report of the Secretary General prepared pursuant General Assembly Resolution ES – 10/10, A/ES-10/186. 11 FAC at para. 59.
100
Articles
rescued from the building and transported to receive medical treatment for their injuries. Six members of the family suffered physical injuries: Majeda Radwan Abu Hussein, Bahjat Fayez Abu Hussein, then age 20, Ahmed Fayez Abu Hussein, then age 17, Nour Fayez Abu Hussein, then age 11, Hanan Fayez Abu Hussein, then age 3, and Manal Fayez Abu Hussein, then age 2.12
Mr. Khalafallah, killed during a large scale incursion into the Khan Yunis Refugee Camp in July 2004, was elderly and disabled and, according to the testimony given by his relatives, suffered a similar fate to that of Jamal Fayed.13 Finally, Rachel Corrie was killed while attempting to protect the home of Palestinian residents of Rafah, in an action the Israeli military described as a search for weapons and weapon smuggling tunnels.14 These acts were all carried out by the Israeli military using the well-known Caterpillar D9 and D10 bulldozers. Caterpillar had sold these specially designed, armoured, bulldozers to the Israeli military, provided it with training on how to use them, and after-sales care, in the knowledge15 that they were being used to commit international crimes. 2.2 The context The plaintiffs’ complaints arose in the context of the Israeli occupation of the West Bank and Gaza. House demolitions, the deliberate injuring and killing of civilians, and the failure by the Israeli authorities to investigate and remedy wrongdoing by its military, are some of the most acute manifestations of the Israeli occupation. 2.2.1 House demolitions in the Occupied Palestinian Territories The plaintiffs’ complaint sums up the broader issue as follows: The IDF has destroyed at least 10,000 Palestinian homes since 1967 leaving approximately 50,000 men, women, and children homeless. Over the last four years, the IDF has destroyed at least 4,100 homes. … …As a result of these demolitions, Palestinian civilians, including Plaintiffs, have been killed, injured, displaced, and/or made homeless. Home demolitions often take place without adequate warning and in violation of due process rights, such as the right to a fair hearing. The IDF rarely offers compensation and redress to the 12 FAC at paras. 60-1. This event was part of large-scale house demolitions in the Gaza Strip, see (on earlier instances), e.g. B’Tselem, Policy of Destruction: House Demolitions and Destruction of Agricultural Land in the Gaza Strip, February 2002, available from http:// www.btselem.org/Download/200202_Policy_of_Destruction_Eng.doc; and Human Rights Watch: Razing Rafah: Mass Home Demolitions in the Gaza Strip, October 2004, available from www.hrw.org/reports/2004/rafah1004/. 13 FAC at paras. 77-80. On the Khan Yunis incursion, see “Violating international laws: Disproportionate re-incursion of Palestinian communities in Gaza Strip”, 15 July 2004, the Applied Research Institute, Jerusalem, at http://www.poica.org/editor/case_studies/ view.php?recordID=415, and the Palestine Monitoring Group Monthly Report for July 2004, at http://www.nad-plo.org/pmg/pmg-month/july.pdf. 14 FAC at paras. 65-76. See B’Tselem: Foreign Citizens killed by the Israeli Security Forces, at http://www.btselem.org/English/Statistics/Casualties_Data.asp?Category=11. 15 See below at section 4.
Corporate Complicity and Israeli Violations of International Law
101
victims. The IDF has also destroyed civilian roads, agricultural land, and other public and private property.16
House demolitions by an occupying power in the occupied territory may violate international law in several ways. For one, they may violate the prohibition on destruction of property contained in Article 53 of the Fourth Geneva Convention17 and Article 23(g) of the 1907 Hague Regulations.18 Israel, as the Occupying Power, is forbidden from destroying the property of Palestinians in the West Bank and Gaza Strip, unless it is militarily necessary to do so. According to Article 147 of the Fourth Geneva Convention, “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” is a grave breach of the Convention, and thus a war crime. Interpreting “militar y necessity” broadly would undermine the very purposes for which international humanitarian law was brought into existence. International NGOs such as Amnesty International,19 Human Rights Watch, as well as local organisations such as Al-Haq, the Palestinian Centre for Human Rights, HaMoked, B’Tselem, the Israeli Committee Against House Demolitions and the Association for Civil Rights in Israel, have documented, condemned, and litigated the practice of house demolitions, arguing that these more often than not do not occur on the grounds of true “military necessity”.20 International organisations have likewise condemned the practice.21 Aside from house demolitions in the circumstances described above, the Israeli military also carries out house demolitions against the property of (the 16 FAC at para. 8. 17 Convention Relative to the Protection of Civilian Persons in Time of War (“Fourth Geneva Convention”) 12 August 1949, 75 U.N.T.S. 287. 18 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, 36 Stat. 2277, T.S. No. 539 (“1907 Hague Regulations”). Israel is not a party to the 1907 Hague Convention and the annexed Hague Regulations, but the norms contained in them are declaratory of the laws and customs of war (Judgment of the International Military tribunal of Nuremberg, 30 September and 1 October 1946, p. 65) and as such binding on all states. 19 Amnesty International: Israel and the Occupied Territories: Under the Rubble: House demolition and destruction of land and property. AI Index: MDE 15/040/2004, 18 May 2004 available at: http://web.amnesty.org/library/Index/ENGMDE150402004. 20 See, for example, http://www.icahd.org/eng/; http://www.hamoked.org/next_en.asp? cat_id=3&sub_cat_id=7 21 Including also the United Nations, see, e.g. S.C. Res. 1544, para. 1, U.N. Doc. S/RES/1544 (May 19, 2004); Peter Hansen, Commissioner-General of UNRWA, Statement to the Special Political and Decolonization Committee 4-5 (Nov. 1, 2004) (transcript available at http:// www.un.org/unrwa/news/statements/01nov04.pdf); Commission on Human Rights: Fiftyninth session, Item 10 of the provisional agenda: Economic, Social, and Cultural Rights, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari, Doc E/CN.4/2003/5 Add.1, 12 June 2002, available at: http://documents-dds-ny.un.org/doc/UNDOC/GEN/G02/145/06/pdf/G0214506.pdf? OpenElement Specifically, the U.N. Committee Against Torture has found that the Israeli government’s house demolition policy “may, in certain instances, amount to cruel, inhuman or degrading treatment or punishment” in violation of the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Conclusions and recommendations: Israel. 25/09/2002. A/57/44, paras. 47-53. (Concluding Observations/ Comments), available from http://www.unhchr.ch/tbs/doc.nsf/0/7b8b70bcc17daf8cc1256ef b004e005a?Opendocument.
102
Articles
family and sometimes the neighbours of) individuals thought to be members of certain designated “terrorist organisations” and/or those suspected of carrying out various activities.22 In international law, these types of house demolitions, where they affect third party property, amount to collective punishment in violation of Article 50 of the 1907 Hague Regulations, and Article 33 of the Fourth Geneva Convention. The latter stipulates: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” Finally, under Oslo II,23 the State of Israel maintains authority over planning and zoning decisions in much of the Occupied Palestinian Territories, and house demolitions frequently occur for alleged violations of planning and building laws.24 These latter cases often raise allegations of improper motives on the part of the Israeli authorities, and might as such be discriminatory against Palestinians and, more generally, violate their right to housing.25 22 See, e.g. Palestinian Centre for Human Rights: “Demolition of Palestinian Houses by the Israeli Occupying Forces as a Means of Punishment and Determent: A Report on Demolition of Houses of Families of Palestinians Who Carried out, Planned or Facilitated Armed Attacks against Israeli Targets”, available at http://www.pchrgaza.org/files/Reports/English/ pdf_spec/demolishion%20house-2.pdf. See, e.g., Al-Haq 2005 at The Israeli Military designates a very wide range of organisations and individuals as “terrorists” – see section 91 of the Israeli Penal Law, 5737-1977: “Terrorist Organization: an organization that has goals or takes actions aimed at the destruction of the state, or at hurting the security of the state, or the security of its residents or of the Jews in other countries.” See also, e.g.: PCHR 2 May 2006: “As a Form of Collective Punishment, IOF Continued to Arrest and Harass Mothers of Allegedly Wanted Palestinians”, Palestinian Centre for Human Rights: http://pchrgaza.org/files/PressR/ English/2006/46-2006.htm. And see, eg: http://www.btselem.org/english/ Punitive_Demolitions/Legal_Basis.asp. This type of demolition was implicitly approved of by the Israeli High Court of Justice in HCJ 6696/02, Yousef Hamid Mustafa Zu’rob v. Military Commander of the Gaza Strip, issued 6 August 2002. 23 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (“Oslo II”) Washington, D.C., 28 September 1995, available from: http://www.knesset.gov.il/process/ docs/heskemb_eng.htm. 24 See, e.g., Amnesty: Under the Rubble (supra, footnote 19), at 8: “Palestinians in the West Bank and Gaza Strip are barred from leasing or building on land which has been declared state land because state land is not for leasing or building on by ‘alien persons’, and the entire Palestinian population of the Occupied Territories are defined as aliens by Israeli law. After it occupied the West Bank and Gaza Strip, Israel froze planning in Palestinian towns and villages. Planning schemes dating back several decades and no longer suitable to cater for the needs of a growing population were used as the basis for refusing building permits to Palestinians. At the same time, however, Israel developed comprehensive planning schemes for more than 150 Jewish settlements it established throughout the Occupied Territories in violation of international law.” 25 Shany, Y.: Expert Opinion, Caterpillar litigation (“Shany”). Document 36 Filed 08/15/2005, at p. 28. Document on file with the author. Also “[b]ecause of the very restrictive planning policy the Israeli authorities apply to the Occupied Territories, Palestinian often have no choice but to build without permission to house their families. These properties are then vulnerable to demolition.” B’Tselem: see http://www.btselem.org/english/ Planning_and_Building/Index.asp; and “Shadow Report submitted by ACRI to the UN Committee on the Elimination of All Forms of Racial Discrimination (CERD) regarding Israel’s consolidated tenth, eleventh, twelfth, and thirteenth periodic report: Part I - House Demolitions and Discriminatory Planning and Enforcement Policies in the West Bank,” January 2006, available at: http://www.acri.org.il/english-acri/engine/story.asp?id=296.
Corporate Complicity and Israeli Violations of International Law
103
The Jenin Refugee Camp, Nablus and Khan Yunis Refugee Camp house demolitions which are the subject of this litigation, took place as part of welldocumented large scale military incursions, which would most probably be classified by the Israeli authorities as forming part of “combat operations”.26 In Jenin Refugee Camp, during the period described, “at least 140 buildings, most of them family dwellings, were completely destroyed, and severe damage was caused to more than 200 others, rendering them uninhabitable or unsafe… An estimated 4,000 people, more than a quarter of the camp, were rendered homeless.”27 Amnesty International reports that the Israeli explanation for the destruction was “to clear paths for the IDF’s tanks and other heavy weaponry.”28 In an interview in Israeli daily newspaper Yehidot Ahronot shortly after the incursion, Israeli soldier Moshe Nissim describes his role as follows: “For three days, I just destroyed and destroyed. I didn’t give a damn about the Palestinians but I didn’t just ruin with no reason. It was all under orders. Many people were inside houses we started to demolish… I am sure people died inside these houses… I found joy with every house that came down because I knew that they didn’t mind dying…”29 During the Khan Yunis Refugee Camp incursion, Israeli tanks and helicopter gunships intensely shelled the camp and destroyed 74 houses in less than five days.30 The Corrie and Abu Hussein complaints would most probably be classified as non-combat related operations carried out “for military necessity”.31 “Most of the demolitions in Gaza are aimed at depopulating Palestinian areas near Israeli settlements, bypass roads, military bases, as well as the border.”32 In Rafah, a town in Gaza close to the Egyptian border, the Israeli military “has used various pretexts to destroy swathes of housing to create a ‘buffer zone’ along the border…”33 As noted above, the absolute necessity of these demolitions has often been called into question. For the actions to be lawful under international humanitarian law (“IHL”) moreover, the actions need to be proportionate (e.g. would a less intrusive measure serve the purpose of the action, such as temporary evacuation of the property?). Also, is demolition at night without notice the least harmful measure conceivable? Further, for the purposes of IHL the measure must be taken with proper consideration for the protection of the civilian population. 2.2.2 Civilian deaths in the Occupied Palestinian Territories For the period of the current Intifada,34 B’Tselem records 3551 Palestinians, including 723 children, killed by Israeli forces, while the Palestine Red Crescent 26 27 28 29 30 31 32 33 34
Shany at p. 30. FAC at para. 8. Amnesty Under the Rubble, supra, footnote 19. Yediot Ahronot, 31 May 2002, available from http://www.gush-shalom.org/archives/ kurdi_eng.html. FAC at para. 19. Shany at para. 38. FAC at para. 7. FAC at para. 8. The current, second Intifada commenced in 2000.
104
Articles
Society reports 30,603 injured in the same period.35 The “combat operations” to which three of the Caterpillar complaints relate, were particularly violent. The Jenin Inquiry Report, whose authors were the first on the ground after the invasion, notes how difficult it was for investigators to estimate the number of deceased in the operation, with many bodies being torn apart and dispersed by the bulldozers.36 The U.N. team, moreover, had to compile its report on “Operation Defensive Shield” in Jenin and Nablus Spring 2002 without being allowed access to the Occupied Palestinian Territories by the Israeli government.37 The death and destruction in Gaza are reported in the UNRWA Field Assessment of the Israeli militar y’s so-called “Operation Days of Penitance” Northern Gaza.38 Civilian deaths occur in the Occupied Palestinian Territories as a result of the deliberate targeting of civilians; excessive use of force, indiscriminate firing, extrajudicial killings, targeted assassinations.39 Particularly, the immediate resort to the use of live ammunition to disperse demonstrators shows a disregard for civilian life.40 Although a High Court of Justice (HCJ) decision in 2005 (in response to a petition brought by seven human rights organisations) declared the use of “human shields” by the military illegal,41 human shields were used, for example, in Gaza summer 2006.42 Aside from a violation of IHL, civilian deaths may be the result of a violation of the right not to be arbitrarily deprived of one’s life in international human rights law.43 The complaints that form the subject of the Caterpillar petition combine the two elements, house demolitions and civilian deaths (and injuries).44 All of the plaintiffs killed or injured in the events complained of, were unarmed civilians.45
35 B’Tselem figures for the period 29/09/00 to 15/07/06, at http://www.btselem.org/english/ statistics/Casualties.asp; and Palestinian Red Crescent Society, at http://www.palestinercs.org/ crisistables/table_of_figures.htm. The PRCS figure is for the period 29 October 2000 to 31 July 2006, which includes the start of latest Israeli military assault on Gaza which commenced on 25 June 2006. 36 Jenin Inquiry Report, supra, footnote 10 at 4. 37 “Report of the SG prepared pursuant to GA Resolution ES – 10/10”A/ES-10/186, para. 43. 38 United Nations Relief and Works Agency, published 20 October 2004, available from www.un.org/unrwa/news/incursion_oct04.pdf. 39 Petition pending. See also the assassination of Salah Shehadeh by a one-tonne bomb in Gaza City – see below at 2.5. 40 Al-Haq at 53. 41 HCJ 3799/02 Adalah et al v. the IDF Commander et al, available from: elyon1.court.gov.il/ Files_ENG/02/990/037/a32/02037990.a32.pdf . 42 See e.g.: 20 July 2006: Israeli Soldiers Used Palestinians as Human Shields in Gaza: B’Tselem investigation: IDF used civilians, including minors, as human shields during gun-battle in Beit Hanun, see http://www.btselem.org/english/Press_Releases/20060720.asp. 43 See for a discussion of the parallel application of international human rights and humanitarian law, the ICJ Wall Advisory Opinion at p. 101. 44 In the latest Gaza offensive again house demolitions without adequate notice are an issue, see, eg: Palestinian Centre for Human Rights in Gaza, “Demanding Offering Palestinian Families Enough Time to Vacate Their Houses and Appeal against Their Destruction, PCHR Addresses the Israeli Attorney General Office Concerning the Policy of Informing Palestinians Shortly before Destroying Their Houses”, Ref: 79/2006, Date: 31 July 2006. 45 AB at p. 7.
Corporate Complicity and Israeli Violations of International Law
105
2.2.3 Failure to investigate Palestinian civilian deaths are not normally investigated.46 In fact, at the outbreak of the current Intifada the Israeli authorities announced that they would no longer carry out investigations into the deaths of Palestinian civilians, except in exceptional circumstances.47 According to Al-Haq, of the 3,044 Palestinian deaths in the period from 28 September 2000 until 24 November 2004, 89 have been the subject of military police investigations, leading to only one conviction.48 2.3 Remedies available at home? In the previous section it was noted that civilian deaths are not normally investigated, and house demolitions (particularly of the type complained of here) are not normally subject to conditions such as the right to a prior hearing, 46 Al-Haq at p. 52, June 2005; B’Tselem: “Background – Whitewash and Failure to Investigate the Killing of Civilians in the Occupied Territories”, 27 June 2005. Human Rights Watch: “Promoting Impunity: The Israeli Military’s Failure to Investigate Wrongdoing”, June 2005. Specifically on the 2002 incursions, see: Amnesty International’s report Israel and the Occupied Territories: Shielded from scrutiny: IDF violations in Jenin and Nablus, 4 November 2002 (AI Index: MDE 15/143/2002). 47 Al-Haq at p. 75. 48 Al-Haq, at pp. 75-76 and B’Tselem, “Rules of Engagement and Lack of Accountability Result in Culture of Impunity for Palestinian Civilian Deaths”, Press Release, 24 November 2004. Rachel Corrie’s death was investigated. The Guardian saw the (otherwise unpublished) report. The report is said to absolve the military personnel involved, and is quoted as saying that Corrie had been: “struck as she stood behind a mound of earth that was created by an engineering vehicle operating in the area and she was hidden from the view of the vehicle’s operator who continued with his work. Corrie was struck by dirt and a slab of concrete resulting in her death ... The finding of the operational investigations shows that Rachel Corrie was not run over by an engineering vehicle but rather was struck by a hard object, most probably a slab of concrete which was moved or slid down while the mound of earth which she was standing behind was moved.” (The Guardian, 14 April 2003). Instances where “Westerners” are killed by the Israeli military are more often investigated, partly because the military and the government are highly sensitive to the media impact of such killings. Here, too, however, delays and a lack of transparency result in the investigations amounting to far less than an effective remedy. HRW Promoting Impunity, supra, footnote 46, at 72. In Israel, a soldier has been convicted of the manslaughter of British citizen Tom Hurndall. According to HRW, “during the trial, the soldier admitted he had lied when he had previously said Hurndall had been carrying a gun, but said he had been under orders to open fire even on unarmed people”, HRW Promoting Impunity, at 77. In April 2006 a U.K. coroner found that James Miller (another U.K. citizen) and Tom Hurndall, had been unlawfully killed (“Calls for UK to act over Britons shot dead in Gaza”, Vikram Dodd, Tuesday, 11 April 2006, The Guardian, at http://www.guardian.co.uk/frontpage/story/0,,1751369,00.html). The family have requested access to the investigative report in order to see whether he should be charged with murder and whether the soldiers’ superior(s) may be charged with command responsibility. The U.K. Attorney-General is considering a request for extradition for murder and/or war crimes. Despite 40 interventions with the Israeli government, the death of U.K. citizen James Miller has thus far not been satisfactorily investigated. See, e.g. Hansard, House of Commons, 4 May 2006: http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060504/text/ 60504w23.htm. On 7 April 2006 a U.K. coroner found that James Miller had been murdered by the Israeli Army, see, e.g.: “Briton shot by Israelis was murdered, says inquest jury” The Guardian, 7 April 2006. For an article on the U,K, Attorney General’s fact-finding mission to “UK downplays Gaza damages bid”, Jerusalem Post, 27 May 2006.
106
Articles
and compensation. This section investigates the likelihood of a successful claim in the domestic Israeli and Palestinian courts in some more depth. 2.3.1 Jurisdiction under Oslo II The Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip49 imposes extensive jurisdictional limitations on the Palestinian courts. Article III of Annex IV of the Agreement deals with civil jurisdiction: “The jurisdiction of the Palestinian courts and judicial authorities does not cover actions against the State of Israel including its statutory entities, organs and agents.” This means that a Palestinian claimant wishing to commence an action for compensation for losses caused by the Israeli military, would have to do so in the Israeli courts in the first instance. 2.3.2 Claims against the Israeli military Most of the litigation which takes place in Israel concerning events occurring in the Occupied Palestinian Territories is addressed within an administrative law paradigm, viewing the Israeli military as an administrative agency.50 In those very few administrative law cases where injunctions against house demolitions were granted, it was by reason of the non-fulfilment of one of the conditions (such as a right of prior hearing), that may be attached to house demolitions. The High Court of Justice has decided that the right of prior hearing does not apply in “combat-related” demolitions.51 In cases of noncombat related demolitions in situations of “military necessity” the Israeli military may offer some financial compensation.52 The right to prior hearing, however, has gradually eroded.53 Moreover, “almost all administrative law petitions against non-combat house demolition operations undertaken for security needs were dismissed to date”.54 Civil claims in tort are no more likely to succeed: “No tort claim brought in Israel on the basis of a house demolition operation which took place in the Occupied Palestinian Territories has ever been successful.”55 Claims in tort which raise specific allegations of negligence might be feasible, although these (as other tort cases) would be covered by the “Intifada Law” (see below under […]). The Corrie family commenced a civil action against the State of Israel
49 Supra, footnote 23. 50 Shany at p. 34. 51 See, e.g.: HCJ 453/04 Al-Besioni v. IDF Commander, 2004(2) Tak-Supreme 1288. Moreover, the specific house demolitions in Jenin to which the Caterpillar complaint relates, were approved of in an obiter statement in HCJ 313/03 Bakri v. The Film Review Board, 2003(3) Tak-Supreme 353, 365. 52 Shany at p.35. 53 Shany at p.36. 54 Shany at p.38. 55 Shany at p.26.
Corporate Complicity and Israeli Violations of International Law
107
and the Ministry of Defence in March 2005. They have yet to receive an answer on whether the “Intifada Law” applies to claims by non-Palestinians.56 In support of the Caterpillar plaintiffs’ claim that local remedies had been exhausted, and/or that no adequate remedy exists in Israel, expert witness Yuval Shany summarised the situation as follows: There have been no successful tort claims brought before Israeli Courts for damages associated with home demolitions. Moreover, the Israeli Supreme Court continually rejects administrative law cases challenging the home demolitions similar to those in this lawsuit – those for “accommodation of military needs”, and those it deems “combat operations”, such as those intentional demolitions against non-combat civilian homes occurring during incursions into refugee camps. Applications to stop the demolitions are almost always rejected, often accompanied by either explicit or implicit approval of house demolitions.57
In addition to local laws, a plaintiff could attempt to rely on breaches of international law giving rise to a claim in the domestic (Israeli) courts. However, plaintiffs’ expert opines that “not only is there no known precedent for bringing a tort claim in Israel directly on the basis of international norms, it is highly unlikely that a tort claim alleging violation of international law, such as extrajudicial killing, could be sought in Israel. There is no domestic law or enabling legislation that provides that a person can bring a claim for extrajudicial killing (or torture) in violation of international law similar to TVPA,58 in fact, the Israeli Parliament … has failed to incorporate into domestic law and/or provide causes of action for almost all human rights and humanitarian law treaties to which Israel is a party. Moreover, it also does not incorporate customary international law into domestic tort law in any way including by any sort of jurisdictional statute similar to the ATS.59 ([U]nlike [the U.S. ATCA], Israeli law does not permit reliance on common law or international law standards, which were not codified in legislation, as the legal basis for a tort claim”). Indeed, “it would be difficult, if not outright impossible to read customary law into pre-existing domestic tort law”. Israel has long disputed the applicability de jure of the Hague Regulations and the Fourth Geneva Convention in the Occupied Palestinian Territories,60 although it has stated that it generally, in fact, applies the “humanitarian provisions” of the Convention.61 The International Court of Justice in its Advisory Opinion on the Wall confirmed the views of the U.N. Security Council,
56 The estate of Rachel Aileen Corrie, et al, v The State of Israel and the Ministry of Defence, filed in the District Court of Haifa, 15 March 2005 (available from the Center for Constitutional Rights, at http://www.ccr-ny.org/v2/legal/corporate_accountability/corporateArticle.asp?ObjID= nCtI8ofbFg&Content=546 ). This is a civil claim for bodily damage. 57 Shany at pp. 48-9. 58 Torture Victims Protection Act, see below under 4.3.3. 59 Alien Tort Statute, another name for the Alien Tort Claims Act. 60 It argues that the Palestinian Territory was not sovereign prior to its annexation by Jordan and Egypt, and that it was/is thus not a territory of a High Contracting Party for the purposes of the Convention. 61 H.C.J. 7957/04 Mara’abe et al v. The Prime Minister of Israel, June 21, 2005 (Judgment on the Wall surrounding Alfei Menashe), at 14. Available from http://www.mfa.gov.il/NR/rdonlyres/ 11824B1A-BA6E-4B2A-8005-D091F5C0E60E/0/AlfeiMenasheruling15905.doc.
108
Articles
General Assembly, the Conference of the Geneva Convention High Contracting Parties, and I.C.R.C. that the Convention does apply.62 Israel has also consistently denied its obligation to apply the human rights covenants which it has ratified in the OPT, arguing that where the relevant regime is international humanitarian law, international human rights law does not apply. On this, the ICJ held that “the protection offered by human rights conventions does not cease in times of armed conflict, save through the effect of provisions for derogation of the kind to be founding Article 4 of the ICCPR”.63 The ICJ also held that Israel is bound to apply the ICESCR and the Convention on the Rights of the Child in the Occupied Palestinian Territories.64 In a number of recent administrative decisions, the High Court of Justice has held that humanitarian law applies in the OPT.65 However, the court’s deference to the military decision-makers still make that “High Court Decisions have merely become strong ‘legal’ precedents legitimising the illegal practices of the Occupying Power”.66 2.3.3 Pursuing complicit actors in Israeli Courts Having as good as eliminated the possibility of bringing a case in Israel or the Occupied Palestinian Territories against the Israeli military or civil authorities, it is worth considering other potential defendants. However, there is no precedent in Israeli law for claims against corporations said to be complicit in the Israeli military’s violations.67 Also, any complicit actors would benefit from immunity from suit under the “Intifada Law”. 2.3.4 The “Intifada Law” In July 2005, the Israeli Parliament enacted a law that makes it possible to relieve the State of Israel from tort liability in cases where plaintiffs were injured by actions committed by the Israeli security forces in the Occupied Palestinian 62 Paragraphs 89-101 of the International Court of Justice’s Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (“ICJ Wall AO”), available from: http://www.icj-cij.org/icjwww/idocket/imwp/ imwpframe.htm. 63 Article 4 of the ICCPR holds that certain of the Convenant’s provisions may be derogated from in time of national emergency. (The right to life is non-derogable – IHL forms lex specialis here and determines the test of what is an ‘arbitrary deprivation’ of life.) See ICJ Wall AO, supra, at pp. 102-111. 64 ICJ Wall AO, pp. 112 and 113. 65 HCJ 4764/04, Physicians for Human Rights et al. v. Commander of the IDF Forces in Gaza, Pisque Din 58(5) 385, available from http://elyon1.court.gov.il/files_eng/04/640/047/a03/ 04047640.a03.pdf; HCJ 2056/04, Beit Sourik Village Council et al. v. The Government of Israel et al, Taqdin Elyon 2004 (2) 3035, para. 23, available from: http://domino.un.org/UNISPAL.NSF/ 85255e950050831085255e95004fa9c3/380fd102b1711ea48525705a00524cf6! OpenDocument. 66 Nizar Ayoub, Al-Haq 2004: The Israeli High Court of Justice and the Palestinian Intifada: A Stamp of Approval for Israeli Violations in the Occupied Palestinian Territories, at p. 113. See also: Shamir, R.: “‘Landmark Cases’ and the Reproduction of Legitimacy: the Case of Israel’s High Court of Justice”, 19 International Journal of the Sociology of Law, pp. 45-65 (1990). 67 Shany at pp. 23, 49 and 58.
Corporate Complicity and Israeli Violations of International Law
109
Territories. The Law of Civil Wrongs (Liability of the State) (Amendment No. 7) 2005, which is an amendment to, and widening of, the eponymous law of 1952. The existing law provides, in Article 5, that “the State [of Israel] is not liable for an act done in the course of a war operation of the Israeli Defense Forces”. “War operation” is broadly defined as includ[ing] any action combating terror, hostile acts, or insurrection, and also an action intended to prevent terror, hostile acts, or insurrection that is taken in a situation endangering life or limb” (section 1). Amendment No. 7 adds to this, in section 5B, that “the State shall not be subject to liability under the law of torts for damage sustained by any person … [who is] … A citizen of an Enemy State …, an activist or member of a Terrorist Organisation, or anyone who incurred damage while acting as an agent for or on behalf of a citizen of an Enemy State, or an activist or member of a Terrorist Organisation”. Aside from the designation “Terrorist Organisation” (defined in Israeli Penal Law68) it is clear that activist, or member (given the generally loosely organised nature of the groups aimed at) or anyone acting on behalf of such persons, can be very broadly interpreted. In addition to section 5B, section 5C provides that “the State shall not be subject to liability under the law of torts for damage sustained in a Conflict Zone due to an act performed by a member of the security forces”. A Conflict Zone is “a zone outside the territory of the State of Israel,69 which the Minister of Defence has declared as [such]…, in which the security forces acted70 or were present in the zone within the context of a conflict”(section 5C(e)). The Minister of Defence is able to declare any zone a “Conflict Zone”, retrospectively, within 90 days of receipt of a claim. Also, within the first six months from the publication of the law, the Minister was able to declare any area a zone of conflict regardless of a claim being received. Both sections 5B and 5C do not apply to, inter alia, damage as a result of traffic accidents, crimes of which … is convicted, or damages sustained while the victim is detained or imprisoned by the State, unless in the latter case this person after her/his detention again becomes an activist or a member of a Terrorist Organisation or acts on behalf of such an organisation (Annexes 1 and 2). The State includes any authority, entity or person acting on its behalf. The Amendment applies retrospectively with respect to causes of action that arose on or after 29 September 2000 (i.e. the start of the second Intifada – hence this law is dubbed the “Intifada law”), unless an action with respect to such a cause of action has been initiated and has reached the stage of trial itself. Any claims obviated by section 5C(a) may be assuaged by an “ex gratia” payment (s. 5C(b)(1)) approved by a committee to be set up by the Minister of Defence. As of May 2006 no such committee had yet been set up.71 Moreover, it was recently reported that the manner in which (now former) Defence Minister Mofaz has retroactively designated “zones of conflict” serves to all
68 Section 91 of the Israeli Penal Law, supra, footnote 22. 69 Interestingly, this is intended to include, what, for the purposes of section 5A is called “the region”, namely “Judea, Samaria, and the Gaza Strip” (section 5A(1)). 70 A question might be whether this would include action from the air. 71 Yuval Yoaz: “‘Intifada Law’ has barred compensation to Palestinian victims almost entirely”, Ha’aretz, 4 May 2006 - http://www.haaretz.com/hasen/spages/712153.html.
110
Articles
but exclude the right to compensation for Palestinians.72 Israeli newspaper Ha’aretz reported that Justice Ministry officials had not foreseen quite how extensively the Minister would use his power, with the number of declarations issued, in some areas, amounting to a designation of the entire area as a conflict zone for the period 2001-2006. A number of human rights organisations have petitioned the Israeli High Court of Justice to annul the law, arguing it violates the basic rights in domestic as well as international law.73 Hearings on the petition are scheduled for July 2006. According to the petitioners, the law, aside from violating the Israeli Basic Law on Human Dignity and Liberty, the principles relating to retroactive application, the separation of powers, judicial independence and the stability of the law, the law constitutes the denial of relief for infringement of a fundamental right, which amounts to the denial of the right itself.74 Specifically, the law violates the obligation to pay compensation for violations of international humanitarian law (such as the failure to protect civilians as required by Articles 43 and 46 of the Hague Regulations of 1907, and in Article 27 of the Fourth Geneva Convention) enshrined in Article 3 of the Hague Regulations,75 Article 29 of the Fourth Geneva Convention76 and Article 91 of the First Additional Protocol to the Geneva Conventions.77 Also, the Intifada law violates international human rights law, in particular, Article 2(3) of the International Covenant on Civil and Political Rights, which obliges the state to compensate for breach of protected rights.78 In short, according to the petitioners, the law “conveys a grave and extreme message, to the effect that the lives and rights of these injured persons are without value, that the court will not grant them relief, and that the perpetrator will be freed of all liability”. Moreover, … the Amending Law does not recognise the right in tort of those Palestinians who have sustained injury, and denies this right because of their national identity, it negates the rationale of tort laws and impairs deterrence of acts that injure 72 Ibid. 73 The petition was submitted by HaMoked, Adalah, ACRI, Al-Haq, The Palestinian Centre for Human Rights, B’Tselem, Physicians for Human Rights, The Public Committee Against Torture in Israel, Rabbis for Human Rights; see ACRI press release 01/09/05, at http://www.acri.org.il/ english-acri/engine/story.asp?id=223 . The petition is available from Adalah, at http:// www.adalah.org/eng/complaw.php. 74 Adalah et al v. Minister of Defence et al, Petition, supra, at paras. 6, 7, 89. 75 “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” 76 “The Party to the conflict in whose hands protected persons may be is responsible for the treatment accorded to them by its agents…” 77 “A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” 78 “Each State Party to the present Covenant undertakes: (a) to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.” See also: Human Rights Commission: General Comment 31 on the Nature of the General Legal Obligations on States Parties to the Covenant’ CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 15, available from http://www1.umn.edu/humanrts/gencomm/hrcom31.html.
Corporate Complicity and Israeli Violations of International Law
111
Palestinians. In doing so, the Amending Law provides that, in the kinds of injury and damages to which it applies in the Occupied Territories, there is neither law nor judges.79
2.4 Palestinian jurisdiction – the unexplored option? Under Oslo II, Annex IV Article I on criminal jurisdiction, the Palestinian courts retain jurisdiction for all criminal cases except those relating to crimes committed by Israeli citizens, “tourists”, or crimes committed in settlements or “military zones”.80 Although it is not possible for the Palestinian courts to commence criminal proceedings against (members of) the Israeli armed forces, it may be worth considering an action against a non-Israeli who is complicit in the action carried out by the military. Also, the Oslo II Agreement does not exclude the Palestinian courts’ jurisdiction over criminal matters relating to foreign corporations and, indeed, Palestinian criminal law recognises criminal liability of legal persons.81 Thus, prosecuting corporations in the Palestinian courts may be an option meriting further investigation, although here, too, political considerations would likely play an inhibiting role.82 2.5 Domestic enforcement: conclusion In conclusion, it would seem that the Israeli military’s actions, at least actions of the type referred to in the Caterpillar complaint, are largely able to escape judicial scrutiny, at least on the domestic level. The next logical step for the Palestinians is thus a move further afield, basing their claim on a breach of international law or domestic law actionable abroad.83 79 Adalah et al v. Minister of Defence et al., Petition, supra, at paras. 2 and 3. 80 Interim Agreement on the West Bank and Gaza, (supra, footnote 23), Annex IV Protocol concerning Legal Matters. Article I “Criminal Jurisdiction”. 81 The Jordanian Criminal Law Number 16, 1960, The General Part (5), Article 74: “Legal persons have legal liability resulting from actions committed by their directors, board members, representatives, or employees when they conduct these actions in the name of the legal person, or via one of its subsidiary legal persons, as a legal person.” Available (in Arabic) from Birzeit University’s Institute of Law Palestinian Law Database “Al Muqtafi”, at http://213.244.124.245/ en/index.asp . I am grateful to Dr. Nabih Saleh, Professor of Criminal Law at Al Quds University, Abu Dis, Palestine, for confirming this point, and to Munir Nuseibah for research assistance and translation. 82 In defence against a civil claim for compensation in a Palestinian court, the corporation might argue it is to be considered an “agent” of the Israeli military, thus allowing it to benefit from the exception from Palestinian civil jurisdiction mentioned above. This may, however, mean the corporation admits to a relationship with the military that is too close for legal “comfort”, one which would carry commensurate responsibilities. Ultimately, on the Israeli level, the corporation would benefit from the immunity afforded by the “Intifada Law”. Moreover, any crime committed by the corporation will likely have been committed in a military zone, or in the context of a military operation, in which case the Israeli courts have jurisdiction. 83 “In the absence of local remedies, the only legal recourse for Palestinians is to seek remedies in other states’ courts”, Al-Haq: Rights Without Remedies: The Israeli Compensation Law, Occasional Paper, October 2005. Of course there are huge material obstacles to be overcome before a claim can be brought elsewhere, including finding lawyers to represent the victims (occasionally the lawyers will find the victims), arranging financing, collecting evidence, etc. Thus the ability to bring a case abroad should not be overestimated.
112
Articles
The doctrine of sovereign immunity precludes the courts of one state reviewing another state’s actions. Its corollar y, the principle of nonintervention, prevents one state from interfering in another state’s affairs. Despite the “promise” of international human rights law, and international humanitarian law, individual victims of violations perpetrated by their own state, or the occupying state, depend on that state to become a party to the relevant instruments, for the domestic courts to recognise and apply the norms, and for the state to allow the international mechanisms for enforcement to be available to individuals. The Palestinians, without a state, do not have the option to ratify the various instruments and join the international system on an equal footing. Palestinians living under Israeli occupation do not have access to international procedures or fora that their occupier does not make available to them.84 They are dependent on courts that subject their rights and interests to considerations of “national” (i.e. Israeli) security, and legislatures that they had not elected writing off their rights in a manner that they are unable to counter. Usefully for the Palestinians, existing in this “lawless place”, there is the “placeless law” of universal jurisdiction.85 Universal jurisdiction allows (or obliges) every court in every state to consider cases of crimes (or arguably also civil disputes86) that are so serious as to offend mankind as a whole. The initiative on bringing a universal jurisdiction case abroad would come from victims represented by individual “cause lawyers” or non-governmental organisations – making this a form of “privatised humanitarian intervention by law”. In recent years, a number of Israeli individuals have been the subject of assertions of universal jurisdiction. High profile examples include the attempt to try Ariel Sharon in Belgium for his role in the Sabra and Shatilla massacre, the attempted arrest in London of General Doron Almog, and the 84 Israel has not ratified the Rome Statute of the International Criminal Court, nor the additional protocol to the ICCPR allowing for individual complaints to be made (Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, entered into force 23 March 1976, available at http://www.unhchr.ch/html/menu2/8/oppro.htm). Hypothetically, it could be possible for a (any) state to challenge Israeli violations of erga omnes obligations in the International Court of Justice, as Israel attracts state responsibility for its breach of an erga omnes obligation, which gives every other state the right to demand cessation of the wrongful state of affairs: Article 48 of the Draft articles on Responsibility of States for internationally wrongful acts adopted by the International Law Commission at its Fifty-third session (2001) (extract from the Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp.IV.E.1). However, Israel would still have to (voluntarily) subject itself to the ICJ’s jurisdiction. 85 I owe this apt phrase to Laurie King-Irani, who coins it in, “Of Placeless Laws and Lawless Places: Does International Justice have a Local Address?” The Electronic Intifada, 16 September 2003, available from: http://www.ccmep.org/091703_21_septembers_ago_laurie_king.htm . In the U.S., the Alien Tort Claims Statute is a type of universal jurisdiction statute, though it provides only for a civil claim to be made. Other domestic jurisdictions have similar “enabling” statutes, though arguably none are needed for the domestic enforcement of international criminal law (Ferdinandusse, W.: The Direct Application of International Criminal Law in National Courts, C.U.P., 2006). 86 See, e.g. Chatham House International Law Discussion Group, Meeting Summary on Universal Civil Jurisdiction: www.chathamhouse.org.uk/pdf/research/il/IL200606.pdf.
Corporate Complicity and Israeli Violations of International Law
113
class action instituted against former Shin Bet director Avi Dichter for his role in the death of several Gaza City residents after a “one tonne bomb” was allegedly used for a targeted assassination in 2002.87 Another option, in addition to pursuing individuals within the state or military apparatus, is to hold to account those actors without whose support, supply or cooperation the oppressive state could not or would not exist. Companies and governments often have highly symbiotic relationships, including at a time of war or occupation. In the post-World War II Nuremberg trials, it was recognised that without the support and cooperation of industry, the “Hitler War Machine” would not have been able to do what it did, and the Tribunal translated this political and economic support into legal liability.88 Subsequently, in light of this, billions of dollars were paid out by a number of companies to holocaust survivors in compensation for their losses. 89 In the context of the Israeli occupation.90 one company that caught the public eye and imagination, was Caterpillar. Caterpillar, Inc. is one of the most visible, and most obviously branded, suppliers of materiel to the Israeli armed 87 A number of attempts have been made at prosecuting individuals accused of atrocities vis à vis the Palestinians. On the criminal prosecution commenced (but abandoned for reasons of immunity) against Ariel Sharon for his role in the Sabra and Shatila massacres – see Belgium, Tribunal of First Instance Brussels (Kamer van Inbeschuldigingstelling), In re Sharon and Yaron, 26 June 2002, and the special dossier included in Volume XII of The Palestine Yearbook of International Law (2002/2003). For details on the attempted arrest of General Doron Almog in London, see: Daniel Machover and Kate Maynard: “The UK’s duty to ‘universal jurisdiction’”, The Times, 4 October 2005. Also, in December 2005 Avraham Dichter, the former director of the Israel Security Agency (formerly known as the General Security Service, also known as Shin Bet), was served in New York with a class action commenced by several Gaza City families, represented by the Center for Constitutional Rights. Dichter is accused of participating in the decision to drop a one-tonne bomb on an apartment block in a residential area of Gaza City in 2002, and having command responsibility for the action, which is said to have killed 15 people, including eight children, and injured 150. United States District Court Southern District of New York, Civ No. 05 CV 10270, Complaint Filed under Seal, Class Action: Ra’ed Mohamad Ibrahim Matar and others v. Avraham Dichter, 7 December 2005. Document available at: http:// www.ccr-ny.org/v2/legal/human_rights/rightsArticle.asp?ObjID=ccDzL2NjXs&Content=678; Belhas and others v. Ya’alon, USDC District of Columbia. Case No. 1:05CV02167. Class action against Lt. Gen. (ret.) Moshe Ya’alon, former Head of the Intelligence Branch and former Chief of Staff of the IDF, for war crimes and other human rights violations, served on 15 December 2005. The class action lawsuit is in connection with the hundreds of civilian deaths and injuries resulting from the 1996 shelling of the United Nations compound in Qana, Lebanon: see http://www.ccr-ny.org/v2/legal/human_rights/rightsArticle.asp?ObjID= eqVBNxvlcx&Content=682. 88 See, eg The United States of America v. Carl Krauch, et. al., (IG Farben Case) Trials of War Criminals, Vol VIII, p1081. 89 See Ramasastry, A.: “Corporate Complicity from Nuremberg to Rangoon; An examination of Forced Labor Cases and their Impact on the Liability of Multinational Corporations”, 20 Berkeley J. Intn’l L. 91 (2002), Stephens, B.: “The Amorality of Profit: Transnational Corporations and Human Rights”, 20 Berkeley J. Intn’l L. 45 (2002). Similarly, in Apartheid South Africa the government was propped up by several large financial institutions and companies, without whose support the country’s economy, and its regime, would have collapsed. For the fate of this litigation, see below at […] and generally, Swart, M.: “Beyond Repair: Accomplice Liability under International Law and the Apartheid Litigation Cases”, unpublished draft paper, 2005. Document on file with the author. 90 For the economic significance of the occupation on the Israeli economy, see, e.g. Nitzan, J. and Bichler, S.: The Global Political Economy of Israel, Pluto Press, 2002, at p. 120.
Articles
114
forces. Its enormous, armoured, D9 and D10 bulldozers with their striking “CAT” logos were easily identified as a symbol of the destruction caused by the Israeli occupation.91
3 THE CASE IN INTERNATIONAL LAW 3.1 War crimes of the Nazi-era companies Corporate liability for war crimes was first recognised at the post-World War II Nuremberg trials. There, the motivation was to leave no stone unturned in bringing perpetrators of the atrocities to justice, and several directors, managers and sales representatives of some of Germany’s best-known corporations were hanged for their contribution to the war effort. One rationale for trying the industrialists at the Nuremberg tribunals was the perceived collective nature of the Nazi crimes. The holocaust and other crimes occurred pursuant to a policy designed by the Nazi leadership and implemented by the military, the bureaucratic apparatus and industry. The Allies had spent years deciding who to try and on what basis. In the end a number of “representative” figures were selected, and indicted on the charge of being part of a “criminal conspiracy” to wage a war of aggression and commit other crimes. In addition, a number of organisations were declared “criminal organisations” which made membership of those organisations an offence punishable by death. This, it was hoped, would speed up the prosecution of the thousands that were not individually charged. A number of industrialists were also individually charged. The wording used by the tribunals who, in their judgment, frequently spoke of “crimes committed by the company”, shows that the individuals (usually directors) were seen as a “pars pro toto” for the company.92 In the trial of the industrialists on the conspiracy charge, the tribunal established that they were involved in a common plan. The levels of involvement
91 The company was sent letters by individual human rights groups from 2001, and it became the subject of a campaign organised by a coalition of human rights organisations in 2002, see the campaign by, among others, Jewish Voice for Peace: http://www.catdestroyshomes.org/ . 92 Clapham, commenting specifically on the Krupp trial, notes: “The language and reasoning of the tribunal indicates that it was the Krupp firm that was essentially at the heart of this set of convictions. A careful examination of the judgment reveals an acceptance of the notion that in some cases the corporation itself committed the war crime and its directors were being convicted for belonging to the organization that had committed a criminal act.” (Clapham, A.: “The complexity of international criminal law: Looking beyond individual responsibility to the responsibility of organizations, corporations and states”, in Thakur, R. and Malcontent, P. (eds): From Sovereign Impunity to International Accountability: The Search for Justice in a World of States, UNU Press (2004), at p. 238). Indeed, it is argued that the selection of “representative” individuals for prosecution, and the attempted substitution of the Krupp director by his son, suggests that it was the organisations, rather than the individuals, that were the real target of the allies (Overy, R: “The Nuremberg trials: international law in the making”, in Sands, P. and Booth, C. (eds.): From Nuremberg to The Hague: The Future of International Criminal Justice, C.U.P., 2001, at pp. 109-156).
Corporate Complicity and Israeli Violations of International Law
115
sufficient for a conviction ranged from “very actively involved”,93 to “must have been informed of” the criminal nature of the Nazi system.94 The tribunal, on the charge of “membership of a criminal organisation”, convicted one individual for having “remained in the S.S. voluntarily throughout the war, with actual knowledge of the fact that that organization was being used for the commission of acts declared criminal by [the Allies]”.95 The prosecutors deliberately targeted firms to highlight the role that organisations had played during the war and the symbiotic relationship they had had with the Hitler regime.96 The trials of the industrialists (Flick,97 IG Farben and Krupp98) indicate that the corporate organisations and the individuals acting in them were perceived to be part of this “war machine”, or even, “the real villains, the Nazi’s paymasters”.99 In IG Farben the USMT VI found that the company had committed war crimes (pillage/spoliation, use of forced labour, participation in a war of aggression) and tried its directors both individually and collectively. The 24 directors were convicted of one or more of the following charges: war crimes and crimes against humanity through the plundering and spoliation of occupied territories, and the seizure of plants both in Austria, Czechoslovakia, Poland, Norway, France, and Russia, war crimes and crimes against humanity through participation in the enslavement and deportation to slave labour on a gigantic scale of concentration camp inmates and civilians in occupied countries, and of prisoners of war, and the mistreatment, terrorisation, torture and murder of enslaved persons, and membership in a criminal organisation,
93 Judgment (Goering): International Military Tribunal, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, Germany, 14 November 1945, 1 October 1946, 29 (1947). 94 Judgment (Hess), ibid. 95 United States of America v. Karl Brandt et al. (“Medical Case”) NMT 1947. 96 Clapham, A.: The complexity of international criminal law: “Looking beyond individual responsibility to the responsibility of organizations, corporations and states”, in Thakur, R. and Malcontent, P. (eds): From Sovereign Impunity to International Accountability: The Search for Justice in a World of States, UNU Press (2004), at p. 233. Apparently Clement Attlee (the then U.K. Prime Minister) argued forcefully that business leaders should be “dragged into the net”. He called for a cull of German businessmen as an example to the others. Overy, R: supra. footnote 92 at 10. 97 The United States of America v. Friedrich Flick, et al. (‘Flick’) Flick, owner of the Flick KG group of companies, was found guilty of war crimes and crimes against humanity by participating in the deportation and enslavement of the civilian populations of countries and territories under the belligerent occupation of or otherwise controlled by Germany, and of concentration camp inmates, for use in slave labour in Flick mines and factories, crimes and crimes against humanity through the plundering and spoliation of occupied territories, and the seizure of plants both in the west (France) and the east (Poland, Russia), and membership in the NSDAP and the “Circle of Friends of Himmler”. Nuremberg Military Trials, Reports available from the Mazal Library: http://www.mazal.org/archive/nmt/08/NMT08-T1309.htm . 98 Trials of War Criminals, Vol. VIII, p1081. 99 Overy, supra, footnote 92 at p. 9.
116
Articles
the SS.100 The IG Farben defendants were found not guilty on the charge of conspiracy.101 In IG Farben the tribunal emphasised the profit motive as being part of the mens rea of the property crimes contained in the indictment.102 These were constituted by breaches of the 1907 Hague Regulations, about which the Tribunal said the following: …the Hague Regulations are broadly aimed at preserving the inviolability of property rights to both public and private property during military occupancy. They admit of exceptions of expropriation, use, and requisition, all of which are subject to welldefined limitations set forth in the Articles. Where private individuals, including juristic persons, proceed to exploit the military occupancy by acquiring private property against the will and consent of the former owner, such action, not being expressly justified by any applicable provision of the Hague Regulations, is in violation of international law. The payment of a price or other adequate consideration does not, under such circumstances, relieve the act of its unlawful character. Similarly where a private individual or a juristic person becomes a party to unlawful confiscation of public or private property by planning and executing a well-defined design to acquire such property permanently, acquisition under such circumstances subsequent to the confiscation constitutes conduct in violation of the Hague Regulations.103
The idea of the corporation as an instrumentality in the hands of criminal individuals was also offered in IG Farben: “… one may not utilise the corporate structure to achieve an immunity from criminal responsibility for illegal acts which he directs, counsels, aids, orders or abets with the knowledge of the essential elements of the crime.”104 This precedent avoids the requirement of intent towards the criminal act in itself. The U.K. Military Court in The Zyklon B. Case105 also found the concept of accomplice liability by a corporation for international crimes. As a result of their conviction, a number of the company’s officers were executed, for having 100 IG Farben at p. 10. 101 See Clapham supra, footnote 92 at p. 167. Judge Herbert filed a dissenting opinion, in which he argued that all defendants should have been found guilty on count 3 (Conspiracy) of the indictment. He stated that “...the record shows that Farben willingly cooperated and gladly utilized each new source of manpower as it developed. Disregard of basic human rights did not deter these defendants.” And “Willing cooperation with the slave labor utilization of the Third Reich was a matter of corporate policy that permeated the whole Farben organization... For this reason, criminal responsibility goes beyond the actual immediate participants at Auschwitz. It includes other Farben Vorstand plant-managers and embraces all who knowingly participated in the shaping of the corporate policy.” Nuremberg Military Trials, Reports available from the Mazal Library: http://www.mazal.org/archive/ nmt/08/NMT08-T1309.htm. 102 Clapham (2004) at p. 169. Profit is the objective of pillage, plunder and spoliation. 103 Mazal Library. (emphasis added). Clearly this statement by the Tribunal has relevance to corporations operating in occupied territories today. 104 IG Farben at p. 1153. For a related line of reasoning, see also Koh, H.: “Separating Myth from Reality About Corporate Responsibility Litigation”, Journal of International Economic Law 7(2) (2004), 263 at p. 265: “The commonsense fact remains that if states and individuals can be held liable under international law, then so too should corporations, for the simple reason that both states and individuals act through corporations.” 105 Trial of Bruno Tesch and Two Others (“The Zyklon B Case”). Brit. Mil. Ct. Hamburg 1946, in United Nations War Crimes Commission, 1 Law Reports of Trials of War Criminals 93 (1947).
Corporate Complicity and Israeli Violations of International Law
117
supplied the gas that was used in the gas chambers of the Nazi concentration camps. The prosecution was based on Article 46 of the 1907 Hague Regulations, which provides that: “Family honour and rights, individual life and private property, as well as religious convictions and worship must be respected.” The Article, which falls under the section, Military Authority over the Territory of the Hostile State, was intended to refer to acts committed by the occupying authorities in occupied territory. Importantly, in the Zyklon B. Case, the article was interpreted so as to apply to the supply of goods by the defendants’ company to be used to kill prisoners. Here, also, the officers were held to be liable for acts said to have been committed by the company.106 The mental element of the crime consisted merely of the officers’ knowing the gas (which also had hygiene-related uses) would be used in the murders – which knowledge was in fact inferred in the case of the defendant Weinbacher. The inference was based on the argument that a competent business person in a leadership position will necessarily know what his main business operations are.107 The officers were not shown (or required to have had) intent vis à vis the murders; it sufficed that they had simply intended to make a profit from the trade.108 The Nuremberg and subsequent trials show that holding a company, even a supplier, to account for its commercial dealings with a regime committing war crimes and human rights abuses, is not so far-fetched, after all.
4 THE ALIEN TORT CLAIMS ACT: A PORTAL TO JUSTICE? Having identified a potential defendant, the search continues for a court that will hear the case. No international tribunal is currently available for this kind of action.109 Universal jurisdiction can be employed. In the United States the mechanism of the Alien Tort Claims Act (“ATCA”), a 200-year-old statute, provides as follows: 106 Clapham, A.: “The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court”, in Kamminga, M., and Zia-Zarifi, S. (eds.), Liability of Multinational Corporations under International Law, Kluwer law International, 2000, at p. 140. 107 See also the Mauthausen Concentration Camp Case, where the USMT found that “every official, governmental, military and civil, every employee, whether a member of the Waffen S.S., Allgemeine S.S., a guard, or civilian, was criminally liable as an accomplice, as it was ‘impossible’ for the accused not to have acquired a definite knowledge of the criminal practices and activities taking place in the camp.” See http://www.yale.edu/lawweb/avalon/ imt/imt.htm#proc . 108 For an insightful discussion of the profit motive, see Stephens, B.: “The Amorality of Profit: Transnational Corporations and Human Rights”, 20 Berkeley J Intn’l L. 45. 109 The International Criminal Court has explicit jurisdiction over natural persons. This is normally understood to exclude jurisdiction over legal persons. However, the ICC statute does not exclude jurisdiction over legal persons: its Article 25(1) reads: “The Court shall have jurisdiction over natural persons pursuant to this Statute.” The court does explicitly assert its jurisdiction over individuals as members of a group: Article 25 (3)(d) states that individual criminal responsibility is incurred where the individual contributes to the commission of a crime within the jurisdiction of the court committed by a group of persons acting with a common purpose.
118
Articles
Section 1350. Alien’s action for tort The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.110
This Act thus converts a breach (including a breach amounting to an international crime) of the law of nations or a treaty of the U.S. into a tort actionable by alien plaintiffs in the U.S. federal courts. The ATCA was revived by the Center for Constitutional Rights in the 1980s in the landmark case of Filártiga v. Peña-Irala.111 This was a case brought by the father of a Paraguayan citizen who had been tortured to death, against the police officer thought responsible. It related entirely to events occurring outside the U.S. and involving non-U.S. citizens. Importantly, the court “construe[d] the ATS,112 not as granting new rights to aliens, but simply as opening federal courts for adjudication of the rights already recognised by international law.”113 Filártiga, considered a landmark decision for its commitment to giving effect to the purpose of international law, spawned a wave of (often human rights related) cases brought by non-U.S. citizens.114 Of interest in the context of the Israeli/ Palestinian context is Tel-Oren v. Libyan Arab Republic,115 filed shortly after Filártiga. In this case the survivors and legal representatives of persons killed on a civilian bus in Israel sued the republic of Libya and the Palestine Liberation Organisation. The case was dismissed for lack of subject matter jurisdiction, with each of the three judges offering a different explanation for their decision.116 The question of whether the U.S. Supreme Court would endorse the use of ATCA in human rights cases was answered in June 2004 in Sosa v. AlvarezMachain.117 In Sosa, the Supreme Court affirmed the Filártiga line of cases, to the extent that ATCA claims must “rest on a norm of international character accepted by the civilized world and defined with the specificity comparable to the features of the 18th Century paradigms we have recognised”.118 The Court
110 111 112 113 114
115 116
117 118
USC Title 28. Filártiga v. Peña-Irala 630 F.2d 876 (2d Cir. 1980). Alien Tort Statute, another name for the ATCA. Filártiga, at p. 20. For example, against the Argentine General Suarez-Mason: Quiros de Rapaport v. Suarez Mason, No. C87-2266 (N.D. Cal. 11 April 1989), Martinez-Baca v. Suarez-Mason, No 87-2057 (N.D. Cal. 22 April 1988); Forti v. Suarez-Mason, No. C-87-2058 (N.D. Cal. 20 April 1990) (final judgment), against former Philippine dictator Ferdinand Marcos and his daughter (e.g. In Re Estate of Marcos Litigation, D.C. No. 95-15779 9th Cir., 5 May 1995) and against former Haitian dictator Prosper Avril (Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994) (final judgment). For an overview, see Stephens, B. and Ratner, M.: International Human Rights Litigation in U.S. Courts, Transnational Publishers, Inc. 1996. 726 F2d. 774 (D.C. Cir. 1984). See Born, G.: International Civil Litigation in US Courts: Commentary and Materials, Kluwer Law International (2000) at p. 36; Stephens and Ratner (1996) (supra, footnote 114) at pp. 20-21. The latter state (at p. 20) that this case had limited impact because of its split opinion and unusual fact pattern. Sosa v. Alvarez-Machain, 124 S Ct. 2739 (2004); see also Center for Constitutional Rights Sosa docket http://www.ccr-ny.org/v2/legal/human_rights/rightsArticle.asp?ObjID=M8JpE6un 9x&Content=396. Sosa at p. 749.
Corporate Complicity and Israeli Violations of International Law
119
approved119 cases which permitted ATCA claims for violations of international norms that are “specific, universal and obligatory”.120 Since Filártiga, the ATCA jurisdiction has developed in a trend towards the widening of the scope both regarding the circle of defendants and the applicable human rights norms. Kadic v Karadzic121 (“Kadic”), for example, expanded the scope of ATCA litigation by confirming that certain norms of international law, including genocide and war crimes, summary execution, rape and other forms of torture committed in pursuit of these crimes, apply to private actors and could thus form the basis of an ATCA claim.122 The widening of the scope of actors is supported by the philosophy that, in order to serve the purposes of the law, i.e. protection of the rights of the individual citizens, it is imperative to regulate all those actors that are potentially capable of affecting those rights.123 Also, it echoes the origins of the ATCA, which was enacted to provide a forum for (amongst others) victims of piracy – perhaps the ultimate private, international actors. 4.1 Corporations as subjects of international law under ATCA The first set of cases against corporations under ATCA were Doe v. Unocal and Roe v. Unocal, commenced in 1996.124 The facts of the Unocal cases are “typical of this generation of ATCA cases, in which the corporation enters into a business arrangement with a repressive regime or its instrumentalities … to facilitate natural resource extraction.”125 Unocal was accused of using slave labour in its plants in Burma, in collusion with the Burmese dictatorship. Following this case, in the late 1990s, a number of cases were brought against the other major oil and mining companies.126 Subsequently, cases were also brought against financiers of, and suppliers to, oppressive regimes,127 such as the South African Apartheid government. A major series of cases that is still ongoing is
119 In a move contrary to the goodwill shown by the Judiciary in Filártiga, the U.S. Departments of Justice and State filed a brief in support of the defendant Sosa, seeking to eliminate the use of this statute by survivors of human rights violations. 120 Sosa at p. 748, and see Coliver, S., Green, J., Hoffman, P.: “Holding Human Rights Violaters Accountable by using International law in US Courts: Advocacy Efforts and Complementary Strategies”, 19 Emory Int’l L Rev 169 Spring, 2005. 121 Kadic v. Karadzic 70 F. 3d. 232 (1995). 122 Like many ATCA cases, this case did not proceed to trial on the merits. Most precedents set by ATCA cases are in fact based on court decisions in the preliminary stages of litigation, for example where a petition to strike out a case is dismissed and the court decides that the case is allowed to proceed. Most ATCA cases have been dismissed on jurisdictional grounds, or have been settled. 123 For a similar argument, see, Schabas, W.: Relevant Lessons form the Ad Hoc Tribunals, PYBIL,Vol. XII (2002/2003) at p. 5. 124 Doe v. Unocal Corp., 963 F.Supp. 880 (C.D. Cal.1997); Roe v. Unocal Corp., 70 F. Supp. 2d 1073 (C.D. Cal 1999). 125 Coliver et al. (2005) at 209. 126 E.g. Shell: Wiwa v. Royal Dutch Petroleum Co., F.3d, (2d Cir. 2000). (”Wiwa”), Chevron: Bowoto, et. al. v. Chevron, et. al. Case No. C99-2506 (N.D. Cal. 2000) (”Bowoto”), Freeport McMoran (Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362, 373, 382- 84 (E.D. La. 1997). 127 Barclays and Citigroup, amongst others, in the Apartheid Litigation Cases.
120
Articles
the Holocaust Litigation cases.128 In the ATCA cases involving corporations, the U.S. courts make use of the precedents set by the Nuremberg trials of the industrialists, and use the concepts and doctrines contained in the statutes, and developed through the case law, of international courts and tribunals such as the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). The ATCA line of cases also connects with the concept of the legal person in international law more generally. Legal person liability (including criminal liability) exists in international instruments regulating labour conditions, nuclear treaties, oil spill treaties, hazardous waste conventions and anti-bribery conventions. A recent addition to this is the legal regime surrounding the war on terrorism. International conventions and Security Council resolutions129 contain both legal person liability, and liability for aiding and abetting, even through such un-proximate activities as financing. Similarities clearly exist with nationally and internationally existing regimes on money laundering and dealing in unlawfully acquired goods.130 4.2 Corporate complicity in ATCA litigation The Nuremberg and subsequent trials show a development of the concept of conspiracy, the requirements for a conviction in terms of participation and intent, and the nascent concept of legal person liability for international crimes.131 The ICTY and ICTR, starting from the liability provisions in their respective charters, built on these concepts to come to comprehensive theories of responsibility which in turn are used by domestic courts including the U.S.
128 See, e.g., In re. Assicurazioni Generali SpA. Holocaust Insurance Litigation, MDL 1374, M21-89 (MBM) Opinion and Order, 25 September 2002. 129 For example, UNSC Resolution 1373, asserts that all states shall criminalise “the wilful provision or collection … of funds…in the knowledge that they are to be used, in order to carry out terrorist attacks”. 28 September 2001, and see, UNSC Resolution 1368 which stresses that those responsible for aiding, supporting or harbouring perpetrators of the 11 September attacks “will be held accountable [sic]”. 130 The criminal liability of legal persons specifically is provided for in, for example, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, (17 December 1997, reprinted in 37 I.L.M. 1 (1998)), and the Basel Convention on the Control of Transboundary Movements of Hazardous Waste adopted on 22 March 1989; the 1996 Protocol to the 1972 London Convention on the Prevention of Marine Pollution, Corpus Juris (Penal Protection Financial Interests E.U.); United Nations Draft Convention against Organized Crime (2000); and the E.U. Convention on the Prevention of the Environment through Criminal Law (1998) include similar provisions. The former requires national legislators to enact criminalising provisions only insofar as their legal systems allow this. Many legal systems (in fact, an increasing number) do allow for the criminal liability of legal persons. The Basel Convention specifically requires the criminalisation of certain behaviours of legal persons. In sum, the wider conception of ICL seems to move in tandem with domestic legal systems in increasingly providing for the criminal liability of legal persons, and more generally persons acting in a business context. 131 This trend is matched by an increasing acceptance in jurisdictions worldwide of the concept of corporate crime. See, e.g. Wells, C. and Elias, J.: “Catching the Conscience of the King: Corporate Players on the International Stage”, in Alston, P. (ed.), Non State Actors and Human Rights, Oxford University Press, 2005, pp. 141-175.
Corporate Complicity and Israeli Violations of International Law
121
courts in ATCA litigation against companies accused of international crimes. As elsewhere, in ATCA litigation one can distinguish between claims based on direct involvement of corporations in human rights violations, and indirect liability where corporations are alleged to have been complicit in human rights abuses committed by other (state) actors. The U.S. courts have found that corporations (as private actors, and legal persons) could be held directly responsible for slave trade, genocide, war crimes, and other so called “offences of universal concern”.132 Building on the Nuremberg precedents, the U.S. courts have also come to a position on indirect liability of various types of actor in international law. They have, so far, accepted the principle of corporate liability for complicity in state acts of torture and summary execution, crimes against humanity, cruel, inhuman or degrading treatment, torture, violation of the right to life, liberty and security of person, prolonged arbitrary detention, and peaceful assembly. The U.S. courts have faced both class actions alleging systemic involvement of corporations with repressive regimes or in conflict situations, as well as claims regarding the specific involvement in particular instances of wrongdoing. A series of cases brought under ATCA building on the Nuremberg “conspiracy” idea are the Apartheid Litigation Cases.133 These cases were class actions brought by South Africans against a number of the companies most visibly implicated in the apartheid regime, such as Barclays, Citigroup and J.P. Morgan. The culpability of the corporations is described by one commentator: Although it is clear that the primary responsibility for the injustice and atrocities lies with the government, it is unlikely that the massive apartheid machinery could have functioned for as long as it did if not for direct assistance in the form of arms and other supplies and the active participation in the South African economy of the largest multinational corporations.134
A series of cases alleging immoral profiteering off the genocidal policies of a regime is the Holocaust Litigation Cases, in which a number of companies were sued for compensation, amongst others for using “work-to-death” labour supplied by the concentration camps.135 Many of these have now been
132 In the sense that motions to strike out these cases brought by the defendant, for example, on the basis that (the specifically claimed provisions of) ICL did not apply to corporations (and thus that the plaintiff failed to state a claim, or the court lacked jurisdiction), were dismissed. See, e.g. The Presbyterian Church of Sudan, et al. v. Talisman Energy Inc, et al., USDC SDNY 2005 US Dist. 30 August 2005, Wiwa v. Royal Dutch Petroleum Co., F.3d, (2d Cir. 2000), Bowoto, et. al. v. Chevron, et. al. Case No. C99-2506 (N.D. Cal. 2000). 133 In Re South African Apartheid Litigation, 346 F. Supp. 2d 538; 2004 US Dist. 29 November 2004. 134 Swart, at p. 1. The defendants in this case also included companies such as IBM, EXXON, Schindler, American Isuzu Motors, 38 corporations in total, in the class action brought by three groups of plaintiffs (the “Ntsebeza plaintiffs”, “Digwamaje plaintiffs” and the “Khulumani plaintiffs”). These cases were dismissed but are currently under appeal. 135 400 companies are now said to have used slave labour supplied by the Nazi regime during WWII: Ramasastr y, A.: “Corporate Complicity: From Nuremberg to Rangoon – An Examination of Forced Labour cases and their Impact on the Liability of Multinational Corporations”, 20 Berkeley J. Intn’l Law 91, at p. 2002.
122
Articles
settled.136 In particular, the first such case was against Ford Motor Co., which in a class action was accused of “knowingly having accepted economic benefits derived from the use of forced labour by its German subsidiary”. In its opinion, the court found that it had subject jurisdiction under ATCA over the claim, that Ford had indeed used “unpaid, forced labor during WWII” and that this “violated clearly established norms of customary international law”, law which “applies to private actors such as Ford in certain circumstances. Ford had acted in concert with the German state and violated international law. 137 Notwithstanding these findings, the case was dismissed because the U.S. and Germany had entered into an agreement to resolve such cases exclusively through diplomatic settlements. Further, the court found the claims timebarred, and dismissed them by reason of “international comity”.138 Similar claims (but not the Ford claim) have been settled since by use of a special German compensation fund.139 Ford appears to mark a turning point in ATCA litigation in the U.S. No longer do the courts appear keen, and proud, to “give effect to the manifest objectives” of international law.140 Instead, courts appear to become sensitive to the pressure of governments who, in amicus submissions in the major ATCA cases, have urged the judiciary to give a narrow interpretation to the ATCA, that would exclude liability of corporate actors.141 Notable in this context, however, is the amicus brief submitted by the World Jewish Congress (WJC )in support of the petitioner in Sosa. In its submission the WJC reminds the court that the ATCA “enabled victims of the holocaust to bring well-founded claims for violations of ‘the law of nations’ in U.S. Courts with the support of the Executive Branch and of Congress”. The WJC urges for ATCA to be preserved for other potential claimants, stressing that “the Alien Tort Claims Act provides a vitally important means of redress for non-citizen victims of violations of the
136 The holocaust compensation claims comprise many lawsuits, such as the Swiss Banks, German Slave/Forced Labor, Austrian Slave/Forced Labor, Austrian and French Banks, Austrian Property and IBM litigation, http://www.cmht.com/cases_holocaust.php. Particularly, see In re Holocaust Victim Assets Litigation, 105 F. Supp. 2d 139 (EDNY 2000) (upholding fairness of Swiss bank settlement); and In re Nazi Era Cases Against German Defendants Litig, 198 FRD 429 (D.N.J. 2000) (upholding fairness of German Foundation). For a discussion, see Eizenstat, S.: “Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II” (Public Affairs 2003). 137 Iwanowa v. Ford Motor Co. 67 F. Supp. 2d 424, 491 (D.N.J. 1999) (a class action). 138 Ramasastry has called the use of “international comity” here an example of the political question doctrine with another name. Ramasastry, supra, footnote 135. 139 Ramasastry (supra, footnote 135 at p. 130) asks the pertinent, rhetorical question, whether a government can or should ever grant amnesty (i.e. through settlement) for gross human rights violations without itself breaching its own duties under treaties and customary international law. 140 Filártiga at p. 15. 141 See generally, No Safe Haven, the Campaign to Save the Alien Tort Claims Act, at http:// www.nosafehaven.org/. This organisation was set up in the context of the Sosa litigation. The legal section of the website lists 13 amicus briefs against a narrow interpretation of the ATCA, and ten for (including briefs submitted by the U.S. Justice Department, the governments of the U.K., Switzerland and Australia, and the E.U.).
Corporate Complicity and Israeli Violations of International Law
123
law of nations, particularly since ATCA claimants often cannot seek justice in their home countries or in other fora”.142 4.3 Case against Caterpillar The current “state of play” with regard to ATCA litigation, and the way in which the theories of liability developed predominantly by the ICTY and ICTR have been picked up by the U.S. courts and those litigating before them, can be illustrated by a discussion of the Caterpillar case itself. The plaintiffs make seven distinct claims against Caterpillar: (1) war crimes (breach of the IVth Geneva Convention); extrajudicial killing (defined in Torture Victim Protection Act); (3) aiding & abetting, conspiring in, or ratifying cruel, inhuman, or degrading treatment or punishment in violation of the law of nations; (4) violations of the Racketeer Influenced and Corrupt Organizations Act (RICO); (5) wrongful death; (6) public nuisance, and (7) negligence.143
More specifically, the breaches of international law in which Caterpillar is alleged to be complicit, are: acts against a civilian population, in violation of the Fourth Geneva Convention, including but not limited to, articles 27, 32, 33 and 53. Intentional acts on the civilian population are strictly prohibited. Plaintiffs also allege that the home demolition and attack on Plaintiffs and decedents also constitute grave breaches of the Fourth Geneva Convention, which includes as grave breaches: wilful killing, torture or inhumane treatment, including wilfully causing great suffering or serious injury to body or health, extensive destruction and appropriation of property carried out unlawfully and wantonly. These deaths and injuries, all of which resulted from Defendant’s complicity, were foreseeable by Defendant.144
As such, the international crimes alleged belong to the narrow class of breaches of international law considered cognisable by the U.S. Supreme Court in Sosa.145 4.3.1 Direct responsibility for war crimes According to the plaintiffs: by (1) supplying, selling, and/or entrusting bulldozers …; (2) renewing the lease of such equipment; (3) making repairs and/or supplying necessary parts and/or training, support, manuals, specialised knowledge, or other important knowledge and/or (4) failing to provide a warning regarding the use of the bulldozers, or to recall the bulldozers, cancel, or suspend the lease and/or sales of the bulldozers to the IDF even though legally entitled to do so, after it was foreseeable that acting or failing to act could lead to such abuses, and even after it knew or should have known through actual or constructive notice that the bulldozers were being used to commit war crimes, Caterpillar is directly responsible for war crimes.146 142 Amicus brief submitted in support of the petitioners by the World Jewish Congress, available at: http://www.nosafehaven.org/_legal/atca_pro_wrldJwshCongress.pdf#search= %22ATCA%20amicus%20brief%20world%20jewish%20congress%22. 143 Order (supra, footnote 7) at 1. 144 Plaintiff’s Brief in Opposition to Defendant’s Motion to Dismiss (C05-5192FDB) (“BiO”), p. 5 (footnotes omitted) (document on file with the author). 145 Sosa at p. 732. The breaches must be of rules that are “specific, universal, and obligatory”. 146 FAC at para. 21.
124
Articles
4.3.2 Aiding and abetting violations of international law The defendant’s role in aiding and abetting the alleged violations of international law is described in detail as: …since 1967, Defendant has provided bulldozers and/or significant parts or has made repairs to the bulldozers and has provided training, manuals, specialized knowledge and/or instructions regarding the bulldozers used to commit illegal acts. Defendant has been on actual notice since at least 2001 that the bulldozers and/or parts or other assistance related to bulldozers it was supplying the IDF were and are being used to commit demolitions in violation of international law in the OPT. Moreover, Defendant has been on constructive notice … since at least 1967 when it first began supplying bulldozers and the United Nations began to condemn home demolitions as illegal under international law. Even with this knowledge, Defendant continued to supply bulldozers and/or parts or other technical assistance to the bulldozers knowing that such would be used by the IDF to commit torts in violation of state law and international human rights law and humanitarian law that could lead to deaths and injuries.147
The plaintiffs here aim to satisfy the standard of aiding and abetting used by the ICTY in Furundzija,148 and the ICTR in Musema,149 as confirmed by the U.S. courts in Unocal.150 Aiding and abetting as such consists of providing “knowing, substantial assistance to a principal engaging in illegal conduct”. The mental element required for complicity liability is the knowledge that the act would assist in the crime. Thus the aider and abettor need not share the specific intent vis à vis the principal offence.151 He need merely have knowledge (which can be actual or constructive) that his act will assist the perpetrator. Notably, the supply of material or finance has been held capable of amounting to aiding and abetting in the U.S. courts in the context of the financial support of terrorism152 as well as in other cases such as Talisman153 and In Re Agent Orange.154 Caterpillar’s knowledge consisted in constructive knowledge that its products were being used in the commission of international crimes through the publicity campaigns by various human rights organisations. The company
147 BiO at pp. 3-4 (footnotes to more detailed descriptions of the allegations in the Plaintiff’s First Amended Complaint omitted). 148 Prosecutor v. Furundzija, Judgment, Case No. IT-95-17/1-T, T.Ch. II, 10 December 1998, at p. 359. 149 Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, T.Ch. I, 27 January 2000 at pp. 1. Both Furundzija and Musema also confirm liability for “oral support” which is the “hightest” form of complicity – although some participation or effect must be proven. 150 This corresponds with the U.S. standard in tort: Restatement (Second) of Torts 876 (b) (1977). 151 See Prosecutor v. Dusko Tadic a.k.a. Dule, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, 2 October 1995. This was also the conclusion in The Presbyterian Church of Sudan, et al. v. Talisman Energy Inc, et al., USDC SDNY 2005 US Dist. 30 August 2005, at pp. 301, 324. 152 Burnett, 274 F. Supp. 2d 86, 104-05. 153 Supra, footnote 102. 154 In re Agent Orange, 373 F. Supp. 2d at 52-54; 57-59; 113 (acknowledging the provision of products, knowing such would be used to commit violations of humanitarian law, could result in liability under the ATS if the underlying act was a violation of the law of nations – quoted in Caterpillar, appeals brief at p. 41).
Corporate Complicity and Israeli Violations of International Law
125
received thousands of letters from organisations and individuals condemning the practice, and house demolitions have been publicly condemned by the U.N. and others since 1967. The company showed it had actual knowledge, when in 2001 it publicly acknowledged its awareness of the use to which its machines were put in response to protests by human rights groups and individuals.155 The plaintiffs, in their Appeal Brief, note that, “This is not simply a case of an unwitting seller later discovering that his products have been put to illegal use.”156 4.3.3 Violation of the Torture Victims Protection Act Plaintiffs also claim under the Torture Victim Protection Act (“TVPA”).157 an instrument adopted after Filártiga specifically to enhance the protection of victims of torture and extrajudicial killing already existing under the ATCA. Extrajudicial killing falls under the offences covered by the TVPA. It requires that the acts complained of were carried out under actual or apparent authority of a state and/or colour of law. The killings complained of occurred subsequent to military orders, and, although they were deliberate, they were not authorised by a judgment of a court (i.e. they do not constitute a death penalty instituted after a fair trial). Therefore, these killings amount to extrajudicial killings. The TVPA has been held to cover crimes perpetrated by private individuals, and to exclude corporations from this (as the court attempted to, in its dismissal) would defeat the object and purpose of the act, and the sentiment expressed in Filártiga. 4.3.4 Cruel, inhuman, or degrading treatment or punishment The illegal destruction of homes “resulted in severe physical and psychological abuse and agony, humiliation, fear and debasement; the injury of family members during such destruction, resulting in profound fear and anguish.”158 These acts amount to cruel, inhuman, or degrading treatment or punishment, in which Caterpillar aided and abetted, conspired in, confirmed or ratified. The aiding and abetting proximately caused the abuses, and the injuries complained of, to foreseeable victims.159
155 Caterpillar Complaint, filed 15 March 2005, available at http://www.ccr-ny.org/v2/legal/ corporate_accountability/corporateArticle.asp?ObjID=nCtI8ofbFg&Content=546. See the 2001 response by Caterpillar at www.catdestroyshomes.org. 156 Caterpillar Appellants’ Opening Brief USCA for the Ninth Circuit (“AB”), at p. 28. Document on file with the author. 157 Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. ¤ 1350) (note). “Section 2: Establishment of a civil action (a) Liability. An individual who, under actual or apparent authority, or color of law, of any foreign nation –…(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.” 158 FAC at para. 24. 159 FAC at para. 24.
126
Articles
4.3.5 Violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) The same breaches of international law committed by the Israeli military also underlie the plaintiff’s claim under the RICO. The RICO statute160 provides as follows: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.
Plaintiffs allege, that, in violation of RICO, the Defendant, and the IDF formed an enterprise and conspired with the IDF to engage in a pattern of illegal acts. Defendant significantly collaborated and shared technology with the IDF relating to the bulldozers that Defendant knew would be used to commit violations of international law; Defendant transported the bulldozers, parts, and related technology to the IDF; Defendant provided the IDF with aftersales support and other technical support; and the Defendant provided training of the IDF regarding the operation and maintenance of the bulldozers used to commit violations of international law.161
4.3.6 The common law torts of wrongful death, public nuisance, and negligent entrustment These tort claims rest on the fact that the company owed a duty to the foreseeable victim, and that its acts and omissions directly and/or proximately caused the foreseeable harm. The claim of “public nuisance” rests on Caterpillar’s interference with the plaintiffs’ rights, including the right to health, public safety, and the public peace.162 4.4 Dismissal of the Caterpillar case Caterpillar moved for dismissal of the claim for failure to state a claim and pursuant to the political question and act of state doctrines. In its motion, Caterpillar argued that there is no legal basis for the allegations that Caterpillar can be liable in damages for selling a legal, non-defective product to the government of Israel. Also, Caterpillar argued that the injunctive relief sought
160 18 U.S.C. § 1962(c). 161 The Caterpillar plaintiffs also argue a number of common law claims, including negligent entrustment: which is proven when the defendant: (1) permits the use of a thing “which is under the control of the actor, if the actor knows or should know that such a person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others;” or (2) supplies chattel for use by a person “whom the supplier knows or from facts known to him should know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of bodily harm to himself and others…” (Restatement (Second) of Torts 308 (1965). 162 FAC, paras. 28-30.
Corporate Complicity and Israeli Violations of International Law
127
by the plaintiffs is “a political goal that is inappropriate to pursue in this lawsuit”.163 The U.S. District Court of the Western District of Washington at Tacoma, granted the order, explaining its reasons in an unusually brief, 17-page opinion. The court held that plaintiffs failed to state a claim in their first, second, and third claims for relief,164 agreeing with the defendant that selling products to a foreign government does not make the seller a participant in that government’s alleged international law violations. The court took note of Sosa requiring it to limit ATCA cases to claims, based on the present day law of nations to rest on a norm of international character accepted by the civilised world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognised.
The Sosa court had warned of the possible “collateral consequences” to the foreign relations of the U.S. flowing from private allegations of a foreign government’s violations of the law of nations: “the consequences from a lack of caution could have significant, if not disastrous effects on international commerce.”165 The Sosa warning was eagerly heeded by the Caterpillar court, which stressed the “danger of impinging on the discretion of the Legislative and Executive branches in managing foreign affairs, and the lack of a congressional mandate to seek out and define new and debatable violations of the law of nations”.166 Further, the court found that “questions about the proportionate use of force may have to be done on a case-by-case basis and the answers may differ depending on the background and values of the decision maker”.167 In addition, the court found that neither the Geneva Conventions nor the ICCPR are “selfexecuting”, that is, they do not expressly or impliedly create a private claim for relief.168 According to the court, the plaintiffs had also not exhausted local remedies, while “Israeli tort law provides adequate remedies for plaintiffs injured as a result of tortuous conduct, and that Israel’s courts are generally considered to provide an adequate alternative forum for civil matters.”169 Most notably, the court stated, that “only individuals who have acted under official authority or under colour of such authority may violate international law”.170
163 Caterpillar Order Granting Defendants’ Motion to Dismiss (“Order”), 22 November 2005, available from http://www.ccr-ny.org/v2/legal/corporate_accountability/ corporateArticle.asp?ObjID=nCtI8ofbFg&Content=546, at 2. 164 See above, sections 4.3.1-3. 165 Sosa, at p. 33. 166 Order at p. 4. 167 Order at pp. 5-6 (references to Sosa omitted) 168 Order at p. 6. 169 Order at 6. Note that the plaintiffs argue that the tort (i.e. the decision to make the sale) occurred in the U.S. 170 Order at p. 6.
128
Articles
Ostensibly pre-empting its examination of the ATCA part of the case, the court decided that the Corries could not bring an ATCA claim as ATCA is an instrument only for foreigners.171 Added to this the court held that, in any case, an ATCA claim for aiding and abetting must fail because the aiding and abetting does not constitute an offence sufficiently specific to satisfy the Sosa standard.172 The tort claims are broadly dismissed for lack of a direct causal relationship – with the court agreeing with the defendant that “the manufacture and sale of its tractors was not the ‘but-for’ cause of Plaintiff’s injuries, as the IDF did not need to use Caterpillar products to demolish houses”. “There is no direct causal relationship between Plaintiff’s injuries, and Caterpillar’s sales of bulldozers to Israel. Caterpillar merely sold bulldozers. The IDF used them.”173 The court concluded its argument by calling plaintiffs’ argument “frivolous”. Finally, the court dismissed the case as it “interfere[d] with the foreign policy of the United States of America”.174 “Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”175 To support its argument, the court stated, “[i]n this case neither of the other branches of government has urged or enjoined sale of weapons to Israel nor restrained trade with Israel in any other manner. For this court to preclude sales of Caterpillar products would be to make a foreign policy decision and to impinge directly upon the prerogatives of the executive branch of government.”176 Finally, as its closing statement, the court said: “As Caterpillar has stated and this court agrees: ‘This lawsuit challenges the official acts of an existing government in a region where diplomacy is delicate and U.S. interests are great’.”177 4.5 The Appeal: a de novo review In the U.S., a district court’s dismissal for failure to state a claim is reviewed de novo.
171 Order at p. 7. 172 Order at p. 8. The Order is opaque at this point: “While international law may recognize accomplice liability in some instances, the conduct alleged must first rise to the level of a claim under Sosa.” 173 Order at 12. However, note the plaintiffs’ AB at 41: “Caterpillar engaged in transactions with the IDF that, even if not illegal, are suggestive of a willingness to serve customers who may intend to circumvent the law.” (referring to Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 394, 821 N.E. 2d. 1099 (Ill. 2004), finding that a defendant who engages in such transactions would foresee injury). See also Bernethy v. Walt Failor’s, Inc., 97 Wash. 2d. at pp. 929, 934, 653 (Wash. 1982) (finding that a firearm seller could be liable for negligent entrustment where he sold a rifle to an intoxicated man, who killed his wife with the rifle shortly thereafter). 174 Order at p. 15. 175 Order at p. 15 (quote from Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803)). 176 Order at p. 16. 177 Order at p. 17 (reference to Caterpillar’s reply omitted).
Corporate Complicity and Israeli Violations of International Law
129
Plaintiffs’ allegations are assumed to be true, and dismissal should be granted only if there is no possibility that Plaintiffs’ facts may state a claim for relief. ... If the allegations provide the basis for any claim for relief, the motion must be denied.178
Considering the number of errors the district court made, this hurdle should not be difficult to pass. However, this poses no guarantees for the next stage in the proceedings. The U.S. Court of Appeal for the Ninth Circuit is expected to issue its judgment in the latter months of 2006. In their opening brief, plaintiffs emphasise that, [t]he question at the heart of this case is whether five families can hold a U.S. corporation accountable for knowingly assisting war crimes and other violations of U.S. law. The District Court not only denied these families remedies for the killing of, or injury to their relatives, but it also undermined important legal principles in ways that will harm victims of human rights violations in the future.
As will be obvious from the discussion above of the law and the claims made by the Caterpillar plaintiffs, the court erred in numerous ways in its decision. The court failed adequately to analyse and address all elements of each claim made in its brief and lacksadaisical opinion. The court “forgot” the plaintiffs’ Geneva Convention claims – breaches of (the main one being the attack of civilians, and the other relevant one being the practice of demolishing civilian homes without notice or necessity) which are well recognised and definite. The court ignored the work of the various U.S. and international judicial organs over the past decades in shaping the now well-known doctrines of aiding and abetting in international law,179 and equally established practice of the application of war crimes law to private actors. Most strikingly, in dismissing the ATCA claim, “because the Corries are not aliens as required by the Act”, the court “forgot” the Palestinian plaintiffs.
5 POLITICS OF ENFORCEMENT Most prominent in its dismissal of the Caterpillar Case is the U.S. District Court’s “reflexive” invocation of the Political Question Doctrine.180 In short, the court “confus[ed] the politics surrounding the case with a doctrine meant to protect the constitutional powers of each branch of government”.181 Despite the apparent possibilities offered by ATCA, no ATCA litigation has so far resulted in a victory for the defendants. Out of around 40 cases brought
178 AB at pp. 11-12 (emphasis added). 179 In any case, “[t]here is simply no requirement that liability rules such as aiding and abetting be ‘specific, universal, and obligatory’ in order to be actionable”. AB at p. 22 (referring to Sosa, at p. 748). 180 AB at p. 11. 181 AB at p. 43. The plaintiffs go on to discuss the “six Baker factors” – six reasons why the court may invoke the political question doctrine, none of which apply in this case. The Baker court held that “it is an error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” And, “judges should not reflexively invoke doctrines to avoid difficult and somewhat sensitive decisions in [the] context of human rights”. AB at p. 44, quoting Baker v. Carr, 369 U.S. 186, 217 (1962).
130
Articles
against corporate actors so far – most of which dealt with international crimes – the majority have been dismissed (most on jurisdictional grounds), a number have settled and some are still pending. The main obstacle to enforcement on corporations appears to be the “political question doctrine”. This doctrine allows the court to decline to pass judgment if it considers that by doing so it would impinge on the mandate of the executive branch of government. One of the most striking examples of the use of this doctrine can be found in the decision on the Apartheid Litigation Cases. In the Apartheid Litigation decision Judge Sprizio held that deciding the case would force him to make decisions that were in the competence of the executive and would interfere with foreign policy. Collateral consequences of such a decision would be damaging to the relationship between South Africa and the U.S. The judge added that he “wouldn’t want to set a precedent meaning you could not do business in countries with a less than stellar human rights record”.182 In earlier cases set in the context of the Israeli-Palestinian conflict, the U.S. courts have refused to apply the political question doctrine. In Biton v. Palestinian Interim Self Gov’t., the court stated: “Although the backdrop for this case – i.e. the Israeli-Palestinian conflict – is extremely politicised, this circumstance alone is insufficient to make the plaintiffs’ claims nonjusticiable.”183 In Knox v. PLO, the court found no need to address “political questions which form the backdrop to this lawsuit,”184 and although in Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione, etc the Second Circuit expected that its decision would “surely exacerbate the controversy surrounding the PLO’s activities”, it refused to dismiss the claim as non-justiciable for raising foreign policy questions.185 Finally, Ariel Sharon’s claim for libel was justiciable, because abstention is not appropriate when “individual rights in domestic affairs are at stake, even where the litigation touches upon sensitive foreign affairs concerns…”186 Further, “[t]he Supreme Court has made it clear that the federal courts are capable of reviewing military decisions, particularly when those decisions cause injury to civilians.” “… It does not infringe upon the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims…” 187 Indeed, the court has a constitutional duty to pass judgment on any legal question before it, where there are “judicially discoverable and manageable standards” for it to apply.188 182 Apartheid Litigation at final para. 183 310 F.Supp. 2d 172, 184 (D.D.C 2004). 184 306 F.Supp. 2d 424, 429 (S.D.N.Y. 2004). See also: Ungar v. Palestinian Liberation Org., 402 F. 3d 274 (1st Cir. 2005) (shooting victims’ claims justiciable because the fundamental nature of the action was a tort suit). 185 938 F.2d 44 at 49 (2d Cir. 1991). 186 Sharon v. Time, 599 F. Supp. 538 (S.D.N.Y. 1984). 187 AB at pp. 83-4. 188 Another means of avoiding passing judgment is the invocation of the act of state doctrine. However, this doctrine “does not apply on occupied territory nor does it apply to military commands that violate jus cogens norms. Also, when the state has already condemned the human rights abuses of this kind, it seems unlikely that judicial consideration of them will provoke a ‘hostile confrontation’ between Israel and the US.” (AB at p. 11).
Corporate Complicity and Israeli Violations of International Law
131
The President of the Supreme Court of Israel, Judge Aharon Barak, has recently voiced his dismay with regard to the shirking of constitutional duties: “The Court should not abdicate its role if it’s uncomfortable or fears tension” and, “the more [the Political Question Doctrine] is used, the less opportunity there is for [the judge to exercise her mandate of] protecting the constitution and democracy.” 189 Perhaps ironically, the International Court of Justice (“ICJ”) in its Advisory Opinion on the Wall also faced the decision whether the question put before it was legal or political.190 Israel and most European states argued that the question that faced the court was of a political nature, but the ICJ recognised the legal nature of the case before it. The misuse of the political question doctrine leads to the erosion of the rule of law and a yielding to the claim that law (especially international law) is politics.191
6 THE ECONOMICS OF COMPLIANCE Although the claims against Caterpillar are comprehensive and persuasive, there seems little chance that the U.S. Court of Appeal for the Ninth Circuit will overturn the District Court’s dismissal. A “realjuristische” perspective forces one to admit that in the current climate enforcement of law, application of the rules in this, or a similar scenario, is unlikely to be forthcoming, even in a nominally neutral, third state forum.192
189 “The Role of the Judge in a Democracy”, Lecture at Tel Aviv University, 9 May 2006. 190 Generally, the political question doctrine in international law is used in cases where applicable legal standards are claimed not to exist; although it is also used in the Wall proceedings to suggest that answering the legal questions would frustrate the (political) peace process. 191 The policy argument for enforcement of international law on corporations committing violations of IHL and IHR is also made, for example by EarthRights International in its amicus curiae brief to the USCA for the second circuit in the South African Apartheid Litigation. EarthRights argues that “…ATS aiding and abetting liability ensures that corporations will not only explain democratic values and institutions to officials of repressive governments, but will also demonstrate through their actions in attempting to limit the possibility that abuses will occur that those values and institutions are not merely aspirations, but actually govern the conduct of members of democratic societies, including corporations.” And: “[w]e cannot effectively demonstrate our commitment to these principles [of human rights, democracy, the rule of law] if we deny that aiding and abetting is an established principle for human rights violations or if we afford those complicit in genocide, torture, or murder more favourable treatment than those who assist acts of terrorism.” AC brief at pp. 22, 23, available from http://www.ccr-ny.org/v2/legal/corporate_accountability/ corporateArticle.asp?ObjID=nCtI8ofbFg&Content=546. 192 On going to press, however, the U.S. District Court for the Ninth Circuit (where the Caterpillar appeal is pending) ruled in favour of the plaintiffs in Sarei v. Rio Tinto, PLC 221 F. Supp. 2d 1116, 1121-27 (CD Cal. 2002), overturning the district court’s dismissal. See “Appellate Court Decision is Huge Victory for Human Rights, Environment and Corporate Accountability”, EarthRights press release 10 August 2006: “Plaintiffs, residents of Bougainville, Papua New Guinea, allege they were victims of human rights and environmental abuses associated with Rio Tinto’s Panguna mine. This victory will not only benefit the plaintiffs in Sarei, but also sets a valuable precedent that could prove critical in many other Continued overleaf
132
Articles
The Caterpillar litigation has caused lawyers, parliamentarians and the public to ask questions about corporations’ dealings with Israel, particularly where these dealings may involve breaches of international law. The Caterpillar litigation has given new impetus to a high-profile boycott and divestment campaign. 193 A number of fund managers, including churches, have started examining their portfolios for shares in potentially complicit companies.194 NGOs have started pressure campaigns aimed at companies involved in, for example, building the Wall,195 and the light railway line between Jerusalem and Pisgat Ze’ev (which will be built partly on occupied territory).196 Other campaigns concern companies’ import and sale of settlement products,197 and supply to the military, like Caterpillar. In the U.K., M.P.s aware of U.K. companies’ supplies of hardware to the Israeli military, are attempting to have items like bulldozers reclassified as military equipment, thus subjecting exports to a stricter regime. In the Netherlands, lobbying has led to questions being asked in Parliament about the involvement of a Dutch company in the construction of the illegal Wall in the Jordan Valley.198
193
194 195 196 197
198
cases challenging human rights and environmental abuses. This case is particularly important for at least three reasons. First, the court held that a corporation can be held liable under the Alien Tort Statute (ATS) where it aided and abetted abuses or where members of the military act on behalf of the corporation in committing abuses. Although many other courts had already ruled that those who aid and abet abuses can be held liable under the ATS, corporate defendants and the Bush Administration have continued to argue that aiders and abettors should be immune from suit.” Opinion of 7 August 2006 and press release available at http://www.earthrights.org/legalrelated/appellate_court_decision_is_huge_ victory_for_human_rights_environment_and_corporate_accountability.html. Ironically, boycott campaigns inside the occupied territories have limited chance of success. For various reasons, including conditions of donors of, e.g. roadbuilding projects to buy certain materiel, and the impossibility of importing anything into the Occupied Territories that is not specifically permitted by Israel, Caterpillar bulldozers are purchased by the PA and municipalities in the West Bank and Gaza (information supplied by the Ramallah dealership of Caterpillar). N.B., Israel also uses Volvo and JCB machines for house demolitions and in the construction of the Wall. Presbyterian Church (U.S.A.) Divestment Resolution, available at: http://www.pcusa.org/ ga216/news/ga04121.htm; Church of England divestment: Transcript 06 February 2006, available at: http://www.cofe.anglican.org/search?SearchableText=divestment&go=Go. “Amnesty Urges Irish Company to Explain Its Role on Israeli Fence/Wall”, 19 February 2004, available at: http://www.amnesty.ie/user/content/view/full/1624. See “Alstom, le tramway d’Alger, Jerusalem, La Palestine”, 17 March 2006, available http:// www.pourlapaixenpalestine.ras.eu.org/article.php3?id_article=525. E.g., the campaign against Marks & Spencer by the Boycott Israel Campaign, see http:// www.inminds.co.uk/boycott-marks-and-spencer.html. Also, activist lawyers are challenging the E.U.- Israel Association Agreement. Arguments are being made to challenge violations of the rules of origin, which allows companies to benefit from duty free trade with (predominantly) produce grown outside Israel in illegal settlements, see, for example, the Euro-Mediterranean Human Rights Network Report available at: www.euromedrights.net/english/news%20bulletin/2006/21/ WG%20on%20Palestine-Israel_ENG.pdf . See questions asked by Koenders, M.P., http://parlando.sdu.nl/cgi/login/anonymous. See also the invocation of Irish constitutional principles to support the condemnation of an Irish company’s involvement with the construction of the Wall. Lawyers have started to think creatively about ways and means to challenge corporate behaviour. In the U.S. case of Kasky v. Nike, the plaintiff challenged Nike’s own statements on good corporate citizenship in its annual report as false advertising (Nike, Inc. v. Kasky 539 U.S. 654 (2003) Docket Number:
Corporate Complicity and Israeli Violations of International Law
133
Ultimately, the purpose of a legal challenge is not to secure victory in court, but to change behaviour on the ground in line with the legal norms prevalent in international society. If the threat or instigation of litigation, combined with the various civil society campaigns, moves the company to change its behaviour in order to preserve its privacy and protect its most valuable asset (its brand) then this goal is accomplished. ‘Market-induced compliance’ may thus prove an alternative where judicial enforcement is not forthcoming.
7 CONCLUSION In this article I set out to show three things. First, how an occupying state can successfully deny the nation it occupies the means to challenge the legality of the occupier’s actions. Domestically, the occupying state uses laws that it enacts (without the occupied people’s democratic participation) and the legal institutions that habitually pay deference to its decisions, to shield itself from legal scrutiny. Further, by not fully participating in the international legal system (through not joining international enforcement mechanisms), it disables the occupied nation from the means to assert its rights on the international level. 02-575, Decided 26 June 2003). The Supreme Court declined to hear the case and it eventually settled, with Nike donating $1,500,000 to a fair labour standards charity. Many companies have in recent years adopted codes of practice that invite being tested against reality. Caterpillar’s “Worldwide Code of Conduct”, for example, notes that “Every decision we make, every action we take, can affect employee morale, the way the world perceives our company and the sustainable results we achieve – factors that impact our own lives and livelihoods. In great measure, we have achieved our worldwide leadership position by upholding our reputation for acting with the highest values and principles. We will continue to lead only if we keep that reputation intact.” (at p. 6.). While “good governance codes do not provide for strong supervisory or enforcement mechanisms, [they] do offer a lightning rod for external pressure and scrutiny of conduct, and may engender such responses as consumer boycotts, negative publicity, and shareholder action if public opinion is mobilized around breaches of codes to which the non-state actor has professed adherence.” Alston, P. (ed.): Non State Actors and Human Rights, Oxford University Press, 2005, at p. 26, and see also pp. 55-6 and pp. 74-5. There also appears to an appetite for the prosecution of individual business actors. The International Criminal Court’s chief prosecutor has expressed a desire to prosecute individual business people guilty of crimes within the court’s jurisdiction, in recognition of the vital role they play in conflict (Luis Moreno Ocampo, speech at the Business & Human Rights Seminar, London, 9 December 2005). The ICC is of course limited in its capacity and jurisdiction (both temporal and geographic) and thus relies on domestic courts to complement its mandate. In a progressive move in this direction, the Dutch Justice Ministry has set up a special war crimes unit, which is currently investigating hundreds of potential cases and preparing many for prosecution. In November 2005 Frans van Anraat, a chemicals trader, was convicted for supplying the gas that Saddam Houssein used to gas the Kurds in Halabja in 1989. The businessman’s trade was held to have amounted to complicity in the war crimes committed by Saddam Houssein. The court stated: “It has been established that the suspect consciously and purely motivated by profit, lent essential assistance to the chemical weapons programme of Iraq in the 1980s. His contribution has made possible a large number of attacks using mustard gas on defenceless civilians, or at least made those easier. These attacks constituted very serious war crimes.” LJN: AU8685, Rechtbank ‘sGravenhage, Decision of 23 December 2005, parketnummer 09/751003-04 (literal translation author’s own). See also the pending Dutch case against a businessman accused of trading timber for arms with Charles Taylor: http://www.nrc.nl/buitenland/article291630.ece.
134
Articles
This also shows that international law, still essentially state-based, is ill-equipped to serve the stateless. Second, I have demonstrated how, in a “private humanitarian intervention through law”, Palestinians and their representative “international cause lawyers” have made use of the opportunity offered by the Alien Tort Claims Act. In the footsteps of the Nuremberg Tribunals, they have accused a multinational corporation of playing an instrumental role in war crimes committed against a civilian population. This litigation has helped to publicise acts committed by the occupier’s military, and to examine the legal significance of the Caterpillar Inc.’s commercial ties with the occupying state. Third, I have shown how the Caterpillar litigation has had the secondary effect of exposing the U.S. courts’ sensitivity to political pressure and the regrettable legal vacuum this threatens to cause. As such, the litigation doubly functions as a “mobilisation of shame”.199 Governments’ amicus curiae briefs in many of the major ATCA cases, urging the courts to stand aside in deference to, for example, “economic relations” rather than to pronounce on the legal questions before them, defy the Rule of Law. States have recently shown willing to “stretch” the concept of complicity to criminalise acts such as the “financing of terrorism”. This does not sit well with the arguments against prosecution of aiders and abettors to other perpetrators of violence. In Filártiga, the court recognised that “plainly, international ‘law’ does not consist of mere benevolent yearnings never to be given effect”.200 The Caterpillar appeal provides the judges of the U.S. Court of Appeal for the Ninth Circuit with the opportunity to halt economic interests riding a metaphorical bulldozer through the law of nations, and instead, to show that domestic courts faced with individual claimants are in fact instrumental in upholding international Rule of Law.
199 See generally, Joynce, J.A.: Mobilization of Shame, in the New Politics of Human Rights (1978). 200 Filártiga at 6.
135
Effective Legal Representation in “Shari’ah” Courts as a Means of addressing Human Rights Concerns in the Islamic Criminal Justice System of Muslim States Mashood A. Baderin*
1 INTRODUCTION Islamic law remains one of the recognised legal systems of the world today.1 The foundations of the law were, however, laid in seventh century Arabia. By the standards of those times, Islamic law was very comprehensive and ahead of its time. The two main sources of the law are the Qur’an and Sunnah,2 which to Muslims are divine and quasi-divine sources respectively and thus literally immutable. To enable the efficient application of these two sources and the evolution of the law, the classical Islamic jurists formulated well-defined and sophisticated legal methods, principles and doctrines that have propelled Islamic law forward since the seventh century. The interpretation and application of the sources by the classical Islamic jurists developed into a rich
* Professor of Law, Brunel University, West London. [email protected] This is a revised version of a paper delivered by the author at the 14th Commonwealth Law Conference held in London from 11-15 September 2005. I thank Professor Abdullahi An-Na’im for kindly reading through the first draft and for his very helpful comments. Any shortcomings in the article are, however, entirely mine. 1 See e.g. David, R., and Brierly, J.E.C., Major Legal Systems in the World Today (London: Stevens and Sons, 1978), p.421 and Glenn, H.P., Legal Traditions of the World (Oxford: Oxford University Press, 2000), pp.157-204. 2 The Qur’an is the holy book of Islam, revealed by God to Prophet Mohammad between 610633CE. The SU.N.nah means the Traditions of Prophet Mohammad consisting of his sayings, deeds and tacit approvals. These two constitute the Shari’ah and source of Islamic law. See Baderin, M.A., International Human Rights and Islamic Law (Oxford: Oxford University Press, 2003), pp. 32ff for an analysis of the distinction between “Shari’ah” as the source and “Fiqh” as the method of Islamic law.
136
Articles
Islamic legal jurisprudence,3 which Islamic courts continue to rely upon in their application of Islamic law in many parts of the Muslim world. Today there are four main Sunni Schools of Islamic jurisprudence, namely the Maliki, Hanafi, Hanbali, and Shafi’i Schools, as well as Shi’ah Schools of Islamic jurisprudence, the most famous of which is the Imamiyyah or Ithna Ashariyyah School.4 Unlike the two main sources, the interpretations and jurisprudence of the different Schools are neither divine nor quasi-divine and thus open to review by competent jurists from time to time based on circumstances of place and time.5 The Qur’an and Sunnah often only provide general substantive law, while relevant details and issues of procedure are provided by the jurisprudential works of the jurists. Thus, while the substantive provisions in the Qur’an and Sunnah may not be directly alterable, their application and effect are modifiable through a review of the procedural laws and principles instituted by the early Islamic jurists. The Islamic criminal justice system forms part of the heritage of Islamic law. It has been observed that: “Crimes of all sorts, including homicide, molestation, robbery, etc., were rampant in the then [Arabian] society; [which] the prevailing customary law of punishment had utterly failed to contain.”6 After the creation of the nascent Islamic State in Medina and formal introduction of Islamic law, the Islamic criminal justice system successfully stemmed the high tide and deplorable crime situation in the Arabian society then. Today however, there is a lot of controversy regarding suitability of the Islamic criminal justice system for contemporary times. Islamic criminal justice is often criticised today as being behind the times for the 21st century and that its prescribed punishments are inconsistent with international human rights norms. There are three main views regarding the application of the Islamic criminal justice system in contemporary Muslim societies. The first view is that of those who see the system as archaic and barbaric and that it must therefore be discarded, the second view is that of those who see it as part of the law of God which must continue to be obeyed and applied by Muslim States, and the third view is that of those who argue that, even though it is part of the law of God, the ideal Islamic society in which the system is meant to be implemented does not exist anywhere in the world today, thus there should be a moratorium 3 This jurisprudence is known as “Fiqh”, meaning “Understanding” of the sources by the jurists. For e.g., see Nyazee, I.A.K., (Trans.), The Distinguished Jurist’s Primer: Ibn Rushd’s Bidayat alMujtahid wa Nihayat al-Muqtasid (Reading: Garnet Publishing Ltd.,2000[a]), 2 Vols. Its principles are known as “Usul al-Fiqh” which lay down the classical rules of Islamic jurisprudence. For English sources on the principles of Islamic jurisprudence, see e.g. Kamali, M.H., Principles of Islamic Jurisprudence, 3rd Edn., (Cambridge: The Islamic Texts Society, 2003); Hasan, A., Principles of Islamic Jurisprudence, (Islamabad: Islamic Research Institute, 1993) 4 Volumes; Nyazee, I.A.K, Theories of Islamic Law (Islamabad: Islamic Research Institute, n.d); Nyazee, I.A.K, Outlines of Islamic Jurisprudence (Advanced Legal Studies Institute, 2000[b]). Free electronic copy available for download at: http://www.nyazee.com/islaw/theory/ theory.html (27/1/06). 4 See Baderin, M.A., supra, note 2 above, pp. 37-39 for a brief discussion of the development of these jurisprudential schools. 5 Ibid. 6 Mahmood, T., “Foreword” in Mahmood, T., et al. (Eds.) Criminal Law in Islam and the Muslim World (Delhi: Institute of Objective Studies, 1996), p.ix.
Effective Legal Representation in “Shari’ah” Courts
137
against its application until such an ideal society is first achieved.7 Proponents of each of these three positions have advanced relevant doctrinal arguments to support their respective views. Another relative question that is often raised regarding the relationship between the provisions of the Shari‘ah and modern State law is that if the Shari’ah was indeed binding on Muslims, why is it not the law fully applied by a majority of Muslim States. This article will not delve into those doctrinal arguments; rather it focuses on the empirical fact that while those doctrinal arguments continue, there are some Muslim States that currently operate Islamic or Shari’ah courts that apply Islamic criminal law as part of State law. Countries such as Saudi Arabia, Iran, Sudan, and Pakistan, among others, have varied elements of Islamic criminal law incorporated into State law and operate Islamic or Shari’ah courts to enforce them. Notably, 12 States within the Federal Republic of Nigeria recently adopted Shari’ah penal codes that incorporated the Islamic criminal justice system into the laws of the respective States.8 Many human rights organisations and advocates have raised concerns in that regard, especially in respect of some of the prescribed punishments applicable under Islamic criminal law in those States. This article argues that ensuring effective legal representation for accused persons under the Islamic criminal justice system can serve as an important procedural means for addressing human rights concerns in those States that currently apply Islamic criminal law as State law.
2 CRIMINAL JUSTICE AND ISLAMIC LAW Criminal justice is an important aspect of public law, which States dispense to maintain public and private security through the control of crimes within their jurisdiction. Normally, the determination of what constitute criminal offences and the prescription of punishments for them in a particular State are within the discretion and sovereign authority of the State. States are, however, required, in their domestic dispensation of criminal justice, to ensure the protection of relevant international human rights norms. Islamic criminal justice is one of the areas of Islamic law that continues to be a subject of human rights concern in respect of both its substantive and procedural law.9 Substantively, there are human rights concerns with some of the prescribed offences and punishments under Islamic law, vis à vis the prohibition of torture or cruel, inhuman or degrading treatment or punishment under international human rights law. Procedurally too, there are human rights concerns regarding aspects of Islamic criminal procedure vis à vis the right to a fair trial and due process under international human rights law. 7 See e.g. El-Awa, M.S., PU.N.ishments in Islamic Law (Plainfield: American Trust Publications, 2000), pp.134-138. See also the view accredited to Professor Tariq Ramadan for moratorium on Islamic criminal punishments at: http://www.campus-watch.org/article/id/1993 (27/1/ 06). 8 The 12 States are: Bauchi, Borno, Gombe, Jigawa, KadU.N.a, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe, and Zamfara. 9 See e.g. An-Na’im, A.A., Towards an Islamic Reformation: Civil Liberties, Human Rights and International Law (Syracuse: Syracuse University Press, 1990), pp. 101-136.
138
Articles
One oft-highlighted characteristic of the Islamic criminal justice system is the deterrent nature of some of its prescribed punishments which, Muslim jurists often argue, serves in curbing the tide of crime wherever they apply.10 Muslim States that apply Islamic criminal law as part of their domestic laws also argue, inter alia, that it helps curb the high tide of crimes in their respective societies.11 Apart from the deterrent argument, another relevant contention by Islamic jurists regarding human rights concerns, particularly about the substantive law on hudud offences12 and punishments under Islamic law, is that the standard of proof for the hudud offences is very arduous. The offences must be proved beyond any atom of doubt otherwise there can be no hadd 13 punishment. This is based on a directive of the Prophet Muhammad (pbuh)14 in which he instructed that the hudud punishments must be averted in case of doubt because error in clemency is better than error in imposing punishment.15 Furthermore, each of the hudud offences has specific, but often contentious, elements or ingredients that must be proved to grant a conviction. Muslim jurists have also argued, in relation to human rights concerns about fair trial and due process in Islamic criminal procedure, that Islamic judges are required to dispense justice equitably and must abide by relevant Shari’ah provisions and judicial principles that ensure the guarantee of a fair trial and due process in Islamic criminal proceedings. However, there is usually a diversity of Islamic juristic opinions on most substantive legal points within Islamic law, yet most litigants are often ignorant about Islamic jurisprudence and oblivious of the procedural rights available to them under Islamic law, especially in its criminal justice system. Also, unlike hudud offences and punishments which are specifically stated in the Qur’an or Sunnah, ta’zir offences16 and punishments are not specifically prescribed in the Qur’an or Sunnah but left to the discretion of the ruling authority or judges and thus its limits are not very certain under traditional Islamic law. All these expose the need for effective legal representation of accused persons in Islamic criminal trials to ensure that their rights under the Islamic criminal justice system are adequately protected.
10 See e.g, Mourad, F.A., and Sa’aty, H., “Impact of Islamic Penal Law on Crime Situation in Saudi Arabia: Findings of a Research Study” in Mahmood, T., et al. (Ed.), supra, note 6 above, pp. 340-374 for an empirical study by two Arab jurists on the crime situation in Saudi Arabia, in which they show how the enforcement of Islamic criminal law contributed to changes in the high tide of crimes in Saudi Arabia. 11 See, however, the observation of the European Human Rights Court in Tyrer v. U.K. (1978) ECHRR, Series A, No. 3, para. 31, that: “A punishment does not lose its degrading character just because it is…an effective deterrent or aid to crime control.” 12 See the classification of offences in Part 3 of this article below. 13 “hadd” is singular of “hudud”. 14 The abbreviation “pbuh”, which means “peace be upon him” and usually placed after the Prophet’s name, will not be repeated in writing after this first occurrence but shall be implied as repeated after every occurrence of the Prophet’s name throughout this article. 15 See e.g. Al-Zuhayli, W., al-Fiqh al-Isami wa Adillatuh (Islamic Jurisprudence and its Evidences) (Pittsburge: Dar al-Fikr, 1997), Vol.7, p. 5307. 16 See the classification of offences in Part 3 of this article below.
Effective Legal Representation in “Shari’ah” Courts
139
An-Na’im has rightly observed generally that, in view of the increasing technicality of substantive and procedural criminal law, the accused person is generally said to be entitled to the benefit of expert legal advice in confronting the case for the prosecution and presenting his or her own defence.17
The complexity of Islamic law and jurisprudence, coupled with the complexities of the modern way of life, makes the need for expert legal advice and representation for the accused person more imperative under Islamic criminal justice in today’s world. It is important to note in that regard that the right to legal representation, especially for accused persons in criminal trials, is a fundamental aspect of the right to a fair trial and due process under international human rights law.18 This article therefore argues, inter alia, that provision of effective legal representation under Islamic law will contribute significantly to the protection of the rights of accused persons in respect of both the substantive and procedural law under Islamic criminal justice. The availability of effective legal representation can go a long way in remedying the human rights concerns regarding Islamic criminal justice in applicable States. The importance of this thesis is highlighted by the mistaken presumption, held by some commentators, that legal representation by counsel is not recognised or allowed under Islamic law and therefore does not form part of the Islamic criminal proceedings in applicable Muslim States. This article will refer to relevant authorities from the sources and jurisprudence of Islamic law to establish that legal representation by counsel is legitimate under Islamic law and actually desirable in Islamic criminal proceedings. It proposes that legal practitioners in Muslim States should familiarise themselves with both the substantive and procedural aspects of Islamic criminal justice and also that compulsory legal assistance should be provided by the State to accused persons who cannot afford to pay for such legal representation in order to ensure equality of arms between prosecutors and defendants under the Islamic criminal justice system of applicable States. In pursing the above arguments, the article will analyse the provisions, scope and classification of crimes and punishments under Islamic law, the substantive and procedural aspects of Islamic criminal justice and, at the end, provide a brief case study of relevant selected Muslim States in the light of the analysis provided.
17 See An-Na’im, supra, note 9 above, at p.102. 18 See e.g. Art. 14(3)(d) ICCPR. See also Baderin, M. A., “A Comparative Analysis of the Right to a Fair Trial and Due Process under International Human Rights Law and Saudi Arabian Domestic Law” (2006) 10 International Journal of Human Rights, No. 3, pp. 241-284.
Articles
140
3 CLASSIFICATION OF CRIMINAL OFFENCES UNDER ISLAMIC LAW Crimes are known generally as jara’im (singular: jarimah) under Islamic law, but classified into well-defined categories. Crimes and their punishments are classified into three main categories under Islamic law, namely “hudud”, “qisas” and “ta’zir”. Substantively, the hudud and qisas offences and punishments are specifically provided for either in the Qur’an or Sunnah, while the ta’zir offences and/or punishments are not so specifically listed but left to the discretion of the ruling authority or judges under Islamic law. Although, there are human rights concerns regarding each of these three categories of Islamic criminal offences and punishments, the greatest concern has often been in respect of the hudud offences and punishments. We shall therefore first briefly examine the human rights concerns regarding ta’zir and qisas offences and punishments respectively before examining those of the hudud offences and punishments due to the more extensive analyses required by the latter. 3.1 Ta’zir offences and punishments19 Ta’zir is derived from the Arabic verb “azar”, which literally means “censure”, “rebuke” or “reprimand”.20 Technically, ta’zir refers to all those offences under Islamic law other than the hudud and qisas. This covers all offences that are not specifically mentioned in the Qur’an or Sunnah and/or for which no specific punishment has been prescribed in either the Qur’an or Sunnah. The main characteristic of ta’zir is that it “proceeds…from the discretionary authority of the sovereign as delegated to the judge.”21 This discretion is in relation to both the determination of an offence to be classified as such and the prescription of its punishment, as long as the offence is not otherwise a permissible act by the Shari’ah and the punishment prescribed not otherwise prohibited under the Shari’ah. Through ta’zir, the ruling authority is able to regulate and punish conduct that is considered to be contrary to social harmony and public security but which has not been specifically fixed in the Qur’an or Sunnah. The ruler and his officials are entrusted with this wide discretion of determining ta’zir offences and punishments based on the assumption that they “would feel constrained by their personal religious obligation to maintain justice and fairness in execution of their duties [and] naturally act in the best interest of both the individual and the community”.22 As ta’zir offences and punishments are not specifically fixed by the Qur’an or Sunnah, but are left to the discretion of the ruling authority under Islamic law, it generally should not be problematic for relevant Muslim States to 19 See e.g. Benmelha, G., “Ta’azir Crimes” in Bassiouni, C., (Ed) The Islamic Criminal Justice System (New York: Oceana Publications Inc., 1982), pp. 211-225; El-Awa, supra, note 7 above, pp. 96-123. 20 See e.g. Cowan, J.M., (Ed.) Arabic-English Dictionary (Ithaca: Spoken Languages Services Inc., 1976), p. 610. 21 See Benmelha, supra, note 19 above, at p. 212. 22 An-Na’im, supra, note 9 above, at p. 119.
Effective Legal Representation in “Shari’ah” Courts
141
harmonise this aspect of Islamic criminal justice with relevant human rights guarantees in their application of Islamic law. Thus the remedying of the human rights concerns regarding the ta’zir punishment depends much more on the political will of relevant Muslim States rather than on the rigidity of Islamic law as is often presumed. 3.1.1 Human rights concerns regarding ta’zir offences and punishments The traditional approach to ta’zir can raise two main substantive human rights concerns. The first is regarding the non-specificity of ta’zir offences and punishments and the second is the wide discretion of the judge to impose any legitimate punishment under the Shari’ah including any of the prescribed hudud punishments for a ta’zir offence. It is submitted that formal codification of ta’zir offences and prescribed punishments by the State, coupled with adequate legal representation of accused persons in criminal trials for such offences are essential means of addressing both concerns. The first concern relates to the human rights principle which provides that: No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.23
This promotes the principle of legality or nulla peona sine lege and is an important aspect of the due process of law, which consequently places a duty on States to ensure that criminal offences and their penalties are clearly defined by law for legal certainty and not to be determined after its occurrence. Some Muslim scholars have argued that the lack of formal codification of taz’ir offences and punishments under traditional Islamic law does not violate this principle of legality, because the application of ta’zir is regulated within the general rules of the Shari’ah, which the ruling authority or the judge must strictly comply with. From a human rights perspective, An-Na’im disagrees with Auda’s argument on this point that the application of ta’zir does not deviate from the principle of legality as “the discretion of the ruler and his judges is restricted by a variety of texts, general principles, and the spirit of the Shari’a”, and that the “Shari’a authorises the judge to apply in his discretion any of the punishments sanctioned by Shari’a for any act or state of affairs that affects the order or interest of the community”.24 An-Na’im observed that, It is precisely this wide discretion in determining after the fact whether the particular act or state of affairs affects the order or interest of the community in a way that warrants punishment [and the wide range of possible punishments that may be imposed in such cases] which is objectionable from the point of view of the principle of legality.25
23 See e.g. Art. 15(1) ICCPR. 24 An-Na’im, A.A. supra, note 9 above, citing Auda, A., Al-Tashri al-Jana’iy al-Islamiyy (Beirut: Mu’assasat al-Risalah, 1980) para. 93-109. 25 An-Na’im, ibid.
142
Articles
It is, however, arguable also that the non-codification of the ta’zir offences and punishments creates room for judicial flexibility which could be positively exploited for positive human rights guarantees under the Islamic criminal justice system, especially where the judges have been trained to be human rights conscious in the dispensation of justice. El-Awa has analysed the different views of Islamic scholars in that regard and has observed that the noncodification of certain criminal offences are not unique to Islamic law, pointing in that regard to some similarities with the common law. He argued that “[a]lthough in modern times statutes have played an increasingly important part in criminal law, there are still several crimes which exist in common law only”.26 However, in our view, the advantages of the certainty provided by codification of criminal laws and punishments can greatly outweigh the mere hope that judges will exercise their discretion in the best interest of individuals and the community. As there is nothing within the sources or methods of Islamic law that prohibits codification of ta’zir offences and punishments, it is in the interest of due process of the law that they be codified for certainty and easy accessibility for all. An analogy supporting such codification under Islamic law can be drawn from the fact that the Qur’an instructs that human transactions involving obligations should be reduced to writing for certainty.27 In practice, some Muslim States that apply Islamic criminal justice have adopted this approach by codifying ta’zir offences and punishments in Islamic criminal codes and ordinances applicable within their jurisdiction.28 However, despite the wide discretion enjoyed by States in the prescription of ta’zir offences and punishments under Islamic law, some of the punishments in such codifications are still not fully human rights responsive. The second concern relates to the prohibition of torture or cruel, inhuman or degrading treatment or punishment under international human rights law.29 In prescribing punishments for ta’zir offences, the judge has the discretion to impose any of the hudud punishments such as the death penalty, amputations, stoning and flogging, which are considered as incompatible with international human rights norms. Islamic jurists do acknowledge that these punishments are harsh but argue that they are restricted in directly denouncing such punishments based on its divine prescription in the Qur’an for relevant hudud or qisas offences. However, the ruling authority or the judge is not under an obligation to prescribe any of these punishments for ta’zir offences under Islamic law. There is therefore no restriction whatsoever under Islamic law preventing applicable Muslim States from avoiding these punishments in respect of ta’zir offences. Where effective legal representation is provided in Islamic criminal trials, the above points can be raised on behalf of defendants accused of ta’zir offences and can thus serve as possible means for addressing these areas of human rights concerns under the Islamic criminal justice system of applicable Muslim States. 26 El-Awa, M.S., supra, note 7 above, at pp.114-119, particularly p. 116, quoting Cross and Jones’ Introduction to Criminal Law (London: 6th Ed., 1968). 27 See Q2:282. 28 See e.g. the Sudanese Criminal Act (1991) and the Zamfara State of Nigeria Shari’ah Penal Code (2000) and the Pakistan Criminal Ordinances of 1979 and 1984. 29 See e.g. Art. 7 of the International Covenant on Civil and Political Rights (ICCPR) 1966.
Effective Legal Representation in “Shari’ah” Courts
143
3.2 Qisas offences and punishments30 Qisas literally means “requital”, “reprisal” or “retaliation”.31 Technically, it refers to offences of homicide and bodily injuries that attract retributive punishments under Islamic law. This category of offences is also known as jinayat (felonies) and is based on the concept of lex tallionis as prescribed and recognised in Qur’an 2:17832 and Q 5:4533 respectively. Where the offence is proved, four options are possible for qisas offences, namely actual retaliation, i.e. qisas or qawad, for homicide or injuries respectively, payment of blood money, i.e. diya or arsh, for homicide or injuries respectively, atonement, i.e. kaffarah, and complete pardon, i.e. afw.34 The choice among these four options is variable according to the discretion of the heirs of the deceased in case of homicide and the discretion of the victim in case of bodily injuries. Due to this role of the victim or his/her heirs in qisas cases, the question has often been raised as to whether this category of offences should be considered as criminal offences or rather as a tort. At least one School of Islamic jurisprudence, the Maliki School, opines that even where the heirs of the deceased in homicide cases or the victim of bodily injuries opts for blood money or pardon instead of actual retaliation, the State still has a duty to impose an alternative ta’zir punishment to serve as deterrent in protecting public security and for the sake of justice itself. Thus, it will be correct to assert that qisas offences and punishments under Islamic law “have a dual nature, that of a crime for which punishment is imposed and that of a tort which makes the wrongdoer liable to pay a compensation from which the wronged may benefit”.35
30 See El-Awa, supra, note 7 above, pp.69-95. 31 See Cowan note 19 above, p.766. 32 Q2:178 - “O you who believe, the law of qisas [retaliation] is prescribed for you in cases of homicide: The freeman for the freeman, the slave for the slave, the woman for the woman. But if any remission is made by the brother [kin] of the slain, then grant any reasonable demand, and compensate him with handsome gratitude. This is a concession and a Mercy from your Lord; Whoever exceeds the limits shall be in grave penalty.” 33 Q5:45 - “We ordained therein [in the Torah] for them that: Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds by qisas [equal retaliation]. But if anyone remits the retaliation by way of charity it will be an act of atonement for himself; And if any fail to judge by what God has revealed, they are the Uunjust ones.” El-Awa has observed that there is controversy regarding this verse as the basis for retaliation of bodily injuries because it only refers to what was prescribed for the Jews in the Torah, and thus, citing Shaltut, he argued that retaliation for bodily injuries under Islamic law is based on juristic consensus, ijma’, rather than on this verse of the Qur’an. 34 Some scholars opine that pardon (afw) is not an independent option under qisas offences but linked to the payment of blood money (diya) because it is after pardoning (afw) that the issue of blood money (diya) arises. However, there is a reported Tradition of the Prophet Mohammad, distinguishing between payment of blood money (diya) and pardon (afw) as separate options. See al-Fadilat, J.M., Suqut al-Uqubat fi al-Fiqh al-Islami (Jordan: Dar Amar, 1987CE/1408AH), Vol. 1, p.87. 35 El-Awa, supra, note 7 above, p.85.
144
Articles
3.2.1 Human rights concerns regarding qisas offences and punishments Qisas offences and punishments can also raise two substantive human rights concerns. The first relates to human rights concerns about the death penalty for homicide cases, while the second relates to the concept of lex talionis in case of bodily injuries. Regarding the first, States are encouraged under international human rights law to abolish the death penalty.36 However, Muslim States may see the Qur’anic prescription of the death penalty for homicide under qisas law as an impediment against a direct abolition of the death penalty under Islamic law. For example, the Sudanese Parliament was reported to have decided against abolition of the death penalty based on the jurisprudential argument that the punishment was mandatory for certain offences under Islamic law.37 According to that report, rather than direct abolition of the death penalty by the State, “execution had been avoided in cases involving the death sentence, either because the higher court or the President had not confirmed the sentence or because blood money – the diya had been paid” instead.38 It is noteworthy, in that regard, that most Muslim States have still not yet ratified the Optional Protocol 2 to the ICCPR adopted in 1989 aimed at abolishing the death penalty. Thus, instead of a direct abolition of the death penalty Muslim States may be inclined towards encouraging the payment of diya in homicide cases instead. In that regard, the benefit of adequate legal representation for the offender is indispensable to argue and make a case for either the payment of blood money for homicide (diya), atonement (kaffarah) or even complete pardon (afw) instead of actual retaliation of life for life in homicide cases. Such pleading can be based on the legal argument that both the Qur’an and Sunnah encourage remission of actual retaliation in homicide cases by the heirs of the victim. Anderson has noted, in that regard, that, “It is regarded as more meritorious to remit retaliation” in qisas cases under Islamic law.39 This does not, however, mean that the offender will go scot-free merely by paying the diya, especially in premeditated homicide cases. As observed earlier above, the Maliki School is of the view that in order to serve as deterrent, protect public security and also meet the end of justice, the State has the duty to still impose an alternative discretionary punishment on the offender after the payment of diya to, or pardon by the heirs of the victim, which only mitigates the qisas punishment. Regarding the second concern, the lex talionis concept of eye for eye, ear for ear or nose for nose is considered contrary to the prohibition of torture or cruel, inhuman or degrading treatment or punishment under international human rights law. Similar to the case of homicide discussed above, effective 36 Optional Protocol 2 to the ICCPR adopted in 1989 is aimed specifically at abolishing the death penalty. See also the U.N. Secretary General’s Report to the Human Rights Commission on the Question of the Death Penalty. U.N. Doc. E/CN.4/2004/86 of 23 January 2004. 37 See The Human Rights Committee’s Summary Record of Sudan’s Second Periodic Report on the ICCPR, Summary Record of the 1629th Meeting: Sudan, 31 October 1997, U.N. Doc. CCPR/C/SR.1629, para.15. 38 Ibid. 39 Anderson, “Homicide in Islamic Law” (1951), Bulletin of the School of Oriental and African Studies, p.812, cited in El-Awa, supra, note 7 above, at 85.
Effective Legal Representation in “Shari’ah” Courts
145
legal representation can also be helpful in arguing and making a case on behalf of the defendant for the payment of blood money for such bodily injuries (arsh) or even pardon (afw) instead of actual retaliation of eye for eye or ear for ear in bodily injury cases. Where such bodily injury is also premeditated, the State can still impose an alternative discretionary punishment on the offender after the payment of arsh to the victim to serve as deterrent and for the sake of public security and interest of justice. 3.3 Hudud offences and punishments Hudud is the plural of “hadd”, which literally means “limit” “edge” or “boundary”.40 Legally it refers to specific criminal limits set by the Shari’ah and the punishment prescribed for violating such limits. The hudud offences and punishments are fixed and invariable as long as the elements or ingredients are fully established as provided by Islamic law.41 The substantive law of the hudud offences is usually based on the provisions of the Qur’an or authentic Sunnah. Since both the Qur’an and Sunnah are considered by Muslims as divine and quasi-divine sources respectively, their prescriptions are considered literally immutable. The hudud offences and punishments are generally six in number under traditional Islamic law.42 They are sariqah (theft) punishable with amputation of a hand,43 hirabah (brigandage or highway robbery) punishable with death, crucifixion, cross-amputation of the hand and foot or banishment,44 zina (adultery or fornication) punishable with stoning to death for adultery and whipping of one hundred lashes for fornication,45 qadhf (false accusation of adultery or fornication) punishable with whipping of 80 lashes,46 riddah (apostasy) punishable with death, and sharb al-khamr (intoxication) punishable with whipping of 80 or 40 lashes.47 As will be examined later in Part 4 of this article below, there are some jurisprudential debates amongst Islamic jurists as to whether or not the offences of apostasy and intoxication are hudud offences. 3.3.1 Human rights concerns regarding hudud offences and punishments The greatest human rights concerns regarding Islamic criminal justice are in respect of some of the hudud offences or the punishments prescribed for them or both. In respect of “sariqah” (theft), “hirabah” (brigandage or highway 40 See Cowan, supra, note 20 above, p. 159. 41 See e.g. El-Awa, supra, note 7 above, p.1. 42 Some authors identify seven offences by identifying “Rebellion” as a different offence (Bagy) based on another verse of the Qur’an (Q 49:9) instead of classifying it as an offence punishable under Q 5:33 for Brigandage. See e.g. Safwat, S.M., “Crimes and Punishments under Various Schools of Shari’ah: A Comparative Overview” in Mahmood, T., et al. (Ed.), supra, note 6 above, pp.56-99 at 62. In our view the provisions of Q 49:9 deals rather with intra/inter-State conflicts rather than with criminal acts of individuals. 43 See Q 5:38. 44 Q 5:33. 45 Q 24:2 46 Q 24:4. 47 See e.g. Safwat, S.M., “Offences and Penalties in Islamic Law” (1982) 26 Islamic Quarterly, 169.
146
Articles
robbery) and “qadhf” (false accusation of adultery or fornication), the human rights concern is not about the offences themselves but the punishments of amputation, crucifixion and whipping prescribed for these offences respectively, which are all considered as contrary to the prohibition of torture or cruel, inhuman or degrading treatment or punishment under international human rights law.48 In respect of “zina” (adultery or fornication), the human rights concern is about both the offence and its punishment. The human rights argument against the criminalisation of fornication or adultery under Islamic criminal law is that consensual sexual relations between two consenting adults should not be a criminal offence, while the punishment of stoning for adultery and whipping for fornication are also considered as contrary to the prohibition of torture or cruel, inhuman or degrading treatment or punishment under international human rights law. Similarly, in respect of “sharb al-khmar” (intoxication) the human rights argument is that the punishment of whipping violates prohibition of torture or cruel, inhuman or degrading treatment or punishment under international human rights law. Regarding “riddah” (apostasy) the human rights argument is that its criminalisation violates the right to freedom of thought, conscience and religion under international human rights law49 and that the death penalty prescribed for it violates provisions on the right to life under international human rights law.50 Although the substantive law on the hudud offences are generally based on the Qur’an and Sunnah and considered literally immutable under Islamic law, the classical Islamic jurists had, in order to provide legal certainty to the offences, expanded on the substantive provisions by providing legal definitions and relevant qualifying elements or ingredients, which the relevant act must fulfil to qualify legally as a hadd offence. Thus, each of the hudud offences has been jurisprudentially defined and has specific, but contentious, elements or ingredients that must be established by the prosecution in criminal trials under Islamic law to prove the offence. However, there is often a division of opinion amongst the Islamic Schools of jurisprudence regarding the nature, definition and elements or ingredients of the hudud crimes. The importance of adequate legal representation for an accused person by a qualified Islamic law expert in determining whether or not all legal requirements for any specified offence have been proved by the prosecution beyond any iota of doubt cannot be overemphasised. This is further supported by the fact that the principle of “innocent until proved guilty” is recognised and applicable under Islamic criminal justice based on a Tradition of the Prophet Mohammad to the effect that the burden of proof is on the claimant, which in the case of criminal trials is the prosecution. We will now analyse the nature, definition and ingredients
48 See e.g. the Concluding Observations of the U.N. Human Rights Committee on Sudan (1997) U.N. Doc. CCPR/C/79/Add.85, para.9; Concluding Observations on Libya (1994) U.N. Doc. CCPR/C/79/Add.45, para.9; Concluding Observations on Islamic Republic or Iran (1993) U.N. Doc. CCPR/C/79/Add.25, para.11. 49 Article 18 of the ICCPR. 50 Article 6 (2) ibid. See, however, the jurisprudential differences regarding whether or not apostasy is a punishable offence under Islamic law below.
Effective Legal Representation in “Shari’ah” Courts
147
of each of the six hudud offences above, identifying some of the differences of opinion according to the different Schools of Islamic jurisprudence.
4 DEFINITIONS AND INGREDIENTS OF THE HUDUD OFFENCES The nature of sariqah (theft) as a hadd offence is not in controversy amongst the main Schools of Islamic jurisprudence. This is based on the fact that the prescription for the offence and its punishment is provided in the Qur’an as follows: “As to the thief, male or female, cut off his or her hands; a punishment by way of example from God for their crime; and God is Exalted in Power, Full of Wisdom.”51 However, the Qur’an does not define what actually amounts to theft. Thus, for legal certainty, the classical Islamic jurists had to provide a definition for this offence. There is almost total agreement amongst Islamic jurists on the definition of sariqah (theft) as the “taking of the property of another by way of stealth, when the thief has not been entrusted with it”.52 Apart from this definition, the classical jurists also laid down two main ingredients for this offence, namely, the object must be worth a particular value known as nisab (proportion) and the object must have been removed from its safe custody (hirz) by the thief. Where this definition and the two ingredients are not proved beyond any iota of doubt by the prosecution, the offence of sariqah (theft) would not have been established and no punishment of amputation can be imposed. Although there is almost total agreement on the definition of sariqah as indicated above, it is interesting to note that there are wide disagreements amongst the jurists regarding the question of value of the property (nisab) and what amounts to safe custody (hirz).53 Similarly, there is a level of juristic agreement on the nature of hirabah (brigandage or highway robbery) as a hadd offence based on the provision of the Qur’an which states: “The punishment of those who wage war against God and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land…”.54 The most comprehensive definition of this offence by the classical jurists is the “waiting by the way (or highway) to steal traveller’s property by force and by this obstructing travel on this road”.55 The main ingredient for this offence, according to the majority of the jurists, relates to the site of the offence, about which there is also some disagreement amongst the jurists. The Shafi’i school further adds another ingredient, namely, proof of the brigand’s strength or ability to overpower the victim (shawkah). There are juristic disagreements regarding the specifics of both ingredients.56
51 52 53 54 55 56
Q 5:38. Nyazee, I.A.K., supra., 2000[a], note 3 above, Vol. II, p. 536. See e.g. ibid., pp. 536-546. Q 5:33. El-Awa, supra note 7 above, p.8. See Nyazee, supra, note 52 above, pp. 547-552.
148
Articles
There is also juristic consensus regarding the nature of zina (adultery or fornication) as a hadd offence. The provision for the offence and its punishment is based on the verse of the Qur’an, which states that, “The woman and the man guilty of zina, flog each of them with a hundred stripes; let no compassion move you in their case, in a matter prescribed by God if you believe in God and the last day…”.57 The generally accepted juristic definition of this offence is “all sexual intercourse that occurs outside of a valid marriage, the semblance [shubha] of marriage, or lawful ownership [milk yamin]”.58 This definition apparently leaves room for disagreement, especially regarding what constitutes a “semblance [shubha] of marriage”. Thus, in his Bidayat al-Mujtahid, Ibn Rushd identified that the jurists “differ about what is meant by semblance [shubha] of marriage.59 The main ingredient for this offence is actual natural sexual intercourse between a male and a female, i.e. the actual and physical penetration of the male genital into the female genital outside a legitimate marriage relationship under Islamic law. All the four witness required for establishing the offence must be able to testify that they all saw the couple actually engaged in this condition; otherwise the offence will not be proved by their evidence. While the Islamic jurists agree that zina covers both fornication and adultery, the punishment of 100 lashes prescribed in the Qur’anic verse quoted above is traditionally considered to apply only to fornication, while the traditional punishment for adultery is stoning to death (rajm) based on the Sussah. However, the death penalty by stoning (rajm) for adultery under traditional Islamic law has been contentious.60 While all the orthodox Schools of Islamic jurisprudence uphold the punishment of stoning for adultery based on the Sunnah, the Mu’tazilah and Khawarij sects opposed the punishment on grounds that it has no existing Qur’anic authority.61 In 1981 the punishment of stoning was challenged as being un-Islamic in the Pakistani Federal Shairat Court in the case of Hazoor Bukhsh v. Federation of Pakistan.62 The court ruled by a majority decision of four to one that the punishment of stoning was repugnant to Islam. The decision of the majority was based on the ground that the punishment cannot be specifically found in the Qur’an. That decision corresponded with the view of the Mu’tazilah and Khawarij sects earlier stated above. However, the traditional clerics (ulama’) in Pakistan strongly condemned the decision of the Federal Shariat Court and the State was forced to appeal against the decision to the Shariat Bench of the Supreme Court. Before the appeal was heard however, the Federal Shariat 57 Q 24:2. 58 See Nyazee, supra, note 52 above, p. 521. 59 See Ibn Rushd al-Qurtubi, Bidayat al-Mujtahid wa Nihayat al-Muqtasid [Arabic] (Beirut: Dar alKutub al-Ilmiyyah, 1988CE/1408AH), Vol. 2, p. 433. 60 See e.g. Rizvi, S.A.H., et al. “Adultery and Fornication in Islamic Criminal Law: A Debate”, in Mahmood, T., et al. (Eds.), supra, note 6 above, pp. 223-241for a debate on the punishment of zina under Islamic law, and Maududi, A.A., Towards Understanding the Qur’an: English version of Tafhim al-Qur’an, Ansari, Z.I.(trans.), (Markfield: The Islamic Foundation, 1998), Vol. 7, pp. 149-179 for a detailed discourse on the nature and punishment of adultery/fornication under Islamic law. 61 See al-Jaziri, A.R., Kitab al-Fiqh ala al-Madhahib al-‘Arba‘ah (Arabic), 7th Edn., (Beirut: Dar alFikr, 1996) Vol. 5, p. 69. 62 (1981) 38 PLD (FSC) 145.
Effective Legal Representation in “Shari’ah” Courts
149
Court was reconstituted and the constitution was also amended allowing the Federal Shariat Court to review its own decisions. The reconstituted court reviewed the earlier decision and, adopting the views of the majority Schools of Islamic jurisprudence, declared in 1982 that even though the punishment of stoning (rajm) cannot be specifically found in the Qur’an, there was authority for it in the Sunnah and thus the punishment was lawful under Islamic law.63 The punishment of stoning for adultery has, however, never been enforced in Pakistan due to the strict evidential requirements to be established in its application, which is further examined in the section on evidential requirements for hudud punishments below. The nature of Qadhf (false accusation of adultery or fornication) as a hadd offence is also agreed upon by Islamic jurists based on the provision of the Qur’an which states that: “And those who launch a charge against chaste women and produce not four witnesses [to support their allegations] flog them with eighty stripes…”.64 The general definition of this offence is given as “unproved allegation that an individual has committed zina”.65 There is disagreement amongst the Islamic jurists as to whether or not the accusation must be clear or whether it can be based on mere insinuations to that effect. This offence serves essentially as a deterrent against accusations of zina due to the difficulty in proving the latter, to the extent that if three witnesses corroborate the evidences of one another but not the forth, all the witnesses will be guilty of qadhf and liable to whipping of 80 lashes. Regarding apostasy, there is some controversy regarding whether or not apostasy simpliciter, is a hadd offence punishable by death. This is based on disagreements on its definition and ingredients as well as the lack of any specific Qur’anic provision on the punishment of apostasy in this world. Some contemporary Islamic scholars and jurists have argued that apostasy simpliciter, i.e. bare change of religion by an individual, is not a hadd offence and not punishable with death on its own except when it involves acts of treason and rebellion against the State after such change. There had been differences amongst Muslim jurists and scholars about the definition and punishment of apostasy under traditional Islamic law since the early periods of Islam. The 13th/14th century Hanbali jurist, Ibn Taimiyyah,66 had observed that some of the successors to the companions of Prophet Muhammad known as al-Tabi‘un such as Ibrahim al-Nakha‘i 67 a leading jurist of his time and Sufyan al-Thawri68 held the view that a Muslim apostate must never be sentenced to death but should be invited back to Islam.69 Both El-Awa and Kamali make references to the Qur’an, the Sunnah and to the practices of the four rightly-guided Caliphs and views of some classical as well as contemporary Islamic jurists and scholars to establish that apostasy 63 64 65 66 67 68 69
Federation of Pakistan v. Hazoor Bukhsh and Others (1983) PLD (FSC) 255. Q 24:4. El-Awa, supra, note 7 above, p. 20. (d.728AH/1328CE). (d.95A.H/718C.E). (d.161A.H/884C.E). See Ibn Taymiyyah, T., al-Sarim al-Maslul ‘ala Shatim al-Rasul (India:1398AH), p. 318; Ibn Qudamah, M., al-Mugni (Riyadh: Maktabah al-Riyadh al-Hadithah, 1981), Vol. 8, p. 126.
150
Articles
simpliciter neither constituted a hadd offence nor attracted the death penalty.70 They both cited the 12th century Maliki jurist, Abu al-Walid al-Baji, as stating that apostasy simpliciter is “a sin for which there is no hadd punishment”.71 It is observed that even though Hamidullah included the crime of apostasy in his Muslim Conduct of State, he went on to indicate that: The basis of Muslim polity being religious and not ethnological or linguistic, it is not difficult to appreciate the reason for penalizing this act of apostasy. For it constitutes a politico-religious rebellion.”72
Contemporary Muslim jurists and scholars thus differ as to whether apostasy simpliciter in the form of a person individually denouncing the Islamic faith without more is a hadd offence at all, and also as to whether it attracted the death penalty. Many of the scholars and jurists define apostasy in terms of treason and rebellion against the State, where a Muslim subject of the Islamic State, after denouncing Islam, joins with those who take arms against the State and thus commits the political offence of treason against the State.73 The contention is that apostasy simpliciter, in the sense of an individual denouncing Islam without more, wherever mentioned in the Qur‘an, does not stipulate any worldly punishment but is only described as attracting severe punishments in the hereafter.74 The death punishment for apostasy was based principally on a reported Tradition of the Prophet that said: “Anyone who changes his religion, kill him”.75 Some Muslim scholars have ,however, identified this Tradition as a solitary (ahad) Tradition while others allege weakness in its transmission (isnad) and thus its legal value challenged. It has been contended also that there is no precedent of the Prophet compelling anyone into Islam or sentencing anyone to death for apostasy simpliciter.76 El-Awa thus concluded that,
70 See El-Awa, M.S., supra, note 7 above, pp. 50-56 and Kamali, M.H., Freedom of Expression in Islam (London: Islamic Texts Society, 1997), pp. 87-107; see also Sachedina, A.A., “Freedom of Conscience and Religion in the Qur‘an” in Little, D., Kelsay, J., and Sachedina, A.A., (Eds.), Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty (Columbia: University of South Carolina Press, 1988) p. 53 at 76-83. 71 El-Awa, M.S., ibid; Kamali, M.H. (1997), ibid. 72 Hamidullah, M., The Muslim Conduct of State, Revised 7th Edn., (Lahore: Sh Muhammad Ashraf, 1997), p.174, para.330. 73 See e.g. Abduh, M., Tafsir al-Manar (Cairo: Dar al-Manar,1947-48) Vol. 5, p. 327; El-Awa, M.S., supra, note 7 above, pp.49-56; Rahman, S.A., Punishment of Apostasy in Islam (Lahore: Institute of Islamic Culture,1978) Chapter 2. Al-Ganushi, R., al-Huriyyat al-Amah ii al-Dawlah al-Islamiyyah (Beirut: Markaz Dirasat al-Wahdah al-Arabiyyah, 1993), pp. 47-51; Shaltut, M., al-Islam ‘Aqidah Wa Shari‘ah (Kuwait: Matabi’ Dar al-Qalam, n.d.), pp. 292-293; al-Samura‘i, A.R.N., Ahkam alMurtadd fi al-Shari‘ah al-Islamiyyah (Beirut: Dar al-Arabiyyah, 1968), p.144; Mahmassani, S., Arkan Huquq al-Insan fi al-Islam (Beirut: Dar al-IIm li al-Malayin,1979), pp. 123-124. 74 See e.g. Q 2:217 – “…And if any of you turn back from their faith and die in unbelief, their work will bear no fruit in this life and in the hereafter they will be companions of fire and will abide therein.”; also Q 3:86-91; Q 5:54; Q 16:106. 75 Reported by al-Bukhari. See e.g. al-Asqalani, Ibn Hajar, Bulugh al-Maram (With English Translations) (Riyadh: Dar-us-Salam Publications, 1996), p. 428, Hadith 1032. 76 See e.g. Rahman, supra, note 73 above, p. 63; al-‘Ili, A.H.H., al-Huriyyah al-‘Âmah (Cairo: Dar al-Fikr,1983), p. 339; and Mahmassani, S., supra, note 73 above.
Effective Legal Representation in “Shari’ah” Courts
151
the Qur’an prescribes no punishment in this life for apostasy, [and] [t]he Prophet never sentenced a man to death for it, [but] [s]ome of the companions of the Prophet recognized apostasy as a sin for which there was a ta‘zir (discretionary) punishment.77
Thus, placing the matter within the legislative discretion of the State and making it a variable rather than a fixed punishment. While it is also agreed that Sharb al-Khamr (intoxication) is an offence under Islamic law, as it is specifically prohibited in both the Qur’an and Sunnah, issue has, however, been raised as to whether or not it is a hadd offence. This is based on the fact that the Qur’an does not provide specific punishment for intoxication and there are conflicting reports on the punishment prescribed for it in the Sunnah. The majority of Islamic jurists concede that intoxication is a hadd offence while others consider it as a ta’zir offence because there is difference of juristic opinion regarding the punishment prescribed for it in the Sunnah.78 While the Hanafi, Hanbali and Maliki Schools hold that the number of lashes for intoxication is 80, Imam al-Shafi‘i, and a few other jurists held it to be 40 lashes. As each of the two positions is supported by relevant evidence from the Sunnah, the argument of those who consider the offence as a ta’zir type is that, since hudud punishments must be definitely fixed, intoxication can not be a hadd type offence because of the conflicting evidence on the number of lashes prescribed for it as punishment. The importance of this difference of opinion is that if intoxication is considered as a hadd type offence then its punishment is fixed and not variable by the State, but if it is considered as a ta’zir type offence then its punishment can be variable at the discretion of the ruling authority or judge. An examination of any good volume on Islamic jurisprudential opinions on the hudud offences will show more issues, not mentioned above, on which the jurists hold different views. Disagreements regarding the nature, definition and ingredients of particular offences can raise substantive doubts against the prosecution in criminal trials under any legal system. Where there is effective legal representation for the defendant such disagreements could create grounds for averting the hadd punishment under Islamic law based on the directive of the Prophet that the hudud punishments must be averted in case of any atom of doubt. Under Islamic criminal justice the onus of establishing the ingredients and proving the offence is on the prosecution and where it fails to do so or where the accused person is able to create any atom of doubt in that regard, then the hadd punishment must be averted. There is no doubt that adequate legal representation for the accused person will certainly ensure that this rule is strictly adhered to. The complexity of juristic differences regarding the nature, definition and ingredients of each of the hudud offences and punishments, as demonstrated above, should not be left to the individual determination of a judge without presentation of alternative legal arguments by a defending counsel equally learned in Islamic law for the judge to consider. Apart from the substantive issues addressed above, the need for effective legal
77 El-Awa, supra, note 7above, p. 56. 78 See El-Awa, M., supra, note 7 above, pp. 45-48.
Articles
152
representation under the Islamic criminal justice system is also demonstrated by the complexity of evidential requirements for the hudud offences, which we now examine next.
5 EVIDENTIAL REQUIREMENTS FOR CRIMINAL OFFENCES UNDER ISLAMIC LAW The main duty of a judge in any legal system is to try and establish the truth in any case before the court. The only reasonable means of doing that is through evidence, as judges are normally not privy to the events that gave rise to the case before them. Coulson has therefore rightly observed that the law of evidence under Islamic criminal justice is generally aimed at establishing “the truth of claims with a high degree of certainty”.79 Under Islamic law, evidence is known as “al-bayyinah”. There is consensus among the classical Islamic jurists that the two main methods of procuring evidence under Islamic law are through witness testimony (shahadah) and defendant’s confession (iqrar). Other alternative methods of evidence on which the jurists hold different views are: circumstantial evidence, oaths, and use of the judge’s personal pre-trial knowledge about issues regarding the matter before the court.80 Apart from zina cases, which require four corroborating witnesses, the other criminal offences can be proved through the testimony of two witnesses. The most important requirement regarding witnesses under Islamic law is credibility (adalah). This is based on the fact that Qur’anic provisions on testimony are usually qualified by the phrase “just persons”,81 which indicates that the witnesses must be of good character, just and credible for their testimony to be acceptable. There are differences of opinion among the Schools of Islamic jurisprudence as to whether the “justness” or credibility of a witness should be presumed or that it must be positively established for the testimony to be acceptable. Thr majority of the schools, namely Maliki, Shafi’i, Hanbali and Zaydi, are of the view that the “justness” or credibility of a witness must be positively established, especially in hudud cases. The Hanafi and Zahiri Schools are of the view that the witnesses “justness” or credibility should be presumed unless the contrary is proved. In the past, Muslim communities consisted of families and clans living closely and knitted together, which facilitated easy acquaintance with the character and credibility of potential witnesses. Today, human settlements are much more sophisticated and far apart and thus the character and probity of potential witnesses harder to verify. It is submitted that effective legal representation can contribute greatly in establishing the credibility or other wise of witnesses in Islamic criminal trials, through professional cross examinations by a defence counsel, which the defendant himself will ordinarily not be trained or equipped to do. Another important condition regarding testimony in Islamic criminal trials is the need for 79 Coulson, N.J., A History of Islamic Law (Edinburgh: Edinburgh University Press, 1971), p. 126. 80 See e.g. Nyazee, supra, note 52 above, pp. 556-567; Salama, M.M., “General Principles of Criminal Evidence in Islamic Jurisprudence” in Bassiouni, M.C., (Ed.), supra, note 19 above, pp. 109-123. 81 See e.g. Q 65:2; Q 5:106.
Effective Legal Representation in “Shari’ah” Courts
153
corroboration, consistency and authenticity of the testimony of all the witnesses. The evidence must also be conclusive. All these should not be left to the judge alone to figure out. Effective legal representation for the defendant can help identify any areas of inconsistency in the testimony of witnesses and point them out to help the court in adhering to due process under Islamic criminal justice. Similarly, there are some conditions attached to confession as a means of proving crimes under Islamic law, the most important of which are that the confession must be completely voluntary and must be detailed, “showing that the confessor is aware of what he has done and proving that his action was in fact the crime for which a punishment is prescribed”.82 Furthermore, the confession can be withdrawn up to the point of execution of the punishment based on it. Often, confessions are procured from accused persons in Islamic criminal trials based on the belief by accused persons that punishment here in the world would exonerate them from God’s punishment in the hereafter. However, there is evidence in both the Qur’an and Sunnah that sincere repentance (taubah) is equally a valid exoneration from God’s punishment in the hereafter. A qualified counsel in Islamic jurisprudence would be able to advise an accused person of this option in criminal trials. El-Awa has observed in this regard that: “it is recommended…that if someone confesses to having committed a crime considered to be haqq Allah83 he should be given a chance to withdraw his confession. This recommendation is based on the fact that in such cases the criminal’s repentance is better than his punishment”.84 Thus it is prohibited even for the judge to trick or induce the defendant into eliciting his or her confession. Moreover, the need for effective legal representation for the defendant to guide him or her in respect of confessions under Islamic criminal justice cannot be over-emphasised, in the interest of due process and fair trials. As mentioned earlier above, there is disagreement amongst the jurists regarding the use of circumstantial evidence, especially in hudud cases, which also calls for effective legal representation to protect the interest of the defendant in that regard. However, the above proposals raise two possible queries. The first query is whether the engagement of legal representation for defendants will not enable offenders to get away with their crime through legal technicalities and thus defeat the cause of justice itself. That is not necessarily so, because, although the non-fulfilment of the definition or ingredients for an alleged hadd offence may successfully avert a hadd punishment, the offender can still be liable to an alternative ta’zir punishment on the same facts other than the alleged hadd offence. This is partly because the evidential requirements in ta’zir offences are slightly flexible, according to the jurisprudence of the different schools, than in hudud offences as analysed above. Thus, on both the substantive and procedural concerns, effective legal representation for the defendant may only succeed in raising doubt “shubhah” that can avert the hudud punishments, 82 El-Awa, supra, note 7 above, p. 128. 83 I.e. hudud offences, and possibly qisas according to the Maliki postion 84 Ibid. p.128. citing Shu’rani, A.A., Mizan, (Cairo: 1318AH), Vol. II, p.137, Ibn Qudamah, A., alMugni, (Cairo: al-Manar Ed., n.d.), p. 80 and Shalabi, S.M.M., al-Fiqh al-Islami Bayn al-Mithaliya al-Waqi’ya (Alexandria: 1960), pp. 206-210.
Articles
154
but where there is enough relevant evidence the offender may still be alternatively convicted for ta’zir punishment under ta’zir rules. The second query is whether or not legal representation by counsel is recognised and allowed under Islamic law, which is now examined below.
6 THE POSITION ON LEGAL REPRESENTATION UNDER ISLAMIC LAW Generally, the need for effective legal representation in all criminal trials is justifiable on grounds of good policy or constitutional and international human rights requirements85. However, the argument for effective legal representation in Islamic or Shari’ah courts as proposed in this article will be further enhanced if it can be established that such representation can be accommodated within the provisions of the Shari’ah and Islamic jurisprudence. Particularly so, because it is often erroneously assumed that legal representation by counsel is not recognised under Islamic law because the issue has not been specifically addressed in the classical books on Islamic legal procedure. In response to such assumptions, Al-Alwani has observed that: This apparent omission [of specific discussion of the need for legal representation in classical Islamic jurisprudence] might be due to the fact that, historically, court sessions [under Islamic law] were public [and] widely attended by legal scholars and experts, whose presence represented a true and responsible legal advisory board that actively assisted the judge in dispensing justice, [thus] there was never any need for professional counsel.86
Further research reveals that even though the early Islamic jurists concentrated largely on the litigant presenting his case personally, they nevertheless recognised the right of a litigant to appoint another person to represent him. This was often based on the concept of agency (wakalah).87 It is reported, for instance, that the fourth Caliph, Ali ibn Abi Talib, disliked litigation, so in any case in which he was a party he usually appointed Aqil ibn Abi Talib or Abdullah bn Ja’far as his attorneys to represent him.88 Also, in his work titled The History of the Judges of Cordova, al-Khushani records the example of two men who brought a matter before the judge Ahmad ibn Baqi. In presenting their cases, the judge observed that one of the men was very eloquent while the other had problems presenting his case eloquently. The judge thus advised the latter saying: “Would it not be better if you were represented by someone who can
85 See e.g. Art. 14(3) (d) of the ICCPR. 86 See Al-Alwani, T.J., “Judiciary and Rights of the Accused in Islamic Criminal Law” in Mahmood, et.al. (Eds.) supra, note 6 above, p. 256 at 274. 87 See e.g. Al-Zuhayli, W., supra, note 15 above, Vol. 5, p. 4077. See also Azad, G.M., Judicial System of Islam (Islamabad: Islamic Research Institute, 1987) p. 108-113 for a discussion of the views of different scholars on this point. 88 See al-Bayhaqi, A., Kitab al-Sunan al-Kubra (1925) 26 cited in al-Saleh, O. A., (1982), “The Right of the Individual to Personal Security in Islam” in Bassiouni, M.C., (Ed.) supra, note 19 above p. 55 at 81. See also al-Zuhayli, W., supra, note 15 above, Vol. 5, p. 4077; Azad, G.M., supra, note 87 above, p. 108.
Effective Legal Representation in “Shari’ah” Courts
155
match the verbal skills of your opponent?” The man answered saying: “But I only speak the truth.” The judge in insisting that he engaged a counsel said: “How many men have perished [due to lack of eloquence even though] telling the truth!”89 It is also very clear that there is nothing under the Shari’ah that prohibits legal representation, especially in criminal trials,90 and thus under the principle of legality that all actions are considered legal in Islamic law unless clearly prohibited by the Shari’ah,91 it will be wrong to contend that legal representation is not allowed under Islamic law, without any specific provision of the Shari’ah prohibiting it. Although legal representation by counsel is not generally practised in the Islamic judicial system of some Muslim States, there is nothing in Islamic law that prevents the use of counsel to protect the interest of litigants and to ensure substantive justice. By nature, the issue of legal representation forms part of procedural law to ensure fair trial and due process. Under the Islamic legal system, procedural law is covered mostly by the methods rather than by the sources of Islamic law per se. The Qur’an and Sunnah mainly cover substantive aspects of Islamic law while the procedural aspects fall within the realms of jurisprudence (Fiqh) as formulated by the jurists. While the Qur’an and Sunnah may specify the crime, prescribe punishments, and enjoin substantive justice and general protection of the liberty and security of the individual, they do not often cover details of procedure such as arrest, detention, investigation, prosecution, hearing, judicial review, appeals, etc. The two sources mainly emphasise substantive justice, leaving the procedure for its realisation to the authorities of State to decide in accordance with the best interests of society.92 Drawing from the Prophet’s practice and that of the four rightly-guided Caliphs during the early period of Islamic law, classical Islamic jurists endeavoured to lay down judicial procedures which they believed would facilitate the realisation of substantive justice as prescribed by the Shari‘ah. The judicial procedures as found in the works of the classical Islamic jurists were not rigid but were adjusted in practice under the doctrine of “siyasah shar‘iyyah” (legitimate governmental policy based on the Shari’ah), especially during the Abbasid Caliphate to fulfil the needs of time and substantive justice. Muslim scholars fully agree that the particularities of the Islamic judicial system 89 See Al-Khushani, Tarikh Qudat Qurtubah, cited in Awad, A.M., “The Rights of the Accused under Islamic Criminal Procedure” in Bassiouni, M.C., (Ed.), supra, note 19 above p. 91 at 99 footnote 4. 90 See Baderin, M.A., supra, note 2 above, pp.105-107. See also Esmaeili, H., and Gans, J., “Islamic Law Across Cultural Borders: The Involvement of Western Nationals in Saudi Murder Trials”, (2000) 28 Denver Journal of International Law and Policy, No.2, p. 145 at 150, and Vogel, F.E., Islamic Law and Legal System: Studies of Saudi Arabia (Leiden: Brill, 2000) pp.160-161. 91 This is expressed by the Islamic legal maxim “al-Asl fi ashya’ ibahah”. See e.g. Ramadan, S., Islamic Law: Its Scope and Equity (1970) p.68. 92 For classical analysis of the development of Islamic judicial procedure, see e.g. Ibn Qayyim alJawziyyah, M., al-Turuq al-Hukmiyyah fi al-Siyasah al-Shar‘iyyah (Cairo: al-Mu‘asasah al-Arabiyyah, 1961), p. 218ff and al-Mawardi, al-Ahkam as-Sultaniyyah: The Laws of Islamic Governance, Trans. Yate, A., (London, Ta Ha Publishers, 1996), pp. 99ff. See also contemporary analysis on the subject by Awad, A.M., supra, note 89 above, pp. 91-92; Al-Alwani, T.J., supra, note 86 above, pp. 256-263. and generally Lippman, M., et al. (eds.) Islamic Criminal Law and Procedure: An Introduction (New York: Praeger Publications, 1988).
Articles
156
and procedural law are flexible and leave room for necessary refinement as the needs of substantive justice demand from time to time.93 Due to the fact that most individuals are generally ignorant of the law and oblivious of their rights under Islamic law, the right to effective legal representation in Islamic or Shari’ah courts has actually become more imperative today under Islamic law, especially in criminal cases. The guarantee of effective legal representation for the defendant will no doubt ensure equality of arms at law especially in criminal trials between individuals and State Prosecutors who on their part are often well trained and not oblivious of the law as is the accused person. Many contemporary writers on Islamic law have argued that the right to legal representation falls within the “theory of protected interest” of the individual under Islamic law and must be fully ensured by the State.94 It is notable, in that regard, that even Saudi Arabia, which is considered very conservative in its interpretation and application of Islamic law, has acknowledged the right to legal representation under its criminal justice system.95 However, in most cases accused persons in criminal trials are often indigent and not able to afford the cost of hiring counsel effectively to represent their rights and interests as required. It is therefore submitted that in the case of such indigent persons in relevant Muslim States, the State should provide them with free and effective legal representation in the Islamic or Shari’ah courts to protect their rights and interests as demanded by Islamic law. In light of the above analysis, although legal representation by counsel as we know it today may not have been specifically addressed in the works of classical Islamic jurists, there is no doubt that such representation is an important element of fair trial and due process that is fully desirable and accommodatable within the limits and flexibility of Islamic procedural law. We shall now provide brief case studies of a few Muslim States.
7 BRIEF CASE STUDIES OF RELEVANT SELECTED MUSLIM STATES This section will briefly examine the legislative provisions and practice on legal representation in some Muslim States that currently apply Islamic criminal justice as part of State law. The selected States are Saudi Arabia, Nigeria, Pakistan, Malaysia and the Maldives. The selection is not based on any scientific criteria but based mainly on the availability and easy access to relevant information on the subject. The case study is to establish whether or not there are currently enough legislative provisions in relevant Muslim States to facilitate the proposition advanced in this article or whether there is need for further legislative action on the part of Muslim States in that regard. It emerges at the 93 Ibid. 94 See e.g. Al-Alwani, T.J., supra, note 86 above, pp. 274-276; al-Saleh, O. A., supra, note 88 above, pp. 81-84; Awad, A.M., supra, note 89 above p. 95; Mahmood, T., “Criminal Procedure at the Shari‘ah Law as Seen by Modern Scholars: A Review”, in Mahmood, T., et al., supra, note 6 above, p. 292 at 300. 95 See the case study of Saudi Arabia in Part 7 of this article below.
Effective Legal Representation in “Shari’ah” Courts
157
end that each of the States examined has constitutional and other legislative provisions on the right to legal representation, which can be relied upon for seeking effective representation by defendants in criminal trials before the relevant Islamic or Shari’ah courts in those States. However, it is observed that such enabling provisions have been very restrictively interpreted in some of the States as is apparent in the brief analysis on the five States below. 7.1 Saudi Arabia96 As the Saudi Arabian legal and judicial system is based on Islamic law, the State applies Islamic criminal justice and operates Shari’ah courts that fully apply Islamic criminal law. The question of the right to legal representation for accused persons in Saudi Arabian courts has attracted a lot of attention in many human rights reports on Saudi Arabia. In practice, there is currently no culture of legal representation in the Saudi Arabian judicial system. In his comments after visiting Saudi Arabia in October 2002, the U.N. Special Rapporteur on Independence of Judges and Lawyers observed, inter alia, that the Saudi Arabian legal system was “undergoing substantial changes both structurally and procedurally”, including efforts at ensuring legal representation in the Saudi Arabian courts, but also observed significantly as follows: I have learnt that there is some resistance on the part of some judges to the presence of lawyers in their courts due to a perception that they interfere with the ability of the judge to ensure that justice is done in a particular case. I have also been informed that there is opposition by some prosecutors, as they perceive that lawyers interfere with their ability to investigate the case. In this respect there has not been a culture of legal representation in the courts but this may soon be rectified.97
Although there is no specific provision for the right to legal representation under the Saudi Basic Law of 1992, the State’s recognition and acceptance of the right to legal representation under its Islamic judicial system is evidenced by the State’s inclusion of this right in different procedural rules within the judicial system. The State is reported to have, in September 2001, “passed the Law of Procedure Before Shari’ah Courts to regulate the rights of defendants and legal procedures [which included] granting defendants the right to legal representation”.98 Also in a document titled Protection of Human Rights in Criminal Procedure and in the Organization of the Judicial System issued by the Saudi Arabian Ministry of Foreign Affairs in the year 2000, it is provided that, “The accused person has the right to avail himself of the services of a lawyer or legal
96 For a more extensive comparative examination of the right to a fair trial and due process on Saudi Arabia, see a forthcoming article by the author titled: “A Comparative Analysis of the Right to a Fair Trial and Due Process under International Human Rights Law and Saudi Arabian Domestic Law” (2006) 10 The International Journal of Human Rights, No. 3. 97 http://www.unhchr.ch/huricane/huricane.nsf/0/FD5078F730082C43C1256C60003E3BB5? opendocument, para. 9 (27/1/06). 98 See document on Political and Economic Reform in the Kingdom of Saudi Arabia, by the Royal Embassy of Saudi Arabia, Washington, D.C., in December 2003, at p. 4. www.saudiembassy.net/ ReportLink/Reform%20Dec%202003.pdf, (27/1/06)
158
Articles
representative”, and that: “The suspect has the right to contact his lawyer or legal representative in order to exercise his right of defense and the examiner cannot prevent him from doing so.”99 The document further states in respect of legal assistance during trials that “parties have the right to appoint any lawyers whose services they wish to use” and who are “regarded as assistants of the judge since they help him to reach an equitable verdict.”100 Reference was then made to the specific provisions of the Administrative Rules of Procedure of Judicial Bodies stating the domestic guarantees on the opportunity to defend oneself in person or through legal representation by counsel in the Saudi Arabian courts, namely that: • Article 59 of the Administrative Rules provides that: “Every person has an unrestricted right to appoint a legal counsel.”101 • Article 62 of the Administrative Rules specifies that a “person wishing to act as legal counsel in judicial proceedings as a permanent profession must hold an appropriate diploma awarded by an academic institution”.102 Also, in cases before the Board of Grievances, the document refers to Article 19 of the Rules of Procedure of the Board of Grievances which provides that: “In disciplinary and criminal cases, the accused must attend the trial hearings in person and… shall have the right to avail himself of the services of a lawyer.”103 However, as observed by the U.N. Special Rapporteur above, Vogel has also observed that, in practice, “the Saudi shari‘a system opposes introducing into the shari‘a courts professional advocates of the western sort” on grounds, inter alia, that the advocates “would tend to expand, instead of simplify, the dispute and drive the parties apart instead of together”, and would “complicate and delay litigation now handled promptly and efficiently in direct and relatively informal proceedings, which so often end in sulh [reconciliation]”. 104 He noted, nevertheless, that “[d]espite these attitudes, there are two professional bars in Saudi Arabia, one admitted to the shari‘a courts and another to regulatory agencies and tribunals”.105 The U.N. Special Rapporteur also observed in that regard that: “A new law on the legal profession has also been issued [and the] Government has commenced the process of registering lawyers and intends on finishing registration within five years.”106 He further noted significantly that:
99 See K.S.A. Ministry of Foreign Affairs, Protection of Human Rights in Criminal Procedure and in the Organization of the Judicial System (2000). Sec. I (2) (a) – The Characteristics of Criminal Examination, Para. 6; and Sec. I(2)(b) – Remand in Custody, Para. 4. http:// www.saudiembassy.net/Issues/HRights/hr-judicial-1-menu.html [27/1/06]. 100 Ibid. sub-para.(f), Use of the services of legal counsels (lawyers). 101 Ibid., sub-para.(f), Use of the services of legal counsels (lawyers). 102 Ibid. 103 Ibid. 104 See Vogel, F.E., supra, note 90 above, pp. 160-161. 105 Ibid. 106 Supra, note 97 above, para. 7
Effective Legal Representation in “Shari’ah” Courts
159
Lawyers play an important role in ensuring the rule of law and are an integral part of the administration of justice. Lawyers are crucial in ensuring the rights of the accused are respected at all stages of the proceedings. In this connection I encourage the Government to continue its efforts to regulate and improve the qualifications of lawyers without in anyway impinging on their independence.107
The different legislative provisions by the State acknowledging the right to legal representation in Saudi Arabian Shari’ah courts has clearly foreclosed any debates as to whether or not legal representation is legitimate under the Islamic judicial system in Saudi Arabia. What remains is for the State to develop the political will of ensuring the practical implementation of those provisions, which can provide a means for addressing relevant human rights concerns under the criminal justice system of the State as argued in the substantive part of this article above. 7.2 Nigeria Currently, 12 States in the Federal Republic of Nigeria have adopted criminal codes that allow for the application of Islamic criminal law in the Shari’ah courts of the respective States.108 This was hinged, inter alia, on Section 4(7) of the Nigerian Constitution which confers the House of Assembly of a State with powers to make laws for the good governance of the State in respect of any matter not included in the Exclusive Legislative. The Shari’ah laws adopted in the 12 States codify the traditional hudud and qisas as well as some ta’zir offences and punishments. Since the initiative of the Islamic criminal justice system led by Zamfara State in 2000 there have been some celebrated hudud cases that have attracted human rights concerns internationally. It is important to observe that a notable trait of those criminal trials in the Shari’ah courts has been that the defendants were not represented by counsel in the courts of first instance. For example, in the Amina Lawal adultery case, the Katsina State Shari’ah Court of Appeal overturned the decision of the lower Shari’ah court on grounds, inter alia, that the defendant was not given an opportunity adequately to defend herself. Amina did not have legal representation in the Shari’ah lower court, but had a team of legal representatives at the Shari’ah Court of Appeal. Similarly, in the Safiyyatu rape/ adultery case, the defendant was not represented by counsel in the lower Shari’ah courts which sentenced her to death by stoning. She was, however, also represented by a team of lawyers in her appeal against the conviction at the Sokoto State Shari’ah Court of Appeal, which overturned the conviction. The importance of effective legal representation to protect the interest and rights of the defendant in these cases is well illustrated in a reproduction of the Safiyyatu judgment, which observed, inter alia, as follows:
108 Ibid., para. 10. 108 See note 8 above.
Articles
160
While arguing before the Shari’ah Court of Appeal the appellant counsel who led a team of ten other counsels, said that the appellant was not told she had the right to counsel of her choice. Also that she had retracted her confession, which amounts to acquittal under Islamic Law, yet the Upper Shari’ah Court convicted the appellant. Similarly, counsel to the appellant argued that the information which had led to the arrest and investigation and subsequent trial and conviction of the appellant for the offence of adultery [Zina] under Sections 128 and 129 of the Shari’ah penal code of Sokoto State was given to the police by a third party who was prying into people’s personal affairs which was very wrong under the Shari’ah. It was also argued that the court has no jurisdiction to try the appellant because the Shari’ah criminal procedure code commenced operation on the 23rd of January 2001 and the appellant committed the offence in the year 2000 and under Islamic Law no one can be punished under a non-existent law. This according to the appellant counsel is retrospective which is also against the provision of the constitution of the Federal Republic of Nigeria (CFRN) 1999. Counsel also argued that failure to give explicit explanation and nature of Zina…is also fatal as the appellant, a Hausa lady who is an illiterate and does not understand Arabic, was misled by the court and this is also contrary to S.36 (9) of the constitution (CFRN) 1999 which says that the offence must be explained to accused in the language he/she understood.109
The Shari’ah Court of Appeal upheld all the defence counsel’s argument above in overturning the conviction of the lower Shari’ah courts. Effective legal representation during the trial in the lower Shari’ah court could have helped protect the rights of the defendant as was successfully done on appeal in the higher Shari’ah courts. Section 36(6)(c) of the 1999 Nigerian Constitution recognises the right of every person charged with a criminal offence either to defend himself in person or by a legal practitioner of his own choice. This is without any distinction to the type of court, be it a high court, customary court or a Shari’ah court in Nigeria. Section 8(1) of the Nigerian Legal Practitioners Act (LPA) 1975,110 also provides that: Subject to the provisions of the next following subsections and of any enactment in force in any part of Nigeria prohibiting or restricting the right of any person to be represented by a legal practitioner in proceedings before the Supreme Court or the Shari’a Court of Appeal or any area or customary Court, a legal practitioner shall have the right of audience in all courts of law sitting in Nigeria. (emphasis mine)
The right of legal representation under the LPA is apparently subjected to any enactment in force in Nigeria which restricts or prohibits such right. This was confirmed by the Supreme Court of Nigeria in the case of Gani Fawehinmi v. Nigerian Bar Association & 4 Others111 that: It is…crystal clear that unless there is a law restricting or prohibiting the right of any person to be represented by a legal practitioner, the Legal Practitioners’ Act accords all persons the right to be represented by a legal practitioner in all courts of law sitting in Nigeria.112 109 110 111 112
WACOL, Safiyyatu’s Case (Women’s Aid Collective, 2003) pp. 2-3. Cap L11, Laws of the Federation of Nigeria, 2004. [1989] 2 NWLR (105) p. 494. Per Obaseki JSC at p. 531.
Effective Legal Representation in “Shari’ah” Courts
161
Thus, at one point it was thought that based on the restricting provisions of Section 390 of the Criminal Procedure Code and Section 28 of the Area Courts Edict 1967, legal practitioners did not have a right of audience in customary and area courts.113 This was, however, resolved in the case of Uzodima v. C.O.P,114 in which the prohibition of legal practitioners’ right of audience in Area courts under Section 390 of the Criminal Procedure Code and Section 28 of the Area Courts Edicts 1967 were declared to be inconsistent with Section 33(6)(c) of the 1979 Constitution which is equivalent to Section 36(6)(c) of the 1999 Constitution. However, Rule 2(4) of the Senior Advocates of Nigeria (Privileges & Functions) Rules is to the effect that Senior Advocates of Nigeria (SAN) cannot appear in courts of inferior record.115 Thus in Registered Trustees of ECWA Church v. Ijesha,116 it was held that a SAN could neither apply for a process in the inferior court nor appear in such a court. The implication is that a legal practitioner who is a SAN cannot appear in Customary, Area or the lower Shari’ah Courts. Apart from the above restriction regarding SANs, every other legal practitioner in Nigeria currently has the right to appear in all courts in Nigeria including all levels of Shari’ah courts. Apart from the above restriction regarding SANs, ever y other legal practitioner in Nigeria currently has the right to appear in all courts in Nigeria including all levels of Shari’ah courts. Adequate legal representation of accused persons in the Shari’ah courts must therefore be highly encouraged and promoted to ensure due process and the protection of accused persons’ rights under Islamic law in those courts as analysed in this article.117 7.3 Pakistan Pakistan has also codified the traditional hudud and ta’zir offences as part of its domestic laws. The relevant laws are the Offences against Property (Enforcement of Hudud) Ordinance 1979; Offence of Zina (Enforcement of Hudud) Ordinance of 1979; Offence of Qadhf (Enforcement of Hudud) Ordinance of 1979; and Offences against Human Body (Enforcement of Qisas and Diyah) Ordinance 1984.118 The conviction for hadd is, however, subjected 113 Area courts in Northern Nigeria applied Islamic law, while customary courts in the South applied customary law. 114 [1982] 1 NCR p. 22. 115 These are courts that cannot punish for contempt committed in facie curae. For the definition of an inferior court, see Obilade, Nigeria Legal System, (Spectrum, 1979), pp. 169-170. 116 [1999] 13 NWLR (Pt. 635), p.368 117 See however Tabi’u, M., “The Right of Audience of Legal Practitioners in the Shari’ah Court of Appeal in Nigeria” (1985-1987) 15-17 Journal of Islamic and Comparative Law, 17 at 25 for an argument by the author on the need for “a reform of the law governing the Nigerian legal profession” and that “Efforts should now be directed towards developing a legal profession for legal practice in all Nigerian Courts. For this purpose, Islamic Law ought not only to form a necessary part of the education and training of legal practitioners, but also be considered in the formulation of professional ethics and the rules that will govern legal practice generally.” 118 See the reproduction of all these laws in Mahmood, et al., supra, note 6 above, pp. 434-498. See also Mahmood, T., “Reform of the Indian Penal Code in Pakistan to Enforce Islamic Criminal Law” in Mahmood, et al., supra, note 6 above, pp. 422-434.
162
Articles
to the strict evidential requirements of Islamic law, failing which the accused would be liable only to ta’zir punishment under the old Pakistan Penal Code of 1860. For example, the Zina Ordinance provides that where there is not enough evidence to convict for the hadd punishment, the ta’zir punishment of imprisonment, whipping or a fine may be imposed.119 The Ordinance does not provide any standard of proof for the application of ta’zir punishments but leaves the determination to the judge’s discretion. The Pakistan courts have mainly exploited the strict evidential requirements of Islamic law, to avoid the application of the hudud punishments on the basis of lack of proof. Thus the courts have only imposed ta’zir punishments in form of imprisonment, fine or whipping. In the theft case of The State v. Ghulam Ali,120 Justice Zullah, reversing on appeal the hadd punishment of amputation imposed by the lower courts, stated that the two courts below – fell into error in ignoring a well-established and an uncontroverted principle of Hudood that not only the maximum benefit of every reasonable doubt will be extended to the accused, but also that effort is to be made not to inflict a Hadd so long [as] it can be avoided by all legitimate and established means.121
There has, however, been a lot of controversy regarding rape cases under the Zina Ordinances in a line of cases in which men accused of rape under the Ordinance have been discharged for want of evidence while their female accusers have earned convictions of ta’zir punishment for zina based on their own rape allegation (which is considered as confession for zina due to failure in proving the alleged rape), or based on pregnancy resulting from the rape.122 The most celebrated of those cases was perhaps that of Safia Bibi v. The State,123 in which a blind girl was reported to have been raped by her employers. The trial court acquitted the two accused men for want of evidence on the rape charge but sentenced the girl for zina based on her pregnancy. The decision attracted protests from women’s groups in Pakistan. Eventually, the Federal Shariat Court reversed the judgment and acquitted the girl by holding that the self-exculpatory statement of an accused person should be considered sufficient for her acquittal in such cases if there is no further evidence to prove her guilt. There are differences of opinion, under Islamic jurisprudence, particularly regarding the use of pregnancy as circumstantial evidence for zina, which effective legal representation for the defendant could have argued to her advantage. The right of an accused person to legal representation is generally provided in Article 10(1) of the Pakistan Constitution that: “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended 119 120 121 122
See Sections 9 and 10 of the Offence of Zina (Enforcement of Hudud) Ordinance 1979. (1986) 38 PLD (S.Ct) 741. Ibid., at 759. See e.g. Jahangir, A., “How far are Penal Laws Effective in Protecting Women” in Women Living under Muslim Laws (Ed.) Dossier 3 (1988), p. 33 and footnote 5. See also Chowdhury, N., “What Pakistan Women Face” in Women Living under Muslim Laws (Ed.) Dossier 1(1986), p. 70. 123 (1985) 37 PLD (FSC) 120.
Effective Legal Representation in “Shari’ah” Courts
163
by a legal practitioner of his choice” (emphasis mine). However in respect of legal representation before the Federal Shariat Court the Constitution also provides in Article 203E that: (4) A party to any proceedings before the Court under clause (1) of Article 203D may be represented by a legal practitioner who is a Muslim124 and has been enrolled as an advocate of a High Court for a period of not less than five years or as an advocate of the Supreme Court or by a jurisconsult selected by the party from out of a panel of jurisconsults maintained by the Court for the purpose. (5) For being eligible to have his name borne on the panel of jurisconsults referred to in clause (4), a person shall be an Aalim who, in the opinion of the Court, is wellversed in Shariat. (6) A legal practitioner or jurisconsult representing a party before the Court shall not plead for the party but shall state, expound and interpret the Injunctions of Islam relevant to the proceedings so far as may be known to him and submit to the Court a written statement of his interpretation of such Injunctions of Islam. (7) The Court may invite any person in Pakistan or abroad whom the Court considers to be well-versed in Islamic law to appear before it and render such assistance as may be required of him.
Thus a defendant can either be represented in the Shariat Court by a qualified legal practitioner of a jurisconsult learned in Islamic law, who is, however, only “required to expound Islamic law, rather than to plead a case on behalf of their clients”,125 which, if interpreted restrictively, may restrict the scope of effective legal representation for the accused person. 7.4 Malaysia The federal constitution of Malaysia allows its component States to set up Shari’ah courts to administer Islamic law to persons professing the religion of Islam. However, such courts have restricted criminal jurisdiction as provided by federal law. 126 A federal law, namely, the Muslim Courts (Criminal Jurisdiction) Act127 has limited the criminal jurisdiction of the courts by providing that the punishments imposable by the Shari’ah courts shall be limited to a maximum of three years’ imprisonment, or fine of RM 5,000, or maximum of six lashes or the combination of all these.128 The federal territory and each of the 13 States of Malaysia now has a Syariah Criminal Offences Enactment which criminalises hudud offences such as zina, intoxication, apostasy and other ta’zir offences. However, due to the jurisdictional limitations of the courts under the Syariah Courts Criminal Jurisdiction Act, they cannot apply any of the 124 Note that ‘[t]he rule that only Muslim advocates were allowed to appear before the Federal Shariat Court was relaxed in that in cases involving non-Muslim parties the advocates representing such parties could also be a non-Muslim, see Muhsmmad Ashraf v. State PLD 1988 SC 176 and Rule 2(e) of the Federal Shariat Court (Procedure) Rules 1981”. See Lau, M., The Role of Islam in the Legal System of Pakistan (Leiden: Martinus Nijhoff Publishers, 2006, p. 125, note 531. 125 Lau, M., ibid., p. 125. 126 Constitution of Malaysia (1957) as ammended, Ninth Schedule, List II(1). 127 (1965) (Act 355) as amended in 1984. 128 See Kamali, M. H., Islamic Law in Malaysia: Issues and Developments (Selangor: Ilmiah Publishers, 2000), p. 44.
164
Articles
traditional hudud punishments such as whipping above six lashes, amputations, crucifixion, stoning or the death penalty. In 1993 a Syariah Criminal Code Bill was passed by the Kelantan State Legislative Assembly, which prescribed the traditional hudud punishments under Islamic law such as amputation for theft129 and the death penalty for apostasy.130 The Bill has been very controversial and a subject of debate in Malaysia.131 The Bill has, however, not been gazetted as it contains punishments contravening the limitations imposed by the federal Muslim Courts Criminal Jurisdiction Act. The laws in other States of Malaysia on apostasy provides for a 36-month rehabilitation period for apostates at an Islamic Rehabilitation Centre,132 which has also been criticised by human rights advocates as violating the right to freedom of thought, conscience and religion. Thus, regarding the application of the hudud punishments under Islamic criminal justice, the practice in respective States of Malaysia is very much restricted. The traditional hudud punishments are not applicable in view of the restrictions placed by the Muslim Courts Criminal Jurisdiction Act. While some Islamists may consider this as an infringement of specific injunctions of the Shari’ah, others could argue that the Islamic criminal provisions currently applicable in the respective States of Malaysia are merely ta’zir and not hudud offences per se. Thus, the only presumably Islamic criminal punishment currently applicable by the Shari’ah courts in Malaysia that may, by nature, be of human rights concern is the provision for whipping of up to six strokes prescribed for some offences under the State enactments.133 However, if this provision of whipping up to six strokes under the Syariah Courts Act is considered as a ta’zir punishment rather than a hudud punishment for those offences, then the State or court still has the discretion to avoid that punishment under Islamic law. Regarding legal representation by counsel as proposed in this article, Article 5(3) of the federal constitution of Malaysia provides that: “Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice” (emphasis mine). There are also provisions for the admission and regulation of Islamic law advocates, trained and specialised in Shari’ah known as “peguam syarie” in the different states of Malaysia, who have the right to appear and represent litigants in the Shari’ah courts.134
129 Clause 6, Kelantan Syariah Criminal Code (II) Bill (1993). 130 Clause 23, Kelantan Syariah Criminal Code (II) Bill (1993). 131 See e.g. Kamali, M. H., Punishment in Islamic Law: An Enquiry into the Hudud Bill of Kelantan (Selangor: Ilmiah Publishers, 2000). 132 See e.g. Section 63(1) of Sabah Shariah Criminal Offences Enactment 1995. Similar provisions are contained in the Enactments of Kelantan, Malacca, Perlis and Selangor states. 133 E.g. Sections 20, 23, 41Syariah Criminal Offences (Wilayah Persekutuan) Act (1997), which prescribes whipping of not more than six strokes for the offences of incest, zina, and qadhf respectively. 134 See e.g. Pahang Peguam Syarie Rules 1990; Jahore Peguam Syarie Rules 1982; Kedah Peguam Syarie Rules 1988 and the Federal Territories Peguam Syarie Rules 1993.
Effective Legal Representation in “Shari’ah” Courts
165
7.5 Maldives Although Islamic law forms part of the criminal justice system in the Maldives, the country does not apply any of the hudud punishments. Under the concept of ta’zir, the judges have a wide discretion in the choice of punishments under the Penal Code, which include banishment to another island, house arrest, or a fine, depending on the seriousness of the offence. The most controversial of those punishments is the punishment of banishment to another island.135 The criminal laws of the State are currently being reviewed taking cognizance of Islamic law.136 Regarding legal representation by counsel in criminal trials, Section 16(2) of the Constitution of Maldives (1997) provides that: Every person who is charged with an offence shall have the right to defend himself in accordance with Shari’ah.137 To this effect, such a person shall be allowed to obtain the assistance of a lawyer whenever such assistance is required.
The above constitutional provision is, however, stated to have been very restrictively interpreted by the authorities as follows: 1. In criminal cases, a lawyer may advise a Defendant before a Criminal Court trial hearing takes place. 2. A lawyer can attend a Criminal Court trial hearing with the Defendant. 3. At an actual trial hearing in the Criminal Court, however, the lawyer is not permitted to speak on behalf of the Defendant (Ministry of Justice Circular MJC 7/99). Indeed, in practice, a lawyer in a criminal trial usually holds the same position as an ordinary member of the public and the lawyer cannot advise the Defendant during the course of a criminal trial and nor can he or she “represent” the Defendant in front of the Criminal Court judge. The reasoning that is often given for this restriction is that certain Islamic law (shari’ah) specialists believe that legal representation of Defendants in criminal matters is not allowed under Islamic law itself.138
The interpretation of the constitutional provision on “assistance of a lawyer” in the Maldives constitution to exclude representation by counsel in front of the criminal court judge is a restrictive interpretation based on traditional assumptions by some commentators as earlier addressed above to the effect that “legal representation of Defendants in criminal matters is not allowed under Islamic law itself”. It is important to note that this view is not specifically 135 See generally, Mohamed, H, “The Maldives Criminal Justice System – An Alternative Method of Punishment” at: http://www.U.N.afei.or.jp/english/pdf/PDF_rms/no61/ch15.pdf (27/ 1/06). 136 See e.g. Robinson, P.H., “Report on the Criminal Justice System of the Republic of MaldivesProposals for Reform” at: http://www.minivannews.com/Robinson.pdf (27/1/06) 137 There is currently a presidential proposal to change this provision to read “The right to defend oneself in accordance with the laws of the country”. See “Amendments Proposed by the President to the Constitution of the Republic and the Rationale for the Proposals” of 14 Februar y 2005 available on the Maldivian Presidential website at: http://www. presidencymaldives.gov.mv/download/Proposed_Constitutional_Amendments_ 20050214.pdf (27/1/06). 131 See http://www.maldivesculture.com/Monday%20Times%2002_25_2002%20Legal%20 Q&A_65.htm, (27/1/.06); See also http://www.state.gov/g/drl/rls/hrrpt/2004/41741.htm, (27/1/06).
Articles
166
stated by any provision of the Qur’an or Sunnah as earlier analysed above. In our view, it is more consistent with the requirements of justice under Islamic law that defendants in criminal trials are provided with effective legal representation under the Islamic criminal justice system of applicable Muslim States of today, as has been argued in this article.
8 CONCLUSION Different arguments are advanced by commentators for addressing concerns regarding the application of Islamic criminal justice in modern Muslim States. But while the arguments continue, there are Muslim States in which Islamic criminal justice is currently applicable. The proposition for effective legal representation advanced in this article, where adopted, can go a long way in addressing the substantive and procedural human rights concerns regarding the application of the Islamic criminal justice system in those applicable States currently. The article has endeavoured to demonstrate through an analysis of both the substantive and procedural aspects of Islamic criminal law that the complexity of Islamic criminal justice demands that those charged with criminal offences under the system need to be adequately represented to protect their rights and interests as recognised by Islamic law. It is well settled that the philosophy of Islamic criminal justice is to deter rather than inflict the punishment at any cost, thus Islamic legalists concede that it is lawful to utilise “any stratagem which averts the [hudud] penalty without impugning the Law”,139 based on the instruction of the Prophet Mohammad that the hudud punishments be averted in case of doubt, because error in clemency is better than error in imposing punishment. Apart from those issues raised in this article, there are other principles of Islamic criminal justice not addressed due to space limitations, such as the doctrine of “suqut al-uqubat” (i.e. preclusion of punishment), which identifies certain circumstance that may preclude the application of the Islamic punishments either absolutely or partially.140 Effective legal representation for the defendant in Islamic or Shari’ah courts will facilitate a professional legal evaluation of the relevant circumstances and the pleading and application of such relevant doctrines legitimately to preclude the application of the hudud punishments in the appropriate circumstances. The strength of the proposition advanced in this article can be substantiated by the Nigerian cases, in which the decisions of the lower Shari’ah courts were overturned at the Shari’ah Courts of Appeal where the defendants had been effectively represented by counsel in their appeals. This, however, also raises the question of necessary manpower and appropriate legal training in Islamic law and human rights for legal practitioners in Muslim States. In some Muslim States such as Nigeria and Malaysia, the law curriculum of some universities 139 See Eaton, G., Islam and the Destiny of Man (Cambridge: The Islamic Texts Society, 1994) p. 185. 140 See e.g. al-Fadilat, J.M., Suqut al-Uqubat fi al-Fiqh al-Islami (Jordan: Dar Amar, 1987CE/ 1408AH) Vols. 1-4.
Effective Legal Representation in “Shari’ah” Courts
167
do cover courses in both secular law and Islamic law that can equip graduates of those universities with relevant academic knowledge to enable them to provide legal representation in Islamic or Shari’ah courts as proposed in this article.141 Other Muslim States lacking such appropriate curriculum in their law faculties will need to do so to ensure availability of necessary legal manpower in that regard. Finally, it is reiterated that, on the one hand, due to the very high relevance of effective legal representation to the guarantee of fair trial and due process and, on the other hand, to the severity of the hudud and qisas punishments, Muslim States that apply Islamic law should provide compulsory legal aid in form of effective legal representation for indigent accused persons who cannot afford the services of a lawyer under their Islamic criminal justice systems to ensure that, despite their penury, the procedural rights of such accused persons can still be protected within the application of Islamic criminal law applicable in those States.
141 See however, the argument of Tabi’u, M., in note above regarding the need as well for reform in the professional training of lawyers in Nigeria in relation to Islamic law.
168
169
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications Pawancheek Marican1 and Mohamed Azam Mohamed Adil 2
1 THE MEANING OF APOSTASY Al-Riddah or apostasy means the rejection of the religion of Islam by a Muslim in favour of any other religion either through his actions or words of mouth (iktikad).3 The expression “murtad” originates from the Arabic word “riddah” or “irtidad”. While “riddah” ordinarily means to refer or to return, i.e. to return from something to another thing, the expression “irtidad” is wider in scope as it means the act of someone leaving the religion of Islam because he does not believe in the religion or the act of someone leaving Islam for another religion.4 The act of apostasy thus puts an end to one’s adherence to Islam. In principle, acts of rejecting the fundamental principles of the faith (iman), like faith in the existence of Allah, the Messengership of His Prophet Muhammad (s.a.w.) as contained in the credal statement of Islam, the kalimah-al-Shahadah and the belief in the Qur’an as the Book of Allah, will amount to apostasy.5 A controversial issue that has arisen in Malaysia in recent years has been, whether the Civil Courts can issue a declaration to the effect that a Muslim has left the religion of Islam, and if an aggrieved person cannot get such a declaration, this would be an infringement of his right under Article 11 (1) of the Federal Constitution. This Article firstly seeks to discuss the issue of apostasy from the perspective of two important Articles of the Constitution, namely Articles 11 and 121(1A). In the many cases in which the Majlis Agama Islam Negeri (State Islamic 1 1LL B Hons (Malaya), LLM (Malaya), Advocate & Solicitor, High Court of Malaya. 2 B Syari’ah Hons (Malaya), LLM (SOAS, London), PhD (SOAS, London), Lecturer, Centre for Islamic Thought & Understanding (CITU) UiTM, Shah Alam, Selangor, Malaysia. 3 For examples of murtad by way of conduct, words and iktikad, see Mohamed Azam Mohamed Adil, “Undang-undang Murtad: Suatu Penilaian Dari Perspektif Fiqh dan Undang-undang di Malaysia” [Mac 1997] 9 KANUN (1) pp 1-3; see al-Mawsu’ah al-Fiqhiyyah, Vol 22, Wizarah alAuqaf wa Shu’un al-Islamiyyah, Kuwait, 1992 AD/1412 AH, p. 180. 4 Lisan al-‘Arab, Vol 3, Dar Sadir/ Beirut, 1374 AH/1955 AD, p. 173; there are various verses of the Quran referring to these words, amongst which are Surah al-Maidah, 5:21, Surah Yusuf, 12.96, Surah al-Kahf, 18.64, Surah Muhammad, 47:25, Surah al-Naml, 27:40. 5 See Abdur Rahman I Doi, Shariah: The Islamic Law (1984), p. 265.
170
Articles
Religious Councils) have been sued by persons claiming to have apostatised, the principal contention of the Councils have always been, that the Civil Courts have no jurisdiction to grant such a declaration as this is a matter which falls within the jurisdiction of the Syariah Courts by virtue of Article 121 (1A) of the Federal Constitution. In other words, it is the Syariah Court that will decide whether to issue such a declaration or not, relying on the facts put forward before it based on Syariah legal principles governing apostasy. Secondly, this Article will examine the issue of apostasy from the point of view of Islamic jurisprudence, as this would be the basis upon which the Syariah Courts will decide relating to applications for declarations by aggrieved parties to leave the religion of Islam, subject to the limits imposed by the Constitution.
2 ARTICLE 11 OF THE FEDERAL CONSTITUTION Article 11 of the Constitution provides: (1) Every person has the right to profess and practise his religion and, subject to clause (4), to propagate it. (2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own. (3) Every religious group has the right: (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and (c) to acquire its own property and hold and administer it in accordance with the law. (4) State law and in respect of the Federal Territories of Kuala Lumpur and Labuan, Federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. (5) This Article does not authorise any act contrary to any general law relating to public order, public health or morality. Although the heading of Article 11 uses the expression “Freedom of Religion”, the body of Article 11(1) does not use the same expression. Article 11(1) states: “Every person has the right to profess and practise his religion and, subject to clause (4), to propagate it.” It is trite law that one cannot use such headings to give a different effect to clear words in the Article. Thus a court will have to construe the contents of Article 11(1) in order to determine its true meaning. It is to be noted that, in interpreting a Constitution two points must be borne in mind; first, judicial precedent plays a lesser part than is normal in matters of statutory interpretation; and secondly, a Constitution being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way “with less rigidity and more generosity than other Acts”.6 A constitution is sui generis, calling for its own principles of interpretation, 6 Per Raja Azlan Shah Ag LP, in Dato Menteri Othman bin Baginda & Anor v. Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29 at p. 32.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
171
suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation.7 Article 11(1) contains two important expressions – “to profess” and “practise”. “ The terms “profess” and practise” are not defined in the Constitution but the meaning can be gleaned from the old Singapore case of Re Mohamed Said Nabi, Deceased [1965] 31 MLJ 121. In that case the learned judge said: Now what is the meaning attached to the word “profess”. According to the Shorter Oxford Dictionary, “profess” means: to affirm, or declare one’s faith in or allegiance to (a religion, principle, God or saint etc.) [At p. 122]
Now the testator was a born Muslim, he was brought up as a Muslim, he lived as a Muslim during the Japanese occupation, he married under Muslim rites in Hongkong and in Singapore, he held Muslim religious ceremonies in his house in which he took part. This was strong evidence of his having been a person who professed the religion of Islam. It is said that the testator did not pray five times a day and he did not regularly fast. Now does that mean the testator did not profess the religion of Islam? I do not think so. If the observance of the five daily prayers or regular fasting in Ramazan are to be used as a test I am afraid very few Muslims in Singapore would pass the test. The next important expression in Article 11(1) is “his religion” which is rather difficult to construe unless it is examined by the court in the light of other provisions of the Constitution. It is submitted that, in the Malaysian constitutional context, when one speaks about Islam, two concepts come to the fore: firstly, “Islam” as a faith; and secondly, “Islam” as a law. The right of faith given by Article 11(1) of the Constitution to a Muslim must necessarily be identical to the right of faith given to a non-Muslim. But it is the second point – that Islam is a law applicable to all Muslims in the country – which requires Article 11(1) to be interpreted differently for Muslims and non-Muslims. To do this, one has to look at the other Articles of the Constitution. One may complain that this would be improper as it would be a breach of Article 12 – the equality Article – but this argument can be countered by the argument that Islam has a special role and status under the Constitution and this can be gathered from not only Article 11 itself but also the other Articles. Quite often, the impact of the other Articles of the Constitution on Article 11(1) are conveniently ignored by legal commentators.8 In contrast to Islam, no other religion in the Federation can be said to have such a dual role and status under the Constitution. On a discussion of Article 11 of the Constitution it would be remiss for the writers not to touch on the decision of the Supreme Court in Minister of Home Affairs v. Jamaluddin [1989] 1 MLJ 418. This decision has been hailed by some commentators as supporting the legal proposition that Article 11 of the
7 Per Lord Wilberforce in Minister of Home Affairs v. Fisher [1979] 1 33 All ER 21. 8 See Tommy Thomas, “Freedom of Religion and Registration of Religious Groups” INSAF [2004] Vol 11, pp. 15-38; Edmond Bon, “Why Are We So Complicated” [2005] Law Review (LR) 58.
172
Articles
Constitution grants absolute freedom of religion to every person in the country, including Muslims. In this case, the said Jamaluddin was detained under the Internal Security Act 1960 (ISA) during “Operation Lalang” in October, 1987 for propagating Christianity to Muslims. The High Court ordered his release on the ground that a person cannot be detained under the ISA for his religious conviction and for propagating his religion to Muslims. The Minister appealed to the Supreme Court but was unsuccessful. Justice Hashim Yeop Sani JSC observed: We do not think that mere participation in meetings and seminars can make a person (a) threat to the security of the country. As regards the alleged conversion of six Malays, even if it was true, it cannot in my opinion by itself be regarded as a threat to the security of the country. The guarantee provided by Article 11 of the Constitution, that is, the freedom to profess and practise one’s religion, must be given effect unless the actions of a person go well beyond what can normally be regarded as professing and practising one’s religion.
On a proper analysis of the Jamaluddin bin Othman decision, it will be seen that both courts ordered the accused’s release on the ground that it was wrong for the authorities to use the ISA to detain him. Legal scholar Abdul Aziz Bari does not agree with the view that by virtue of the Jamaluddin decision, Article 11 of the Constitution grants absolute freedom of religion to everyone in the country. He says, “despite the end result, the decision in Jamaluddin bin Othman was actually about the primacy of religious freedom over security legislation and the fact that the court has power to scrutinise the reasons given by the authorities for detention under the security legislation”.9 In fact, the Supreme Court in Jamaluddin bin Othman has put a caveat to the contention by some commentators that Article 11 of the Constitution grants absolute freedom of religion to every person in the country. The Court said: However to get our perspective right we feel obliged to add a rider to what the learned judge said, His Lordship’s ruling must be subject to the following rider: “The freedom to profess and practise one’s religion should not be turned into a licence to commit unlawful acts or acts tending to prejudice or threaten the security of the country... The freedom to profess and practise one’s religion is itself subject to the general laws of the country as expressly provided in clause (5) of Article 11 of the Constitution.”
Since the Supreme Court decided Minister of Home Affairs v. Jamaluddin [1989] 1 MLJ 418, there were two other appeals touching on the interpretation on clause 1 of Article of the Federal Constitution. However, in both cases, the questions before the appellate courts were narrowed down and no guidance on the interpretation of the clause is available. The first appeal is the case of Kamariah bte Ali Dan lain-Lain lwn Kerajaan Negeri Kelantan Dan Satu Lagi [2005] 1 MLJ 197. Among the questions posed to the Federal Court were:
9 Abdul Aziz Bari, “Freedom of Religion in Malaysia: It is not Complicated” [2005] LR 263 at p 267.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
173
(i) Whether the right to profess a religion under Article 11(1) of the Federal Constitution would include the right of a person who professes the religion of Islam who has reached the age of majority to declare that he has left his religion. (ii) Whether the laws that restrict or impose other restrictions on the right of a person (other than those persons who have not reached the age of majority) to declare that he has left his religion, are inconsistent with Article 11(1) of the Constitution and accordingly invalid. In this case, the appellants had made a statutory declaration declaring that they no longer embraced the religion of Islam in August 1998. They had been sentenced to imprisonment on 5 October 2000 for failing to abide by the order of the Syariah Court of Appeal relating to offences which they had committed in 1992 under the Council of the Religion of Islam and Malay Custom (Kelantan) Enactment 1994. Chief Justice Ahmad Fairuz Sheikh Abdul Halim held that the relevant and crucial question was whether the appellants were embracing Islam at the time the offences were committed – i.e. in 1992 – and not in 1998, when they made a declaration to leave Islam. Therefore even if the appellants had declared themselves apostates in 1998, they still could be brought to the Syariah Court in 2000 to be charged for offences committed when they were still embracing Islam. Unfortunately, the Federal Court ruled that it was not necessary to answer the above two questions.10 As a result, Malaysian courts are deprived of an opportunity of being guided on the proper interpretation of clause 1 of Article 11 of the Constitution. The other appeal is Lina Joy v. Majlis Agama Islam Wilayah Persekutuan Dan 2 Lagi [2005] 5 AMR 663, a recent decision of the Court of Appeal. The judgment was delivered on 19 September, 2005. In this case, the appellant was born on 8 January 1964 of Malay (Muslim) parents. She was therefore born a Muslim with the name of Azlina binti Jailani. She claims that she had never believed in Islam, since 1990 had believed fully in Christianity and had been attending Mass every Sunday. She further claims that on 11 May 1998 she was baptised and had a certificate of baptism, which was exhibited in court. By an originating summons dated 15 May 2000 (when she was thirty-six years of age), she sought in the High Court certain declarations against the Majlis Agama Islam Wilayah Persekutuan (the first respondent) and the government of Malaysia (the second respondent) on the basis of clause 1 of Article 11 of the Federal Constitution, which guarantees to every person “the right to profess and practise his religion”. She contended that this clause gave her absolute freedom to renounce Islam and become a Christian, which could not validly be restricted or controlled by any law, such as the Administration of Islamic Law (Federal Territory Act) 1993, by the Syariah Court or by any other authority. The effect of the declarations, she claimed, would be to uphold her contention and confirm her status as a Christian, so that, she hoped, her progress in life would no longer be hampered by any uncertainty as to her religion or by any claim that she is a Muslim. She also sought an order that the defendants enter in whatever records or registers about her that may be in their possession the fact that she had renounced Islam. She also expressed the problem she faced 10 [2005] 1 MLJ 197 at 208.
174
Articles
in trying to get the word “Islam” deleted from her identity card, saying that she desired to contract a non-Muslim marriage and set up home and have a family, but so long as her identity card shows that she is a Muslim she would not be able to achieve her desire. What happened was that the National Registration Department (NRD) had refused to accept her application for the deletion of the word “Islam” from her identity card. The respondents did not reply to the appellant’s affidavit but instead applied for the striking out of her Originating Summons on the ground that it is the Syariah Court, and not the High Court, that has the jurisdiction to decide the issues in the Originating Summons. In particular, the government contended that the question of renouncing Islam lies solely and absolutely within the jurisdiction of the Syariah Court. The High Court held that only the Syariah Court is competent to determine the question of renunciation of Islam by a Muslim and dismissed her Originating Summons. Following the dismissal of the Originating Summons, the trial judge found the striking out application to be academic and struck them out. In the course of arguments at the Court of Appeal, counsel for the appellant had narrowed down the grounds of appeal to an administrative law question relating to the matter of the appellant’s identity card. The question posed was: Whether the NRD was right in law in rejecting the appellant’s application under Regulation 14 of the National Registration Regulations 1990 to have the statement of her religion as “Islam” deleted from her identity card and in requiring a certificate or order from the Syariah Court.
The Director-General of the NRD was then added as the third respondent in the appeal, and the parties were given liberty to exchange affidavits only upon the issue as framed. In coming to its decision, the Court of Appeal held that the NRD was not wrong in administrative law in rejecting the appellant’s application for the deletion of the word “Islam” from her identity card on the ground that her renunciation of Islam was not confirmed by the Syariah Court or any other Islamic religious authority. On the contention made by the appellant that clause 1 of Article 11 of the Federal Constitution guaranteed freedom of choice of religion and therefore no third party – meaning the Syariah Court or any other religious authority – could adjudicate or decide on her decision to renounce Islam and embrace Christianity, the Court of Appeal said it did not have to deal with this point as the appellant herself had stated that: In view of the limited question framed by this Court, it might not be necessary to go into these far reaching questions as direct issues for answer...
It is submitted that the Court of Appeal, in refusing to go into the effect of clause 1 of Article 11 of the Constitution, had missed the opportunity to provide the guidelines for judges and lawyers on the proper construction of the Constitution with respect to the issue of apostasy. It is heartening to note that on 13 April 2006 the Federal Court granted Lina Joy leave to appeal to the Federal Court against the decision of the Court of Appeal. It is hoped that the Federal Court will not, this time, miss the opportunity to decide the effect of Article 11(1) of the Constitution on the issue of apostasy.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
175
3 NON-ABSOLUTE NATURE OF FREEDOM OF RELIGION UNDER THE CONSTITUTION The non-absolute nature of the freedom of religion in Malaysia, at least insofar as Islam is concerned, was given judicial recognition by Heliliah Mohd Yusoff J in the case of Ahmad Yani b Ismail & Anor v. Ketua Polis Negara & 3 Ors [2004] 5 AMR 571. In this case, the appellants had challenged the validity of their detention under the ISA and had argued that the exercise by the Minister of his powers under the ISA had the effect of curtailing their rights that were guaranteed under Article 11 of the Constitution. The accused had argued that in the face of Article 11, Article 149 (under which the ISA was passed) could not legitimise actions taken under the ISA to curb their constitutional rights under Article 11. The learned judge further said she found this argument fallacious because, according to her, the Minister must have formed the opinion that the activities of the appellants did not fall within the limits of “professing and practising the religion”. She further found that clause (4) of Article 11, in permitting federal law to control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam, clearly evinced the intention that the right accorded under Article 11 was not absolute. The refusal of the Supreme Court to allow the ISA to be used against the accused in the Jamaluddin case does not mean that the accused cannot be charged under other laws restricting the propagation of any religious doctrine or belief among Muslims. Article 11(4) of the Constitution provides that State law and, in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Federal law, may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. There is no provision under the Constitution to enable Federal law to be enacted to prevent the propagation of any religious doctrine or belief among persons not professing the religion of Islam. For example, there is no provision under the Constitution for a Federal law to be passed to prevent Christian missionaries from propagating Christianity among Buddhists, Taoists or Hindus. Pursuant to the powers granted under Article 11(4) of the Constitution, nine State Legislatures have passed laws on the control and restriction on the propagation of non-Islamic religions to Muslims.11 There has been at least one criminal prosecution against an offender – a non-Muslim – in the State of 11 See Control and Restriction of the Propagation of Non-Islamic Religions (Johore) Enactment 1991 (Enactment 12/1991); Control and Restriction of the Propagation of Non-Islamic Religions (Kedah) Enactment 1988 (Enactment 11/1988); Control and Restriction of the Propagation of Non-Islamic Religions (Kelantan) Enactment 1981 (Enactment 11/1981); Control and Restriction of the Propagation of Non-Islamic Religions to Muslims (Malacca) Enactment 1988 (Enactment 1/1988); Control and Restriction (Propagation of Non-Islamic Religions Among Muslims)(Negeri Sembilan) Enactment 1991 (Enactment 9/1991); Control and Restriction of the Propagation of Non-Islamic Religions (Pahang) Enactment 1989 (Enactment 5/1989); Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1988 (Enactment 10/1988); Non-Islamic Religions (Control of Propagations Among Muslims) (Selangor) Enactment 1988 (Enactment 1/1988); Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1980 (Enactment 1/1980).
176
Articles
Pahang. In PP v. Krishnan a/l Muthu12 the complainant, one Maziah Jusoh had known and was in love with the accused, a married man, for seven years. As the complainant did not have a place to stay, she asked permission from the accused and his wife to live with them. The accused and the complainant had a series of arguments which resulted in physical fights. There was an instance the accused issued threats against the complainant to leave Islam and embrace Hinduism. The complainant was also asked to make an oath at the Hindu temple and was prevented from praying as a Muslim. Two charges were filed against the accused in the Magistrates’ Court. The accused was convicted and fined RM 2,000 under section 325 of the Penal Code. The accused was also convicted under section 4(2)(i) of the Control and Restriction of the Propagation of Non-Islamic Religions (Pahang) Enactment 1989, fined RM 1,500 and imprisoned for a period of 20 days. From the above, it becomes evident that the issue of a Muslim attempting to apostate is not merely an issue of faith but one of law i.e Islamic law, which applies to all Muslims in the States of the Federation. Thus from a reading of Articles 11(1) and 11(4) of the Constitution, it can be observed that the role of Islam as a faith and as a law are intertwined; one cannot look at one provision in the Constitution without looking at the other provisions. The writers are of the view that Article 11(4) is one example where Islam is placed in an elevated position under the Constitution. This is a view that is shared by legal commentator Aziz Bari.13
4 ARTICLES 3, 12, 74, 150, 160 OF THE CONSTITUTION There are other Articles of the Constitution that buttress the above statement of principle – that Islam is not only a faith but also a law applicable to the Muslims in Malaysia. This not only puts Islam in a special category but also gives the religion a special status. This special status of Islam in the constitutional structure is acknowledged by legal commentators. Constitutional scholar Abdul Aziz Bari opines that even a casual reading of the provisions of Article 11 of the Constitution would give the impression that the position of Islam has been above that of other religions.14 The learned scholar adds that “Article 11 in its very wording gives Islam a position better than that of other religions.”15 Legal practitioner Malik Imtiaz, commenting on the role of Islam under the Federal Constitution, concedes that “Islam, in which the Sunna traditions are integral, is perceived as having a privileged position, and an 12 Magistrates’ Court Case No MA-83-146-2002 (Unreported). See Mohamed Azam Mohamed Adil, “Kebebasan Beragama dan Hukuman Ke Atas Orang Murtad di Malaysia” in Ahmad Hidayat Buang (ed), Mahkamah Syariah Di Malaysia: Pencapaian Dan Cabaran (2005), p. 165. 13 See Aziz Bari, “Kedudukan Syariah dalam Perlembagaan Persekutuan” (The Position of the Syariah under the Federal Constitution), p. 8, Komuniti Syariah Dan Wacana Ilmu Seminar Series launched on 5 December 2005 by the Attorney-General, Malaysia. 14 Abdul Aziz Bari, “Freedom of Religion in Malaysia: It Is Not Complicated” [2005] Law Review (Sweet & Maxwell) 263 at p. 267, a response to an Article written by Edmond Bon entitled “Why are we so Complicated” [2005] Law Review (Sweet & Maxwell) 58 wherein the latter criticizes the decisions of Malaysian Civil Courts on the issue of apostasy. 15 Ibid.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
177
Islamic legal system has been put in place.”16 This view – that Islam has a special status in the Constitution if one were to look at the other Articles of the Constitution (such as Articles 3 and 12) – is given judicial recognition by Faiza Thamby Chik J in Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Anor [2004] 2 MLJ 119.17 In the appeal by the plaintiff, the Court of Appeal has affirmed Justice Faiza Thamby Chik18 decision by a majority. Article 3(1) of the Constitution – which provides that “Islam is the Religion of the Federation” – places Islam in a special position as the main and dominant religion of the Federation. In Che Omar Che Soh v. Public Prosecutor [1988] 2 MLJ 55, Lord President Salleh Abas, delivering the judgment of the Supreme Court on the effect of Article 3(1) of the Constitution had stated that: ... the term“Islam” and “Islamic religion” in Article 3 of the Federal Constitution in the context means only such acts and as relate to rituals and ceremonies.
Although clause 1 of Article 3 implies that rituals and ceremonies of State must be in accordance with Islam, there is a subtle reminder here that as Islam is the main and dominant religion of the Federation, the Federation is duty-bound to protect, defend and promote Islam in the country. A more significant provision is Article 74(2) of the Constitution; it gives power to the State Legislatures to pass laws with respect to any of the matters enumerated in the State List including those laws affecting Muslims. Article 74(2) provides: Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.
Article 74(2) has to be read together with the 9th Schedule of the Constitution (Legislative List)(State List), which provides: Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic Law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; ... mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion, except in respect of matters included in the Federal List; The constitution organisation and procedure of Syariah Courts which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law, the control of propagating doctrines and beliefs among persons professing the religion of Islam; ... the determination of matters of Islamic law or doctrine Malay custom. 16 Malik Imtiaz Ahmed Bin Ghulam Sar war, “Traditional Practices and Contemporar y International Rights” INSAF [2003] Vol 3, p. 7 at 14. 17 See Abdul Aziz Bari, “The Relationship Between the Position of Islam in the Constitution and Scope of Religious Freedom: A Case Note on Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Anor” (2004) 12 IIUM 145. 18 See Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan Dan 2 Lagi [2005] 5 AMR 663.
178
Articles
Thus Parliament (for the Federal Territories) and State Legislatures (for the States) are given power to enact laws relating to “the determination of matters of Islamic law and doctrine and Malay custom”, “the control of propagating doctrines and beliefs among persons professing the religion of Islam” and for such laws to be enforced by a separate judicial system (“the constitution organisation and procedure of Syariah Courts which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any matters included in this paragraph)”. A special status is given to Islam under Article 12(2) of the Constitution. This provision, which enables the Federal Government to give financial assistance to Islamic institutions for carrying out Islamic development, provides: It shall be lawful for the Federation or State to establish or maintain or assist in establishing or maintaining Islamic institutions or provide or assist in providing instruction in the religion of Islam and incur expenditure as may be necessary for that purpose.
A unique provision in the Constitution with regard to the importance of Islam under the country’s constitutional framework is the definition of a “Malay” in Article 160. It states Malay means a person who professes the religion of Islam, habitually speaks the Malay Language, conforms to Malay custom and (i) was before Merdeka day born in the Federation or born of parents one of whom was born in the Federation, or is on that day domiciled in the Federation or in Singapore; or (ii) is the issue of such a person. It would appear that by virtue of Article 160 of the Constitution, a Malay can lose his special rights and privileges19 automatically if he leaves Islam or is converted to another religion. It is because of his “professing the religion of Islam” that a Malay obtains these rights and privileges, 20 and by renouncing Islam, the same person loses these rights and privileges. Malaysia appears to be the only place in the world where a member of a race or ethnic group can lose his identity as a member of that race or ethnic group by a change of religion. This provision, it is submitted, enhances the status of Islam under the Constitution. Another significant constitutional provision regarding the special status of Islam is in relation to an Emergency. Under Article 150 (1) of the Constitution it is provided that if the Yang di Pertuan Agong (the Paramount Ruler) is satisfied that a grave emergency exists whereby the security, or economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency. Article 150(5) of the Constitution then provides that while a Proclamation of Emergency is in force in the Federation or any part thereof, Parliament may, notwithstanding anything in the
19 Art 153 (1)(2)(3)(6)(8)(8A) and (10) of the Constitution, for example, reserves certain quotas in scholarships, licences, permits for Malays. Another example is the right of Malays to own Malay reservation land: Article 89. 20 These so-called privileges are rights under affirmative action policies to correct the racial inequities and economic imbalance affecting the country’s majority community.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
179
Constitution, make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the Emergency, and all restrictions imposed on the passing of Bills by Article 79 of the Constitution in respect of the exercise by Parliament of concurrent legislative powers shall not apply, nor shall any provision of the Constitution or of any written law which requires any consent or concurrence to the passing of a law or any consultation with respect thereto, or which restricts the coming into force of a law after it is passed or the presentation of a Bill to the Yang di Pertuan Agong for his assent. Despite the awesome special powers granted by the Constitution to Parliament under such an Emergency – which in reality means that such special powers devolve upon the Executive – such powers cannot encroach upon Islamic matters. Thus Article 150(6A) of the Constitution provides: Clause (5) shall not extend the powers of Parliament with respect to any matter of Islamic law or the custom of the Malays, or with respect to any matter of native law or custom in the State of Sabah or Sarawak...
Thus the only limitation to the power conferred by clause (5) is prescribed in clause (6A) in that Parliament cannot pass laws relating to Muslim law.
5 EFFECT OF ARTICLE 121(1A) OF THE CONSTITUTION It is due to the situation of conflict of jurisdiction (between the Civil and Syariah Courts) that Parliament has introduced Article 121(1A) of the Constitution. Before examining Article 121(1A) of the Constitution, it would be useful to look at Article 121. It provides: (1) There shall be two High Courts of co-ordinate jurisdiction and status, namely: (a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry in Kuala Lumpur; and (b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang Di-Pertuan Agong may determine; (c) (Repealed); and such inferior courts21 as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law. Article 121(1A) of the Constitution was enacted by Parliament in 1988.22 It provides:
21 “Inferior courts” here refer to the Sessions Courts and Magistrates’ Courts. 22 On 10 June 1988, the Constitution (Amendment) Act 1988 was passed by Parliament. It added clause (1A) to Article 121 of the Constitution.
Articles
180
The courts referred to in clause (1)23 shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.24
Under Article 121(1A), the Civil Courts have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts. The rationale for this provision was considered in the decision of the Supreme Court in Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1. In this case, Supreme Court Judge Mohammed Yusof explained why such a serious issue as apostasy needed consideration from a forum other than the Civil Courts. His Lordship said (at p 9): The present question, in my view cannot be determined by a simple application of facts as has been found by the learned Judicial Commissioner on the basis of veracity and relevancy of evidence according to civil law. Such a serious issue would in my mind, need consideration by eminent jurists who are properly qualified in the field of Islamic jurisprudence. On this view it is imperative that the determination on the question in issue requires substantial consideration of the Islamic law by relevant jurists qualified to do so. The only forum qualified to do so is the Syariah Court.
Subsequent authorities (cases) have shown that for the purpose of interpreting Article 121(1A) of the Constitution, the expression “the jurisdiction of the Syariah Courts” refer to either (a) the matters which are expressly provided in the legislation on Islam, or (b) the matters which can be implied from the legislation on Islam.
6 SYARIAH MATTERS WHICH ARE EXPRESSLY PROVIDED Using this approach, it is necessary to refer to the specific Syariah legislation under state law (or for the Federal Territories, under Federal law). A good example of this interpretation approach is found in the decision of Justice Faiza Thamby Chik in the case of Majlis Agama Islam, Negeri Sembilan v. Hun Mun Weng [1992] 2 MLJ 676 at the Seremban High Court. In this case, a minor, Nurul Ain Hun Abdullah had converted to Islam. Subsequently, in the same year, she had announced at a press conference her wish to leave Islam and return to her original religion, Buddhism. The Applicant, Majlis Agama Islam (Council of Islamic Religion) applied for a writ of habeas corpus against Nurul’s father (the respondent) who was alleged to have detained her, to demand that he produce her before the court. In an affidavit affirmed by Nurul on 31 July 1992, she had stated that she wanted to leave Islam and revert to her original religion, Buddhism. The trial judge held that the decision of Nurul to leave Islam by way of affidavit could not be regarded as final until she had stated her intention to the Council and that 23 I.e. the High Courts and the inferior courts. 24 However the new Article 121 (1A) does “not take away the jurisdiction of the Civil Courts to interpret any written laws of the States enacted for the administration of Muslim law”. Per Mohamed Yusoff SCJ in Dalip Kaur w/o Gurbux Singh v. Pegawai Polis Daerah, Balai Polis, Daerah Bukit Mertajam & Anor [1992] 1 MLJ 1 at 7.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
181
decision had been registered as required under Section 90(3) of the Administration of Islamic Law (Negeri Sembilan) Enactment, 1991. As Nurul had not followed this procedure, Justice Faiza held that Nurul was still a Muslim. Section 90(3) of the Negeri Sembilan Enactment that Faiza J had referred to, provides as follows: A Muslim or a convert to Islam under this Division, and afterwards decides to leave the religion shall report his decision to the Registrar of Converts and shall register such a decision in the Form that is stipulated. Before the decision is reported and registered, he is still regarded as a Muslim. The above approach is quite clear as the statute has an express provision. There is another approach adopted by the Courts to show that the jurisdictional section in the State Muslim Administration Enactment gives express jurisdiction to the Syariah Courts to decide on matters of apostasy. For example, under Section 46(2)(b) of the Administration of Islamic law (Federal Territories) Act 1993 (Act 505) it is provided that (2) A Syariah High Court shall (b) In its civil jurisdiction, hear and determine all actions and proceedings in which all parties are Muslims and which relate to (x) other matters in respect of which jurisdiction is conferred by any written law. Although Section 46(2)(b) by itself does not expressly clothe the Syariah Courts with jurisdiction to hear matters on a Muslim’s right to apostate – it is submitted that such a matter (apostasy) is within the jurisdiction of the Syariah Courts by virtue of the provision “other matters in respect of which jurisdiction is conferred by written law” which incorporates the subject matters stipulated in the State List of the Constitution i.e. “the determination of matters of Islamic law and doctrine and Malay custom” and this includes apostasy. It is submitted that Article 160 of the Constitution, the expression “written law” in section 46(2)(b)(ix) of Act 505 includes the Constitution and the Constitution of any State. Based on this reasoning, the Civil Courts have no jurisdiction to adjudicate issues involving apostasy. Legal scholar Mohamed Imam accepts the validity of this construction approach, saying that “such a residium clause would relate itself inter alia to the provisions of the Federal Constitution as contained in item (1) of the State List in the Ninth Schedule which emphatically states the matters as to which the Syariah Courts “shall have jurisdiction”.25 This was the approach adopted by High Court judge Faiza Thamby Chik J in Lina Joy v. Majlis Agama Islam Wilayah & Anor [2004] 2 MLJ 119. His Lordship pointed out that a provision of the Administration of Islamic Law (Federal Territories) Act, 1993 (Act 505) provides express jurisdiction in an apostasy matter by incorporating the Islamic matters stipulated in the State List of the 9th Schedule of the Constitution. Faiza J said: “The power of the Syariah Court under s 46(2)(b)(ix) of the 1993 Act is linked to art 11(3) and the Ninth Schedule List II – State List of the Federal Constitution.”
25 Mohamed Imam, “Syariah/Civil Courts’ Jurisdiction in Matters of Hukum Syara: A Persisting Dichotomy” [1995] 1 CLJ lxxxi at pp. xciii-xciv.
Articles
182
When the case went on appeal the Court of Appeal approached the issue differently, but it still held that the Syariah Court had jurisdiction over the matter.26
7 THE NECESSARY IMPLICATION APPROACH The second approach towards interpretation of Article 121(1A) is the “necessary implication approach”. This has been adopted by the Civil Courts in a number of cases including Hakim Lee v. Majlis Agama Islam, Wilayah Persekutuan [1998] 1 MLJ 681 (High Court) and Soon Singh v. Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah [1999] 2 AMR 1211 (Federal Court). In Hakim Lee v. Majlis Agama Islam, Wilayah Persekutuan [1998] 1 MLJ 681, Abdul Kadir Sulaiman J (as he then was) construed Article 121 (1A) by holding that although the relevant Islamic statute in the Federal Territory – the Administration of Islamic Law (Federal Territory) Act 1993 – does not have any express provision on apostasy, the Syariah Courts would still have jurisdiction to hear cases of apostasy. The learned High Court judge relied on the implied intention from the State List and the Ninth Schedule to the Federal Constitution, read together with Article 121 (1A). The facts of the case are as follows. The plaintiff, one Md Hakim Lee, filed an Originating Summons for certain declarations: firstly that his renunciation of the Islamic religion by a deed poll on 12 October 1995 was in accordance with the law and valid, and secondly that he was not required to obtain the consent of the defendant, namely Council for Muslim Religion of the Federal Territories, to renounce the religion of Islam. The plaintiff had been born a Buddhist but had embraced Islam on 30 March 1978 under the name of Md Hakim Lee. A preliminary argument on the question of jurisdiction of the High Court to adjudicate the matter arose in the light of Article 121 (1A) of the Federal Constitution. The learned judge, Abdul Kadir J, after having considered Article 74 of the Constitution and paragraph 1 of the State List (List II) said (at p 685): ... the jurisdiction of the Syariah Court is much wider than those expressly conferred upon it by the respective State legislature. The Syariah Court shall have jurisdiction over persons professing the religion of Islam in respect of any of the matters included in para 1 thereof. It is not to be limited only to those expressly enacted. The matters include Islamic law and personal and family law of persons professing the religion of Islam. They include cognizance over offences by persons professing the religion of Islam against precepts of that religion. The fact that the legislature is given the power to legislate on these matters but it does not as yet do so, would not detract from the fact that those matters were within the jurisdiction of the Syariah Court within the contemplation of para 1 of the State List and which jurisdiction is ousted from the courts mentioned in Article 121 (1) of the Constitution.27
If the state legislature has not as yet legislated specifically on the matter, it is within its competency to do so in the future by virtue of the powers given 26 See Lina Joy v. Majlis Agama Islam Wilayah Persekutuan Dan 2 Lagi [2005] 5 AMR 663. 27 That is, the High Courts and Subordinate Courts.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
183
under Article 74 of the Constitution. Therefore, when these matters are in issue, the jurisdiction is clothed in the Syariah Court and not in the courts mentioned in Article 121(1), notwithstanding the absence of express provisions in the state enactments at the time the issue arises. His Lordship had concluded as follows (at pp. 688-689): By virtue of para 1 in List II of the Ninth Schedule to the Federal Constitution, the jurisdiction lies with the Syariah Court on its wider jurisdiction over persons professing the religion of Islam even if no express provisions are provided in the Act because under Article 74 of the Constitution, it is within the competency of the legislature to legislate on the matter. Its absence from the express provision in the Act would not confer the jurisdiction in the Civil Court.
His Lordship dismissed the application of the plaintiff and held that the High Court (civil) had no jurisdiction to adjudicate in the matter prayed for in the application in the light of Article 121 (1A) of the Federal Constitution. The watershed decision on the interpretation of Article 121 (1A) of the Constitution is found in the judgment of the Federal Court in Soon Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah [1999] 2 AMR 1211. In this case, the Federal Court had to decide whether it was the Civil Court or the Syariah Court that had jurisdiction to hear a case on apostasy. The Federal Court decided that it was the Syariah Court that had jurisdiction. Federal Court Judge Mohamed Dzaiddin (as he then was), had approached the question by looking at certain provisions in the State Islamic enactment and had held that “by necessary implication” the Syariah Court had jurisdiction in the matter. In his written judgment Mohamed Dzaiddin FCJ explained what he meant by necessary implication: From the analysis of the State Enactments, it is clear that all State Enactments and the Federal Territories Act contain express provisions vesting the Syariah Courts with jurisdiction to deal with conversion to Islam. On the other hand, only some State Enactments expressly confer jurisdiction on the Syariah Courts with conversion out of Islam. In this regard we share the view of Hashim Yeop A Sani CJ (Malaya) in Dalip Kaur p 7 that “clear provisions should be incorporated in all State Enactments to avoid difficulties of interpretation by the Civil Courts,” particularly in view of the new cl (1A) of Article 121 of the Constitution which from 10 June 1988 had taken away the jurisdiction of Civil Courts in respect of matters within the jurisdiction of the Syariah Courts.
Be that as it may, in our opinion, the jurisdiction of the Syariah Courts to deal with conversion out of Islam, although not expressly provided in the State Enactments can be read into them by necessary implication from the provisions concerning conversion into Islam. It is quite clear to us that the legislative purpose of the State Enactments and the Act is to provide a law concerning the enforcement and administration of Islamic law, the constitution and organisation of the Syariah Courts and related matters. Therefore when jurisdiction is expressly conferred on the Syariah Courts to adjudicate on matters relating to conversion to Islam, in our opinion, it is logical that matters concerning conversion out of Islam (apostasy) could be read as necessarily implied in and falling within the jurisdiction of the Syariah Courts.
184
Articles
In short, it does seem inevitable that since matters on conversion to Islam come under the jurisdiction of the Syariah Courts, by implication, conversion out of Islam should also fall within the jurisdiction of the same courts. Part IX of the Administration of Islamic Law (Federal Territories) Act 1993 provides for conversion to Islam. It contains provisions on the Requirements for Conversion (Section 85), Moment of Conversion (Section 86), Duties and Obligations of a Muallaf (Muslim convert) (Section 87), the Registrar, Register and Registration of Muallaf (Sections 87-89), Certificate of Conversion, Recognition of Muallafs as Muslims (Section 91), Determining whether a nonregistered person is a Muallaf (Section 92), Offence of giving false information when applying for registration as a Muallaf (Section 93), Power of the Council for the Muslim Religion to make Rules relating to matters in Part IX (Section 94), and Capacity to convert into Islam (Section 95). Part IX and other parts of statute do not however contain provisions on conversion out of Islam. However, applying the statement of the law by Justice Mohamed Dzaiddin FCJ in Soon Singh (at pp. 501-502), it is submitted that since matters on conversion to Islam fall within the jurisdiction of the Syariah Courts under Part IX of the Administration of Islamic Law (Federal Territories) Act 1993, by implication, conversion out of Islam should also fall within the jurisdiction of the Syariah Courts. It is possible to argue that a law on an Islamic matter that is passed by the State Assembly would be null and void if it conflicts with a Federal law by virtue of Article 75 of the Federal Constitution. Article 75 of the Constitution provides: If any State law is inconsistent with a federal law, the Federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.
In The City Council Georgetown & Anor v. The Government of the State of Penang [1967] 1 MLJ 169 the Federal Court held that “... State law is invalidated to the extent of any inconsistency therein with a Federal law ... notwithstanding even that the State law may even be within the competency of the State Legislature ...” Such a simplistic argument however, is untenable, as it would render otiose the importance of Article 74 and the legislative lists specified in the Ninth Schedule to the Constitution.28 A fortiori, in light of our submission that Islam has a special status under the Constitution, it would be more difficult to contend that a state Islamic law is invalid for being inconsistent with Federal law, so long as the state Islamic law is made within the competency of the State Legislature. The argument of some commentators29 that State law (meaning State Islamic law) may be declared void if it is inconsistent with any provision in Part II of the Federal Constitution (the part that deals with fundamental liberties) is put in doubt.
28 See Mohamed Imam, “Making Laws Islamic in Malaysia: A Constitutional Perspective” [1994] 3 CLJ vii at p. xii. 29 See Salbiah Ahmad, “The Freedom of Religion Impasse and Powers of the High Court” (2003) INSAF, The Journal of the Malaysian Bar Vol XXXII No. 3 pp. 60 -90, an essay first written for the 2000 South East Asian Fellowship Programme of the Institute of Malaysian and International Studies (IKMAS), University Kebangsaan Malaysia.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
185
Article 75 refers to a validly enacted law, and a Federal law is only valid if it is within the legislative competence of Parliament to enact. Otherwise, there was no need for the Supreme Court in Mamat bin Daud & Ors v. Government of Malaysia [1988] 1 MLJ 119 to invalidate Section 298A of the Penal Code (a Federal law) on the ground that in its application to Muslims, it was on an “Islamic law” matter within States’ competence. In 1988 (before clause 1A was added to Article 121 of the Federal Constitution), the Federal Court delivered a landmark decision on the effect of a Federal statute encroaching upon the legislative competence of the States. This was in the case of Mamat Daud where the accused were charged under Section 298(A) of the Penal Code for doing an act “likely to prejudice the unity among persons professing the Islamic religion”. They were alleged to have acted as unauthorised bilal, khatib and imam at the Friday prayers in Kuala Terengganu without being so appointed under the Terengganu Administration of Muslim Law Enactment 1955. The principal issue before the Court was whether Section 298(A), an amendment to the Penal Code, introduced by Parliament in 1983, was ultra vires Article 74 of the Federal Constitution. Three judges of the Federal Court found for the appellant (accused) while two dissented. The Lord President, Tun Salleh Abas, found Section 298(A) to be a “colourable legislation” and held that “the power to legislate in order to control or stop such practices is given to states as could be seen from Article 11 clause 4”. Supreme Court Judge Mohamad Azmi, who was with the majority, took the view that the specified acts and conduct enumerated in Section 298(A) had nothing to do with “public order” as envisaged by the Federal List; but they are directly concerned with “religious matters or affairs ... all of which are reserved expressly by the State Legislatures.” His Lordship was of the opinion that: ... by enacting a law denying Muslims of the defence of honest belief in and honest interpretation of Islamic Law and doctrine, which can only be enacted by the State Legislatures, Parliament has acted beyond its legislative competency.
The Federal Court bench further held that (i) the State is competent to legislate on the matter because Islamic Law is the sole prerogative of the state and it has the first and primary power to legislate on Islam; (ii) Article 75 of the Federal Constitution cannot be intended to derogate this right in favour of Parliament. Furthermore, Supreme Court Judge Mohamed Azmi said (at pp. 125-126): Any attempt to control the right of Muslims to a particular belief or interpretation must, according to the Constitution be done by legislation passed by the State Legislatures because Article 74 confers legislative power only on the State Legislatures to deal with Islamic law and the determination of Islamic law and doctrine among Muslims.
The effect of the above decision is that the Syariah Courts’ jurisdiction in respect of any subject matter in item 1 of the State List cannot be encroached upon by the Civil Courts. One legislative body cannot trespass on matters which the other legislative body has power to legislate, even though the legislative body had not necessarily legislated on the matter. As Islamic law is a State law
Articles
186
(except in the case of the Federal Territories, where such a law is enacted by Parliament) it holds a special position in the context of the distribution of powers between the Federation and the States. A pattern that has emerged from the various apostasy decisions of the Civil Courts since the decision of the Federal Court in Soon Singh is quite clear; the courts are adopting the wider approach in determining the question of jurisdiction of the court that shall determine matters involving apostasy. Thus, although in most states, there is no specific legislation on apostasy, the wider approach of interpretation makes sense as it will bring about consistent decisions. The better course is for Parliament and the State Legislative Assemblies to enact specific legislation on apostasy as suggested by Mohamed Dzaiddin30 FCJ in Soon Singh, who has expressed the hope that all legislative bodies should given serious consideration to enacting state enactments with regard to all matters of apostasy. It is heartening to note that Selangor, the State with the highest population in Malaysia,31 had enacted the necessary legislation to adopt the suggestion of Mohamed Dzaiddin FCJ. It is now provided in the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (which came into force on 1 September, 2003) that a Syariah High Court shall, in its mal (civil) jurisdiction, hear and determine all actions and proceedings in which all the parties are Muslims and the actions and proceedings relate to, inter alia, “x. a declaration that a person is no longer a Muslim. “xi. a declaration that a deceased person was a Muslim or otherwise at the time of death.”32 The State of Selangor has shown a commitment to prevent future conflicts of jurisdiction on the issue of apostasy. It is hoped that in future all the states of the Federation will follow Selangor’s footsteps, so that there would be no more legal controversy regarding the jurisdiction of the Syariah Court to hear matters on apostasy.
8 WHETHER JUDICIAL POLICY TREATS MALAYS DIFFERENTLY FROM CONVERTS One question that is relevant for discussion is whether the courts treat born Muslims and Muslim converts differently on the issue of apostasy. In Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Anor [2004] 2 MLJ 119, the High Court judge, Justice Faiza Tamby Chik has suggested by way of obiter dicta that by virtue of Article 160 of the Constitution, the plaintiff was a Malay and therefore could not leave the religion. The learned judge said (at p. 144): 30 His Lordship was later appointed Chief Justice (on 20 December, 2000) and retired from service in 2003. 31 In August 2005, Selangor State had a population of about 4.8 million people, almost one-fifth of Malaysia’s population. See The Star, 27 August 2005. 32 See Administration of the Religion of Islam (State of Selangor) Enactment 2003, s 61(3)(b)(x) and (xi).
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
187
...therefore as long as she is a Malay by that definition she cannot renounce her Islamic religion. As a Malay, the plaintiff remains in the Islamic faith until her dying day.
Realising that his statement could be construed as a decision made on the merits (and which would be contrary to his earlier finding that it was the Syariah Court that should decide on the matter in issue), His Lordship clarified as follows: ... for the purposes of clarification, I must state here that I have not made any decision or touched on the plaintiff’s decision to leave the Islamic faith at all as I have stated earlier that I leave this to the Syariah Court to deal with the matter. My decision is based purely on Article 160 of a “Malay” under the Federal Constitution.
However this point was not canvassed at the Court of Appeal.33 In any event, in a subsequent Ipoh High Court decision, the trial judge, in holding that it was the Syariah Court and not the Civil Court that had jurisdiction in the matter, did not apply the law differently on the two plaintiffs although one was a Malay Muslim, and the other, a convert. In Priyathasemy & Ors v. Pegawai Penguatkuasa Agama, Jabatan Hal Ehwal Agama Islam Perak & Ors [2003] 2 MLJ 302. In this case, the first plaintiff, ethnically a Malay and born a Muslim, renounced Islam five years before the court decision and had adopted Hinduism as her religion. She changed her name to a Hindu name and married the second plaintiff, an ethnic Indian and a lifelong Hindu, and they had two infant daughters, the third and fourth plaintiffs. The first plaintiff was arrested, charged for deriding the religion of Islam (i.e. for the actions she took to leave Islam) and for cohabitation outside of lawful wedlock with the second plaintiff until a child was born. The first plaintiff was convicted and fined. She sought declarations from the High Court that her continued treatment as a Muslim, and the criminal sanctions imposed on her or threatened to be imposed on her despite the fact that she no longer professed the religion of Islam, was unconstitutional. The second plaintiff sought similar declaratory reliefs, claiming that he was converted to Islam under duress. Relying on the Soon Singh decision,34 the High Court held that the orders prayed for fell under the jurisdiction of the Syariah Court by virtue of Section 13 of the Perak (Syariah) Criminal Enactment 1992.
9 APOSTASY AND FREEDOM OF RELIGION IN ISLAM Following the proposition that it is the Syariah Court that has the jurisdiction to decide on matters relating to apostasy – a position clearly supported by numerous Malaysian court decisions – the question to be asked is: by what principles are the Syariah Courts to be guided when deciding whether a person should be declared an apostate or not, and whether such a person should be punished.
33 See Lina Joy v. Majlis Agama Islam Wilayah Persekutuan Dan 2 Lagi [2005] 5 AMR 2005. 34 Soon Singh v. PERKIM Kedah [1999] 2 AMR 1211 (Federal Court).
188
Articles
There are two divergent views on the issue of freedom of religion in Islam. The first view – one held by the traditional ulama – is that, freedom of religion in Islam is not absolute. Thus, in the case of apostasy, Muslims are strictly forbidden from leaving Islam. For the scholars who subscribe to this view, freedom of religion would be relevant only for non-Muslims, who are allowed to leave their faith and embrace Islam, but once they become Muslims, they do not have the right to leave Islam. The modernists adopt a contrary view. To them, freedom of religion in Islam is absolute, as each individual is given the choice whether to profess or reject the religion. Furthermore, whether a person embraces Islam or not is closely connected to the “guidance” embodied in the Qur’an, and this is a recurring theme in the Holy Book. According to Abdulaziz A Sachedina, a human being may reject this guidance without giving any reason for it. If he rejects the guidance provided by the Qur’an, he will be led astray spiritually, and will suffer for the choice that he had made.35 To the modernists, absolute freedom of religion means that an Islamic State cannot simply force a person to embrace Islam, as each individual has a right to follow the religion of his choice.36 History shows that Prophet Mohammad (S.A.W.) had never forced non-Muslims to embrace Islam. As a messenger of Allah, Mohammad merely asked his fellow beings to follow the right path. He invited the non-Muslims to embrace Islam, but never used force in order to make them accept Islam.37 Thus the majority of Muslim jurists take the stand that if a person is forced to embrace Islam, then such an act of conversion is not valid.38 One of the most quoted verses of the Qur’an on religion is: “Let There Be No Compulsion in Religion” (Surah al- Baqarah, 2:256). The general interpretation of this verse is that the religion of Islam is not based on force, but on belief and desire. Thus, if a person is forced to accept the religion, it will have no meaning or significance to the adherent.39 The majority of the scholars of the past – those learned in the science of tafsir (Qur’anic interpretation) such as al-Qurtubi, al-Tabari and al-Tusi, opine that the above verse cannot be interpreted literally in order to reach the conclusion that a person is free from force in the matter of religion. Essentially, there are four views on the significance of this verse. Firstly, freedom of religion is conferred on ahli kitab (People of the Book) who pay jizyah (poll-tax). Secondly, the verse was abrogated by another verse that asks for jihad: “Seize them and slay them wherever ye find them.”40 The third view regards the expression as being made in reference to the Ansar people who had forced their children to
35 Abdulaziz Sachedina, “Freedom of Conscience and Religion in the Quran” in Human Rights and the Conflict of Cultures: Western And Islamic Perspectives on Religious Liberty, David Little, et al., University of South Carolina Press, 1988 p. 58. 36 Muhammad Fathi Uthman, Huquq al-Insan Baina al-Syari’ah al-Islamyyah Wa al-fikr al-Qanun al-Gharbi, Dar al-Shuruq, 1401 H/1982 M, pp. 29-37. 37 Al-‘Ili, ‘abd al-Hakim Hassan, al-Hurriyyah al-‘Ammah, Dar-al-Fikr, 1403 H/1983 M, p. 330. 38 Rashid Rida, Tafsir al-Manar, Jil XI, p. 484. 38 Abdullah Yusuf Ali, The Meaning of the Holy Qur’an, 1411 H/1991 M, p. 106. 40 Some scholars say, this verse shows that Prophet Mohammad (S.A.W.) forced the Quraish people to embrace Islam, and if failed to do so, they would be put to death.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
189
embrace Islam but was thwarted by Allah. Fourthly, the verse is interpreted to mean that a traitor who had embraced Islam must be accepted into the fold. There are other verses of the Qur’an that touch on this topic. The traditionalists say that Verse 6 of Surah al-Kafirun, which provides – To You Be Your Way, and to Me Mine;
does not reflect the freedom of religion but exhorts Prophet Mohammad (s.a.w.) not to compromise with the non-believers of the faith.41 The modernists in turn contend that this interpretation of Verse 6 of Surah al-Kafirun runs counter to verse 256 of Surah al-Baqarah which speaks of there being “no compulsion in religion”.42 To the modernists, by virtue of Verse 256, a Muslim is free to leave his religion or to adopt another religion provided that he does not insult, degrade, revile or ridicule Islam. Thus, a person who leaves the religion in a proper way will not suffer corporal punishment in this world. To buttress this opinion, the modernists also rely on Verse 29 of Surah Al Kahf, which states: Let him who will, Believe, and let him Who will, reject (it);
In contrast, the traditional ulama postulate that freedom of religion does not apply to a Muslim, who is not free to leave his religion until he dies.
10 THE PUNISHMENT OF MURTAD The punishment for apostasy has become the most controversial subject among the ulama as there appears to be no consensus among them on this issue. The first group comprises the traditional ulama who hold the view – and this represents the majority view – that an apostate who refuses to repent should be killed, as this is an offence that is categorised as a hadd 43 offence under the Syariah. The following Hadith of the Prophet is relied upon for this strict view: It is reported by Abbas, may Allah be pleased with him, that the Messenger of Allah (S.A.W.) said: Whosoever changes his religion (from Islam to anything else), bring end to his life. (Al Bukhari).
Hadd means an unalterable punishment fixed by the Qur’an or a Sunnah of the Prophet as a right of Allah for a crime.44 Hadd cannot be increased, decreased, altered or remitted by anyone (including the head of an Islamic State).45
41 Al-Mawdudi, Towards Understanding the Qur’an (Translated and edited by Zafar Ishaq Ansari), vol 16, The Islamic Foundation, Leicester, 1988, p. 293. 42 See Ibni Qadamah, al-Mughni, vol 1, Riyad: Maktabah al-Riyad al-Haditha, 1401 AH/1981 AD, pp. 144-145. 43 Hadd is the singular form of the word hudud. 44 Prof Dr Anwarullah, The Criminal Law of Islam (A. S. Noordeen) (1997, Kuala Lumpur), at p. 112. 45 Ibid.
190
Articles
The second group of ulama comprises the modernists; they are reformists who regard the act of leaving Islam as a matter of freedom of religion or faith. According to them, a person who apostatises quietly without insulting, degrading, reviling or ridiculing Islam, ought not to be punished in this world, as he will be punished in the hereafter. The third category of ulama adopts the stand that the type of punishment to be imposed on an apostate should be under the category of takzir on the basis that there is no specific reference to this punishment in the Holy Qur’an.46 Furthermore, there is a conflict of Hadith on whether an apostate should be put to death or not. It has been pointed out by some jurists that the reference to the killing of a person who had apostatised in a Hadith does not actually refer to an apostate but a person who has committed the offence of hirabah (treason). This, they said, had resulted in the misunderstanding.47 According to Ibn Tamiyyah, the following Hadith – “The life of a Muslim can be taken if he commits adultery, murder or leaves his religion” – is directed specially towards a traitor (baghy) and not against apostates.48 The popular Hadith – “Whoever changes his religion brings end to his life” – has been challenged by some ulama on the ground of authenticity and quality. This Hadith has been regarded as rather weak as it was reported in the form of Khabar Ahad, which according to those specialised in the science of Usul al-Fiqh (Islamic Jurisprudence) is not strong enough to sanction the death punishment.49 It is further said that instead of being specific, the said Hadith is too general in scope.50 For example, according to Mohammad Hashim Kamali, Prophet Mohammad (S.A.W.) had never pronounced the sentence of death on any apostate but had only asked them to repent.51 He also questions the views of the traditional ulama that an apostate should be sentenced to death. Abdul Hamid Abu Sulaiman has tried to explain how the traditional ulama could have gone wrong in their interpretation. According to this scholar, there exists three points of confusion. Firstly, there is a confusion in regard to the time factor, i.e. the issue of apostasy was connected with the issue of conspiracy on the part of one section of Jewish community who had hoped that what they had done would bring about civil strife and confusion. According to Abdul Hamid, the tactic used by this group was to convert to Islam and subsequently leave the religion en masse. The hypocritical conduct on the part of this group resulted in the Prophet sentencing them to death based on the particular 46 Islamic criminal law consists of three parts namely – hudud, qisas and takzir. Takzir is simply the law that governs offences that do not fall within hudud and qisas. In Malaysia, takzir or by any other name has been part of each state’s Islamic law and enactments since Merdeka and the states’ rights are clearly enshrined in the Federal Constitution. The jurisdiction of the Syariah Courts with regard to the limits of punishment is stipulated in the Syariah Courts (Criminal Jurisdiction) Act 1965. 47 See S. S-Elwa, Punishment in Islamic Law, American Trust Publications, 1982, pp. 51-53. 48 Ibid. See also al-Samara’i, Ahkam al-Murtad Fi al-Shari’ah al-Islamiyyah, Dar al-Arabyyah, Beirut, pp. 29-33. 49 Mohammad Hashim Kamali, Freedom of Expression in Islam, Cambridge: Islamic Texts Society, 1997, p. 93. 50 Al-Shawkani, Nayl al-Awtar, vol 7, Beirut: Dar al-Jit, t.t., p. 193. 51 Mohammad Hashim Kamali, op cit, p. 93; see also S. A. Rahman, Punishment of Apostasy in Islam, Kitab Bhavan, New Delhi, 1996, pp. 63-64.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
191
facts of this case, and not in the treatment of other cases of murtad.52 The second confusion relates to the action to be taken against those who apostate. The action that was taken against the apostates was not due to their leaving Islam but was related to the political factor, thus creating an impression that the action taken against them had resulted in a denial of the freedom of religion that is guaranteed in Islam. In the eyes of the modernists, the traditional ulama should consider the objective and rationale of the policy of Islamisation that was introduced by the Prophet (s.a.w.) to the Arabs who were notorious for their various factions (kabilah). Another important aspect of the problem relates to the criminal and security elements inherent in the murtad cases that the Prophet (s.a.w.) had to decide.53 The third confusion arises in regard to the action taken by Sayyidina Abu Bakar as the first Caliph of Islam against those who didn’t pay their zakat, which the traditional ulama would regard as acts of apostasy. In reality, the action taken by Sayyidina Abu Bakar had nothing to do with apostasy, as he had declared war on these people to prevent other members of the community from following their bad example in not paying zakat.54 A contemporary scholar, ‘Abd al-Muta’ali al-Sa’idi, agrees with the views of the modernists. According to him, an apostate is no different from a person born as a non-believer; just as the non-believer is allowed to profess his religion, the apostate is allowed to leave Islam. For support, he cites the views of the ulama of the past such as Ibrahim al-Nakha’i, Hassan al-Basri, Sufyan al-Thawri, ‘Abd Wahab al-Shar’rani and Shams al-Din al-Sharakshi.55 It must be pointed out however, that Al Sa’idi’s views are not free from controversy. When (both editions) of his book56 were published, he was vehemently criticised by scholars of the highly prestigious al-Azhar University in Egypt. In another book, alSaidi has suggested that there were other factors that led the Prophet (s.a.w.) to pronounce the sentence of death on the apostates.57 According to him, at that time, those who had apostatised were engaged in a rebellion against Islam, and the punishment of death was imposed on them not for their act of apostasy but for the act of rebellion against Islam.58 Another factor cited by this scholar was, although the munafik (hypocrites) had left Islam, the Prophet (s.a.w.) did not pronounce the sentence of death on them as they had not killed anyone. Al Sa’idi uses this analogy to conclude that if apostates do not rebel against Islam, they will not be subject to the punishment of death, but will be given time to repent.59 The views of al-Sa’idi are shared by many modernists 52 Abdul Hamid A Abu Sulaiman, Towards an Islamic Theory of International Relations: New Directions for Methodology and Thought, Hendon: IIIT, 1993, pp. 108-109. 53 Ibid. 54 Ibid. 55 See Mahmoud Ayoub, Religious Freedom and the Law of Apostasy in Islam, Islamchristiana, vol 20 (1994) p. 89;‘Abd al-Muta’ali al-Sa’idi op cit, pp. 44-48; Muhammad Hashim Kamali, op cit, p. 93. See also Muhammad Hashim Kamali, Punishment in Islamic Law an Enquiry into the Hudud Bill of Kelantan, Kuala Lumpur: Institut Kajian Dasar (1995), p 35. 56 ‘Abd al-Muta’ali al-Sa’idi, al-Hurriyyah al-Diniyyah fi al-Islam, Dar al-Fikr (1955) (2000). 57 Ibid. 58 ‘Abd al-Muta’ali al-Sa’idi, Hurriyyat al-Fikr fi al-Islam, p. 85. 59 Muhammad Hashim Kamali, op cit, pp. 92-107; see also his books (1995), op cit, pp. 33-37 and Islamic Law and Development (2000, K Lumpur) (Ilmiah Publishers), pp. 207-209 and 214-219.
Articles
192
ulama such as Rashid Rida 60 (and his mentor) Muhammad ‘Abduh, Mohammad Hashim Kamali,61 Abdullahhi An-Naim,62 Muhammad Saleem elEwa,63 Mahmoud Ayoub,64 Mahmud Shaltut,65 Rashid Ganoushi,66 Yusuf alQardhawi67 and many others. The modernists adopt the view that those who leave Islam without committing acts of sabotage or betrayal against Islam or without insulting, degrading, reviling or ridiculing Islam will not suffer any punishment in this world as such punishment is postponed to the hereafter.68 It is said that the stand of the traditional ulama that an apostate should be sentenced to death is due to a failure on their part to appreciate the difference between an act of apostasy and an act of blasphemy.69 It has been argued that by virtue of the difficulty of differentiating these two acts, it is quite understandable that the traditional ulama would have regarded an act of blasphemy as a category of apostasy and that those who commit the two offences would suffer the death punishment. Apostasy may occur without the presence of elements constituting acts of rebellion or insult against Islam; on the other hand acts of insulting Islam may lead to acts that ridicule Islam or are hostile to Islam.70 The scholars contend that as there is a difference between the two offences under the law, the punishment must necessarily be different.71
11 THE VIEWS OF MALAYSIAN SCHOLARS In Malaysia, the Islamic scholars are also divided on the issue whether those who apostatise should receive corporal punishment or not. The first group accepts the view of the traditional ulama that one who apostatises should be killed if they do not repent within the stipulated period. The second group leans towards the view that those who apostatise should not receive the sentence of death but the lesser sentence under takzir. The objective of this punishment is to reform the perpetrator and restrain him from committing the crime again. In Malaysia one seldom finds material written in support of the
60 Rashid Rida, Tafsir al-Manar, vol xi, p. 484. 61 Muhammad Hashim Kamali, op cit, pp. 92-107; see also his books (1995), op cit, pp. 33-37 and (2000) op cit, pp. 207-209 and 214-219. 62 Abdullahhi An-Naim, “The Islamic Law of Apostasy and its Modern Applicability: A Case from the Sudan” in Religion, vol 16, pp. 210-217. 63 Muhammad Saleem el-Ewa, op cit, pp. 50-56 and 61-64. 64 Mahmoud Ayoub, op cit, pp. 77-91. 65 Mahmud Shaltut, al-Islam Aqida wa Sharia, Maktabah al-Shuruq (1992), pp. 280-281. 66 Rashid Ghanoushi, al-Hurriyyat al-Am fi al-Daula al-islamiyya, Markaz Dirasat al-Wahdah al‘Arabiyya (1993), pp. 48-51. 67 Yusof al-Qardhawi, Jenayah Murtad dan Hukumannya Menurut Perspektif al-Qur’an dan al-Sunnah, (Trans: Zaharan Mohamed & Mohd Akhir Yaacob), RMi Multimedia Publishing, Shah Alam (2000), pp. 52, 56-57. 68 Muhammad Saleem el-Ewa, op cit, p. 50. 69 For further discussion on this topic, see Muhammad Hashim Kamali (1997), op cit, p. 213. 70 Mohammad Hashim Kamali, op cit, (1997), pp. 213-215. 71 al-Mawsu’ah al-Fiqhiyyah, vol 22, (Kuwait): Wizarah al-Awqaf wa Shu’un al-Islamiyyah, 1412 H/ 1992 M, pp. 184-186; see also al-Samara’i, Ahkam al-Murtad Fi al-Shari’ah al-Islamiyyah (Beirut): Dar al’arabiyyah, pp. 92-110.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
193
modernists’ view that apostates should not be punished in this world at all. In the legal literature on apostasy in Malaysia, the majority of the Islamic writers follow the view of the traditionalist ulama. Even students – both at undergraduate and graduate levels – subscribe to the view of the traditionalists that apostates must receive the death punishment.72 It is observed that the majority of Malaysian scholars adopt the views of the traditionalists and their sources of reference are mainly the written works of the traditional scholars.73 Some local writers have suggested that apostates should receive the takzir punishment.74 This view appears to be gaining ground among the Muslim scholars, judging from the number of seminar papers presented on this topic.75 These writers would have taken into consideration the fact the takzir punishment is suitable for a country that has a multi-racial population and a Constitution that imposes a limit on the power of the Syariah Courts to pass sentences for offences against the precepts of Islam. The late Ahmad Ibrahim was of the view that the takzir punishment of detaining a person who intends to apostate by giving him counselling with the objective of making him return to Islam appears to be a better course of action to take than to impose on him a jail sentence and fine.76 Abdul Munir Yacob77 and other scholars78 share the same view as Ahmad Ibrahim. It is quite evident that there is a dearth of legal literature supporting the view of the minority of the scholars – i.e. that apostates should not be given corporal punishment unless he has undergone the process of counselling with a view towards making him return to the right path i.e. through taubat
72 See ABM Mahbubul Islam, Freedom of Religion in Shari’ah : A Comparative Analysis (2002, AS Nordeen, K Lumpur); Waheeda Kamalam Ambigay Abdullah, Conversion and Apostasy in the Context of Freedom of Religion (1997/1998), UIAM Thesis); Shahriman Mahmud, Perbincangan Isu Murtad di Malaysia (1999) (UIAM Thesis); Rozali Mohamad, Fenomena Riddah di Malaysia: Kesan dan Penyelesaain Menurut Islam (1998)(UKM Thesis). 73 See ABM Mahbubul Islam, op cit at pp. 182-221, 271, 474-475; Waheeda Kamalam Ambigay, op cit, p. 92; Hj Said Hj Ibrahim (Former Mufti of Sabah), Murtad Dari Sudut Hukum Syara’ dan Perundangan Islam (1998)(Darul Makrifah, K Lumpur), pp. 189-207; Muhammad ‘Ata Alsid Ahmad, The Hudud (1999)(P Jaya), pp. 36-40; Arrief Salleh Rosaman, Murtad Menurut Perundangan Islam (2001) (UTM Skudai, Johore), p. 59. 74 See Rozali Mohamad (1998), op cit, p. 183; Shahriman Mahmud (1999), op cit, pp. 56-72. 75 See Bengkel Menangani Gejala Murtad (organised by ABIM in K Lumpur) (8 March 1998); Seminar Faham Agama dan Gejala Murtad (Organised by Jabatan Hal Ehwal Islam Negara Sembilan (Seremban)(25 October 2001). 76 Ahmad Ibrahim, “Murtad: Hujuman dan Kesannya Dari Segi Undang-Undang” Dakwah, April 1995, pp. 5-8 that was distributed in the Bengkel Menangani Gejala Murtad (organised by ABIM in K Lumpur) (8 March 1998); see also Ahmad Ibrahim, “Apostasy and its Effect in Islam” in The Administration of Islamic Law in Malaysia, (2000) (IKIM) (K Lumpur), pp. 585-620; see also 77 Former Director-General of Institute of Islamic Understanding Malaysia (IKIM) and currently a Professor at Academy of Islamic Studies, University of Malaya. See Abdul Monir Yacob, “Kesalahan Murtad: Perspektif Syarak dan Perundangan” dalam Persidangan Penyelarasan Undang-Undang Sivil dan Syarak, Kali Ke-11 (Organised by JAKIM) at Radison Hotel, Shah Alam, 6-8 November 1998. 78 See Mohamed Azam Mohamed Adil, “Peruntukan Undang-Undang Murtad di Malaysia: Realiti, Cabaran dan harapan” presented at the “Seminar Agama Dan Gejala Murtad” (organised by Jabatan Hal Ehwal Islam Negara Sembilan (Seremban)(25 October 1998), pp. 45-68; see also Mohamed Azam Mohamed Adil, “Undang-Undang Murtad: Suatu Penelitian Dari Pespektif Fikah Dan Undang-Undang di Malaysia” [Mac 1997] 9 KANUN (1), pp. 1-11.
194
Articles
(repentance). Among those who advocate this view are Mohammad Hashim Kamali,79 Sisters in Islam80 and Mahmood Zohdi.81
12 THE LIMITED POWER OF THE STATES TO ENACT LAWS ON ISLAMIC OFFENCES The legal reality in Malaysia is that the supreme law of the Federation is the Federal Constitution. This is reflected in Article 4 of the Constitution, which provides: This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.82
The power of the Legislative Assemblies to enact Islamic laws in the States and the power of Parliament to pass laws for the Federal Territories (of Kuala Lumpur, Labuan and Putrajaya) would have to be in accord with the above provision. The limitation imposed by the Constitution on the power of the states to pass Islamic laws is found in Article 74(2), which provides: Without prejudice to any power to make laws conferred on it by any other Article the legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth schedule) or the Concurrent List. The above provision is to be contrasted with the power given to Parliament to make laws in Article 74(1), wherein it is provided that “without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule”.
In regard to the right of the States to enact criminal laws, item 1 of the State List provides that except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrjaya, the State legislative assemblies have power to make laws with respect to the following subject matters – The creation and 79 See Mohamad Hashim Kamali, Freedom of Expression in Islam (2nd Edn, 1997) (Ilmiah Publishers), Punishment in Islamic Law – An Enquiry Into the Hudud Bill of Kelantan (1995) (Institut Kajian Dasar) and Islamic Law in Malaysia: Issues and Development (2000)(Ilmiah Publishers). 80 Sisters in Islam, “Do Not Legislate on Faith”, New Straits Times (NST) 30 September 2000, p. 11; “No Basis To Punish Apostates With Death”, NST 24 July 1999, p. 11, “Islam, Murtad, Hudud and PAS”, Ututusan Malaysia 24 July 1999, p. 7. See also “Review of Apostasy Bill”, NST 6 October, 2001, p. 2, “JAKIM Kaji Semula Rang Undang-Undang Pemulihan Akidah”, Utusan Malaysia 6 October, 2001, p. 27. See writing by Rose Ismail, Hudud in Malaysia: The Issues at Stake (1995) (Sisters in Islam Publications), Noraini Othman (Ed), Syariah Law and the Modern Nation-State, A Malaysian Symposium (1994)(Sisters in Islam Publications). 81 Mahmood Zuhdi, “Bidang Kuasa Jenayah Mahkamah Syariah di Malaysia” (2001)(Dewan Bahasa dan Pustaka), pp. 242-251, 340-342; also an interview of Mahmood Zuhdi by Mohamed Azam Mohamed Adil on 28 July 2003 at the office of the (then) Director of the Academy of Islamic Studies, University of Malaya. 82 For an interpretation of Article 4(1), see Assa Singh v. Menteri Besar, Johore [1969] 2 MLJ 30 (Federal Court).
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
195
punishment of offences by persons professing the religion of Islam against the precepts of that religion, except in regard to matters in the Federal List ... The constitution, organisation and procedure of Syariah Courts which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any matters included in this paragraph, but shall not have jurisdiction in respect of offences except insofar as conferred by Federal law. The control of propagating doctrines and beliefs among persons professing the religion of Islam.83 Some legal commentators adopt the stand that the clause – “The creation and punishment of offences by persons professing the religion of Islam against the precepts84 of that religion except in regard to matters in the Federal List” – strips the States of any inherent power to enact laws with respect to the precepts of Islam on the ground that such power is vested in Parliament.85 With respect, such a construction of the clause is not tenable for the simple reason that such commentators have failed to take into consideration the historical background of the Constitution. Even before the countr y’s independence, many enactments (State statutes) and ordinances (Federal statutes) were already in existence for the purpose of enforcing Syariah criminal laws, and among these was the Selangor Administration of Muslim Law Enactment 1952.86 When the nation obtained independence in 1957, these powers over Islamic criminal offences were not affected. In fact, the powers of the States on these matters were retained in item 1 of the State List of the Ninth Schedule of the Constitution. Furthermore, the intention of the framers of the Constitution to retain the (pre-independence) law-making powers of the States, including the right to enact Islamic criminal laws, is reflected in Article 162(1) of the Constitution which provides: Subject to the following provisions of this Article and Article 163, the existing laws shall, until repealed by any authority having power to do so under this Constitution, continue in force on and after Merdeka Day,87 with such modifications as may be made therein under this Article and subject to any amendments made by federal or state law.88
83 In the Federal Territories, item 6(e) of the Federal list read with Article 74 of the Constitution gives power to Parliament to pass laws affecting Muslims in the Federal Territories. This power – to be given under federal law – is similar to that given to the State Assemblies. 84 The word “precept” means a command or rule of conduct: Concise Oxford Dictionary (9th Edn). Thus the precepts of a religion means the commands or rule of conduct of that religion. 85 Shad Saleem Faruqi, “Jurisdiction of State Authorities to Punish Offences Against the Precepts of Islam: A Constitutional Perspective”, in INSAF, The Journal of the Malaysian Bar, 2005 vol 1, p 73. 86 Among the offences listed against the precepts of Islam in the Selangor Enactment are failure to go for Friday prayers, eating and drinking during the day in the month of Ramadhan, failure to pay tithes and zakat dues, misusing the Qur’an, fornication, selling and consuming intoxicating liquor, causing Islam to be insulted, inciting people to abandon the teachings of Islam, wrongful teaching of Islam, close proximity. 87 i.e. Independence Day (31 August 1957). 88 For an interpretation of Article 162(1), see Mark Koding v. Public Prosecutor [1982] 2 MLJ 120 (Federal Court).
196
Articles
If indeed the States do not have power to enact Islamic criminal laws, then most certainly the provisions of the State List in the Ninth Schedule with respect to the powers of the States to pass such laws would not have been included at the time of independence. It is submitted that the clause “except in regard to matters in the Federal List” merely refers to federal laws such as laws relating to income tax, intellectual property, land law, company law, and so on, in respect of which the States have no power to enact. In the many cases decided by the country’s highest courts, there have never been any decisions where the courts have ruled that the States have no power to enact laws against the precepts of Islam (Islamic criminal laws).89 One of most important decisions on the issue of conflict between a Federal criminal law and State criminal law involving a Muslim, and how such a conflict is to be resolved, is the Federal Court decision in Sukma Darmawan v. Ketua Pengarah Penjara & Anor [1999] 2 MLJ 1241. In this case, the appellant was convicted and sentenced to six months’ imprisonment by the Kuala Lumpur Sessions Court, after he pleaded guilty90 for allowing himself to be sodomised, an offence under section 377D of the Penal Code (a federal statute).91 The offence was also an offence under the Syariah Criminal Offences (Federal Territories) Act 1997.92 In the appeal, the argument focused on the effect of Article 121 and 121(1A) of the Constitution. Counsel for the appellant argued that since the offence with which the appellant had been convicted was also an offence triable by the Syariah Court, and the parties involved were Muslims, the appellant ought to be charged and tried in the Syariah Court. The Federal Court dismissed the appeal and held: In interpreting clause (1A) of Article 121, it is wrong to examine the clause in isolation. The clause should also not be construed literally since a literal interpretation would give rise to consequences which the legislature could not have possibly intended. Clauses (1) and (1A) of Article 121 should therefore be construed together and a construction consistent with the smooth working of the system which Article 121 purports to regulate should be adopted.
Applying this approach and considering section 59 of the Interpretation Act, it follows that where an offender commits an offence triable by either the Civil Court or a Syariah Court, he may be prosecuted in either of those courts. The Federal Court also held that the rule of “double jeopardy” – i.e. the offender being punished twice for the same offence – does not apply to such a situation by virtue of Article 7(2) of the Constitution which provides that a person who has been acquitted or convicted of an offence shall not be tried 89 See Mohamad Habibullah bin Mahmood v. Faridah bt Dato Talib [1992] 2 MLJ 793 (Supreme Court); Mamat bin Daud & Anor v. Government of Malaysia [1988] 1 MLJ 199 (Supreme Court). 90 Sukma appealed (unsuccessfully) against the plea of guilt on the ground that the confession was obtained under threat while under police custody. 91 F.M.S. Cap 45. Extended from its status as an Enactment of the Federated Malay States to have effect throughout the Federation of Malaya on 18.12.1948 (F.M. Ordinance 32/1948). Further extended to have effect throughout Malaysia on 31.3.1976 (Act A 327). 92 Although the Act is a federal law, to all intents and purposes the power of Parliament to enact such law is no different from the power of the state to pass such a law. See item 6(e) of the Federal List which incorporates “Islamic law therein to the same extent as provided in item 1 of the State list.”
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
197
again for the same offence except where the acquittal or conviction has been quashed and a retrial ordered by a superior court to that by which he was acquitted or convicted. Nothing was said in this decision about the States not having the power to enact Islamic criminal laws relating to sodomy. Thus when a Muslim is charged in the Syariah Court for the offence of sodomy under the Syariah Criminal Offences Enactment, he cannot be charged in the Civil Court (criminal jurisdiction) for an offence of gross indecency under Section 377D of the Penal Code. The first party (i.e. either the Federal or State authority) to prosecute the accused will have the advantage of taking the matter to the end. It can be observed that in Sukma Darmawan the Federal Court had construed Article 121(1A) in such a way that would avoid any disturbance to the smooth-running of the present criminal system.93 There appears to be a limitation on the powers of the Syariah in respect of offences under item 1 of the State List. Firstly, the Syariah Courts will only have jurisdiction over persons professing the religion of Islam. This limitation is quite clear and has received judicial recognition. In Ng Siew Pian v. Abd Wahid B Abu Hassan, Kadi Daerah Bt Mertajam & Satu Yang Lain [1992] 2 MLJ 425, Justice Abdul Hamid of the Penang High Court held that the Court of the Kadi (precursor of the Syariah Court) had no jurisdiction to hear an application by the plaintiff in a divorce proceeding under Section 40(3)(b) of the Penang Administration of Islamic Law Enactment 1959.94 The second limitation – that the Syariah Courts do not have jurisdiction in respect of offences except insofar as conferred by Federal law – has a rather vague meaning. In any event, no Federal law has ever been passed to limit the power of the Syariah Courts to try Islamic offences although a federal law has been passed to limit the powers of punishment of the Syariah Courts; this is the Syariah Courts (Criminal Jurisdiction) Act 1965.95 Under this Act, it is provided that the jurisdiction given to the Syariah Courts “shall not be exercised of any offence punishable with imprisonment for a term exceeding three years or with a fine exceeding RM 5,000/- or with whipping exceeding 6 strokes or with any combination thereof”. It is submitted that so long as the offences created and enacted as laws by the State Legislative Assemblies fall within the meaning of offences against the precepts of Islam, such laws do not run foul of the Constitution. However the punishment in such laws cannot exceed the limits imposed by the Syariah Courts (Criminal Jurisdiction) Act 1965; if the punishment exceeds the said limits, such laws will be ultra vires the Constitution by virtue of Article 4(1) which provides that the Constitution is the supreme law of the Federation and any law passed after Merdeka Day96 which is inconsistent with the Constitution shall to the extent of the inconsistency be void.
93 Farid Sufian Shuaib & 2 Ors, Administration of Islamic Law in Malaysia, Text and Material (MLJ) (K Lumpur 2001), p 161. 94 [1992] 2 MLJ 425 at 431. 95 Act 355. This Act, which was revised in 1988, came into force in West Malaysia on 1.4.1965 and in Sabah and Sarawak on 5.5.1989. 96 “Merdeka Day” means the nation’s independence day (31.8.1957).
Articles
198
13 THE STATE LAWS ON APOSTASY The limitations imposed by the Constitution on the power of the States to pass laws on Islamic criminal offences and the jurisdiction of the Syariah Courts in respect of the same subject matter would equally apply to offences relating to apostasy. However, in respect of apostasy-related offences, there is an additional limitation, and this is found in Article 11(1) of the Constitution. Thus any discussion on the effect of the State laws on the issue of murtad will be subject to these limitations. An examination of the State laws will show that in some States of the Federation, the act of leaving the religion of Islam is regarded as an offence and the perpetrator can be punished by way of a fine and or imprisonment. For example, in the State of Perak, it is provided in Section 13 of the Perak Syariah Criminal Offences Enactment 1992 that “a Muslim who purposely, by way of conduct or words or any other way, admits that he intends to leave the religion of Islam or declares that he is not a Muslim, commits an offence of insulting or ridiculing the religion of Islam and upon conviction can be fined RM 3,000 and or imprisoned for a period not exceeding two years”. In Terengganu, Section 29 of the Terengganu Administration of Islamic Law Enactment 1996 provides that “whoever intends to leave the religion of Islam or declares that he has left the religion of Islam, can be fined RM 3,000 and or imprisoned for a period not exceeding one year”. Under Section 209(1) of the Malacca Administration of Islamic Religious Affairs Enactment 1986 it is stated that whoever insults or ridicules the religion of Islam can be fined RM 3,000 and or imprisoned for a period not exceeding two years”. Under Section 209(2) it is provided that a person (a Muslim) who admits that he is not a Muslim is deemed to have insulted Islam. In Sabah, it is provided in Section 55(1) of the Sabah Syariah Criminal Offences Enactment 1995 that “anyone who orally or in writing or in any other way that can be regarded as being insulting to the religion of Islam or to the mazhab practice, religious teacher, imams, fatwa issued by the Council or Mufti according to any provisions of this Enactment, commits an offence, and upon conviction, may be fined RM 2,000 and or imprisoned for a period not exceeding one year”. In a clear provision on apostasy, the State of Pahang has made apostasy an offence under the Administration of the Religion of Islam and the Malay Custom Enactment of 1982 (as amended in 1989). Section 185 of this statute provides: Any Muslim who states that he has ceased to be a Muslim, whether orally or in writing or in any other manner whatsoever, commits an offence, and on conviction shall be liable to a fine no exceeding RM 5,000 or to imprisonment for a term not exceeding three years or to both and to whipping of not more than six strokes.
In other states, those who leave Islam are not regarded as offenders (apostates) but are detained and given counselling in a faith rehabilitation centre. At least three States follow this practice. In Sabah and Kelantan, if a person leaves Islam or intends to leave Islam, he can be detained at a faith rehabilitation
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
199
centre for a period not exceeding 36 months.97 In Malacca he can be detained for a period of 6 months.98
14 THE LEGAL POSITION IN THE STATE OF NEGERI SEMBILAN Negeri Sembilan appears to be a pioneer among the States of the Federation in enacting a law to allow a Muslim to leave Islam, although the applicant is subject to certain procedural conditions that are consistent with the requirements of the Syariah. The Administration of the Religion of Islam (Negeri Sembilan) Enactment 2003 provides that a Muslim shall not renounce or be deemed to have renounced the Religion of Islam until and unless he has obtained a declaration to that effect from the Syariah High Court of that State.99 The procedure is laid down in Section 119(2) of the Enactment which provides that an application for such a declaration shall be made ex-parte to the Syariah High Court Judge in open court by the person intending to leave Islam. The applicant must specify the grounds on which he intends to renounce the religion with an affidavit specifying all facts supporting the grounds of the application.100 After receiving the application, the judge hearing it will advise the applicant to repent, and if the judge is satisfied that the applicant has repented in accordance with Hukum Syarak, he will record the repentance.101 Alternatively, if the applicant refuses to repent, the judge shall, before making any order against the applicant, adjourn the hearing of the application for a period of 90 days and at the same time require the applicant to undergo a counselling session for the purpose of advising him to reconsider Islam as his religion.102 If at any time the person undergoing counselling has repented, the officer who is responsible for him shall prepare a report as soon as possible and bring him to the Syariah High Court.103 If the judge is satisfied that the person brought before him has repented according to Hukum Syarak, the judge will record the person’s repentance.104 If after the expiry of 90 days, the person still refuses to repent, the officer shall prepare a report as soon as possible and bring him before the Syariah High Court, and if after receiving the report, the Court is of the opinion that there is still hope that the person may repent, the Court may adjourn the hearing of the application, and at the same time order the person to undergo further counselling sessions for a period not exceeding one year.105 If after the issuance of such an order, the person repents, the 97 Sabah Islamic Criminal Offences Enactment 1995, s 63(1); Kelantan Council for Muslim Religion and Malay Custom Enactment 1994, s 102. 98 Malacca Administration of Islamic Law Enactment 1991, s 66. 99 Enactment No 10 of 2003, s 119(1). 100 Enactment No 10 of 2003, s 119(3). 101 Enactment No 10 of 2003, s 119(4)(a). 102 Enactment No 10 of 2003, s 119(4)(b). 103 Enactment No 10 of 2003, s 119(5). 104 Enactment No 10 of 2003, s 119(6). 105 Enactment No 10 of 2003, s 119(7)(8).
200
Articles
earlier procedure applies (i.e. a report is made to the Syariah Court whose judge, if satisfied that the person brought before him has repented according to Hukum Syarak, will record the person’s repentance).106 If after expiry of the extended period for repentance under Section 119 (8), the person still refuses to repent, the officer who is responsible for him shall prepare a report as soon as possible and bring him to the Syariah High Court.107 This time, the Court may make a decision to declare that the person has renounced Islam.108 It is to be noted that before the Court declares that the person has renounced Islam, it shall make an order in relation to the dissolution of marriage, the division of harta sepencarian (joint property of spouses), right of perwalian (right of guardianship over an unmarried girl), right to property and hadhanah (custody).109 No mandatory punishment for apostasy is provided in this Enactment.110
15 EFFECT OF THE CONSTITUTION ON THE STATE ISLAMIC LAWS It is submitted that in the light of the Constitutional limitations, the State laws in apostasy-related matters must be critically examined. In the case of the law in Perak, the first limb of section 13 makes it an offence for a Muslim if it can be proved that he intends to leave the religion of Islam. This must be contrasted with the second limb of the section which makes it an offence if such a person “declares that he is not a Muslim”. The offences under the two limbs are different. While the legal provision under the first limb (intention to leave Islam) would not strictly be in breach of Article 11(1) of the Constitution, the second limb appears to invite challenge under Article 11(1), although it is admitted that, so far, no decision on this contentious point has been laid down by the Malaysian courts. Procedurally, the issue of whether a person has left Islam or not arises (i) when he himself applies for a declaration that he has left Islam, or (ii) when he is charged for having committed an Islamic criminal offence but contends that he is not liable for that offence as he is no more a Muslim. In such a situation, the court has a duty to examine whether that person has indeed left the religion. Thus once the person claims that he has left Islam, the judge must order a trial and must be satisfied at the end of the trial that the aggrieved person has indeed left Islam. Only if the judge is satisfied that the aggrieved
106 107 108 109 110
Enactment No 10 of 2003, s 119(9). Enactment No 10 of 2003, s 119(10). Ibid. Enactment No 10 of 2003, s 119(11). Negeri Sembilan has recorded the highest number of applications to leave Islam, even under the old law – the Administration of Islamic Law (Negeri Sembilan) Enactment 1991. Of the 89 applications made between 1984 and 2003, 16 applications were allowed, 29 were applications were dismissed, and 39 postponed. This information is based on an interview of YAA Dato’ Hussin bin Harun, Chief Syarie Judge, Syariah Justice Department, Negeri Sembilan by writer Mohamed Azam Mohamed Adil on 22 August 2003.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
201
person has left Islam, will he declare that the aggrieved party is an apostate. Once this declaration is made by the Syariah Court judge, the mechanism of Article 11(1) comes into effect, and that person cannot be punished under the Syariah laws any more as such punishment would be against his right “to profess and practise” whatever religion he chooses by virtue of Article 11(1). On the other hand, if at the end of the hearing, the judge is not satisfied that the aggrieved party has left Islam, that person may be punished under the Islamic criminal laws of the State for some other offence, if such an offence is proven. In the latter situation, Article 11(1) does not apply because in the eyes of the law he is still regarded as a Muslim as there is no declaration made by the Syariah Court that he has left the religion of Islam.111 Apostasy is a serious matter, and the Syariah Court judge can only be said to be satisfied after having had an opportunity to hear what the aggrieved person or his witnesses have to say; the judge cannot abdicate his duty and responsibility by relying on the evidence of third parties or hearsay evidence. In Abdul Rahim bin Haji Bahaudin v. Chief Kadi, Pahang [1983] 2 MLJ 370, the applicant in his affidavit affirmed on 27 March 1983 supporting his Motion, and also by his accompanying statement, stated that he had publicly declared and embraced the Ahmadi (Qadiani) sect on 1 February 1983. The Applicant was arrested by officials of the Religious Department for distributing religious pamphlets and documents relating to the Ahmadi sect, being offences under Sections 163(1) and (2) of the Kedah Administration of Muslim Law Enactment 1962. He was charged at the Kubang Pasu Syariah Court, Jitra but the case was transferred to the Alor Star’s Kadi’s Court. The hearing was fixed on 16, 19 and 30 April 1983. On 21 March 1983, while out on bail, the applicant applied to the High Court for a writ of prohibition on the ground that he was not a Muslim and therefore the Syariah Courts had no jurisdiction to hear him. In the Motion, the applicant’s only ground was that by a Gazette Notification of the State of Kedah No 286 dated 4 June 1981, a fatwa was issued by the Majlis Agama Islam Negeri Kedah on 10 April 1972 stating that whoever believes in the teachings of the Qadiani (Ahmadi) sect is an apostate. He contended that as he was a follower of the Ahmadi sect and the Majlis had stated that he was not a Muslim, the Syariah Courts could not try him. On the hearing of the Motion on 16 April 1983, both the parties agreed that the court write to the Kedah Majlis for its ruling whether the follower of the Ahmadi sect is a Muslim or non-Muslim. The Majlis replied that this was confirmed by the President of the Majlis and the Chairman of the Fatwa Committee who gave evidence in court that a follower of the Ahmadi sect is not a Muslim. A writ of prohibition was issued to prohibit the Chief Kadi from hearing the case. In allowing the application, the learned High Court judge pointed out that in the written submission the Legal Adviser had said, “the respondent (i.e. the Majlis Ugama Islam and the Chief Kadi) concede that the Applicant is not a Muslim and therefore is not subject to the jurisdiction of Mahkamah Syariah”. Thus the 111 Neither would Article 5(1) of the Constitution apply. Article 5(1) provides: “No person shall be deprived of his life and liberty save in accordance with law.” The punishment is meted out under a valid law passed in accordance with the Constitution, namely Article 74(2) thereof.
Articles
202
Syariah Court had no opportunity to hear the applicant and to decide whether indeed he was an Ahmadi and therefore not a Muslim. Eminent scholar Ahmad Ibrahim had criticised the above decision.112 The applicant, he said, could have raised this contention (that he was not a Muslim and therefore the Syariah Court had no jurisdiction to hear him) as a defence to the charge against him in the Syariah Court, and that court would then, if satisfied that he was not a Muslim, have decided that it had no authority to try him. Instead, the (State) Legal Adviser had appeared on behalf of the Chief Kadi, conceded that the applicant was not a Muslim and therefore was not subject to the jurisdiction of the Syariah Court.
16 INTERNATIONAL CONVENTIONS Some scholars regard the laws on murtad as being in contravention of the Universal Declaration of Human Rights of 1948 (UDHR) and the International Convention of Civil and Political Rights of 1966 (ICCPR)113 but have not considered the true import of these two Conventions under the Federal Constitution of Malaysia. These conventions do not apply to Malaysia insofar as the issue of murtad is concerned. The UDHR of 1948 and ICCPR of 1966 provide that the right to change religion is one of the basic rights guaranteed thereunder114 but it must be remembered that Malaya was not even an independent state when the UDHR was passed.115 In this regard, it is relevant to look at section 4(4) of the Suhakam Act of 1999116 which provides that for the purposes of this statute, “regard shall be had to the Universal Declaration of Human Rights of 1948 to the extent that it is not inconsistent with the
112 See Professor Ahmad Ibrahim, “The Syariah Courts in Malaysia” [1986] 2 MLJ cxxx, at p. xlvi. 113 Shad S. Faruqi, “Freedom of Religion”, a paper presented at the Seminar on Freedom of Religion organised by the Bar Council on 9.12.2000; see also Malik Imtiaz Sarwar, “Human Rights, Good Governance and Better and Harmonious Society: Contemplating the Freedom from Discrimination and its Place in Good Governance” in Human Rights and Good Governance Seminar on 9-10 September 2004. 114 Article 18.1 of the UDHR provides: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion, either alone or in community with others and in public or private and to manifest his religion or belief in preaching, practice, worship and observance”. Article 18.3 of the UDHR provides that “the freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, morals or the fundamental rights of others”. The ICCPR reiterates the position under Article 18 thus: “Every one shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief, in worship and observance, practice and teaching.” 115 It is also to be noted that when the General Assembly of the United Nations Organisation approved the Declaration, Saudi Arabia did not accept the right to change religion, although other parts of the Declaration that were not regarded as not being inconsistent with Islam were accepted. See Tunku Sofia Jewa, Public International Law – A Malaysian Perspective (K Lumpur)(Pacific Publications) (1996), pp. 468-473. 116 The Human Rights Commission of Malaysia Act 1999.
Apostasy and Freedom of Religion in Malaysia: Constitutional Implications
203
Federal Constitution”. The effect of section 4(4) of the Suhakam Act of 1999 is that, in the event of conflict arising between the UDHR of 1948 and the Federal Constitution, the latter prevails. Secondly, it is a basic principle of international law that member States have a right of reservation117 to treaties.118
17 CONCLUSION Although Article 11(1) of the Federal Constitution gives a person the freedom to profess a religion of his choice, on the issue of apostasy of a Muslim, only the Syariah Courts will have the jurisdiction to adjudicate the matter and declare that such a person is no more a Muslim. Clause 1A of Article 121 of the Federal Constitution, which restricts the matters relating to Islamic law to the jurisdiction of the Syariah Courts, admits of no ambiguity. It refers to any matter or matters which arise either expressly or by way of necessary implication under paragraph 1 of the List II (the State List) of the Ninth Schedule or the provisions of the Islamic Administration Enactments of the various States of the Federation of Malaysia. Thus, if the Syariah Court is satisfied that a person is no more a Muslim and declares as such, that person cannot be charged or punished under the Syariah criminal laws of the State as such punishment would be against his right “to profess and practise” his religion under Article 11(1) of the Constitution.
117 Reservations constitute a formal declaration of refusal to be bound by particular provisions of a treaty. See Tunku Sofia Jewa, op cit, p. 157. 118 See Abdul Aziz Bari, Islam Dalam Perlembagaan Malaysia (Intel-Multimedia and Publication) (2005), pp. 118-119.
204
205
Le Nouveau Code Marocain de la Famille: Une Réforme dans la Continuité Mohamed Loukili and Michèle Zirari-Devif* Jusqu’à l’élaboration de la Moudawwana, immédiatement après l’indépendance, le droit de la famille n’était pas codifié au Maroc. Sous le protectorat, les Français et les étrangers relevaient des tribunaux créés à leur intention en 1913, et ils étaient soumis à leur propre statut personnel. Quant aux marocains, les tribunaux du Chrâa leur appliquaient le droit musulman non codifié en ce qui concerne les droits de la personne et de la famille. Le code de statut personnel (Moudawwana) fut élaboré en 1957-58, par une commission de juristes, sur l’initiative du roi Mohammed V. Lors de la séance inaugurale de cette commission, le 19 octobre 1957, évoquant la longue tradition juridique du Maroc, ce dernier affirmait dans un discours «Nous sommes assez riches pour nous passer d’avoir recours aux lois positives d’Etats étrangers… Ce qui manque à notre glorieux héritage, c’est d’apparaître enfin sous son véritable aspect, dépouillé des commentaires stériles et des coutumes aberrantes qui, avec le temps, ont fini par faire corps avec la Chariâa…». Quant au ministre de la justice de l’époque, il estimait que l’importance de la Moudawwana tenait au fait qu’elle représentait la première codification du droit musulman marocain qui tienne pleinement compte des nécessités de la vie moderne tout en préservant les principes essentiels de la religion islamique. Puisant ses sources dans le droit musulman de rite malékite, la Moudawwana donnait à l’épouse un rôle de second plan dans la famille, consacrant la polygamie, la répudiation unilatérale et discrétionnaire par le mari, le devoir d’obéissance de l’épouse à son égard… Au moment même où la Constitution proclamait explicitement les droits politiques des femmes et leur reconnaissait les droits économiques, elles faisaient l’objet d’une réelle discrimination dans la sphère familiale. De ce fait, ce code ne manqua pas de faire l’objet des critiques, de plus en plus vives au fil des années, d’une partie de la société civile, particulièrement des associations de droits humains et des associations de défense des droits des femmes. La ratification par le Maroc de la convention sur l’élimination de toutes les formes de discrimination à l’égard des femmes et de la convention * Docteurs d’Etat en droit, professeurs à la faculté de droit de Rabat-Agdal, Université Mohammed V.
206
Articles
relative aux droits de l’enfant ainsi que la montée en puissance de la société civile pendant la décennie 1990 étaient des arguments supplémentaires pour une réelle transformation de la Moudawwana qui n’avait connu que peu de modifications depuis sa promulgation.1 Mais, le statut personnel et familial étant une codification basée sur le droit musulman, une réforme soulevait des problèmes sensibles de fidélité ou de rupture avec ces racines. L’expérience avortée du plan d’intégration de la femme au développement en 1999 avait montré, s’il en était besoin, que toute initiative dans ce domaine se révélait très délicate. L’incapacité du gouvernement de centre gauche de l’époque de préparer un nouveau texte, par peur de la réaction des islamistes, explique la procédure suivie pour l’élaboration du nouveau code de la famille L’initiative a été prise par le Roi lui-même. Chef de l’Etat et Commandeur des croyants son autorité a beaucoup joué pour l’adoption de ce code. En 2001, le Roi annonça l’installation d’une commission consultative pour la révision du code de statut personnel.2 Les travaux de la commission royale durèrent 30 mois. Le fruit de ces travaux fut rendu public en octobre 2003 et très médiatisé. Accueilli favorablement par l’opinion, il fit l’objet de nombreux commentaires de la part des partis politiques, de la société civile et de la presse. Le projet fut soumis au Parlement à la fin de l’année 2003 dans un contexte social et politique favorable, les évènements sanglants de Casablanca du 16 mai 2003 ayant eu pour conséquence importante l’affaiblissement notoire de l’opposition islamiste, hostile à tout projet de réforme des institutions traditionnelles du droit de la famille. Le Parlement adopta le projet à l’unanimité sans lui faire subir d’amendements majeurs. La loi fut immédiatement promulguée et publiée au Bulletin officiel3 le 5 février 2004. 1 Abstraction faite de l’abaissement de l’âge de la majorité légale, une seule réforme bien timide, avait eu lieu en 1993: cette réforme prévoyait notamment l’obligation d’aviser la première épouse de l’intention du mari de lui adjoindre une autre épouse, la possibilité pour la femme majeure orpheline de père d’être dispensé du tuteur matrimonial, l’introduction du père parmi les titulaires de la garde de l’enfant, la précision expresse de la nécessité du consentement de la femme à son mariage (mais la possibilité de contrainte matrimoniale demeurait)… 2 Cette commission était composée de huit ouléma, quatre hauts magistrats expérimentés dans le domaine du statut personnel et trois femmes (une conseillère à la Cour suprême, une médecin et professeur dans une faculté de médecine et une présidente d’université). Le travail de cette commission n’est pas allé sans difficultés. Initialement présidée par le premier président de la Cour suprême, après consultation de la société civile, elle a recensé les points soulevant des difficultés et a proposé pour chacun les différentes réponses préconisées par les participants. Mais le projet de loi ne pouvait laisser des points sans solutions. Le président fut alors remplacé par un ancien ministre, ancien bâtonnier de l’ordre des avocats et chef d’un parti politique, qui, sans doute plus diplomate et plus rompu à la discussion parvint à trouver des solutions de compromis sur les questions litigieuses 3 Loi n° 03-70 portant code de la famille promulguée par dahir n° 1-04-22 du 3 février 2004, Bulletin officiel du 3 février 2004, p. 418 (en langue arabe). Une traduction du code en langue française, assortie d’un commentaire, a été publiée par le ministère de la Justice (publication de l’association de diffusion de l’information juridique et judiciaire, collection des guides pratiques, n° 6) ; il ne s’agit pas de la traduction officielle ; elle peut être consultée en ligne sur le site du ministère marocain de la justice: http://www.justice.gov.ma/. La traduction officielle en français a été publiée au Bulletin officiel du 6 octobre 2005, p. 667.
Le Nouveau Code Marocain de la Famille: Une Réforme dans la Continuitè
207
Cette réforme du droit de la famille a été élaborée dans le respect de la tradition musulmane, ce qui implique que la philosophie préconisée dans la recherche des solutions aux problèmes de la famille marocaine ne pouvait pas dépasser ce cadre, et par conséquent utiliser autres sources que les sources classiques du droit musulman Une lecture attentive nous révèle que les rédacteurs du texte ont respecté les exigences qui guidaient leur démarche. Ils n’ont pas essayé d’introduire d’institutions autres que celles existant déjà dans le droit musulman classique. Leur source essentielle était l’ancienne Moudawwana et l’école malékite qui prévaut au Maroc. Dans des cas exceptionnels ils ont eu recours à d’autres rites musulmans tels que le rite hanafite, par exemple pour la suppression de la tutelle matrimoniale dans le cas de la femme majeure. De même, le langage et les termes employés dans la rédaction de la loi ne diffèrent guère de ceux utilisés dans les écrits du fiqh si ce n’est que de nouvelles formulations remplacent, chaque fois que cela est possible, les formules que les femmes pouvaient considérer comme sexistes ou discriminatoires. De plus, quelques termes empruntés au droit civil d’inspiration occidentale ont été introduits dans le nouveau texte comme par exemple les notions de : «nullité du mariage», «dédommagement pour préjudice» et «expertise comme moyen de preuve» qui trouvent, certes, leurs équivalents dans la tradition juridique musulmane mais sous d’autres noms. Le juge doit recourir, pour l’interprétation du nouveau code ou pour compléter ses lacunes, au rite malékite et à l’effort jurisprudentiel (Ijtihad) selon son acception en droit musulman. Il semble même exclus qu’il puisse, pour cette interprétation, se référer à d’autres sources.4 Cette fidélité exclusive au droit musulman ne permettait pas un bouleversement total de la législation. Néanmoins, le nouveau texte apporte des progrès incontestables dans le domaine des droits reconnus à la femme et à l’enfant. Pour favoriser l’application des nouvelles dispositions plus respectueuses des droits de la personne, des sections de la famille ont été installées dans les tribunaux de première instance, et des mécanismes procéduraux propres au droit de la famille ont été introduits par une modification de certaines règles du code de procédure civile (I). Mais au-delà de ces progrès, force est de constater que la réforme connaît des limites, que l’on peut dire inhérentes à la conception même du projet. En effet, harmoniser totalement la législation avec les conventions internationales relatives aux droits humains, arriver à la suppression de toute discrimination entre hommes et femmes, considérer l’enfant comme un sujet de droit à part entière, tout en restant fidèle à la lettre du droit musulman classique paraît être une entreprise difficile, sinon impossible. (II).
4 C’est ce que prévoit expressément le dernier article du code (art. 400): «Pour tout ce qui n’a pas été expressément énoncé dans le présent code, il y a lieu de se référer aux prescriptions du rite malékite et/ou aux conclusions de l’effort jurisprudentiel (ijtihad), aux fins de donner leur expression concrète aux valeurs de justice, d’égalité et de coexistence harmonieuse dans la vie commune, que prône l’Islam».
Articles
208
1 LES APPORTS DE LA REFORME Le nouveau code améliore la protection des droits des femmes (1.1), et il introduit la notion de droits de l’enfant, totalement absente de la Moudawwana des années 50 (1.2). La promulgation du nouveau code de la famille a été accompagnée de la création de nouveaux tribunaux de la famille qui devraient permettre de favoriser l’application des nouvelles dispositions (1.3). 1.1 Les nouvelles dispositions favorables aux femmes De nouvelles dispositions indiscutablement favorables aux femmes ont été introduites en ce qui concerne les droits des époux pendant le mariage, la conclusion du mariage et surtout sa dissolution. Les droits et devoirs respectifs des époux dans le cadre du mariage ont fait l’objet d’une réécriture complète apportant une modification réelle. Auparavant, hommes et femmes avaient des droits et devoirs communs,5 mais chacun avait également des devoirs spécifiques différents. L’épouse était en droit d’exiger de son mari l’entretien, l’égalité de traitement avec les autres épouses en cas de polygamie, l’autorisation de rendre visite et de recevoir ses parents, l’entière liberté d’administrer ses biens ; elle devait à son mari : la fidélité, l’obéissance, l’allaitement des enfants, la charge de veiller à la bonne marche du foyer et la déférence envers ses parents. Dans le nouveau code de la famille, les droits spécifiques différents disparaissent et un seul article6 énumère les droits et devoirs réciproques des époux. Le devoir d’obéissance de la femme est supprimé et la loi lui confie, conjointement avec son mari, la gestion des affaires de la famille. En ce qui concerne la conclusion du mariage, une première modification concerne l’âge à partir duquel le mariage est autorisé. Auparavant fixé à dix huit ans pour les garçons et à quinze ans pour les filles, l’âge est désormais identique, fixé, de manière égalitaire, à dix huit ans pour les uns comme pour les autres. 5 Article 34 de l’ancienne Moudawwana: Cohabitation, bons rapports, respect et affection mutuels, sauvegarde des intérêts moraux et matériels de la famille; droits de succession; droits de la famille tels que le rattachement aux époux des enfants nés du mariage et la création d’une parenté par alliance. 6 L’article 51 énumère ainsi ces droits et devoirs réciproques: • la cohabitation légale qui implique les bons rapports conjugaux, la justice et l’égalité de traitement entre épouses en cas de polygamie, la pureté et la fidélité mutuelles, la vertu et la préservation de l’honneur et de la lignée ; • le maintien de bons rapports de la vie commune, le respect, l’affection et la sollicitude mutuels ainsi que la préservation de l’intérêt de la famille; • la prise en charge, par l’épouse, conjointement avec l’époux de la responsabilité de la gestion des affaires du foyer et de la protection des enfants; • la concertation dans les décisions relatives à la gestion des affaires de la famille, des enfants et de planning familial; • le maintien par chaque conjoint de bons rapports avec les parents de l’autre et ses proches avec lesquels existe un empêchement au mariage, en les respectant, leur rendant visite et en les recevant dans les limites de convenances; • le droit de chacun des époux d’hériter de l’autre.
Le Nouveau Code Marocain de la Famille: Une Réforme dans la Continuitè
209
La tutelle matrimoniale, bien que maintenue, devient facultative. Dans la Moudawwana, la femme ne pouvait conclure elle-même son acte de mariage ; elle devait être représentée par un tuteur matrimonial et le code fixait la liste des tuteurs matrimoniaux par ordre de priorité. Une première exception timide à cette règle fut introduite en 1993, permettant à la femme majeure orpheline de père de conclure elle-même son mariage ou de déléguer un wali de son choix. Sans supprimer la tutelle matrimoniale, le nouveau code élargit l’exception et permet à toute femme majeure de contracter elle-même son mariage ou de déléguer à cet effet son père ou l’un de ses proches. En ce qui concerne la polygamie, le nouveau code ne l’abolit pas, mais il la soumet à un contrôle judiciaire préalable en vue de préserver les droits de la première épouse et de ses enfants et de lui permettre de demander le divorce si elle n’accepte pas la bigamie. 1.1.1 La dissolution du mariage L’innovation essentielle dans ce domaine est l’adoption de la notion de Chiqaq (articles 94 à 97). Ce divorce pour raison de discorde ou de désunion peut être soumis au tribunal par les deux époux ou par l’un d’eux ; il est plus profitable à la femme, puisque l’épouse n’est pas obligée, comme dans les autres cas de divorce prévus par le code, de prouver la cause prévue par la loi à l’appui de sa demande. Il lui suffit de soulever l’impossibilité de vie commune pour le ménage. Si le tribunal échoue dans sa tentative de conciliation des deux époux, il est obligé de prononcer le divorce dans un délai n’excédant pas 6 mois à partir de la date de l’introduction de la demande, tout en prenant en compte la responsabilité de chacun des époux dans les faits générateurs du conflit, afin de déterminer le dédommagement dû à l’époux lésé. Les femmes n’ont pas attendu longtemps pour utiliser cette nouvelle possibilité judiciaire de divorce. Les statistiques du Ministère de la Justice pour l’année 2006, c’est-à-dire deux ans après l’entrée en vigueur du nouveau texte, indiquent que plus de 50% des décisions de justice relatives à toutes les formes de divorce prévues par la loi, ont été rendues dans le cadre de la procédure Chiqaq. Cette constatation permet de prédire que les dispositions du nouveau code relatives aux autres cas de divorce vont tomber en désuétude au profit de la procédure Chiqaq et que même les maris vont abandonner la répudiation comme moyen de dissolution du mariage et adopter le système Chiqaq qui sera facilement reconnu en dehors du Maroc en raison de l’aspect égalitaire qui le caractérise. En effet, l’épouse jouit, dans la procédure Chiqaq, d’un droit à la dissolution du mariage équivalent au droit de répudiation reconnu à l’époux, ce qui va sans doute avoir des répercutions sur la position des juges européens envers les décisions de la justice marocaine relatives à la dissolution du mariage prises en application du nouveau code de la famille. Il faut en outre ajouter que la femme divorcée selon ce nouveau système a droit à plusieurs sortes de compensations pécuniaires et ne sera plus obligée d’acheter son divorce à son mari comme c’est le cas dans la répudiation moyennant compensation ou Khol’ qui a été reprise par le nouveau code.
210
Articles
Une autre innovation est l’introduction du divorce par consentement mutuel (article 114). Les époux peuvent se mettre d’accord sur le principe de mettre fin à leur union. Le tribunal, si la tentative de conciliation est infructueuse, autorisera que soit pris acte du divorce. Ce genre de divorce suppose l’égalité des époux pour l’exercice du pouvoir de dissoudre les liens du mariage. Or c’est le mari qui seul détient ce pouvoir et par conséquent on peut qualifier ce mode de dissolution du mariage comme une variante de la répudiation Tamlik organisée par l’article 89 du code. La femme qui a obtenu son divorce par consentement mutuel a droit aux mêmes compensations financières que celles prévues par la loi pour la répudiation et les autres modes de divorce, même si l’article 114 reste muet à ce sujet. Cette nouvelle forme de dissolution du mariage est très utilisée en pratique, d’après les statistiques du ministère de la justice pour l’année 2006, en comparaison avec la répudiation Khol’. 1.2 Les nouvelles dispositions favorables à l’enfant Il s’agit là d’innovations importantes car l’ancienne Moudawwana ne se préoccupait guère des droits de l’enfant. Celui-ci y était envisagé pour définir le lien de filiation, poser les règles d’attribution de la garde et de la tutelle ou prévoir les dispositions relatives à la pension alimentaire mais il n’était pas réellement considéré comme titulaire de droits. Le Maroc ayant ratifié la convention relative aux droits de l’enfant en 19937 se devait d’harmoniser sa législation interne avec les principes posés par cette convention. Aussi, le nouveau code consacre un long article (article 54) aux droits des enfants à l’égard de leurs parents. Les parents doivent assurer la protection à leurs enfants, préserver leur identité par le nom, la nationalité et l’inscription à l’état civil, leur garantir la filiation, la garde et la pension alimentaire, prendre toutes les mesures possibles pour assurer leur croissance en préservant leur intégrité physique et psychologique et en veillant sur leur santé, assurer leur orientation religieuse et morale et leur assurer l’enseignement et la formation. Le même article prévoit qu’une protection spéciale doit être accordée aux enfants handicapés, et charge l’Etat d’une mission générale de protection de l’enfance: «Il appartient à l’Etat de prendre les mesures nécessaires en vue d’assurer la protection des enfants, de garantir et préserver leurs droits conformément à la loi». Le principe de recherche de l’intérêt supérieur de l’enfant posé par la Convention relative aux droits de l’enfant est introduit dans le nouveau code, en ce qui concerne la garde, en cas de dissolution du mariage. Alors qu’auparavant le texte énumérait les proches parents susceptibles de se voir confier la garde dans un ordre qui s’imposait au juge, dans le nouveau code si la mère, le père ou la grand-mère maternelle ne peuvent exercer cette fonction, le juge décide de la personne la plus apte à l’assumer, en considération de l’intérêt de l’enfant. L’opinion de l’enfant, qu’il s’agisse d’une fille ou d’un 7 Ainsi que le protocole facultatif concernant la vente d’enfant, la prostitution des enfants et la pornographie mettant en scène des enfants en 2001, et le protocole concernant l’implication d’enfants dans les conflits armés en 2002. . .
Le Nouveau Code Marocain de la Famille: Une Réforme dans la Continuitè
211
garçon, est obligatoirement prise en considération dans cette dernière hypothèse si l’enfant atteint l’âge de quinze ans. En ce qui concerne la filiation, le nouveau code, comme le droit musulman traditionnel, ne reconnaît que la filiation légitime, c’est à dire que l’enfant doit être conçu pendant le mariage pour avoir un lien de filiation avec son père. L’établissement de la filiation naturelle paternelle est totalement prohibé. Mais le nouveau texte a une conception plus large du mariage pour apprécier la légitimité de la filiation.8 Donne lieu à une filiation légitime le mariage valide, quelques catégories de mariages nuls, le mariage vicié et les fiançailles lorsque les conditions posées par le code sont remplies. Le code admet même, à titre temporaire, les relations illégitimes si elles sont légitimées par un jugement de reconnaissance de mariage (l’action doit être intentée dans les cinq ans de l’entrée en vigueur du code), le cas de relations sexuelles par erreur (Choubha) et la reconnaissance de paternité (Istilhaq). 1.3 Les réformes dans le domaine de la procédure Pour accompagner la réforme du droit de la famille, le législateur a créé de nouvelles structures judiciaires au sein de chaque tribunal de première instance, appelées «section des affaires de la famille». Ces sections connaissent: des affaires de statut personnel, des successions, de l’état civil et des affaires d’homologation et des mineurs, de la kafala et de tout ce qui a trait à la sauvegarde et à la protection de la famille.9
Elles ont pour mission à la fois de super viser toutes les procédures administratives relatives aux affaires de la famille, et de trancher les litiges relatifs à l’application du nouveau code. Ce changement intervenu au sein de la justice marocaine a eu pour conséquence directe la réduction des pouvoirs que détenaient, sous l’ancienne Moudawwana, les Cadi du Chraâ, magistrats traditionalistes formés, en grande majorité dans les instituts et universités de théologie islamique ou de droit musulman classique. Ces pouvoirs sont désormais, pour l’essentiel, du ressort d’une instance judiciaire composée de trois magistrats appelée tribunal et du juge de la famille chargé du mariage. Le cadi ne joue maintenant dans le système judiciaire marocain que le rôle d’un juge notaire qui contrôle le travail des adoul, sorte de notaires traditionnels musulmans, et approuve les actes consignés par ces derniers, concernant essentiellement le mariage et la répudiation. Le Cadi peut aussi assumer la fonction d’un juge des tutelles avec toutefois des pouvoirs moins étendus.10 8 Al Firache: preuve irréfutable de la légitimité de l’enfant né pendant le mariage. 9 Loi n° 73-03 modifiant et complétant le dahir portant loi du 15 juillet 1974 fixant l’organisation judiciaire du Royaume, promulguée par dahir n° 1-04-24 du 3 février 2004, Bulletin officiel du 6 octobre 2005, p. 709. 10 Ces pouvoirs sont pour l’essentiel du ressort du tribunal qui prend les décisions les plus importantes pour la sauvegarde et la gestion des intérêts des incapables et exerce un contrôle effectif sur le travail du juge des tutelles (voir notamment articles 243, 244, 265 et 276 du nouveau code). cf.: Omar Lamine, «Les nouvelles dispositions du code de la famille relatives à la capacité et à la représentation légale», in Publications de l’Institut Supérieur de la Magistrature, n° 5, journées d’études relatives au code de la famille, 2004, pp. 130 et p. 3.
Articles
212
Les magistrats de sexe féminin ont droit grâce à cette réforme à siéger dans les sections de la justice de la famille, ce qui était rare lorsque les Cadis avaient exclusivement cette compétence sous l’ancienne Moudawwana. On peut noter à ce propos que le tribunal de la famille de Casablanca est présidé par une femme, chose impensable dans la conception islamique traditionnelle de l’exercice de la justice. La cour suprême marocaine avait déjà décidé en 2001 que les magistrats de sexe féminin peuvent rendre des décisions dans des affaires relatives au statut personnel musulman en se référant à l’article 12 de la constitution11 et à l’article 6 du dahir relatif à l’organisation judiciaire du Royaume qui ne fait aucune distinction entre les deux sexes quant à l’exercice de la profession de juge au sein des tribunaux marocains.12 En même temps qu’ont été créées ces nouvelles sections de la famille, une procédure judiciaire propre aux tribunaux de la famille à été aménagée.13 Le ministère public intervient aujourd’hui comme partie principale dans toutes les affaires relatives aux personnes et à la famille et peut prendre toutes les mesures qu’il juge utiles pour assurer la protection du conjoint exclu abusivement du domicile conjugal ou celle des enfants. Pour mettre fin aux lenteurs de la procédure et à certains abus constatés lors de l’application de l’ancienne Moudawwana, le législateur a instauré deux sortes de procédures propres au nouveau droit des personnes et de la famille : à côté de la procédure contentieuse ayant pour mission de régler les conflits familiaux, une procédure purement administrative est prévue pour soumettre l’exercice de certaines facultés ou de certains droits à l’appréciation des juges. Ainsi, la consignation de l’acte du mariage par les notaires traditionnels (Adoul) et le mariage du mineur ou du handicapé mental sont soumis à l’autorisation préalable du juge de la famille chargé du mariage. De même, le mariage polygamique et la dissolution du mariage par voie de répudiation doivent recevoir l’aval du tribunal. Ce dernier ne donnera son accord que si certains droits de la femme et des enfants garantis par la loi dans ces situations particulières sont respectés, à savoir le droit à l’information pour la femme, son droit à se libérer des liens du mariage et ses droits pécuniaires ainsi que ceux de ses enfants.
2 LES LIMITES D’UNE REFORME La façon dont la philosophie de la réforme a été conçue constitue en ellemême un handicap sérieux pour la recherche de solutions adéquates aux problèmes de la famille marocaine au présent. Les normes du droit musulman classique, d’un autre âge, adoptées par la commission royale comme base de travail ne peuvent pas être interprétées en dehors du cadre imposé par le rite malékite ou toute autre école religieuse islamique, ce qui entrave sérieusement 11 Tous les citoyens peuvent accéder, dans les mêmes conditions, aux fonctions et emplois publics. 12 Cour suprême, chambre du statut personnel et des successions, arrêt n° 214 du 21 février 2001, dossier du Chraâ n° 657/2/1/96, Revue de la jurisprudence et des lois, n°145, pp.155-163 13 Loi n° 72-03 modifiant le code de procédure civile, promulguée par dahir n° 1-04-23 du 3 février 2004, Bulletin officiel du 6 octobre 2005, p. 708.
Le Nouveau Code Marocain de la Famille: Une Réforme dans la Continuitè
213
tout effort entrepris par les juges pour adapter le nouveau code aux réalités de la vie. La pluralité que l’on trouve dans le langage et le discours employés par les rédacteurs du texte de la nouvelle Moudawwana et la différence qui existe même entre la version arabe du code et sa traduction officielle en français14 montrent les difficultés rencontrées par le législateur qui souhaitait concilier fidélité au droit musulman classique et respect des normes contenues par les conventions internationales relatives aux droits humains. 2.1 Limites de la réforme liées à la conception figée du nouveau code Les institutions et les mécanismes du droit des personnes et de la famille propres à la tradition musulmane classique ont été repris dans le nouveau code avec des retouches qui n’altèrent en rien leurs aspects négatifs pour l’égalité entre les hommes et les femmes et les droits de l’enfant dans les relations familiales. Des restrictions à la liberté du mariage demeurent. La tutelle matrimoniale, qui s’applique en principe à toute femme musulmane, est maintenue comme un principe, avec une dérogation possible pour la femme majeure. Cette dispense est d’ailleurs, pour l’instant, fort peu utilisée dans la pratique et la femme qui souhaiterait se passer de la tutelle de son père pour se marier soulèverait sans aucun doute une réelle réprobation. De même la différence de culte reste un empêchement pour la conclusion du mariage entre une femme musulmane et un homme non-musulman ou entre un homme musulman et une femme non chrétienne ou juive (article 39, 4°). De plus, toute femme marocaine voulant épouser un étranger ou un non-musulman converti à l’Islam doit, pour le faire, avoir l’autorisation préalable du procureur général du roi auprès de la cour d’appel,15 comme au temps de l’ancienne Moudawwana. On peut même constater sur ce dernier point un recul du code de la famille car le texte de l’ancienne Moudawwana ne prévoyait pas cette autorisation qui n’était imposée que par des circulaires du ministre de la justice.16 Enfin, la contrainte matrimoniale n’a pas disparu. Le juge de la famille chargé du mariage peut aussi autoriser le mariage d’une mineure «par décision motivée précisant l’intérêt et les motifs justifiant ce mariage» après avoir entendu les parents du mineur ou son représentant légal17 ce qui enlève toute signification
14 Par exemple le terme arabe talaq est traduit en français par «divorce sous contrôle judiciaire». De même, dans la version française, l’article 400 donne le choix au juge, pour compléter les lacunes éventuelles du code, de «se référer aux prescriptions du rite malékite et/ou aux conclusions de l’effort jurisprudentiel [Ijtihad]» alors que ce choix n’existe pas pour le juge dans la version arabe officielle du code. 15 L’article 65 du code prévoit que le dossier pour la conclusion du mariage doit contenir une autorisation pour les convertis à l’Islam et les Etrangers. 16 Dont notamment pour les plus récentes: circulaire du ministre de la justice n° 854 du 17 mai 1979, Revue de la jurisprudence et des lois, n° 129, juillet 1979, pp. 396-398 ; circulaire du ministre de la justice n° 929 du 8 avril 1982, Revue de la jurisprudence et des lois, n°131, pp. 129-131. 17 Article 20 qui prévoit également que la décision autorisant le mariage d’un mineur n’est susceptible d’aucun recours.
214
Articles
à l’abolition du droit au Jabr ou pouvoir d’obliger la femme de se marier sans son consentement d’après le droit musulman classique. L’égalité entre les deux époux pendant le mariage est loin d’être totale. Certes, comme on l’a mentionné plus haut, le devoir d’obéissance de la femme envers son mari a été supprimé, ce dernier n’est plus désigné comme le chef de famille et le code prévoit la prise en charge par l’épouse conjointement avec son époux de la gestion des affaires de la famille. Mais le mari reste seul tuteur légal de ses enfants. La mère ne devient tuteur légal qu’ «à défaut du père ou par suite de la perte de la capacité de ce dernier» (article 231). C’est également au mari seul qu’incombe l’obligation de pourvoir aux charges financières de sa femme et ses enfants,18 l’épouse n’étant obligée de subvenir aux besoins de ses enfants qu’en cas d’indigence du mari et uniquement à titre subsidiaire.19 Le régime de la séparation des biens matrimoniaux adopté dans le code ôte toute sécurité financière à la femme qui contribue par son effort ou son argent à la constitution du patrimoine familial et à la charge des frais du ménage. Le principe de séparation des biens est posé par l’article 49 du code de la famille. Toutefois le même article prévoit, et c’est une innovation du nouveau code, que les époux peuvent, par un acte séparé, prévoir la gestion des biens acquis pendant le mariage et leur répartition. Cependant, le code ne contient pas de règles précises et contraignantes qui allègeraient la charge de la preuve en cas de conflit entre les époux à ce sujet. Le principe de l’égalité des époux pour la dissolution du mariage trouve ses limites dans le maintien de la répudiation comme privilège reconnu au mari seul, même si l’exercice de ce droit se fait sous contrôle judiciaire. Le mari peut céder ce droit à sa femme moyennant compensation dans la répudiation Khol’ ce qui peut se transformer dans la plupart des cas en moyen de pression de la part du mari qui a un droit discrétionnaire de dissoudre les liens du mariage par sa seule volonté. Enfin les règles relatives à l’héritage n’ont connu pratiquement aucune modification et la discrimination à l’égard des femmes demeure intacte. L’homme est nettement privilégié par rapport à la femme : Ainsi un fils unique, en l’absence d’héritiers à fardh, recueillera l’ensemble de la succession. Une fille unique n’aura que la moitié, le reste allant aux autres successibles. Toujours en l’absence d’héritiers à fardh, un frère et une sœur se partageront la succession et la part de l’héritier étant le double de celle de l’héritière, le frère aura les deux tiers et la sœur un tiers.
18 L’article 194 dispose que «L’époux doit pour voir à l’entretien de son épouse dès la consommation du mariage» et l’article 198 que, «Le père doit pourvoir à l’entretien de ses enfants jusqu’à leur majorité ou jusqu’à vingt cinq ans révolus pour ceux qui poursuivent leurs études. Dans tous les cas la fille ne perd son droit l’entretien que si elle dispose de ressources propres ou lorsque son entretien incombe à son mari. Le père doit continuer à assurer l’entretien de ses enfants handicapés et incapables de se procurer des ressources». Le deuxième alinéa de cet article montre bien que toutes les discriminations à l’égard des femmes n’ont pas disparu. 19 Article 199: «Lorsque le père est, totalement ou partiellement incapable, de subvenir à l’entretien de ses enfants et que la mère est aisée, celle-ci doit assumer la pension alimentaire au prorata du montant que le père est dans l’incapacité d’assurer».
Le Nouveau Code Marocain de la Famille: Une Réforme dans la Continuitè
215
Le code de la famille n’a apporté qu’une seule très légère modification dans le domaine du droit successoral. Il s’agit du legs obligatoire wassiya wajiba, en vertu de la loi. Jusque là, le legs obligatoire ne concernait que les enfants des fils prédécédés (article 266 de l’ancien code de statut personnel). Dans le nouveau code il concerne également les petits enfants issus d’une fille prédécédée.20 La vision traditionaliste relative à la filiation et aux relations de l’enfant avec ses parents garde son poids dans le nouveau texte, puisque l’enfant né hors mariage n’a pas le droit de prouver la paternité de son père biologique ni de lui réclamer une pension alimentaire. La reconnaissance de paternité connue dans le code sous le nom Al-istilhaq, qui a servi dans un autre âge à légitimer les enfants du maître nés d’une esclave ou d’une concubine légale sous le régime Attassarri, ne peut se concevoir aujourd’hui que dans le cas d’une procédure judiciaire de reconnaissance de mariage qui implique, en cas d’existence d’enfants nés hors du mariage, leur reconnaissance de jure si le tribunal prononce une décision légitimant les rapports sexuels des parents qui ont donné naissance à ces enfants. Mais cette action est limitée par un délai qui ne doit pas dépasser 5 ans à partir de la date d’entrée en vigueur du code.21 L’adoption est interdite par le code,22 comme c’était le cas dans l’ancienne Moudawwana. Elle est remplacée, par une autre institution appelée kafala organisée par une loi de 2002.23 La kafala est l’engagement de prendre en charge la protection, l’éducation et l’entretien d’un enfant abandonné, au même titre que le ferait un père pour son enfant. La kafala ne crée pas de lien de filiation avec l’enfant recueilli et ne confère aucun droit à la succession. 2.2 Difficultés de mise en œuvre du code La pratique montrera si les solutions inventées par les rédacteurs du nouveau code sont en mesure de résoudre les problèmes de droit international privé et essentiellement ceux relatifs aux Marocains résidant dans les pays de l’Union Européenne. La carence du législateur à créer un fonds de solidarité familiale et l’opposition latente des juges et notaires traditionalistes constitueront une entrave supplémentaire à l’effectivité des quelques axes essentiels de la réforme. 20 Le legs obligatoire attribué à ces petits enfants étant égal à la part de succession que leur père ou mère aurait recueilli de son ascendant s’il lui avait survécu, dans la limite du tiers disponible de la succession, la part des enfants des filles reste donc inférieure à celle des enfants des fils (articles 370 et 372). 21 Article 16 du code de la famille …»Lorsque des raisons impérieuses ont empêché l’établissement du document de l’acte de mariage en temps opportun, le tribunal admet, lors d’une action en reconnaissance de mariage, tous les moyens de preuve ainsi que le recours à l’expertise…… L’action en reconnaissance de mariage est recevable pendant une période transitoire ne dépassant pas cinq ans, à compter de la date d’entrée en vigueur de la présente loi». 22 Article 149: «L’adoption [attabanni] est juridiquement nulle et n’entraîne aucun des effets de la filiation parentale légitime». 23 Loi n° 15-01 relative à la prise en charge (la kafala) des enfants abandonnés, promulguée par dahir n° 1-02-172 du 13 juin 2002, Bulletin officiel du 5 septembre 2002, p. 914. Voir Yearbook of Islamic and Middle Eastern Law, Vol. 9, 2002-2003, p. 359.
216
Articles
Pour délimiter le champ d’application du code, on a choisi comme critère de rattachement la nationalité marocaine de la personne impliquée dans une relation juridique relative à une matière relevant du code, ce qui implique la soumission à ses règles contraignantes, de relations n’ayant aucun rapport effectif avec le Maroc, au seul motif de la nationalité marocaine de la partie en question. Or ce critère de rattachement est dépassé et abandonné par la plupart des systèmes de droit international privé en Europe, en faveur de critères reposant sur le principe de la proximité ou de l’autonomie de la volonté. Cette approche unilatérale de solution des conflits de lois dans les rapports internationaux de la famille ne contribuera aucunement à la coordination des systèmes et pourra créer des situations boiteuses. La démonstration est flagrante dans le cas du mariage et de sa dissolution puisque les mariages conclus par des marocains musulmans à l’étranger et les décisions judiciaires étrangères relatives à la dissolution du mariage impliquant un marocain musulman ne seront pas reconnus au Maroc s’ils ne sont pas conformes aux exigences du code, même si leur validité n’est pas contestée ailleurs (articles 14 et 128). L’option du mariage civil ouverte par le nouveau code aux marocains résidant à l’étranger sera difficilement applicable par l’autorité compétente d’un Etat laïc, à laquelle il sera demandé de célébrer le mariage tout en respectant les conditions imposées par le code marocain pour la validité de l’union conjugale, telles que la présence de deux témoins musulmans. Il sera également difficile sinon impossible à cette autorité de considérer la différence de religion entre les deux futurs époux comme motif d’empêchement au mariage. Le même sort sera réservé, mais cette fois-ci du côté marocain, aux décisions judiciaires prononcées par des tribunaux étrangers en matière de dissolution du mariage. Le code permet en effet la reconnaissance de telles décisions, mais en suivant la voie de l’exequatur inscrite dans le code de procédure civile. Or le texte de ce code permet au juge de refuser l’exequatur au jugement qui émane d’une juridiction étrangère non compétente ou qui est contraire à l’ordre public marocain.24 Quelques décisions marocaines prononcées à ce sujet imposent que le juge étranger soit de confession musulmane pour les affaires de statut personnel concernant des marocains musulmans et refusent de ce fait de donner suite à toute demande d’exequatur ne respectant pas cette exigence.25 De plus, l’ouverture des voies de recours contre la décision prononçant l’exequatur, les formalités et les délais prévus par le système de convocation
24 Article 430 du code de procédure civile: «Les décisions de justice rendues par les juridictions étrangères ne sont exécutoires au Maroc qu’après avoir été revêtues de l’exequatur par le tribunal de première instance du domicile ou de la résidence du défendeur ou, à défaut, du lieu où l’exécution doit être effectuée. Le tribunal saisi doit s’assurer de la régularité de l’acte et de la compétence de la juridiction étrangère de laquelle il émane. Il vérifie également si aucune stipulation de cette décision ne porte atteinte à l’ordre public marocain». 25 Cour suprême, chambre du statut personnel et des successions, arrêt n° 90 du 24 janvier 2001, dossier n° 212/2/1/2000, Revue jurisprudence de la cour suprême, n° 59-60, p. 182; Cour d’appel de Casablanca, arrêt n° 2221/1 du 29 avril 2004, dossier 2877/1/03, inédit, arrêt n°2721/1 du 27 mai 2004, dossier n°473/1/2003, inédit.
Le Nouveau Code Marocain de la Famille: Une Réforme dans la Continuitè
217
de la partie adverse qui réside généralement hors du Maroc, sont une entrave sérieuse au régime souple préconisé par le code pour la solution des conflits familiaux internes. Les Marocains résidant à l’étranger seront désormais amenés à célébrer leurs mariages devant une autorité officielle marocaine, consulaire ou autre et à demander aux tribunaux marocains de prononcer le divorce, étant donné les avantages de célérité et de sécurité que leur procure le système propre aux marocains vivant à l’intérieur du Maroc. L’exécution des jugements rendus dans les affaires relatives à la pension alimentaire en faveur de la femme ou de l’enfant présente un autre aspect négatif si la personne condamnée est réticente ou incapable de payer. La contrainte par corps pour obliger l’ex-mari à exécuter son obligation n’améliorera pas la condition précaire de la femme répudiée ou divorcée et de ses enfants si l’Etat ne prend pas en charge la création d’un fonds de solidarité familiale qui remplira dans ces cas le rôle d’une caisse de garantie. Un rapport sur «l’application du code de la famille, deux ans après son entrée en vigueur» présenté le 26 avril à Casablanca,26 montre bien que le nouveau code est loin d’avoir réglé les problèmes les plus urgents. Le rapport fait notamment état de mariages de mineurs relativement nombreux et affirme que les autorisations pour ces mariages sont souvent délivrées par les juges d’après une «appréciation visuelle» alors que le code prévoit préalablement à la délivrance de l’autorisation, l’audition des parents du mineur ou de son représentant légal ainsi qu’une expertise médicale et une enquête sociale. Toujours selon ce rapport, après les violences faites aux femmes, ce sont les pensions qui représentent le gros des dossiers traités par les tribunaux. L’enquête a relevé des dysfonctionnements dans l’exécution des jugements et les montants dérisoires parfois accordés. Le rapport révèle aussi d’autres disfonctionnements (expulsion du domicile conjugal, refus d’intervention en cas de violences conjugales…) qui ne relèvent pas des insuffisances de la loi mais de carences dans son application. Ceci montre bien que les juges et les auxiliaires de la justice jouent un rôle déterminant dans la réussite de la réforme. Le département marocain de la justice a fait de réels efforts dans la formation de magistrats spécialisés dans les affaires de la famille et la vulgarisation du nouvel esprit du code parmi eux. Néanmoins, on constate une insuffisance toujours croissante dans l’effectif des juges responsables en matière de conflits familiaux et la réticence non dissimulée du corps judiciaire traditionaliste, à tout changement qui toucherait aux principes classiques du droit musulman. Les Adoul, notaires traditionnels, ne remplissent pas, eux non plus, la mission qui leur est impartie par le code d’informer les futurs mariés sur les options offertes par la loi en ce qui concerne la possibilité d’insérer des clauses
26 Il s’agit d’un projet mené conjointement par la Ligue démocratique des droits de la femme (LDDF) en collaboration avec le Centre d’information et d’obser vation des femmes marocaines, le Réseau des centres d’écoute et de conseil juridique et LDDF Assistance. Toute une série d’indicateurs ont été traités: pension, mariage des mineurs, expulsion du domicile conjugal, polygamie… à travers les statistiques fournies par sept tribunaux localisés à Casablanca, Marrakech, Rabat, Beni Mellal, Mohammédia, Fquih Bensaleh et Guelmin. Voir L’Economiste, 28 avril 2006.
218
Articles
particulières dans les actes de mariage27 ou de dresser des actes distincts de l’acte de mariage lui-même pour gérer et organiser la répartition des biens acquis par les deux époux. Le nombre de recours à ces actes particuliers, publié par le Ministère de la Justice pour l’année 2005, est dérisoire par rapport au nombre de mariages conclus durant la même année. Pour se défendre, les Adoul invoquent des arguments tels la non-conformité de ce genre d’actes aux traditions et coutumes marocaines ou le manque de temps pour informer les personnes concernées durant les cérémonies de célébration des mariages. Ce ne sont que des excuses qui cachent le malaise à peine voilé de ce corps très conservateur devant un code qu’il considère ne pas être conforme aux préceptes de l’islam.
27 Par exemple clauses relatives aux personnes telle la clause de monogamie ou la clause prévoyant un droit de divorce pour la femme connu sous le nom tamlik ou tafwidh et clauses relatives aux biens telle celle instaurant un régime particulier de répartition des biens acquis pendant le mariage entre les deux époux ou prévoyant les modalités d’utilisation de ces biens (voir art.47, 48 et 49 du code).
219
The Concept of mahr (Dower) in Islamic Law: The Need of Statutory Recognition by English Law Mohamed Jindani*
1 INTRODUCTION The Qur’an and the prophetic traditions are replete with dispute resolution provision and are the cornerstone of every Muslim’s beliefs and the practice of his faith.1 The desire of all Muslims to practise their faith may conflict with other laws, particularly Western secular laws. This article is written to examine one particular practice sanctioned by Divine law and traditions, i.e. the payment of mahr (dower) on the occasion of marriage, and its interaction with English law. One of the most momentous historical events of the last century was the fall of the Berlin Wall that brought about the end of the conflict of dogma between the capitalist West and the communist East. This event had a most profound effect on mass movements of peoples across borders. The brutal civil wars that followed, first in the former Yugoslavia and then in the former Soviet republic of Chechnya, resulted in large scale movements of peoples across borders seeking relative political security in Western Europe, most of them Muslims. Added to this movement of peoples was the flood of Muslims fleeing the civil war in Algeria that followed the cancellation of the first democratic elections, because of suspicion that the fundamentalist Islamic party might sweep the board and secure political power. Muslim settlements in the United Kingdom pre-date these monumental events. Many Muslims voted with their feet in the 1960s and 1970s and chose to leave the political turmoil in post-independent colonial Africa. They sought in their thousands to settle in Europe, with the United Kingdom taking a large share. There were also those who came from the sub-continent in the early 1950s to work in the textile mills of Lancashire, who then settled here. * Mohamed Jindani is a practising solicitor in England and Wales and has recently completed a PhD on “The Concept of Dispute Resolution in Islamic Law”. This article is taken from his thesis. 1 S49 vv 1-13 is just one such example. Ali A. Asani, On Muslims Knowing The “Muslim” Other: Reflections On Pluralism And Islam, published by The Woodrow Wilson Institute, Fall, 2005.
220
Articles
The advantage the former had was that they were educated, middle class with an international outlook, and arrived here with some capital to enable them to integrate in the host community. The net effect of all these movements is that there are approximately one million Muslims living in the U.K. They have sought and obtained legal recognition of many aspects of their religious practices. Non-Muslim authors, such as Sebastian Poulter,2 and David Pearl and Werner Menski,3 have written extensively on ethnic minorities and English law. They have elaborated the importance to the Muslim community of Islam, its religious identity and its relevance to English law. Pearl and Menski, whilst reiterating that the question of mahr has been the subject of litigation, maintain that in England there are good grounds for English courts to get involved in Islamic law.4 They ask: to what extent, “should English law adapt its principles and rules to accommodate foreign customs?”5 This article looks at one such practice, that of dower (mahr) in the context of Muslim marriage (nikah) and divorce (talaq) and asks, as English case law recognises mahr, then whether legislative changes should be effected in order to give statutory recognition to such practice. The importance of addressing this issue now is that mahr (which will be explained later) forms an essential part of Muslim family law, is practised universally by all Muslims, Sunni or Shi’a,6 and has been the subject of litigation in the English courts. This article is arranged as follows: (1) An introduction, to concepts of nikah (marriage) and mahr (dower) and talaq (divorce). (2) A review of early reported and later unreported English case law. (3) Mahr, contract, consideration and early sub-continent decisions. (4) Mahr and the Married Women’s Property Act 1882 and Matrimonial Causes Act 1973. (5) Conclusion.
2 Poulter, Sebastion M., “The claim to a separate Islamic system of personal law for British Muslims”, in Islamic Family Law, 1990, Mallat, C. and Jane Connors, eds. 3 Pearl, D. and Menski, W., Muslim Family Law (London, 1998, 3rd Edn.). Hereafter cited as “Family Law”. 4 Ibid., pp. 232-234. 5 Family Law, p. 54. 6 Originally known as the ahl al-sunna wa’l-jama’a, who supported the governor of Syria Mu‘awiya b. Abi Sufyan, who had refused to relinquish his post as governor when dismissed from office, and raised the standard of rebellion at the Battle of Siffîn (37AH/657) against the elected authority of the fourth Caliph, ‘Ali b. Abi Talib, the Prophet’s cousin and son-in-law, whose supporters were called Shi‘at ‘Ali. These two appellations eventually became shortened to the present form Sunni and Shi’a.
The Concept of mahr (Dower) in Islamic Law
221
2 MARRIAGE, DOWER AND DIVORCE IN ISLAMIC LAW Marriage is sanctioned by the Qur’an. “Marry women of your choice”7; “And among His Signs is this, that He Created for you mates from among yourselves, that you may dwell in tranquility with them.”8 Both Muslim and Bukhari (who collected and recorded prophetic traditions), relate on the authority of Anas b. Malik and ‘Abd Allah b. Mas‘ud, that the Prophet (s.a.a.s.) established the institution of marriage and said, “O young man, those among you who can support a wife should marry, for it restrains eyes (from casting evil glances).”9 Although sanctioned by the Qur’an and prophetic tradition, a Muslim marriage is a civil contract.10 Unlike a Christian marriage, there is no religious ceremony to invest it with solemnity. Moreover, unlike the latter, which, as a sacrament is indissoluble except in very rare circumstances, a Muslim marriage may be brought to an end by a simple divorce or talaq.11 The essentials of this contract are: (i) capacity (ahliyya); (ii) offer (ijab); (iii) acceptance (qabul); (iv) the agreement to pay the Dower (mahr);12 (v) at least two witnesses to the contract (shahid). Two observations may be noted. First, mahr is an essential component of the marriage contract, payable by the groom to his intended bride. If it is not specifically mentioned in the contract it will be adjudged according to definite principles. Secondly, marriage is entered into by contract, which “resulted in marriage having a deeper meaning in Moslem communities”,13 the reason being that, “any sexual relation outside of marriage was a serious criminal offence”.14 The legal effect of the marriage contract is that it confers on the parties conjugal rights. The husband is obliged to pay the ante-nuptial settlement mahr, fulfilling all ante nuptial agreements.
7 4:3. 8 30:21. 9 Muslim, Vol. I, p. 703, hadith Nos. 3233, 3236. Also al-Bukhari, Sahih, Vol. VII, tr. Dr. Muhammad Muhsin Khan, (New Delhi, 1984, [5th Edition]), p. 1 and p. 5, hadith Nos.1, 2, 7, 8. Hereafter cited as Bukhari. 10 Alee, Burhan-ad-Deen, The Hedaya fi’l-furu, Vol. I, tr. Charles Hamilton, (Karachi, 1991), p. 72 and evidence given by Professor Noel Coulson, then Professor of Islamic Law at the School of Oriental and African Studies, University of London, in Alhaji Mohammed v. Knott [1968] 2 W.L.R. 1446. [1969] 1 Q.B. 1. 11 A unilateral divorce pronounced by the husband on the wife must be distinguished from khul’, a divorce initiated by the wife and mubara’ which is a consensual divorce. 12 In pre-Islamic Arabia, mahr was given to the father, thus importing into the transaction the concept of bridal purchase, a description that led to a libel action in the London High Court, which is discussed later. EI², s.v. ‘Mahr,’ Vol. VI, (Leiden, 1991), p. 78. 13 Saleh v. Oldham Press Ltd. The Times Law Reports, London, 27 June 1963, per Melford Stevenson J. The Muslim plaintiff husband who had paid £800 as mahr to his bride complained successfully that the defendant newspaper headline ‘child bride bought for £800’ had injured his feelings and had held him up to ridicule and contempt. 14 Ibid.
Articles
222
The origin of mahr is in the Qur’an15 and also in prophetic traditions.16 Schacht considers mahr to be, “an essential element of the contract of marriage”,17 where the bridegroom, “undertakes to pay the nuptial gift [mahr, sadaq]”.18 As for the bride, “she has the right to the nuptial gift mahr”.19 Coulson is as emphatic on the payment of mahr in a marriage contract.20 A consequence of this obligation to pay mahr is that in Islam she is treated as an individual in that she personally receives mahr, and acquires an independent legal status, denied to her Western counter-part until the passing of the Married Women’s Property Act 1882.21
3 A REVIEW OF ENGLISH AND SUBCONTINENT CASE LAW The English courts have, over the years, been faced with some very complex, yet interesting questions involving Muslim marriages. From the Muslim communities’ standpoint the English courts’ recognition or otherwise of marriage contracts in general and the payment or enforcement of dower is of particular concern. The question posed by Pearl and Menski is, how far “should English law adapt its principles and rules to accommodate foreign customs”,22 – an interesting and pertinent observation. For English law and lawyers the question that arises does not simply concern the recognition of diverse ethnic practices, but the extent to which such divers practices should be incorporated into the legal sphere. The present position is that the English courts will afford recognition to, and enforcement of, mahr based on two early decisions. However, in practice this may not necessarily be so. Shahnaz v. Rizwan [1965] 1Q.B. 390, involved recognition of a Muslim talaq, an extra-judicial divorce, pronounced at the Pakistan High Commission that dissolved a Muslim marriage celebrated in India and payment of mahr. Winn J. concluded that the wife’s claim for the payment of £1,400 as mahr is enforceable in England, not because the claim lay in the nature of a matrimonial relief, but because she was seeking to enforce a proprietary right arising out of a contract. In Quereshi v. Quereshi [1971] 1 All E. R. 325, the court was asked to decide on the extra-judicial divorce registered at the Pakistan High Commission and if mahr, fixed at the English equivalent of £788.13s.5d., would be enforced. 15 S2vv.236-7; S4v.4. 16 Ibn Kathir, Life of Muhammad tr. by Trevor le Gassick (Reading, 1998) Vol. II, p. 386. The conversation between the Prophet (s.a.a.s.) and his future son-in-law ‘Ali b. Abi Talib as to what mahr the latter would give to the Prophet’s daughter Fatima on the occasion of the marriage. 17 Schacht, J., An Introduction to Islamic Law (Clarendon Press: Oxford, 1966) p. 38. 18 Ibid, p. 161. 19 Ibid, p. 167. 20 Coulson, N. J., A History of Islamic Law (Edinburgh, 1964), p. 14. 21 S17, MWPA 1882, discussed more fully later. 22 Family Law, p. 54.
The Concept of mahr (Dower) in Islamic Law
223
The parties married in India, migrated to Pakistan, and then came to live in England. The husband had claimed that his domicile of choice was Pakistan. In a judgment which marked the high water mark of liberal recognition of such practices, Sir Jocelyn Simon, P. said, I therefore give judgement for the husband … that the “talaq” divorce was valid, and for the wife, on that part of her prayer that claims the sum of £788.13s.5d by way of dower.23
The decisions (1) to recognise extra-judicial divorces, and (2) a wife’s claim to mahr, were important steps towards recognition of the community’s right to regulate its matrimonial affairs in accordance with Islamic law. The decision to recognise extra-judicial divorces was overturned by section 16(1) of the Domicile and Matrimonial Proceedings Act 1973.24 Poulter expressed an opinion that the: provision reversed the previous common law rule that English law would generally recognize the validity of extra judicial divorces obtained here provided they were acceptable to the law of the couple’s domicile.25
In Chaudhary v. Chaudhary [1985] 2 W.L.R. 369, Oliver, L.J. said that the obvious intention of the 1973 Act was to deny by statute recognition accorded by early case law.
4 MAHR, CONTRACT, CONSIDERATION AND EARLY SUB-CONTINENT DECISIONS However, the right of the woman to claim her agreed mahr remains unaffected because Winn J. held that the right to dower was a proprietary right arising from contract enforceable by an action in contract. The difficulty is that argument would have to be advanced that the contract was validly entered into, and English principles of the validity of consideration would determine if the contract should be enforced. In Hamira Bibi v. Zubaida Bibi [1916] 43 I.A. 294, Lord Parker of Waddington describes mahr as a consideration whereas in Abdul Kadir v. Salima [1886] I.L.R. 8 All 149, Mahmood J. states that it is not consideration but an obligation imposed by law. Thus, although Shahnaz v. Rizwan is authority for the proposition that mahr is not a consideration for the marriage contract, a contrary argument could also be presented. Although Winn J. doubts the accuracy of such a description, he nevertheless held that the wife’s right to mahr was enforceable because he held it to be a proprietary right in respect of which, should a wife gain physical possession of any property of her spouse, she would be entitled to exercise a
23 At p. 347. 24 The Statute clearly stated that no proceeding could validly dissolve a marriage unless instituted in the Courts of Law in the United Kingdom, Channel Islands or the Isle of Man. See also the Family Law Act 1986, s. 44(1). 25 Poulter, S. Ethnicity Law and Human Rights (Clarendon Press: Oxford, 1998), pp. 51-52.
224
Articles
lien over that property.26 It was a right enforceable independently of any claim, e.g. financial dispute resolution arising from the marriage. In practice this is not the case. In Ali v. Ali: In The Principal Registry of the Family Division, Case No. 3658/98, (unreported case), the wife was advised that she was entitled to claim £30,001 agreed mahr under the principle of Shahnaz v. Rizwan. The parties agreed an out-of-court settlement, but the wife had to bring any amount paid to her in a subsequent financial dispute resolution hearing on 16 December 1998. If, it is argued that mahr is, under Islamic law, given to the bride as her unconditional gift,27 then such interpretation may fall foul of the Law Reform (Miscellaneous Provisions) Act 1970, section 3(1). The Act states that a party to an agreement to marry who makes a gift of property to another party on condition, express or implied, that it shall be returned if the agreement is terminated, shall not be prevented from recovering any property by reason only of his terminating the agreement.
5 MAHR AND THE MARRIED WOMEN’S PROPERTY ACT 1882 AND MATRIMONIAL CAUSES ACT 1973 With regard to the enforcement of mahr, two alternative procedures may be considered. The first is under section 17, Married Women’s Property Act 1882. This Act is used to resolve issues between husbands and wives concerning title to, or ownership of property. The section is particularly useful in cases of polygamous or potentially polygamous marriages, where the parties have no claim to ancillary relief.28 As in the early and leading case of Joseph v. Joseph [1909] P. 217, the court held that section 17 conferred upon it (the Court) the right to refund to a wife of a dower following the grant of a petition of nullity of marriage between a Jewish couple.29 Therefore, there is no reason why section 17 of the Married Women’s Property Act 1882 cannot be invoked in appropriate circumstances where ownership of or title to monies or goods representing a Muslim mahr were in dispute.30
26 See the passage in the All England Law Reports at p. 998D-E where there is also mention that a wife or widow’s right is assignable under s. 3 of the Transfer of Property Act 1882 within the Indian Code. Note that the Transfer of Property Act 1882 came into force at the same time as the Married Women’s Property Act 1882 in this jurisdiction. Shahnaz v. Rizwan can, therefore, also be used as authority for the proposition that the right to dower as a proprietary right is one enforceable under s. 17 of the Married Women’s Property Act 1882. 27 At-Tabataba’i, al-Allamah as-Sayyid Muhammad Huasyn, Al-Mizan fi’tafsiri’l-Qur’an, tr. Sayyid Saeed Akhtar Rizvi, Vol.7, O. Spies (ed.), (Tehran, 1990, 1st Edition), p. 260. 28 White v. White [2000] 2 F.L.R. 981 in which the House of Lords stressed the need to divide all assets on an equal basis as a starting point in any ancillary relief claim, it is possible that s. 17 of the Married Women’s Property Act 1882 might obtain a new lease of life where it becomes necessary to determining existing property rights before the resolution of any ancillary relief claim. 29 Distinguished with the later case of Kelner v. Kelner [1939] P. 411 where the marriage was valid and subsisting.
The Concept of mahr (Dower) in Islamic Law
225
The second may be to ask if assistance can be sought from the Matrimonial Causes Act 1973,31 sections 23 and 25. Section 23 requires the court on granting a decree of divorce, nullity of marriage, or judicial separation or at any time thereafter to make an Order that a party to a marriage shall pay to the other party such lump sum or sums as may be specified. So far as section 25 is concerned, it is perhaps worth stressing that the function of the court, in financial dispute resolution proceedings (formally ancillary relief), is not to enforce contractual rights, but to divide up the ascertainable assets of a marriage in a pragmatic way which is bound to take into account certain factors, including contributions, income, capital, needs, and particularly the welfare of any dependent children, but above all in a way which is fair. Accordingly, the payment (or not) of mahr, as the case may be, is one of many factors the court can take into account. The weight to which the court might attach to it as a factor must depend upon the circumstances of each case. If the payment of mahr was so substantial as to represent the main capital asset in the case and was paid only a short period of time prior to the divorce petition, it could well be a factor of central importance; if a relatively small payment of mahr was made 20 years before the issue of a petition in a case with other much more substantial capital assets, it might hardly play a role at all. Those specific section 25 factors, which appear to be of direct relevance to a Muslim marriage involving a payment (or not, as the case may be) of mahr, are: • property: if mahr is paid and held by the wife, it is “property” within the meaning of ss. 2(a): and it is an asset in her hands which must be taken into account; • obligations: a husband who is obliged to pay mahr but has not done so – this is an “obligation” within the meaning of ss. 2(b); • conduct: payment of mahr is a sacred obligation. A spouse who flagrantly chooses not to honour such an obligation could be guilty of conduct that it would be inequitable for the court to disregard pursuant to ss. 2(h) Litigation through the courts to enforce payments of mahr, whether in contract or under the Matrimonial Causes Act 1973, section 23(1)(c) (payment of a lump sum or sums), or under the Married Women’s Property Act 1882, can be lengthy and expensive. It would require a considerable commitment of time and energy – both physical and mental – the result always being in doubt. Moreover, the Legal Services Commission may refuse financial assistance. In private practice such issues do arise and practitioners are often asked to advise on the issues of ancillary relief and mahr, and advice might well be given that the appropriate means of enforcing payment of mahr in the English courts 30 That it has not been done perhaps lends support to the view that English courts have, for historical reasons, been quicker to recognise Jewish marriage within the context of domestic legislation, than Muslim ones. See the judgment of Wilmer L.J. in Brett v. Brett [1969] All E.R. 1007 where the Court of Appeal imposed a conditional financial penalty on the husband who refused his wife, a deeply religious woman, a Jewish ghet divorce. The judgment was based on the Matrimonial Causes Act 1965, s. 16(1a) and (b), repealed by the Matrimonial Proceedings and Property Act 1970. 31 The Matrimonial Causes Act 1973 will only come into play if there is a civil marriage and not simply a nikah.
Articles
226
would be for a wife to sue in contract and simultaneously pursue her claim in ancillary relief. An argument could be advanced that these two remedies are intended to be mutually exclusive. The reason the claimant in Shahnaz v. Rizwan was allowed to enforce her claim in contract was precisely because her marriage was potentially polygamous and, therefore, precluded her from pursuing any ancillary relief claim. The claimant in Qureshi v. Qureshi [1971] 1 All E. R. 32532 was not precluded from pursuing an ancillary relief claim, and indeed had pursued her husband for maintenance. Sir Jocelyn Simon P. found that the husband would almost certainly return to Pakistan and make any award of ancillary relief in this jurisdiction unenforceable. There is an interesting passage in Qureshi v. Qureshi33 where the relationship between the two possible remedies is discussed. The court considered that any decision to award a payment of mahr in contract would have an indirect bearing upon the wife’s claim to maintenance. That mahr had been paid would be a factor, which would necessarily have an effect on the way in which the justices exercised their discretion as to (a) the quantum of maintenance; and (b) the extent to which any arrears would be enforceable.
6 CONCLUSION In family law practice, the issue of mahr is often raised and advice sought. A wife is advised of her options and the difficulties of pursuing any option. The position remains unsatisfactory and needs to be addressed. A demand for the wholesale introduction of Muslim personal law was, according to Pearl and Menski, a tactical mistake.34 An alternative strategy recommended by the authors was for society to take a piecemeal approach towards recognition, citing as an example section 1(2) of the Slaughter of Poultry Act 1967 and section 36(2) of the Slaughterhouses Act 1974.35 Muslims live and abide by the laws of the country and resort to the civil courts to redress wrongs. The courts and parliament are not unsympathetic to Muslim aspirations. Society should seek reform of the law through the Law Commission, whose mandate would be to consider recognition of (i) extrajudicial divorces and (ii) payment of mahr, either an amendment to the Marriage Act 1949 or a new statute. The Law Commission was established by The Law Commission Act 1965 whose statutory task is law reform. In matrimonial law, the Commission published a Working Paper, dealing with law reform and canvassing for suggestions from the legal profession, proposals for reform.36 Its proposals
32 33 34 35
At pp. 346h-347a. Ibid., at p. 346, c-e. Family Law, p. 69. The English legal system has, taking into account Muslim religious practices for the slaughter of meat and poultry by expanding the provision of the Act to include Muslims and not Jews only. 36 Working Paper No. 28., Jurisdiction in Matrimonial Causes (other than Nullity) (London, 1970), pp. 1-84.
The Concept of mahr (Dower) in Islamic Law
227
were laid before Parliament,37 which resulted in the Domicile and Matrimonial Proceedings Act 1973, section 16(1). There is no reason why a Commission should not now be established charged with a specific task of receiving proposals from the profession to consider changes to existing matrimonial legislation that would give statutory recognition to the principle of mahr. Alternatively an amendment to the Marriage Act 1949 following amendments brought about by the Family Law Act 1996, sections 3(1)(c) and 9(3).38 A new section 26(1)(d) could and should be added to future matrimonial family law legislation to read as follows: “A marriage between two Muslims according to the usages of Islam.” The time may be appropriate for an amendment to existing legislation or a new enactment.
37 Law Commission: Report on Jurisdiction in Matrimonial Causes No.48 (London, 1972), pp. 1-18. 38 Pearl and Menski who have reviewed the Act state that it “moves a little further towards a better understanding of the socio-legal needs of certain ethnic minority communities” but caution that the Act may only apply to Jewish marriages. See Family Law, pp. 104-105. So, even the small amendment proposed may not be sufficient.
228
229
Establishment of Islamic Courts in Egypt Dawoud S. El-Alami* The Egyptian newspaper, Al-Akhbar, reported on 9 June 2006 that the new Family Courts had succeeded in reconciling 125,000 couples over a period of 15 months. The Family Courts claim to have dealt with some 250,000 cases, with an out-of-court settlement rate of 50 per cent. On the face of it, this is an impressive statistic and ostensible proof of the success of the new system introduced by Law No. 10 of 2004,1 although this number is spread across the country and no detailed breakdown of the cases by type is given. The key provisions of this new law, a full translation of which is given below, are the establishing of a dedicated family division of the courts and the setting up of “Family Dispute Settlement Offices” attached to each Family Court jurisdiction to which the majority of personal status disputes must be submitted for conciliation before they may be submitted legally to the court. As part of this separation the law also stipulates the replacement of the Public Prosecutor in the judicial process in personal status cases with a Bureau for Family Affairs which will perform the functions of the Public Prosecutor in preparing reports for the court. There is also provision for an enforcement office under the supervision of an executory judge. Law No. 10 is essentially a procedural law and does not introduce any real change into the underlying regulation of marriage and divorce. It is, however, in effect a recognition that the system as it stood prior to its enactment was hopelessly inadequate and a cause of great suffering. Overloaded courts and inefficient systems have meant that for many years there have been backlogs and delays that have run into months and often into years. This has resulted in desperate hardship, particularly for women in irredeemable marriages from which their husbands are not prepared to release them, who are trapped not because they do not have a case but because the legal process is so intimidating, beset with obstacles and vulnerable to sabotage by the husband. In other cases women have to struggle through the legal quagmire to obtain maintenance orders which have been notoriously difficult to enforce.
* Lecturer in Islamic Studies at the University of Wales at Lampeter. 1 Official Gazette issue number 12 Appendix A 18/03/2004
230
Articles
This is neither a wholly good law nor a wholly bad one. It appears to be yet another attempt to make changes on the periphery of the divorce system but without any real change to its fundamental injustices. The setting up of the Family Disputes Settlement Office has enormous potential to reduce the pressure on the courts and their resources by resolving cases by agreement. This could be extremely valuable in settling matters of maintenance and custody without the need to go to court. Amongst the positive aspects of the new system is that it employs professionally trained social workers and psychologists as well as legal professionals and at least one of these must be a woman. One of the chief criticisms, however, is that in the case of divorce the law only serves further to entrench inequality by making recourse to this conciliation process obligatory. What the law does not say explicitly is that in reality it is only divorces instigated by women that will have to go through this process as there is nothing to prevent a man from carrying out a unilateral divorce or talaq at any time, nor any requirement for him to submit to any process of conciliation. There is a tacit presumption that only action instigated by the wife threatens the family and that women are not to be trusted to make decisions about their own lives without interference. The husband may end the marriage with or without grounds, but the wife can only do so by proving fault, or in the rare cases where she is in a position to do so in a no fault (khul’) divorce by waiving all her financial rights, and even in these cases she is required to submit to conciliation which is explicitly biased towards persuading her against this action: Article 6 says: The staff of the Office shall assume responsibility for meeting with the parties to the dispute and after hearing their statements shall make them aware of its various aspects, its consequences and the disadvantages of continuing therein. They shall offer them advice and guidance in an attempt to resolve it in amicable way in order to preserve the family unit. (emphasis added)
Moreover, what the law does not make clear is the effect that this conciliation process has in relation to Article 18 of Law No. 1 of 2000 which does not allow the Court to rule in a divorce case without first attempting arbitration between the parties. In the case where there are children of the marriage, the Court must offer arbitration twice with an interval of at least 30 and no more than 60 days between these attempts. The removal of this provision from the law would lead to the accusation of deviation from the Shari‘a and in particular from the explicit commandment of the Qur’an in Sura 4 verse 35.2 The legislator has not explained whether or not the conciliation process through the Family Disputes Settlement Office fulfils the requirements of Article 18 of Law No. 1 of 2000 or whether cases that are not settled out of court will have to be subjected to further offers of conciliation. Cases from the Helwan Family Court in which judgment was given in April and May of 20063 2 If ye fear a breach between them, appoint two arbiters, one from his family and the other from hers. Sura 4/35 3 Three unpublished cases acquired directly from Helwan Family Court, Cases No. 57, No. 275 and No. 1067 of 2005. It may be noted that these cases record the presence of the experts in psychology and social work as stipulated in Article 2 of Law No. 10 of 2004.
Establishment of Islamic Courts in Egypt
231
indicate that conciliation has been offered at least once and sometimes twice as part of the judicial process. These being cases dealt with under the new law, they could not legally have been raised unless they had first been to the Settlement Office and an attempt at conciliation made there. Far from making the process more efficient, it would seem that in some cases this extra procedure will simply add an extra hurdle to test the stamina of a woman seeking divorce. The provisions that may be of the greatest practical benefit to women are contained in the last two articles of the law. Previously, husbands unwilling to release their wives have been able to obstruct and delay the process of a divorce case often for years by appeals all the way to the Court of Cassation. Article 14 rules out appeals at Cassation, other than under the provision of Article 250 of the Law of Civil and Commercial Procedure which gives the Public Prosecutor the exclusive right to contest a judgment by Cassation in the interest of the law in cases where the parties are not entitled to go to Cassation (or where the time limit for contest by Cassation has expired). Such cases are heard without the presence of the parties and the parties are not entitled to benefit from the outcome. While the intention is apparently to prevent deliberate and malicious obstruction by the husband, it is conceivable that in some cases it might affect the wife if there is a flaw in application of the law which is detrimental to her. There is a theoretical danger of injustice in that even if the Court of Cassation rules in agreement with the Public Prosecutor that the law has been wrongly applied, the parties to the original case will be bound by the Appeal Court judgment and denied any further redress. This outlawing of the legal right to appeal to the full extent of the law, whilst well intentioned, has the potential to attract challenges to its constitutionality. The provision in Article 15 for the establishment of an enforcement department is a valuable further step in the efforts that have been made in recent years to enforce judgments made by the courts, most notably in the area of maintenance.4 The inclusion of this provision makes the Family Courts’ role in personal status cases comprehensive by making it responsible at all stages both before and after the judicial stage. The law contains examples of poor drafting. The suggestion in the wording of Article 6 is that it refers to divorce petitions when in fact the conciliation process is applicable to the range of cases in which the Family Court has jurisdiction. In Article 12 the wording could be construed to mean that the Family Court has exclusive jurisdiction to hear any subsequent case brought between the parties, potentially then including cases such as debt, dispute of ownership and other cases that should fall under the jurisdiction of the Civil Courts.5
4 Law No. 1 of 2000 includes provisions for payments of maintenance to be made on behalf of the husband by the Nasr Social Bank and orders for deductions of the amounts to be taken from a man’s salary. Law No. 91 of 2000 amending certain provisions of the Law regulating certain Circumstances and Procedures for Litigation in Personal Status Matters provides for imprisonment for 30 days of a man who refuses to comply with an order for maintenance where he has the financial ability to comply. 5 This is dicussed by Justice Ahmad Nasr al-Gindi, former President of the Court of Cassation, in his Masa’il Khilafiyya fi Ijra’at al-Ahwal al-Shakhsiyya.
Articles
232
There is little realistic prospect for any real reform in the fundamental inequalities in Egyptian divorce law in the immediate future and the best that can really be expected is small steps towards making the available remedies more accessible and less damaging. The hope for the new system is that specialised personnel with clearer time frames may make the process quicker and more efficient and that family-friendly facilities, removed from the general courts and so away from criminal and other cases, will make it more humane.
TEXT OF THE LAW In the Name of the People The President of the Republic: The Peoples Assembly has decided on the following law and we have promulgated it. Article 1 The provisions of the attached law shall be enacted with regard to the establishing of the Family Courts and all provisions that conflict with it shall be cancelled. Article 2 The Primary Courts, Summary and First Instance, shall of their own accord transfer all the cases they have in hand which, in accordance with the provisions of the attached law, come under the jurisdiction of the Family Courts. Cases shall be transferred as they stand and without fees. In the case of the absence of one of the adversaries, the clerk of the court shall notify him/her of the order for transfer, summoning him/her to attend, by appointment, before the family court to which the case has been transferred. The Family Court shall be obliged to hear the cases transferred to it under the provisions of the previous paragraph, without referring them to the Family Dispute Resolution Offices specified in the attached law. The first paragraph shall not apply to cases in which judgment has already been given or which are pending announcement of a judgment. Judgments issued in these cases shall remain subject to the rules regulating the methods of appeal that were in force prior to the enactment of the attached law. Article 3 The Court of Cassation, the Courts of Appeal, and the First Instance Courts shall continue to examine appeals raised before them prior to the date of enactment of the attached law with regard to judgments and decisions issued by the Summary Courts, First Instance Courts and Courts of Appeal, according to the circumstances, in cases which become subject to the jurisdiction of the Family Courts on the basis of the attached law.
Establishment of Islamic Courts in Egypt
233
Article 4 The Minister of Justice shall issue the resolutions necessar y for the implementation of the provisions of the attached law within three months of the date of its promulgation. Article 5 This law shall be published in the Official Gazette and shall come into force with effect from 1st of October 2004. This law shall be stamped with the Seal of the State and shall be implemented as one of its laws Issued at the Presidency of the Republic on 26 Muharram 1425AH (corresponding to 17 March 2004) Hosni Mubarak
LAW ESTABLISHING THE FAMILY COURTS Article 1 A Family Court shall be established within the jurisdiction of each Summary Court. Its location shall be specified by a decision of the Minister of Justice. A dedicated Appeals Division shall be established within the jurisdiction of each Appeal Court to hear appeals that have been raised before it, in the cases allowed by the law, against the judgments and decisions issued by the Family Courts. These Appeals Divisions shall convene within the jurisdiction of the First Instance Courts. In an emergency the Family Court or its Appeal Division may convene anywhere within or outside its Jurisdiction. This shall be by decision of the Minister of Justice at the request of the President of the First Instance Court or the Appeal Court according to the circumstances. Article 2 The Family Court shall be composed of three judges at least one of whom is of the status of President of the First Instance Court. The court shall be assisted in the cases specified in Article 11 of this Law by two experts, one of whom shall be a social worker and the other a psychologist. At least one of these must be a woman. The Appeal Division shall be composed of three Justices of the Appeal Court, at least one of whom should be of the status of President of the Appeal Courts. The Appeal Division may seek the assistance of specialists as it sees fit. The two experts referred to shall be appointed from amongst those listed in the registers for which the Minister of Justice shall issue a Resolution by agreement with the Minister of Social Affairs or the Minister of Health respectively.
234
Articles
Article 3 The Family Courts shall have exclusive jurisdiction to hear all personal status cases that fall under the jurisdiction of the Summary Courts and First Instance Courts in accordance with the provisions of the Law Regulating Certain Circumstances and Procedures in Litigation in Personal Status Matters issued by Law Number No.1 of 2000. The provisions of Article 3 of the said Law shall be applicable before the Family Court with regard to documents of cases previously under the jurisdiction of the Summary Courts, and with regard to the dismissal of claims for maintenance and the equivalent, including cases for imprisonment where a person against whom judgment is made fails to comply with the judgment issued. In exception to the provisions of the first paragraph, the President of the Family Court shall have the power to issue certificates of death and inheritance. He may also refer them to the Court when serious disputes occur with regard thereto. In his capacity as a judge in interim matters, he shall also have exclusive power to issue an order with regard to a petition in matters specified in Article One of the issuing articles to Law No.1 of 2000. Article 4 A dedicated Bureau for Family Affairs shall be established to assume the functions conferred on the Public Prosecution before the Family Courts and their Appeal Divisions. The Bureau for Family Affairs shall assume the powers conferred by law on the Public Prosecution in the cases and appeals in which the Family Courts and their Appeal Divisions have jurisdiction. Its involvement in these cases and appeals shall be compulsory, otherwise any judgment shall be void. The Bureau for Family Affairs shall lodge a report with an opinion in each case or appeal or whenever the court requests this. The Bureau for Family Affairs shall supervise the clerks’ offices of the Family Courts and their Appeal Divisions at the time of registration of the cases and appeals referred to above and receipt of relevant documents and reports in accordance with Article 65 of the Law of Civil and Commercial Procedure. 6 Article 5 At least one Family Dispute Settlement Office shall be established in the jurisdiction of each Summary Court. It shall be subject to the authority of the Ministry of Justice and shall include a sufficient number of legal, social and psychiatric experts. A resolution on the regulations for the selection of these shall be issued by the Minister of Justice in consultation with the relevant ministers. 6 Article 65 of the Law of Civil and Commercial Procedure outlines the formal requirements for filing of cases to the court, including required documentation, and the duties of the court clerks in checking documentation and registration of the case.
Establishment of Islamic Courts in Egypt
235
Each office shall be headed by one of the legal experts or other specialists in family affairs who are listed in a special register established for this purpose at the Ministry of Justice. A resolution on the regulations, procedures and conditions for entry in this register shall be issued by the Minister of Justice. Article 6 In cases other than personal status in which reconciliation is not permissible, summary claims, disputes regarding execution and interim orders, persons wishing to raise a claim concerning one of the matters in personal status that fall under the jurisdiction of the Family Courts must submit an application for resolution of the dispute to the competent Family Dispute Settlement Office. The staff of the Office shall assume responsibility for meeting with the parties to the dispute and after hearing their statements shall make them aware of its various aspects, its consequences and the disadvantages of continuing therein. They shall offer them advice and guidance in an attempt to resolve it in amicable way in order to preserve the family unit. Article 7 The Minister of Justice shall issue a decision comprising the formation of the Family Dispute Settlement Offices, the specification of their location, the procedures for submission and registration of settlement applications, notification of these and of any sessions arranged in relation to them, the working procedures of these offices and the principles and procedures that they are to follow in the process of conciliation and anything else required in undertaking the function of conciliation . There shall be no fees for recourse to these offices. Article 8 The settlement must be completed within fifteen days of the date of submission of the application. This period may only be exceeded by agreement of the adversaries. If reconciliation is achieved, the head of the Family Disputes Settlement Office shall record this in a document which shall be signed by the parties to the dispute and which shall be attached to the record of the session at which it took place. This shall have the power of an executive document and the dispute shall be concluded within the limits of that upon which the settlement was made. If the efforts do not result in the settling of the dispute amicably in all or some of its aspects and the applicant insists on continuing therein, a report shall be written about what occurred and shall be signed by the parties to the dispute or those attending on their behalf. The reports of the experts and a report by the Head of the Office shall be attached to this and all of these [documents] shall be sent to the Clerks’ Office of the competent Family Court before which the case will be heard within seven days of the date of the
236
Articles
application of either of the parties to the dispute in order for the judicial procedures to go ahead in the matters upon which the parties to the dispute have not agreed. Article 9 A case raised at First Instance before the Family Courts with regard to disputes in which they have jurisdiction shall not be accepted in matters in which conciliation is possible in accordance with Article 6, unless an application for settlement is made to the competent Family Dispute Settlement Office in order for it to endeavour to bring about a settlement between the parties thereto in accordance with the provision of Article 8. Instead of ruling that the case is inadmissible, the Court may order that it be transferred to the competent Office to undertake the task of settlement in accordance with the provisions of this law. Article 10 Sessions of the Family Courts and the Appeal Divisions shall be held in locations separate from the other courts. They shall be supplied with all necessary facilities in accordance with the nature of the disputes and the parties thereto and the possibility that minors may be required to attend these sessions for their testimony to be heard. The court shall be guided in its rulings and decisions by what is required in the best interests of the minor. Article 11 The attendance of the two experts specified in Article 2 of this law at the sessions of the Family Court shall be obligatory in cases of divorce, judicial divorce, physical separation, annulment and voiding of marriage, the custody of a minor and his/her custodial home, protection of and access to him/her, implementation of physical custody7 and relocation; also in cases of paternity and obedience. The court may make use of them in other matters of personal status if it finds this necessary. Each of them must present a report to the Court in his field of specialisation. Article 12 The Family Court that has local jurisdiction to hear the first case raised before it by one of the spouses shall have exclusive local jurisdiction to hear all cases subsequently raised by either of them or which are related or connected to marriage, divorce, judicial divorce, physical separation or annulment; also cases of maintenance, remuneration and equivalent provisions to the wife, children 7 The Arabic term used here is Damm, which literally means joining or annexing.
Establishment of Islamic Courts in Egypt
237
or relatives; cases for imprisonment of a person against whom judgment has been made for failure to comply with judgments issued; the custody of a minor, his/her protection, access, implementation of physical custody and relocation, the custodial home and all cases of personal status. In all of this the provisions of paragraphs 4 and 5 of Article 10 of the aforementioned Law Regulating Certain Circumstances and Procedures in Litigation in Personal Status Matters8 shall be applicable. When the first claim is raised, a file shall be opened at the Office of the Clerks to the said Court and all documents pertaining to this case and all cases raised subsequently in connection with this family shall be deposited therein. Article 13 The principles and procedures established in this law and in the aforementioned Law Regulating Certain Circumstances and Procedures in Litigation in Personal Status Matters shall be applied before the Family Court and its Appeal Divisions. Where there is no specific applicable text in these two laws, the provisions of the Law of Civil and Commercial Procedure, the Law of Proof in Civil and Commercial Matters and the Civil Law on the Administration and Settlement of Estates shall be applied. Article 14 Without prejudice to the provisions of Article 250 of the Law of Civil and Commercial Procedure, judgments and decisions issued by the Appeal Divisions shall not be subject to appeal by cassation. Article 15 A dedicated Department shall be established in each Family Court for the execution of judgments and decisions issued by it or by its Appeal Divisions. It will be staffed with an adequate number of qualified and trained enforcement officers who shall be assigned by a decision issued by the President of the Court. This department shall be under the supervision of an executory judge chosen by the General Assembly of the Court of the First Instance from amongst the family court judges in the division of this court.
8 Article 10, paras. 4,5: The Court may, during the process of the case, issue provisional enforceable rulings concerning access or fixing provisional maintenance or amending any maintenance already decided by increasing or decreasing it. These provisional rulings may not be contested during the course of these cases until after the final ruling has been issued.
Part II Country Surveys
240
241
Egypt Kosheri, Rashed and Riad*
1 CONSTITUTIONAL LAW 1.1 Amendment to Article 67 of the Constitution In 2005, for the first time since 1979, a major change to the Egyptian constitution came into effect, through the amendment of Article 67. The new Article 67 sets out the new process for the election of the President of Egypt, allowing for more than one candidate to stand for election where previously only one candidate was permitted. The new Article explains the process of election, demonstrating that it is a secret, direct election. It also provides for the setting up of a responsible Committee for the supervision of the elections. The new amendment differentiated between two methods by which a candidate could run for presidency. The first method provides that an independent candidate has to obtain at least 250 votes to launch his candidacy. Those 250 votes are divided as follows: 65 members of the People’s Assembly, 25 members of the Shura Council and 10 members from each local council in at least 14 governorates. The second method it created a path for political parties in Egypt to nominate one candidate. Furthermore, Article 192 was added to the constitution to provide that the word “election” will be “substituted” for the word “referendum” – wherever it appears in this law – in relation to the selection of the president of Egypt. 1.2 Law No. 173 of 2005 concerning the practice of political rights In 2005 this law was enacted amending certain provisions of Law No. 73 of 1956 concerning the practice of political rights. A new chapter was added entitled, “The Higher Committee for Elections”.
* Legal Consultants and Attorneys at Law, Cairo, Egypt.
242
Country Surveys
This new chapter provided for the formation of the Committee, its meetings and its jurisdiction. Law No. 173 of 2005 was also amended and the texts of the following Articles in Law No. 73 for 1956 were amended: 1, BIS 2 & 5 of Article 2, 10 and the second paragraph of Article 19, the fourth paragraph of Article 24, the second paragraph of Article 29 and Articles 36, 37, 38; the new amendment organised the process of elections and the different procedures throughout the process. It also added different penalties for different violations of the election procedures. This amendment aims to guarantee suitable safeguards for the election process. 1.3 Law No. 174 of 2005 concerning Presidential elections This law was enacted in 2005 concerning Presidential elections. It organised the new process of electing the President of Egypt which included putting forward more than one candidate for the elections. It also included various details relating to the Presidential election process showing that there are two ways by which one can run for presidency: either an independent citizen can run for elections or a member of a political party could be nominated by the party. This law also makes provision for a Higher Committee for Elections which is responsible for managing the whole election process until the announcement of the final result. The law also provided for the organisation of election campaigns and the different conditions for undertaking these campaigns. 1.4 Law No. 175 of 2005 This Law amended certain provisions of Law No. 38 of 1972 with regard to the People’s Assembly concerning various provisions relating to the organisation of election campaigns and the sources for the funding thereof. 1.5 Law No. 176 of 2005 This Law amended certain provisions of Law No. 120 of 1980 concerning the Shura Council. 1.6 Law No. 177 of 2005 concerning political parties This law was enacted in order to amend certain provisions of Law No. 40 of 1977 in connection with political parties. The Law made provision in its Fourth Article for the conditions necessary for the establishment or continuation of a political party. This Article stated that: The following conditions are required for the establishment or continuation of any political party: First: the name of the party should not be similar or look like an existing party.
Egypt
243
Second: there should not be any contradiction between the principles of the party or its objectives or its programs or policy or its ways of performing its activities and the Constitution or the requirements of preserving the national unity, social peace and the democratic system. Third: that the programs of the party would represent an addition to the political life according to clear targets and means. Fourth: that the party would not be established on religious or social class or sect or group or geographical basis, or on basis of manipulating religious beliefs or discrimination because of gender or origin or belief. Fifth: that the party’s means should not involve the establishment of any kind of military or semi military structure. Sixth: that the party would not be established as a branch for a foreign political party or organization. Seventh: the publicity of the principles of the party, its objectives, means, organizations and sources and means of its funding.
The amendment also included the process of establishment of the party and the means and conditions by which a political party can be dissolved. Finally, it provided for the necessary guarantees required to ensure the freedom of the party in performing its activities as long as it is within the legal framework set out in this law. 1.7 Law No. 179 of 2005 amending certain provisions of Law No. 47 of 1974 concerning civil servants. The amendment referred to the possibility of permitting an employee to work on a part-time basis upon his request in return for a percentage of his payment.
2 TOURISM 2.1 Presidential Decree No. 209 of 2005 The President of Egypt enacted this decree re-organising the Higher Council for Tourism. Its first article provides for the structure and formation of the Council: it is headed by the Prime Minister and membership is made up of: • the Minister of Culture; • the Minister of Interior; • the Minister of Planning; • the Minister of Civil Aviation; • the Minister of State for Local Development; • the Minister of State for Environmental Affairs; • the Minister of Investment; • the Minister of Tourism; • the President of the Egyptian Union for touristic rooms; and • Four Experts chosen by the Minister of Tourism.
244
Country Surveys
This Decree also provides for the jurisdiction of the Council and the power of its decisions, showing by Article 4 that the decisions of the Council after being authorised by the Ministerial Council shall be binding on all the Ministries, Governorates and the different Administration Bodies and they must take the necessary procedures to execute them.
3 PREVENTION OF COMPETITION AND PREVENTION OF MONOPOLIES 3.1 Law No. 3 of 2005 concerning Protection of Competition and Prevention of Monopoly Practices The new Egyptian Law of Protection of Competition and Prevention of Monopoly Practices was promulgated by Law No. 3 of 2005 and entered into force on 16 May 2005. This Law provides for the first time for rules that aim at the exercise of economic activity in a way that ensures freedom of competition and the prevention of putting restraints on it that causes it harm. Article 4 of this law defines the “domination” of a certain market by providing that it is the capacity of a person (natural or juristic) whose part exceeds 25 per cent of this market, to have an effective influence on the prices or the quantity of the offer in it without his competitors being able to restrain such influence. Article 5 of the Law provides that it applies to actions that are committed abroad if they result in prevention, restraint or harm to free competition in Egypt and which are considered as crimes in accordance to this law. Article 6 of the Law prohibits the agreements or contracts between competing persons in a certain market that result in the following: 1. The increase, decrease or fixing the sale or purchase prices of products subject of the transactions. 2. The division of the products markets, or their assignment on the basis of geographical areas, centres of distribution, categories of clients or products or seasons or periods of time. 3. Coordination in relation to entry or non entry in tenders, auctions, direct offers and other offers to supply. 4. The restriction of activities in the field of industry, distribution or marketing or the restriction of distribution of services, or their types, or quantities, or putting conditions, or restrictions on their provision. Article 7 provides that a person is prohibited from agreeing to contract with his suppliers or his clients if this results in restricting competition. Article 8 of the Law prohibits those who dominate a certain market from the following: 1. Any action that results in the non ability to manufacture, produce or distribute a product for a duration or durations of time. 2. Abstention from conclusion of the sale or purchase deals with any person or refraining from transacting with him in a way that results in restricting his freedom to enter or leave the market at any time.
Egypt
245
3. Any action between persons having a vertical relationship that results in the limitation of distribution of only one product on the basis of geographical areas or of distribution centres, or clients, or seasons or durations of time. 4. Making the conclusion of a contract or an agreement relating to the sale or purchase of a product conditional on accepting obligations or products that by their nature or by the commercial use of the products are not connected to it or to the original object of the transaction or the agreement. 5. Discrimination between sellers or buyers whose commercial situation is the same, in relation to the selling or purchasing prices or in the conditions of the transaction. 6. Refraining from producing or making available a scarce product even though its production or availability is economically possible. 7. Requiring those with whom he deals that they not allow his competitor the use of their utilities or services, even though such use is economically possible. 8. Selling products at a price that is less than their marginal cost or the average variable cost. 9. Obliging a supplier to refrain from dealing with a competitor. Article 9 of the Law provides that it shall not apply to those public utilities that are managed by the State, and that the “Protection of Competition and Prevention of Monopoly Practices Authority”, (i.e. the Authority) that is instituted in accordance to this Law may, at the request of the concerned persons, exempt from the area of prohibition all or part of the acts, provided in Articles 6 , 7 and 8, by the public utilities that are managed by private law companies, if this ensures the pubic interest, or brings profits to the consumer that exceed the effects of limitation of the freedom of competition, in accordance to the standards and procedures provided in the Executive regulation of this law. Article 10 of the Law provides that the Council of Ministers may fix the sale price of one or more basic product for a defined period of time, after obtaining the view of the Authority, and that the Agreement concluded by the government in view of applying the fixed prices shall not be considered as an activity that harms competition. Article 20 of the Law provides that where a contravention of Articles 6, 7 or 8 of the Law is proved, the Authority may order the contravening person to amend his position and remove the contravention immediately or within a certain period of time as decided by the Board of Directors of the Authority, otherwise the agreement or the contract that is contrary to Articles 6 and 7 shall be considered null and void. The Board of Directors may pass a decision to stop the contravening actions immediately or after the above-mentioned period of time without amending the positions or removing the contraventions, all without prejudice to the rules relating to the responsibility resulting from those contraventions. Article 21 provides that taking criminal action concerning any contraventions of this law may only be carried out upon a written request of the concerned Minister or his deputy.
Country Surveys
246
The Minister or the deputy may agree to a reconciliation concerning any of those actions before a final judgment is passed concerning them, against payment of a sum that is not less than double the minimum fine and not more than double the maximum of the fine, and the settlement shall result in the lapse of the criminal action in the particular case. Article 22 provides that without prejudice to harsher penalties provided in other laws, contraventions of any of Articles 6, 7 or 8 of this Law shall be punished by a fine of not less than LE 30,000 and not more than LE 10 millions, and the court may, instead of pronouncement of a confiscation judgment, impose a substitute fine equal to the value of the product subject of the contravening activity. Article 24 of the law provides that the conviction and final judgments concerning the actions stated in Article 22 of this Law shall be published in the Official Gazette and in two daily well-known newspapers at the cost of the convicted person. Finally, Article 25 of the law provides that the person responsible for the actual management of the person who contravened the Law shall receive the same penalties as are imposed for the commission of actions contrary to this Law, if it is proven that he knew about them and that his dereliction of the duties imposed on him as a result of his management position has contributed to the commission of the crime. The juristic person shall be jointly and severally responsible for payment of the monetary fines and the damages if the contravention was committed by an employee and in the name or for the interest of the juristic person. 3.2 Income Tax Law No. 91 of 2005 This law is considered to bring in a new age for income tax in Egypt, because it aims at unifying the different elements and sources of income, minimising income tax and raising the level of tax exemption. It provided for new means of paying taxes and new simplified procedures for collecting and reporting information about individual income. It also provided for special penalties for the violation of its provisions
4 FAMILY LAW1 4.1 Law No. 4 of 2005 concerning custody of children on divorce This Law was enacted in 2005, amending Article 20 of Law No. 25 of 1929 which dealt with alimony and certain provisions relating to family matters, and was amended by Law No. 100 of 1985. The earlier family law had made provision for a mother, after a divorce had taken place, to remain with the children of that marriage for the duration of the children’s nursing. A girl could remain with her mother until she 1 Note by Editors. See on this subject generally the article by Dawoud S. El-Alami at p. 229.
Egypt
247
reaches 12 years of age and the boy until he reaches 10 years of age; this amendment now extends the duration to 15 years of age for both a girl and boy and even after reaching this age the child will have the choice to remain for a longer time with the mother, until the girl gets married and until the boy reaches 21 years of age.
248
249
Syria Jacques el-Hakim*
1 COMMERCIAL LAW 1.1 Licensing of Islamic banks Legislative Decree No. 35 of May 2005 “authorised” the licensing of Islamic banks, to satisfy the request of such banks (mainly established in Islamic countries) to operate on the same basis in Syria and drain investments there. Those banks were defined as operating in accordance with the Islamic Law (“Shari‘a”) either in accepting deposits, or participating in investment or financing activities without charging or receiving interest (Article 1/a). They are subject to the control of a commission of jurists and Shari‘a scholars appointed by the bank’s shareholders’ assembly to make sure that its operations conform to the Shari‘a (Article 1/b). Their incorporation must be authorised by the Council of Ministries according to the law on private banks (Law No. 28/2001) if they meet the needs of the public interest and national economy and are within the limits of the market needs (Article 2). They must be operated by a joint-stock company (“Société anonyme” in French) with a capital of at least Five Billion S.P. (Syrian Lira) (100 Million $US) and 500 S.P. minimum share value, half of which should be paid upon incorporation and the balance within three years from the launching of the operation (Article 4). The bank and its shareholders cannot assign their shares without the previous agreement of the Council of Money and Credit (hereinafter “the Council”). The bank’s assets and the deposits received by it must be invested in profitgenerating activities, mainly the incorporation of the companies, the acquisition of stocks or shares and any other banking operation approved by the control commission (Article 7). Those banks are exempt from the restrictions provided for in Law No. 29 or exploitation of real estate or chattels within the limits stated by the Council (Article 9). The Council issues the rules governing the operations of the Islamic banks, including those applicable to their liquidity, minimum capital, the calculation of the reserves covering the risks of loss of * Professor at the Law Faculty, Damascus University, Attorney at Law.
250
Country Surveys
the assets, the provisions of Laws Nos. 28/2001 and 23/2001 governing private banks from which they are exempt. The Council can also set the rules governing the bank’s relationship with its clients and shareholders and the maximum amount of the following operations: any specific activities of the bank, its participation in other companies or in a single project, the credit line of a single customer, and the percentage of amount that can be invested abroad to the global investments of the bank. The Central Bank can also adapt the accounting procedures to the criteria applicable to the Islamic Banks (Article 11). The management of the bank must periodically inform the shareholders and depositors of the risks affecting the bank’s investments, their results, and the bank’s share in those investments (Article 13). The winding up of the bank must be done according to the criteria set by the council, to the laws in force and to the provisions governing Islamic banks. The amounts arising from the winding up must be distributed to the bank’s creditors in the following order: liquidators’ fees and expenses, staff salaries and compensation depositors’ dues, taxes and duties, due of creditors other than those participating in the bank’s investments after the deduction of all investment charges. The balance of the returns is then distributed to the shareholders. The profits arising from the bank’s investments are subject to income tax applicable to the bank’s profits, and the profits distributed to the holders of investment deposits are subject to income tax on negotiable capital governed by Law No. 24/2003 (Article 17). Contracts executed by the bank throughout its operations or banking services provided to its customers are exempt from income tax on the profits realised therefrom and from stamp duty (Article 18). The control exercised over Islamic banks by the Central Bank, the Council and the advisory committees assisting them aims at reducing the risks resulting from the investment of the banks’ deposits in commercial activities that may necessarily expose them to the risks inherent in any business and which resulted in bankruptcies in Egypt, the Gulf States, the United Kingdom (BCCI) and other countries. The substantial profits that may be achieved by Islamic banks out of beneficial investments are certainly attractive to many investors who do not wish to infringe the ban on loans interest in Islamic law, and may bring to Syria useful investments, but unless they are tightly controlled by competent experts might lead to disastrous results. Only the operation of those banks in the coming years will prove whether its results will meet the legislator’s expectations and will not endanger the growing Syrian economy. 1.2 Law on money changers The nationalisation of private banks in Syria (Law No. 117 of 20 July 1961 and Legislative Decree No. 37 of 2 May 1963), gave the State-owned banks the monopoly of changing money and punished the exchange operations concluded outside the official channels and the export of money without an official authorisation from the Exchange Bureau (practically controlled by the Central Bank) with heavy penalties falling under the jurisdiction of exceptional Courts (the Courts of Economic Security, recently abolished).
Syria
251
Nevertheless money “smuggling” and exchange of foreign currency outside the State-owned banks continued to flourish and were sometimes used by Stateowned enterprises to secure the foreign exchange they needed, particularly through the banks operating in “neighbouring countries” (Lebanon, Jordan, Saudi Arabia, Arab Emirates etc.) so that a special rate of exchange of the Syrian Lira (S.P.) applicable to certain specific transfers to and from Syria called the “neighbouring countries rate” was periodically published by the Central Bank and enforced by the State-owned banks. The Authorities therefore decided to authorise and regulate the changers’ activity so that they could exercise a wider control over it. This was the aim of Law No. 24 of 24 April 2006 and of its enforcing instructions issued by the Council of Money and Credit (the “Council”) as per its Decree No. 201 of 24 May 2006. Money changing applies to the purchase, sale or transfer of foreign banknotes or any other means of payment in a foreign currency (Article 1). It is up to the Council to authorise companies other than banks to carry out that activity in Syria provided that it constitutes their exclusive activity. Those companies should either be joint-stock companies (“Sociétés anonymes” in French) or partnerships incorporated by Syrian nationals taking advantage of changers’ businesses. Joint-stock companies can only be incorporated between Syrian nationals, authorised banks or experienced Arab or international companies carrying out such an activity. State-owned Syrian banks and foreign exchange companies must be authorised by the Council of Ministers to participate in that incorporation with a share not exceeding 25 per cent (Article 2). Shares in an exchange company or office cannot be transferred to a third party without the previous approval of the Central bank and the main shareholders in an exchange company cannot participate in the capital of more than one company. The authorisation granted to carry out an exchange activity must be previously approved by the Council and is subject to the same formalities and conditions as the initial authorisation (Article 3). The capital of the exchange company should amount at least to 250 Million Syrian Pounds (S.P) for a joint-stock company and 50 Million S.P. for a business (partnership). That minimum can be increased by a presidential decree and should then be satisfied within one year. The joint-stock company can open three branches in addition to its main office without increasing its capital and can open additional branches with the previous approval of the Central Bank provided it increases its capital by 50 Million S.P. for each such branch. These conditions may be eased in remote regions determined by the Council. The whole capital must be paid in one payment at the Central Bank and 25 per cent of the capital and reserves must be deposited in a bank accepted by the Central Bank or secured by a bank guarantee. The shareholders cannot borrow from the company (Article 4). The Council must authorise the company to operate after the Ministry of Economy and Trade has approved its bylaws (for joint-stock companies) or articles of association (for partnerships). The company is then registered in the Commerce Registry and with the Government Commission at the Central Bank. That authorisation must be renewed in January every year (Article 5). Only joint-stock companies can open branches in Syria with the approval of
Country Surveys
252
the Central Bank, not partnerships (Article 6). Money changing must be the exclusive activity of those companies which, with the licensed banks, have a monopoly in that field (Article 7). Those companies must hold records of their operations and deposit their proceeds in a bank (Article 8). Joint-stock companies can carry out exchange operations abroad and deposit in foreign banks up to 30 per cent of their assets in a foreign currency (Article 10). They must carry out their operations at the rate of exchange decided by the Council (Article 11). Exchange companies and partnerships cannot conduct credit operations, operate deposits or current accounts, open or notify documentary credits or bank credits, borrow from local or foreign banks for the needs of their activity, issue credit cards etc., all these operations falling within the banks’ monopoly (Article 12). They cannot suspend their activity without the previous approval of the Central Bank (Article 13) and their assets must always exceed their obligations by at least the amount of their capital (Article 14). They fall under the continuous control of the Central Bank and must abide by its instructions (Article 16). Their shareholders, whether foreigners or foreignresidents may, with the approval of the Central Bank, repatriate the value of their shares originally transferred from abroad and their net profits in a foreign currency (Article 17). Any violation of the law or any act which may damage the reputation of the country authorises the Central Bank to take sanctions against the author or the company ranging from a warning to provisional or permanent suspension of their activity (Article 18). The assets and offices of the exchange enterprises cannot be searched and can only be seized by order of the Central Bank or of a Court (Article 20). The receipts and certificates issued by them are exempt from stamp duty and their net profits are subject to a fixed income tax rate of 25 per cent (Article 24). 1.3 Sale of foreign exchange to Syrian nationals by Syrian banks Licensed banks in Syria have been authorised to sell to Syrian nationals foreign exchange available in their accounts as per Legislative Decree No. 82 of 22 September 2005.
2 MARINE LAW 2.1 Legislative Decree No. 62 of June 31, 2005 has ratified the London International Convention of 19 November 1976 on the limitation of liability of shipowners or rescuers and the respective protocol signed in London on 2 May 1996.
3 ADMINISTRATIVE LAW 3.1 Attributions of the Ministry of Communications and Technology Those prerogatives were defined by Legislative Decree No. 35 of 15 May 2004. They apply to post and electronic transmissions and trade.
Syria
253
3.2 Public sector contracts The general conditions of these contracts were different for the “administrative sector” (in charge of public utilities) provided for in Legislative Decree No. 228 of 23 September 1969 and for the “economic – i.e. commercial – sector”, provided for in Presidential Decree No. 195 of 25 July 1974. Both provisions were amended continuously and other “books of conditions” were promulgated within the scope of a specific department, e.g. Industry (Decree of the Minister of Industry No. 1266 of 1 April 1980), Defence (Legislative Decree No. 80 of 27 September 1953 now replaced by Legislative Decree No. 8 of 10 April 2005), Construction (Presidential Decree No. 339 of 19 January 1982) etc. Law No. 51 of 9 December 2004 completed by Presidential Decree No. 450 of 9 December 2004 has now unified the general conditions of contracts of both the administrative and economic sectors, the provisions applicable to a specific department remaining in force. Entities of the “Economic” public sector (i.e. carrying out a commercial or agricultural activity) have been organised by Legislative Decree No. 18 of 15 February 1974, subsequently amended by Legislative Decree No. 20 of 18 September 1994 and Law No. 2 of 9 January 2005, in force as from 9 July 2005. 3.3 Customs The Customs Department was organised by Legislative Decree No. 9 of 16 July 1976 which has now been replaced by Law No. 38 of 5 July 2006, entering into force on 5 October 2006. Customs duties are now governed by Presidential Decree No. 229 of 1 July 2006, which entered into force on 1 August 2006.
4 TAXATION 4.1 Stamp duty That issue was governed by Law No. 1 of 8 January 1981. It has now been replaced by Legislative Decree No. 44 of 6 May 2005. 4.2 Double taxation agreement with France Law No. 11 of 24 May 2005 has ratified the treaty concluded with France in Paris on 17 July 1998 and the Protocol annexed to it on the same day, to avoid double taxation and tax evasion, both confirmed by the letters exchanged between the Syrian Finance Minister and the French Ambassador to Syria on 16 December 2004.
5 CIVIL LAW 5.1 Lease of real estate These leases are governed by Law No. 6 of 15 February 2001. Article 1 has been amended by Law No. 10 on 26 February 2006 submitting to the free agreement of the parties the following leases concluded after its publication
254
Country Surveys
(which were previously subject to the mandatory provisions of Law No. 6 imposing maximum rents and forbidding the expulsion of the lessee and still governing the leases concluded before that new law): estates which were let as dwellings; for tourism; holidays; commercial, industrial, educational or professional uses; craft industries on let to associations; State or political entities or labour unions. The rent of dwelling place cannot be received in advance of more than three months and the rent that can be stipulated in the leases cannot exceed the following percentages of the value of the premises as appraised by the courts’ specialised experts: 5 per cent for dwellings plus 20 per cent for the furniture let with the premises, 6 per cent for leases concluded with State entities, Unions, associations or liberal professions, 7 per cent for courts, commercial, industrial or professional use and 8 per cent for schools. Those rents can be reviewed every year. 5.2 Insurance Besides marine insurance (governed by Articles 293 to 380 of the Maritime Commercial Code of 12 March 1950) and social insurance (governed by Law No. 92 of 6 April 1959, as amended), the insurance agreement in general is governed by Articles 713-737 of the Civil Code, of which special provisions are restricted to life and fire insurance. On 6 May 2005, Legislative Decree No. 43 reorganised insurance and reinsurance companies previously governed by Legislative Decree No. 195/1959 on the control of insurance activities. Only a few provisions of the new law dealt with insurance policies (Articles 20-22 imposing an Arabic translation thereof joined to the foreign language clauses and prevailing on them in case of discrepancies) and money laundering (Articles 23-25). The other provisions mainly dealt with the organisation of insurance and reinsurance companies (Articles 3-19), the penalties applicable to their infringements of the law (Articles 26, 27 and 41), the assignment of their contracts and closure of their business (Articles 28 and 29), the insurance experts, agents and intermediaries (Articles 33-36), optional arbitration and ADR organised by the Authority controlling insurance instituted by Legislative Decree No. 68 of 26 September 2004 (Articles 37 and 38) reserving the right of the insured and beneficiaries to have recourse to the courts or to conventional arbitration (Article 37/c), institution of a mutual fund to compensate the victims of a non-insured contingency (Article 39) and of a Union of Underwriters and Insurers (Article 40), submitting them to fixed income tax rates amounting to 15 per cent (for companies which half of their capital was opened to public subscription), or 25 per cent of their net profits (Article 42). Issues not dealt with in the Legislative Decree remained subject to the provisions of the Commerce Code with regard to companies and commercial activities (Article 47). It appears from the above list that the provisions of the Civil Code on the insurance agreement remained unamended.
Syria
255
6 PUBLIC INTERNATIONAL LAW: INVESTMENT DISPUTES AND ARBITRAL AWARDS 6.1 Ratification of the Washington Convention of 1965 for the settlement of investment disputes between States and nationals of other States (ICSID) That Convention has been ratified by Syria as per Legislative Decree No. 88 of 29 September 2005. Syria had already ratified the New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards1 and the Arab League Convention of 14 September 19522 on the enforcement of judgments and arbitral awards rendered in another Arab state.
1 Presidential Decree No. 171 of 2 February 1959. 2 Law No. 155 of 27 December 1955.
256
257
Jordan Hamzeh Haddad *
This report relates to developments to Jordanian laws during 2004 and 2005 according to their publication in the Jordanian Official Gazette during those years.
1 JUDICIAL AND LEGAL SYSTEM Jordan issued law No. 2, 2004, amending the Notary Public Law No. 11, 1952. The Notary Public is the official authority for certifying legal documents in Jordan.
2 CONSTITUTIONAL LAW No legislative amendments occurred under this title.
3 CIVIL LAW No legislative amendments occurred under this title.
4 CIVIL PROCEDURE AND EVIDENCE No major legislative amendments have occurred under this title. However, it is noteworthy that in Jordan’s contribution to the Yearbook of Islamic and Middle Eastern Law (YIMEL), Vol. 8, 2001-2002, p. 162, reference was made to the
* Professor of Law; main owner and managing partner of the Law and Arbitration Centre (LAC) in Jordan. The contributor acknowledges the assistance of his colleagues, Firas Ghozlan and Wafa Al-Zghaibi, of the Law and Arbitration Centre.
Country Surveys
258
Evidence Law No. 30, 1952 which was amended by provisional law No. 37, 2001. This provisional law has become a permanent law by virtue of law No. 16, 2005 without any basic changes.1 The same can be said in respect of the provisional law No. 26, 2002,2 which became a permanent law by virtue of law No. 20, 2005.
5 COMMERCIAL LAW No legislative amendments have occurred under this title.
6 LABOUR LAW Provisional law No. 51, 2002, amending the original Labour Law No. 8, 1996 (YIMEL, Vol. 9, 2002-2003, p. 212) has become a permanent law by virtue of law No. 11, 2004, after Parliament had made some changes thereon.3
7 PROPERTY LAW In Jordan, there is a law relating to the State’s properties.4 By virtue of this law it is impermissible for any person who has had assigned to him a state property, to assign such property to any third party subject to certain exceptions. According to law No. 21, 2005 which amends that law,5 a new exception was added to the previous ones, which is that of real estate property conferred on a person for the purpose of establishing large investment projects thereon, provided that the Cabinet approves the assignment, and in accordance with the conditions it (the Cabinet) imposes on any investor or investment project which serves this purpose.
8 INTELLECTUAL PROPERTY Law No. 22, 1992 (the original law) known as the Protection of Author’s Right Law No. 22, 1992, has been amended by law No. 8, 2005.6 In addition, provisional law No. 78, 2003,7 amending the original law, has become a permanent law by virtue of law No. 9, 2005 after it has been approved by Parliament.8 1 2 3 4 5 6 7 8
Official Gazette, 2005, p. 2188. YIMEL, Vol. 9, 2002-2003, p. 219. Official Gazette, 2005, p. 2367. Law No. 17, 1974, Official Gazette, 1974, p. 545. Official Gazette, 2005, p. 4976. Official Gazette, 2005, p. 1097. YIMEL, Vol. 10, 2003-2004, p. 181. Official Gazette, 2005, p. 1101.
Jordan
259
9 FAMILY LAW No legislative amendments have occurred under this title.
10 CRIMINAL LAW AND PROCEDURE Law No. 4, 2003, amending the Economic Crimes Law No. 11, 1993 (the original law) was provisional.9 However, in 2005 Parliament approved that provisional law after making certain changes thereon,10 and in accordance with the Constitution, that provisional law has become a permanent law.
11 PUBLIC INTERNATIONAL LAW Jordan has concluded a number of bilateral treaties, and has joined some international treaties, namely: 1. WIPO Copyright Treaty of 20 December 1996. 2. International Labour Standards for Seafarers No. 174, 1976. 3. International Convention for the Protection of New Varieties of Plants 1991. 4. The Arab Declaration for Human Rights. 5. Law No. 28, 2004 ratifying the U.N. Convention against Corruption. 6. Protocol relating to Israel-Jordan Trade Agreement. 7. Second Protocol of Lahaye Protection of Cultural Property in the Event of Armed Conflict 1954.
12 PRIVATE INTERNATIONAL LAW No legislative amendments have occurred under this title.
13 TAXATION Jordan has issued several amendments in relation to the taxation law, such as: 1. Law No. 5, 2004 amending the law of the General Tax on Sales No. 6, 1994. Whereby the general percentage of tax on sales and services has become 16 per cent instead of 13 per cent on the value of the sale or the service provided. 2. Law No. 39, 2003 was a provisional law. In 2004, this law has become permanent by virtue of the law No. 18, 2004 after approving it by Parliament with certain changes .
9 YIMEL, Vol. 10, 2003-2004, p. 182, para. 10.3. 10 Official Gazette, 2005, p. 2676.
Country Surveys
260
3. Law No. 31, 2004 amending the law of Income Tax No. 57, 1985. 4. Law No. 32, 2004 amending the law of the General Tax on Sales No. 6, 1994. 5. Provisional law No. 19, 2005 amending the law of Additional Tax No. 28, 1969.
14 PRINTING AND PUBLICATION No legislative amendments have occurred under this title.
261
Lebanon Dr Nayla Comair Obeid*
Lebanon witnessed in 2005 historical events that changed its political and social scene resulting in mass upheavals and great transformations. For after the extension of President Lahoud’s term in September 2004, by virtue of a constitutional amendment, Lebanese voices were getting louder about the need to redefine the relationship with Syria and to put an end to its interference in Lebanese affairs. On 4 February 2005, former Lebanese Prime Minister Rafik al-Hariri was assassinated with MP Bassel Fleihan and 18 other persons, leaving the country and the whole world in a state of shock. Many blamed Syria which denied any involvement. As a result of Hariri’s assassination, the Karame government had to resign on 28 February and the Central district of Beirut witnessed from February to May, huge anti-Syrian demonstrations (“the Cedar Revolution”) and, later on, mass counter-demonstrations in support of Syria. The international community called for the application of U.N. Resolution 1559 issued in September 2004, co-sponsored by the United States and France, which called on all foreign troops to withdraw from Lebanon, and on Lebanon to disarm all militias, so that the Lebanese government could control the entire country. Damascus, which had entered Lebanon in 1976 to quell a civil war, pulled its troops out in April 2005. On 19 April 2005, Prime Minister Najib Mikati was called upon to constitute the government in charge of carrying out free and democratic legislative elections. He consequently formed a cabinet of 14 ministers. The elections were well-managed and took place in May under the election law of 2000, in a generally peaceful manner within the existing framework for elections. However, there is an urgent need for complete reform of the election framework by addressing the fundamental shortcomings of the electoral system and to bring it in line with international instruments, such as the U.N. International Covenant for Civil and Political Rights. The pluralistic and multi-confessional nature of Lebanon, encompassing 17 different religious communities, is extremely sensitive to any changes in 1 Doctor of Law, Professor of Law at the Lebanese University and Attorney, Beirut Bar.
262
Country Surveys
the sectarian balance. The elections resulted in the victory of three main groups: the vast majority of the Parliament’s 128 seats is an alliance headed by Saad Hariri MP, the late Rafik Hariri’s son. Another group is the shiite alliance Hizbullah-Amal party, and the third is an alliance headed by the former Maronite Prime Minister, General Aoun. After the elections, the Mikati government resigned on 19 July 2005 and Mr Fuad Siniora, a prominent figure of the new majority, previously Finance Minister in Rafic Hariri’s successive governments, was called upon to form the new government. Terje Roed-Larsen, United Nations Special Co-ordinator for the Middle East Peace Process, was appointed to act as the Secretary-General’s special envoy, from 3 January 2005, to seek the implementation of resolution 1559. His task is to assist the Secretary-General in the preparation of his semi-annual reports to the Security Council. The Security Council also established on 7 April 2005 an international independent investigation commission based in Lebanon to assist the Lebanese authorities in their investigation of all aspects of the terrorist bombing that killed Hariri, identifying the perpetrators, sponsors, organisers and accomplices. Two controversial issues are currently at stake between Lebanon and Syria: the opening of embassies between the two countires, and the status of the Sheba’a farms. Syria and Lebanon have not had embassies in each other’s territory since the Western powers carved up the two states from the remnants of the Ottoman Empire in 1920. While the majority of the people call for the establishment of the embassies, Damascus says its many bilateral ties rather than embassies suffice for the moment. As for the current status of Sheba’a farms, a strip of the Israeli-controlled Golan Heights since 1967, it is considered by the U.N. as Israeli-occupied Syrian territory, and as Lebanese territory by Lebanon and Syria. Its status as Syrian territory shall remain valid unless and until the governments of Lebanon and Syria take steps under international law to alter that status and change the border. Syria, which verbally recognised the “Lebanity” of these farms, has proposed delineating the joint border in five stages, but has said that boundaries in occupied areas could not be set until the conclusion of a comprehensive Middle East peace agreement. Hizbullah maintains that it shall not disarm as long as the Lebanese territory of Sheba’a farms has not been liberated. In the midst of this shaky political, social and military situation, the task of the Lebanese government is not easy. Lebanon continues to endure from the burden of the economic crisis. The recession is at its height, the increase of its public indebtness to internal or foreign financial institutions, which amounts to nearly 40 billion dollars, calls for the adoption of urgent measures and a programme of economic and administrative reforms before the international conference on financial support for Lebanon (Beirut I) which is to take place in 2006, to help Lebanon emerge from its difficult situation, by restructuring its debt and increasing foreign investment. For the past decade, the government’s economic strategy focused on regaining Lebanon’s traditional comparative advantage as a leading business centre in the region. To this end, a structural reform drive was launched to reinforce the competitive capacities of the productive sectors, creating the
Lebanon
263
necessary environment for sustainable economic growth and to integrate Lebanon further into the global economy. Trade liberalisation is a key element of this comprehensive economic strategy. Free Trade Agreements were signed with Lebanon’s major trading partners, namely the European Union (EU), the E.F.T.A. States (Switzerland, Liechtenstein, Norway, Iceland) and the Gulf Cooperation Countries (GCC). The establishment of the Greater Arab Free Trade Area (G.A.F.T.A.) was finally agreed to in January 2005. Lebanon is also actively negotiating accession to the World Trade Organization (WTO) and is expected to become a member of the WTO in 2006. In November 2005, Lebanon participated in the Barcelona Summit relaunching the Barcelona Process to mark the 10th anniversar y of the partnership. The summit reached an agreement on a five-year work programme for the further development of the partnership as well as on a code of conduct on countering terrorism. By adopting the work programme, the partners have agreed to several issues, including creating a governance facility to support and accompany political reform, the liberalisation of trade in services and agriculture, the fight against illegal migration, increasing resources for education and reinforcing the role of civil society and improving its interaction with governments and parliaments. Trade liberalisation also entails modernising trade legislation, minimising restrictions and simplifying procedures. On 20 September 2005, Lebanon was readmitted upon its request into the Kimberley Process, the international agreement that regulates the trade in rough diamonds. Accordingly, a special law related to the Kimberley Process was passed in Lebanon for the control of the import, export and transit of rough diamonds. This is a very important step allowing Lebanon to re-establish contact with the Lebanese community abroad that deals with rough diamonds. Lebanon is the second Arab country, after the United Arab Emirates, to join the Kimberly Process. Other traderelated legislation is also in the pipelines pending enactment in parliament. The long-awaited Arab Free Trade Zone currently groups 17 Arab League Member States. With the elimination of customs duties on inter-Arab trade, it aims to stimulate the region’s economy by increasing inter-Arab trade as well as Arab and foreign investment in the region, which will increase growth rates and the standard of living of Arab citizens. Because of all the above-mentioned events, the year 2005 has seen a degree of paralysis between the various branches of government, which has slowed down development across the Lebanese economy and political and social life in general. Lebanon now stands at a crossroads. The resolution of its economic problems may have a favourable effect on the treatment of its political and social problems.
Country Surveys
264
1 JUDICIAL DECISIONS 1.1 Arbitration 1.1.1 Beirut Court of Appeal, Judgment issued on 25 November 2004 The third chamber of the Beirut Court of Appeal issued on 25 November 2004 judgment No. 1998/2004, recognising the competence of the State Council to look into recourses for annulment and appeals against arbitral awards having an administrative character, in the absence of any legal text in this respect in the Lebanese law. The Lebanese government had concluded a B.O.T. contract of construction, transfer and operation of the car park at Beirut International Airport, including an arbitration clause. In the course of the contract execution, a dispute occurred between the State and the contracting company which decided to resort to arbitration, claiming compensation for the loss it had suffered. The arbitral tribunal issued the two arbitral awards which are the subject of the present recourse. Examining the case, the Court of Appeal considered that since the present contract contributes to the performance of a public utility, it has an administrative character. Lebanese law does not provide for the competent authority to settle such a dispute, either through appeal or by annulment of an arbitral award related to a dispute having an administrative character. The Code of Civil Procedure (C.C.P.), article 802, only provides for a general rule by virtue of which appeals and claims in annulment are presented to the Court of Appeal in the jurisdiction of which the arbitral award has been issued. The Court considered further that the judge examining the appeal against the arbitral award or, in respect of the subject matter after annulment of the arbitral award, substitutes for the arbitrator and hears the case within the limits of the mission entrusted to the arbitrator, in conformity with Article 801 of the C.C.P. Therefore, it is normal that this case falls within the jurisdiction assigned to the Court, so if the case has an administrative character, it falls within the jurisdiction of administrative courts, and any statement to the contrary violates the firmly-established fundamental principles related to the assigned jurisdiction. The positive aspect of this judgment is that it has given competence to examine arbitral awards in administrative disputes to the competent authority which, by attribution, is in charge of administrative contracts, i.e. the administrative judiciary (Article 81 of the C.C.P.), without having a legal text governing this aspect of arbitral disputes where administrative contracts are at stake. Article 802 of the C.C.P. stipulates that the competent court for looking into appeals and recourses for annulment is the court of appeal in the jurisdiction of which the arbitral award was issued. Does the judiciary have power to change the competence rules without a legal text? That is the question raised by this decision. On the one hand, Article 802 of the C.C.P. fixed the competent judiciary body in the recourse against arbitral awards, which is the court of appeal in the jurisdiction of which the arbitral award is issued.
Lebanon
265
On the other hand, the statutes of the State Council (law enforced by decree No. 10434, dated 14/6/75), do not contain any provisions giving this court competence to look into arbitral awards, the unique article referring to this Council being Article 795 of the C.C.P., which gave to the president of the State Council competence to grant the exequatur when the dispute, object of the arbitration, falls under the competence of administrative courts. In this case, by reserving to the State Council the competence to hear the recourse in annulment of an arbitral award, the Court of Appeal has extended the rules of competence in this matter, thus exceeding its power in a matter reserved to the sole authority of the legislator. 1.1.2 Court of Appeal, Judgment issued on 26 October 2004 Judgment No. 1815/2004, issued on 26 October 2004 by the chamber looking into arbitration issues within the Court of Appeal, considered that any arbitration clause is an integral part of the contract and cannot be dissociated from it, in such a way that this clause is valid as long as the contract itself remains valid, either through the parties’ agreement or by virtue of the legal texts that impose prolongation of the contract. Such is the case, for instance, in the successive exceptional laws on leases which stipulate that: “notwithstanding any contrary previous agreement, shall be extended within the terms of this law…leases entered into…” In the merits of the case, the appellant had concluded in 1955, with an entity of the United Nations Relief and Works Agency (U.N.R.W.A.), a nineyear lease contract including an arbitration clause. This clause stipulated that any dispute arising from the enforcement or interpretation of the contract would be settled through direct negotiations, and in case of failure, through arbitration. The arbitrator would be appointed by the mutual consent of the parties, failing which each party would appoint an arbitrator and the two arbitrators would appoint the third arbitrator to chair the arbitral tribunal. In 1986, this entity ceased to pay the rent and the dispute arose on this ground. The lessor requested the above entity to enforce the contract and appoint its arbitrator, but it refused to comply. The lessor resorted thereafter to the president of the first instance court, who issued a decision rejecting the request on the grounds that the contract had expired and that, having been extended by virtue of exceptional rent laws, the contract prorogation does not include the arbitration clause which becomes invalid. It followed from the above, that the lessor filed a claim for the annulment of this decision and the appointment of an arbitrator. The Court of Appeal considered that the contract including the arbitration clause had been signed on 6 April 1954 (i.e. under the authority of rental exceptional laws, which means that the express intention of the parties, despite their knowledge of the significance and effect of the exceptional rental laws, was to resort to arbitration for the settlement of disputes that would arise from the contract). The court added that the arbitration clause is an integral part of the contract and cannot be dissociated from it. It is bound by it until it comes to an end or is renewed. So if the contract has been signed, this extends to all its clauses without discrimination. The contrary would distort the principle of contractual
266
Country Surveys
freedom of the parties, whose will was to conclude a contract binding in all its clauses for both of them. To deny the above and refuse to recognise the validity of the arbitration clause would result, according to the court’s decision, in depriving the appellant from the right to sue, which is not only a fundamental principle, but also a firmly established and basic pillar of the principles governing the law of civil procedure. The right to sue is a fundamental right of all human beings and cannot be denied to anyone, since it prevails over all other rights, principles and texts, even those connected to public policy. Therefore, one cannot admit depriving the appellant from this right and, consequently, from the right to resort to arbitration since, in this case, the claimant cannot resort to ordinary courts because the opponent party is an organisation affiliated to the United Nations and enjoys, as such, immunity from judicial proceedings. On these grounds, the chamber in charge of arbitration in the Beirut Court of Appeal considered the arbitration clause included in the lease contract binding the two parties, as valid and producing all its effects. Consequently, it pronounced the annulment of the first instance judgment which had ruled otherwise. This judgment is important for its novelty and specificity. Its novelty is twofold: 1. It considered that the legal prorogation of the lease contract, without interference of the parties’ will, entails necessarily the continuity of the arbitration clause included in the contract, thus contradicting the previous trend in this respect. 2. It considered that arbitration is possible in lease issues governed by exceptional lease laws, thus also contradicting previous trends in this respect. It constitutes a specific judgment since the Lebanese courts have to tackle, for the first time, a case of an arbitration clause in which one of the contracting parties is an international organisation enjoying judicial immunity. 1.2 Arbitration and commercial representation 1.2.1 Lebanese Court of Cassation, Judgment issued on 11 January 2005 The fifth chamber of the Lebanese Court of Cassation ruled, by virtue of judgment No. 4/2005 issued on 11 January 2005, that the lack of signature of an arbitration agreement by the duly commissioned proxy of the appellant, which is normally a cause of nullity, cannot be considered as such in this case, because the lady who brought the appeal for cassation was represented all along in the arbitration proceedings by the very person who was entitled to invoke this plea and did not do so, in spite of having a clear idea of the subject. Thus the plea of nullity invoked later on becomes unacceptable (first issue). The court also considered that the mandatory competence attributed to Lebanese Courts by the law on commercial representation, Article 5, does not aim at imposing a general procedural rule, but at protecting the person of the Lebanese sales representative from any premature renunciation as to the rights granted to him by law. Therefore, his resort to arbitration after the dispute
Lebanon
267
occurrence is acceptable, even within the reasoning saying that the prohibition set by the law impels arbitration, as he may still renounce his rights, thus resulting in the rejection of the motive based on violation of the abovementioned Article 5 (second issue). The court added that it is unacceptable to grant the judge who pronounced the annulment the right to control the substantiation on which the arbitrator based its award, on the pretext that the arbitrator overstepped the limits of the mission entrusted to him, because the function of the judge remains limited to the verification of the existence of the causes of nullity as limitatively defined by article 800 of the C.C.P. It appeared from the examination of the appeal judgment that, having applied the provisions of both the contract and the law, and having not based his findings on the principles of equity to settle the dispute as amiable compositeur, the arbitrator could be blamed to have gone beyond the limits of the mission entrusted to him. As for what the appellant in cassation calls “deviation” from the law of contract, it is merely and in the worst of cases, a misrepresentation of the meaning of the clear, contractual clauses and not, according to the steady jurisprudence, a transgression of the mission entrusted to the arbitrator that would justify the nullity of the arbitral award, on the basis of Article 800, paragraph 3, of the C.C.P. (third issue). The first issue is only an implementation of the rule known in arbitration matters as estoppel, stipulated in Article 100 of the Journal of Civil Procedure, the Ottoman Code still in force in the framework of the structural rules it tackled: “Since whoever endeavors to unilaterally revoke what has been achieved by him, shall have to respond for it.” The second issue is an application of the general rules: the resort to arbitration by a person, for the benefit of whom arbitration had been prohibited, implies a waiver of the protection granted to him by the legislator. This issue contains a protective rule intended for the benefit of the Lebanese tradesman, the latter having the right to renounce it wilfully. The third issue is also an application of the rules that govern revision of annulment decisions against arbitral awards. In the revision of annulment, the competence limits of the judge looking into the objection against the arbitral award by way of annulment is restricted only to the control of the award’s conformity to the mandatory conditions for its validity, restrictively fixed by Article 800 of the CCP, and cannot overstep them to examine the conformity of the solution to the facts, because this issue concerns the objection through appeal against the arbitral award and not the objection by way of annulment. 1.3 Commercial law 1.3.1 Beirut Court of Appeal, Judgment issued on 30 March 2006 The chamber in charge of commercial cases in the Beirut Court of Appeal issued on 30 March 2006 judgment No. 669/2006 in which it considered that if the material possession of bearer shares is a proof of their ownership, and if the depositary is held to deliver the trust to the depositor, this rule is true
268
Country Surveys
when the consigned shares are initially the depositor’s property. If there is a presumption that possession is evidence of ownership, this presumption, in order to be operational, presupposes that its conditions are fulfilled. This means that the possession is not only merely material or occasional, but should be practised with the intention of becoming owner, bona fide, otherwise the delegation or proxy is non existent in such cases, and the person entrusted with operating the deposit, or the acknowledgement of receipt, becomes owner of what he has been charged to perform, vis à vis the real owner of the shares or other commercial papers. The judgment considered that this was not the intention of the legislator upon elaborating this text, and specially the rule saying: “the possession of a movable is an evidence of its ownership”. Thus, if its purpose is the legal stability of transactions, the achievement of such purpose does not prevent one from setting up restrictions and conditions for their carrying out, at least for the bearer or depositor being the effective owner of those deposited shares, thus making the rules applying to the possession of movables also applicable to the possession of that class of shares. This judgment of principle has determined limitative conditions to the ownership of bearer shares, despite the above-mentioned general rule. 1.4 Administrative law 1.4.1 The Council of State, Judgment issued on 5 January 2004 The Council of State issued on 5 January 2004 judgment No. 359, by virtue of which it acknowledged the right of the State to extend the concept of public utility, thus establishing the principle of economic utility. The Lebanese State filed a claim in annulment of judgment No. 203 issued by this Court on 6 January 1994, ruling the invalidation of a decree issued by the committee in charge of the works to be performed by the Council of the Municipality of Beirut, aiming at the construction of car parking underground a public square which had been previously expropriated for this purpose, by virtue of Decree No. 7523 dated 12 June 1967. In its petition, the Lebanese State contended that it is entitled to use a real estate, previously expropriated for the edification of public squares, for other aims related to public utility as long as the basic aim of the usage is secured. The Council of State considered that, with the trend of its jurisprudence towards an extension of the concept of public utility, the expropriation that lawfully occurred may include complementary operations, necessary for the initial basic expropriation, so that there might be an indirect public utility the validity of which shall be controlled by the judiciary. The development of the State’s functions laid to an alteration in this concept, so that it has become based on a new concept called economic utility. On this ground, the Council accepted the petition and invalidated judgment No. 203/93 issued by this council on 6 January 1994.
Lebanon
269
1.5 Civil procedure 1.5.1 Court of Cassation, Decision issued on 27 June 2005 The Court of Cassation issued Decision No. 63/2005 on 27 June 2005, whereby the conditions and minutes for the enforcement of Article 370 of the Code of Civil Procedure (CCP) have been determined. This grants the judge freedom to base his judgments on other grounds than the ones agreed to by the parties, on the conditions that the latter do not agree expressly on restricting the dispute to a special legal issue, and that they do not limit the discussions on this issue. In the facts, the appellant in cassation had filed a cassation claim contending that the appeal judgment violated the provisions of Article 370 of the CCP, on the grounds that the appellee based its claim on Article 126 of the Lebanese Code of Obligations and Contracts (C.O.C.), and detailed in the petition the facts that justify the resort to that article. She did not mention at all the necessity of implementing Article 122 of the C.O.C. Despite the evidence of these facts, the appealed judgment ruled by applying Article 122 of the C.O.C, based on the provisions of above-mentioned Article 370. The appellant added that the appealed judgment was mistaken in applying and construing Article 370 of the C.O.C., on the grounds that the parties implicitly agreed to stick to the implementation of Article 126 C.O.C. without allowing the Court to refer to other legal grounds. The Court of Cassation, upon construing provisions of article 370 C.O.C., considered that this article does not prevent the judge from invoking pure legal grounds, whatever the legal ground invoked by the parties. The prohibition provided for in the last clause of Article 370 refers only to the situation where the parties have expressly agreed to restrict the dispute to a single specific legal point, and to limit the discussions to it; in this case, the implicit agreement is not sufficient, and the invocation by the appellant of a unique legal ground and the reply to it by the appellee, do not in any way mean that there is an agreement to restrict the dispute to that single issue; such an agreement ought to be express and free of ambiguity. On these grounds, the Court rejected the legal motive invoked, on the ground that the parties did not expressly agree to restrict the dispute to Article 126 of the C.O.C., nor did they ask the judge to restrict himself or the discussion to this article, therefore the judge is entitled to raise another legal issue, regardless of the one invoked by the parties. 1.6 Criminal Law 1.6.1 The indictment authority in Beirut, Judgment issued on 24 June 2005 The indictment authority in Beirut issued judgment No. 520/2005, giving a complete and global clarification of the medical fault concept, as well as the specification of the minutes and conditions of the anaesthetist’s liability, along with the concept of reanimation. The Indictment Authority in Beirut considered that jurisprudence and doctrine are unanimous in considering that the criteria of appreciation of the
Country Surveys
270
medical fault is represented by the adoption of an exemplary “model doctor’s conduct”. This model is a doctor of medium expertise and knowledge in his specialty or professional level, vigilant in the treatment of his patients and complying with the firmly-established medical rules, except in exceptional cases. The indictment authority added that, in conformity with clause 14 of article 27 of the Lebanese medical ethics law, issued on 3 March 1994, the anaesthetist is autonomous in his work, having to assume responsibility for the supervision of his patient since the moment of anaesthesia until complete reanimation. This not only includes the patient’s consciousness regain and recovery, but extends also to a close observation by the anesthetist of the patient’s condition until he regains consciousness and becomes stabilised and safe. The anaesthetist is bound to extend a continuous supervision after the surgery, which: • starts in the surgery room as from the beginning of the intervention, • is not interrupted during the transfer of the patient, • is extended until the patient’s recovery and regain of his breathing autonomy, his circulatory balance and neurological recovery. Moreover, this supervision shall include not only the possible complications linked to anaesthesia, but also the possible complications linked to the surgery, thus extending de facto the responsibility of the anaesthetist. This decision is unique in determining the anaesthetist’s liability and its legal framework.
2 LEGISLATION 2.1 Amendment of the Lebanese Code of Penal Procedure Law No. 711, issued on 9 December 2005, contained amendments to certain articles of the Lebanese Code of Penal Procedure (C.P.P.) that had been promulgated on 2 August 2001 by Law No. 338 and amended by Law No. 359, on 16 August 2001. Pursuant to this law, Articles 328, 329 and 366 of the C.P.P. in force, were abrogated and substituted by new articles by virtue of which the judgments of the judicial council, which used to be final, irrevocable and not susceptible of any regular or irregular recourse, may from now on be challenged through objection and retrial. 2.2 Air transport: law on the safety of civil aviation Law No. 663 related to the safety of civil aviation was promulgated in 2005. The scope of application of this law covers any civil aircraft without discrimination as to the nationality, upon its entry into, stay within and departure from Lebanese territory, as well as its crew and passengers on board. The legislator explicitly excluded military aircraft which shall be subjected to the special regulations of the military authorities to which those aircrafts belong.
Lebanon
271
This law forbids any aircraft to fly across, land into, or depart from Lebanese territory unless it is registered in a special register kept by the civil aviation authority. This register shall be public and accessible to anyone. As for the nationality of the aircraft, it shall be considered as Lebanese if it is registered according to the provisions of the present law, and is carrying a foreign nationality any aircraft registered in the concerned foreign State. This law considers aircrafts as movable property, but provides that their ownership shall be transferred only and mandatorily through a written contract, even between the contracting parties. As regards safety, it shall be forbidden on any aircraft to fly unless granted a valid certificate of airworthiness. The latter is delivered and its conditions specified according to decisions issued by the civil aviation authority. The aircraft should also have a valid maintenance permit, at least for the duration of the trip, this being in turn delivered by virtue of decisions of the civil aviation authority. For the purpose of safeguarding public safety, this law has forbidden the operation of any aircraft if there has been negligence or carelessness in a way that jeopardises people’s life and safety. As for the possibility of transferring ammunitions or any kind of arms on board an aircraft, the law makes it a condition that there is an obligation to obtain a licence from the council of ministers. Moreover, no natural or legal person in Lebanon has the right to operate an aircraft to perform commercial air services except after having been granted an operator certificate delivered in conformity with the conditions drawn up by the civil aviation authority. With regard to airports, this law has allowed the possibility of construction of any airport by a licence granted by decree of the council of ministers, upon the minister’s proposal. This law also entrusted to the civil aviation authority the responsibility of classifying the atmosphere with regard to air routes and passes etc. Where it is established that the operation of a flight breaches this law, the competent employees of the civil aviation authority are entitled to take a certain number of measures varying from ordering the landing of the aircraft, to prohibiting its departure or subjecting it to inspection, in order to prevent the occurrence of any damage. Concerning the captain’s prerogatives, this law entitles him, when necessary, to detain any passenger or crew member during the flight, take the necessary repressive measures against him or disembark any person from the aircraft at its first stop. In case of violation of its provisions, the law gives the competent employees of the civil aviation authority the right to investigate the contravention, establish a report about it and submit it without delay to the president of the civil aviation authority in order for him to pursue the offender. ‘Finally, this law supersedes the legal texts that conflict with its provisions, wherever they may be found, as well as the provisions of the aviation law promulgated on 19 January 1949, within the limits of the legal texts that are in contradiction with its provisions.
272
Country Surveys
2.3 Consumer protection law The consumer protection law, issued on 4 February 2005, defines the general rules for the protection of consumers and the safety and quality of goods and services, as well as the protection of consumer’s rights and the guarantee of transparency in economic transactions in which the consumer may engage. This law explicitly recognises that it does not govern the relations that connect professionals. As for consumer rights, this law provides that the consumer is entitled to protect his health and safety when goods or services are used under proper conditions as concerns quality and value. The consumer is, in addition, entitled to benefit from fair treatment from the supplier concerning the product intended for local use or for exportation. Moreover, he has the right to obtain sufficient, correct and clear information about the products and services, the methods of use and the potential risk they may pose; he is also entitled to comprehensive compensation for any damage that may result from any goods or services when used under proper conditions. This law binds suppliers to provide consumers with essential data about the goods or services. In an attempt to protect the consumer, the law stipulates that the contracts concluded between the suppliers and the consumer be interpreted in favour of the consumer. It also considers as abusive any provisions aimed at, or resulting in, imbalance between the rights and obligations of both parties to the disadvantage of the consumer, such as the clause of exoneration of the supplier from his liability, or those which prohibit the recourse to mediation or arbitration for the settlement of disputes in conformity with the provisions of the law. With regard to guarantees, the law provides that the supplier shall guarantee the quality of the goods or services and the availability of the description that he had fixed or that the consumer had requested in writing. The supplier shall also guarantee hidden defects that tangibly devalue the goods or services or render them unsuitable for the purpose for which they are intended, depending on their nature or on the contract provisions. The law fixed at one month the deadline for filing the guarantee-related legal proceedings, starting with the discovery of the defect. With regard to the role of the State in consumer protection, an advisory body named “the National Council for Consumer Protection” has been created at the Ministry of Economy and Trade by virtue of this law, under the presidency of the Minister of Economy and Trade. It has been entrusted a certain number of tasks, all aiming at providing support to the consumer; the protection of his health, safety and rights; the promotion of his awareness and guidance, by all available means; as well as the task of ascertaining the quality and safety of the services and goods, especially foodstuffs, by performing the necessary tests on them, as well as the control of prices and their fluctuation. To ensure the enforcement of its provisions, the law has entrusted to the employees of the consumer protection directorate the task of supervising its application and compliance thereby.
Lebanon
273
As for disputes arising from the application or interpretation of this law between suppliers and consumers, they shall be either settled through mediation or submitted to the special Dispute Settlement Committee, depending on the value of the dispute to be settled. The law also assigned a special section to the sanctions to be imposed on whoever exceeds or violates its provisions, this sanction varying between a fine and prison for a period of three years. This law represents a new vision and a modern approach to consumer protection. For example, it stresses conflict resolution, private-public partnership, coverage of services in addition to goods. The decrees and decisions relating to the law are to be issued soon.
3 ADMINISTRATIVE LAW Law No. 664, issued on 4 February 2005, established the position of “Mediator of the Republic”. Article 1 thereof defined the “Mediator of the Republic” as being an independent entity which does not receive instructions from any authority and intervenes, according to the provisions of this law, to facilitate dealing with the administration and to assist in the settlement of disputes arising from this; the competence of the mediator covers the entire Lebanese territory. Article 2 laid down the conditions to be fulfilled by that entity, including, inter alia, that he should be the holder of a higher studies degree in law or in public administration or political science. It also fixed the duration of his term to four years, not renewable. The law prohibits the mediator to combine the post of “mediator of the Republic” with any other official position, or with private professional positions or functions whatsoever. This law also sets out that the services of the mediator must be free of charge and not submitted to any fees or stamp. Finally, the law prohibits the suing the mediator for opinions expressed by him whilst performing his function or in connection thereby.
4 MULTILATERAL AND BILATERAL AGREEMENTS The Lebanese government concluded during the year 2005 many bilateral agreements in the following sectors: the promotion and reciprocal protection of investments; financing and partial funding for the carrying out of various projects in Lebanon; cooperation in the tourist field; professional and technical assistance; combating illicit trafficking of drugs and psychotropic substances; air and road transport; supply of gas; cultural cooperation. Lebanon acceded to several international agreements which require the amendment of existing Lebanese laws and regulations or the elaboration of new texts.
274
Country Surveys
4.1 International penal law 4.1.1 Law No. 680, issued on 24 August 2005, authorising the government to accede to the United Nations Convention against Transnational Organised Crime This Convention represents a major step for ward in the fight against transnational organised crime. It is a legally binding instrument committing States that ratify it to taking a series of measures against transnational organised crime. Its main purpose is to promote cooperation between Member States to prevent and combat transnational organised crime more effectively. This Convention shall apply where the offence is transnational in nature and involves an organised criminal group, which means that the offence is committed in more than one state, or in one State but involves an organised criminal group that engages in criminal activities in more than one State, or it is committed in one State but has substantial effects in another state. Each State party undertakes to adopt in accordance with fundamental principles of its domestic law, such legislative and other measures as may be necessary to combat money laundering. The Convention also commits each Member State to establish a comprehensive domestic regulation for the control and supervision of banks and other financial institutions in order to prevent and disclose all forms of money laundering, corruption and the obstruction of investigations or prosecutions. It also commits the States Parties to adopt all necessary measures resulting in the confiscation and disposal of property or money which is either proceeds of crime or has been used in crimes provided for in the Convention. Each State shall dispose of confiscated property in conformity with its domestic laws and regulations. These provisions are intended to set minimum standards only. Countries are in fact encouraged to go further in bilateral or regional arrangements, for issues like extradition for instance. The Convention calls on States to grant each other the widest measure of legal assistance for any investigation, prosecution or judicial proceedings in relation to crimes or offences covered thereby. It also requires them to adopt appropriate measures to assist and protect the victims covered by the Convention as well as witnesses from threats, intimidation or retaliation. 4.2 Penal law and human rights 4.2.1 Law No. 682, issued on 24 August 2005, authorising the government to accede to the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organised Crime This Protocol mainly aims to prevent and fight trafficking in persons, special attention being paid to women and children, and to protect and assist the victims of such trafficking, with due respect to their human rights. This Protocol also binds the State Party to grant special attention to a victim of trafficking who is a national of Lebanon or who had the right of permanent
Lebanon
275
residence at the time of entry into the territory of the receiving State Party, by facilitating and accepting their return without undue or unreasonable delay, along with giving due regard for the safety of this person. When a State party to the Protocol transfers the victim of the trafficking to another State party of which the victim is a national or had the right of permanent residence at the time of entry into the territory of the receiving State, due consideration to the safety of this person is to be observed in the process of their return. 4.3 Regulation of the exploration and use of outer space 4.3.1 Law No. 700, issued on 9 December 2005, authorising the Lebanese government to accede to the Convention on International Liability for Damage caused by Space Objects This Convention stipulates that the State which launches a space object by itself or through an intermediary, or the State whose territory or facilities are used for the launch, assumes an absolute liability and has to compensate for the damage generated by its space object on the surface of the earth or on aircraft in flight. In addition, it establishes the principle of solidarity by considering that when two States or more carry out the launch of a flying object, they are jointly and severally liable for any damage caused. A claim for damage compensation shall be presented to the launching State, within one year as from the date of occurrence of the injustice, through diplomatic channels. In the absence of diplomatic relations, it may be submitted through a third State or via the U.N. Secretary-General, provided that each of the claiming State and the launching State are members of the U.N. The amount of the compensation due to be paid by the launching State shall be fixed in conformity with international law and with the principle of equity. 4.3.2 Law No. 699, issued on 9 December 2005, authorising the government to accede to the Convention on Registration of Objects launched into Outer Space All Member States recognise the common interest of all mankind in furthering the exploration and use of outer space for peaceful purposes. The Convention provides that when a space object is launched into earth orbit or beyond, the launching State shall register the space object in an appropriate registry which it shall have to maintain. Each launching State shall inform the Secretary-General of the U.N. of the establishment of such a registry. Each State registry shall furnish to the Secretary-General, as soon as possible, adequate information concerning each space object entered on its registry.
Country Surveys
276
4.3.3 Law No. 702, issued on 9 December 2005, authorising the government to accede to the Draft Treaty regulating States activities on the moon and other celestial bodies The moon shall be used by all States partys to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on the moon shall be forbidden. The Treaty commits States parties to inform the Secretary-General of the U.N., the public and the international community, of their activities related to the exploration and use of the moon. All States without discrimination of any kind shall have freedom of access to the moon for scientific investigation, on a basis of equality and in accordance with international law. The moon shall not be subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. To ensure the effective application of this Convention, each State party to the treaty shall bear international responsibility for assuring that national activities related to the exploration and use of the moon are carried out in conformity with the provisions thereof.
5 LABOUR LAW 5.1 Law No. 702, issued on 9 December 2005, authorising the government to accede to the International Labor Convention No. 170, known as the Chemicals Convention, 1990, and the International Labor Recommendation No. 177 supplementing it This Convention applies to all branches of economic activity in which chemicals are used, this being defined after consultations between the competent authority of the Member States and the most representative organisations of employers and workers concerned. The Convention provides that all chemicals shall be marked so as to indicate their identity, and that hazardous chemicals shall in addition be labelled, in a way easily understandable to the workers, so as to provide essential information regarding their classification, the hazards they present and the safety precautions to be observed. Employers shall also ensure that when chemicals are transferred into other containers or equipment, the contents are indicated in a manner which will make known to workers their identity, any hazards associated with their use and any safety precautions to be observed. The Convention commits workers to cooperate as closely as possible with their employers in the discharge of their responsibilities and to comply with all procedures and practices relating to safety in the use of chemicals at work. Workers shall have the right to remove themselves from danger resulting from the use of chemicals when they have reasonable justification to believe there is an imminent and serious risk to their safety or health. The Convention also provides that when all or some uses of hazardous chemicals are prohibited for reasons of safety and health at work in an exporting Member State, this fact and the reasons for it shall be communicated by the exporting Member State to any importing country.
Lebanon
277
Provisions of the International Labor Recommendation No. 177 are similar to those of the Chemicals Convention and focus on the protection from harm resulting from the use of harmful chemicals in all sectors of economic activity.
6 COMMERCIAL LAW 6.1 Law No. 654, issued on 4 February 2005, authorising the Lebanese government to ratify the Convention of Free Trade Zone between the Lebanese Republic and the States of the Arab Gulf Cooperation Council By virtue of this Convention, the parties undertake immediately to abolish customs duties on commodities of national origin exchanged directly between them. The Convention also prompts the parties to ascertain that goods and commodities exported by either party to the other conform to the specifications, standards and environmental requirements in force in the destination country. Moreover, the contracting parties shall grant each other the facilities required for transit trade of third States’ products, in accordance with the rules and regulations in force in each of their States. However, the provisions of this Convention do not apply on products or commodities prohibited in the territory of either party, for security, religious, health, environmental and social reasons, according to laws and regulations in force in the territory of that Party. Moreover, the Convention stipulates the creation of a joint committee in charge of supervising its application as well as reviewing and assessing the economic and commercial relations between the contracting parties.
7 DECISIONS OF THE BANK OF LEBANON 7.1 On 19 January 2005, decision No. 8954 was issued by the Governor of the Banque du Liban (BL) on operations of Musharaka or sharing executed by the Islamic banks. It was later amended by decision No. 9104, dated 11 August 2005, which prohibited Islamic banks from entering for their own credit, directly or indirectly, into any operation of Musharaka or sharing, unless done within the framework of the two following concurrent conditions: • The use by Islamic banks of either their own funds or the deposits that fulfil the provisions of Article 307, clauses 1 and 2, of the Lebanese Code of Commerce and whose owners have mutually agreed by writing thereon. • That no unlimited liabilities deriving from those Musharaka or sharing be incumbent on the Islamic banks. 7.2 Decision No. 9041, issued on 1/6/2005 by the Governor of the BL on the Islamic Collective Investment Schemes, stipulated that institutions other than Islamic Banks operating in Lebanon are prohibited from managing Islamic Collective Investment Schemes operating in Lebanon.
278
Country Surveys
7.3 The Governor of the BL issued on 16 July 2005, decision No. 9084 related to Mudaraba (speculation) operations carried out by the Islamic banks. This Decision shall apply to “Mudaraba” operations carried out by Islamic banks, in their capacity as “capital owners”, whether the “Mudaraba capital” originates from the bank’s own funds, or from the amounts of money transferred from those funds into the absolute investment accounts or from the absolute investment accounts or from the restricted investment accounts. 7.4 The Governor of the BL issued on 10 December 2005 Decision No. 9084 related to Istisna’a operations carried out by Islamic banks. This decision prohibited to those banks to own, for a period exceeding six months, assets generated by Istisna’a operations, and considered that it is up to the Central Board to authorise the renewal of this deadline or to oblige the bank to abide by any measure it deems necessary to liquidate the above indicated assets.
279
Libya Mustafa El-Alem *
1 JUDICIAL SYSTEM 1.1 The Court of the People In addition to the courts of general jurisdiction the Libyan judicial system comprises a court of special jurisdiction, “The Court of the People”, which was established by law No. 5 of 1988 to hear certain political, criminal and economic cases. A popular department of public prosecution was also established to operate within the jurisdiction of this court. This special court and its relevant prosecution department have been abolished by virtue of law No. 7/1373 (2005). The jurisdiction of the said court and prosecution has been transferred to the ordinary courts and public prosecutions.
2 COMMERCIAL LAW 2.1 Banks Act Act No.1 of 1993 relating to banks, currency and trusts has been recently replaced by Banks Act No. 1/1373 (2005) which came into force on 12 January 2005. According to the provisions of this new Act, the Central Bank of Libya is considered an independent institution which enjoys a juristic personality and has its own patrimonium (proprietary rights). The Central Bank of Libya shall operate under the auspices of the General People’s Congress, and within the State’s public policy, with its main office situated in Tripoli. It may establish branches, agencies and correspondents anywhere in Libya and abroad. Among the functions of the Central Bank of Libya are the supervision of all other commercial banks, issuance of banknotes, and fixing of exchange rates. An individual or a juristic person may retain his own foreign currency and conduct any relevant transaction including local and international money transfer. * Attorney at Law before the Libyan Supreme Court.
280
Country Surveys
Commercial banks operating in Libya may open foreign currency accounts for individuals and legal persons. They may also grant a foreign currency credit after furnishing sufficient guarantee for recovering the credit’s value within the time prescribed. The Central Bank of Libya may permit the establishment of banks with foreign capital. It may also allow foreign banks to contribute to local banks and to open branches or representational offices in Libya according to the conditions and situations prescribed by the board of directors of the Central Bank, providing that the capital of the branch operating in Libya is not less than 50 million U.S. dollars. The provisions of the Civil Code and the Commercial Code are applicable to the banks as long as those provisions do not contradict the provisions of this Code. The electronic signatures and documents relating to banking transactions are to be taken into account as evidence to prove the information contained therein. The computer output regarding banking transactions equates the legal registers prescribed by the Commercial Code and its supplementary codes. 2.2 Establishing a branch of a foreign company Article 22 of Law No. 65/1970 relating to Commercial Companies stipulates that the foreign companies which exercise activities falling within the following sectors may be permitted to establish branches in Libya valid for a period of five years, renewable: • Consulting Engineering. • Technical works assisting oil and gas exploiting companies. • Other sectors that may be determined by a resolution of the council of ministers. The General People’s Committee (G.P.C.), “equivalent to the Council of Ministers” has recently issued Resolution No. 13/2005 authorising foreign companies to “establish” branches in Libya to carry out commercial activities in the following sectors: • general contracting and civil works; • electricity; • petroleum; • communications; • industry; • survey and planning; • protection of environment; • computers; • technical consultations and studies; • public health. The said resolution specifies certain works and activities under each sector. According to the provisions of Resolution of the G.P.C. No.3/2005, an application for opening a branch must be made to the General Administration of Companies and Commercial Registrations with the Secretariat of Economy and Trade. The application must contain the name, the profession and the address of the person who is entitled to carry out the procedures concerning
Libya
281
the application. Such person may be an individual or a juristic person. The application must be accompanied by the following documents: 1. Resolution of the company’s board of directors including: a. the approval to establish a branch in the Great Jamahiriya; b. determination of the location of the branch’s office in Libya; c. determination of the branch’s activity providing it falls within the activities which the branches of foreign companies are allowed to carry out in Libya; d. allocation of an amount of not less than (L.D. 150,000) 150,000 Libyan Dinars for the establishment and management of the branch; e. nomination of the branch’s manager. 2. The company’s memorandum and articles of association. 3. A recent transcript from the commercial register where the company’s head office is located, or alternatively, a certificate of registration in the chamber of commerce if such commercial register does not exist. 4. An undertaking by the company to prepare the branch’s annual balance sheet, and the profit and loss account. 5. An undertaking not to interfere in Libyan political affairs. The above-mentioned documents must be certified by the Libyan Popular Bureau (or its equivalent) in the country where the company’s head office is located. Those documents should be legally translated into Arabic inside Libya after being certified. The foreign company intending to open/establish a branch must also satisfy the following conditions: 1. It should be a company with capital. 2. A submission to prove its experience in the field of activities to be performed in Libya. 3. The branch manager must have the nationality of the parent company, the nationality of one of its owners, or Libyan nationality. This condition may be exempted by a resolution of the Secretary of Economy and Trade. The permission to open a branch of a foreign company for five renewable years is to be issued by resolution of the Secretary of Economy and Trade. The resolution granting a permission to open a branch shall not contain more than one sector of those sectors of activity which branches of foreign companies are allowed to carry out in Libya. According to Article 10 of Resolution No. 3/2005, all national and foreign entities operating in Libya shall not contract with a foreign company to perform works in Libya unless such company holds a permission to open a branch. 2.3 Company’s representative office Resolution of the G.P.C. No.8/2005 allows foreign companies to open a representative office in Libya. An application to this effect is to be made to the General Administration of Companies and Commercial Registrations accompanied by: 1. Decision of the board of directors approving the opening of a representation office in Libya. 2. Nomination of the office’s manager who should have the company’s or Libyan nationality.
Country Surveys
282
3. A transcript from the commercial register, or a certificate from the chamber of commerce. The document must be certified and translated into Arabic. The Secretary of Economy and Trade shall issue the permission to open a representation office within 14 days as from the date on which the application is made. This permission is to be valid for five years, renewable. The representative office should open a non-resident bank account to cover its expenses. The balance of this account must not be less than 50,000 Libyan Dinars or the equivalent in a foreign currency. The representative office shall safeguard the interests of the foreign company in Libya without realising profits. It facilitates the procedure of dealings and supports the cooperation between the company and the Libyan public and private entities. It transfers the permitted commercial information to the company, and searches for investment opportunities.
3 CRIMINAL LAW 3.1 Combating money laundering Act No. 2/1373 (2005) on Combating Money Laundering has recently been passed aiming at the prevention of crimes relating to money laundering. According to Article 2 of this Act a person may be considered a perpetrator of a money laundering crime if he commits or assists in the commission of any of the following acts: • Ownership, possession, exploitation, transfer, deposit, conversion, concealment or employment of unlawful money in any way. • The disguise of the true nature of unlawful money. Money shall be considered unlawful if derived from a crime including those crimes prescribed by the International Convention for the Prevention of Organised Crimes, its relevant Protocols, the International Convention for the Prevention of Corruption, and any other relevant international convention to which Libya is a party. Without prejudice to non-criminal sanctions prescribed by any other law, the financial, commercial and economic establishments operating in Libya shall be criminally liable if the money laundering crime is committed in their name or for their benefit (Article 3). The crime of money laundering will be punishable by imprisonment and a fine equal to the value of the money subject of the crime. Additionally, the unlawful money shall be confiscated (Article 4). Any manager or employee of a financial, commercial or economic establishment, who knows of any act that occurred in his establishment related to a money laundering crime and fails to report it to the competent authority, shall be punished by imprisonment and/or a fine not exceeding 10,000 Libyan Dinars (Article 5). Anyone who reports a money laundering crime before being discovered by the competent authorities shall be exempted from punishment (Article 6).
Libya
283
The Central Bank of Libya shall set a maximum limit on the amount of cash that may be brought into the country without declaration. Any excess amount shall be subject to a declaration system to be set up by the Central Bank (Article 8). There shall be established, by virtue of this Code, a committee entitled “The National Committee for Combating Money Laundering” presided by the governor of the Central Bank (Article 11). The National Committee shall perform, inter alia, the following duties: 1. propose the systems and procedures required for combating money laundering; 2. coordinate and facilitate the exchange of information among the bodies represented on the Committee; 3. Represent the State at international conferences concerned with money laundering (Article 12). Article 15 provides for international cooperation in respect of combating money laundering including the recognition of relevant judicial orders and sentences issued in another country either pursuant to a bilateral judicial cooperation agreement or in accordance with the principle of reciprocity.
4 PUBLIC INTERNATIONAL LAW 4.1 Ratification of international conventions By virtue of Law No. 10/1373 (2005) the General People’s Congress ratified a number of international conventions, treaties and protocols concluded between Libya and other countries in Europe, Asia, South America and Africa. In addition, various conventions and protocols were concluded within the ambit of the African Union, the Arab League and the United Nations.
284
285
United Arab Emirates Terence Witzmann* and others
The rate of development in the United Arab Emirates (UAE) continues at a fantastic pace. Activity in the tourism and construction markets is accelerating beyond all expectations, particularly in the Emirate of Dubai. Like elsewhere in the Gulf Cooperation Council (GCC), new developments are being created for non nationals to own homes, and demand in the property market generally (both in the domestic and commercial sectors) continues to exceed supply. There has been much new legislation enacted in the UAE over the last year, and Dubai continues to lead the way in creating new opportunities for investment, including the much talked about Dubai International Financial Centre. Various new laws are being drafted to keep pace, and there is too much to summarise here. Instead, we offer brief summaries of two new laws in Dubai that are generating considerable interest in the UAE at present.
1 NEW LAWS FOR COLLECTIVE INVESTMENT FUNDS IN DIFC 1.1 Introduction On 18 April 2006, His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai and the President of the DIFC, passed the much-anticipated DIFC Collective Investment Law 2006 (the “Law”). In addition, the Dubai Financial Services Authority (“DFSA”) has also recently issued the Collective Investment Rules (“CIR”). The Law and the CIR set out a framework for the establishment and operation of various types of public and private funds in the DIFC including property, Islamic, hedge and private equity funds. The new regime also permits the marketing of foreign funds in and from the DIFC. This briefing takes a look at some of the key features of the new funds regime. * Solicitor, Clifford Chance, Dubai.
286
Country Surveys
1.2 Main features of the new regime 1.2.1 Domestic funds Some of the key features of the new regime relating to the establishment and operation of funds in the DIFC, referred to as domestic funds, which may be either public funds or private funds include: • Constitution: Every domestic fund is required to have a written constitution setting out specified information including the name of the fund, responsibility, duration, size, investment objectives, rights attaching to units, income, meetings and oversight arrangements. • Operator: The person responsible for the establishment and operation of domestic funds in the DIFC (the “Operator”) must be an appropriately licensed Authorised Firm which is licensed to carry on, in addition, the Financial Services (as defined in the DFSA Rulebook) of: (i) operating a Collective Investment Fund; (ii) managing Assets; (iii) providing Fund Administration; and (iv) dealing in Investments as Agent. The promotion or marketing of domestic funds, regardless of the class of domestic fund, is only open to appropriately licensed Authorised Firms. • On-going obligations: Every class of domestic fund is required, among other things, to appoint an auditor and to arrange for the legal title of the fund’s assets to be placed with an eligible custodian for safekeeping. There are specific valuation, issue and redemption obligations on the Operator in addition to annual and interim reporting (USGAAP/IFRS) requirements. • Specialist Funds: Islamic funds, funds of funds, private equity and venture capital funds, feeder funds, property funds and hedge funds, all have bespoke rules to regulate their particular operations. • Public v. Private Funds: The regime distinguishes between public and private domestic funds. The essential characteristics of private domestic funds are that funds are privately placed with a small number of qualified buyers, referred to as “Qualified Investors” and participation is limited to no more than one hundred such investors. The essential characteristic of a public domestic fund are that funds can be offered by way of a public offering to Qualified Investors and there are no limits placed on the number of investors. • Fund vehicle: In the case of a private domestic fund, the investment vehicle may be any type of investment undertaking except a protected cell company established under DIFC law whereas in the case of a public domestic fund it must be constituted as either an investment company or an investment partnership established under DIFC law. • Prospectus: In the case of a private domestic fund only a short form prospectus is required, whereas a public domestic fund will require a full form prospectus to be prepared. • Registration: For a private domestic fund, there is no registration requirement (but the Operator must notify the DFSA at least ten days prior to the initial, and, if a close-ended fund, any subsequent, issue of units in the fund). In relation to a public domestic fund, an application for registration of the fund with the DFSA must also be made.
United Arab Emirates
287
• Offer restrictions: The new fund regime retains the wholesale nature of the DIFC as participation in every class is limited to Qualified Investors. In addition, an Operator of a private domestic fund which makes arrangements with other Authorised Firms or persons in other jurisdictions to offer and sell units in the fund, must take reasonable steps to ensure that they do so by means only of a private placement with Qualified Investors and that they do not place units in the fund with more than one hundred such investors. • Oversight (public domestic fund): Domestic public funds attract a greater level of regulation than private funds, principally the requirements to establish and maintain independent oversight arrangements and to manage the fund’s assets within the parameters of the investment and borrowing rules under the CIR. In particular, for public funds there are limits on investments in other funds and on transactions in derivatives. • Delegation: Domestic funds are permitted, within certain parameters, to delegate specified activities to an Eligible Person (as defined in the DFSA Rulebook) and to outsource functions to a third party or service provider. All activities and functions other than the maintenance of the fund register and valuation and pricing and issue and redemption of units may be conducted outside the DIFC by any such person or party. • Listing: If a domestic fund, of any class, intends to list its units on an Authorised Market Institution (“AMI”), such as the Dubai International Financial Exchange (“DIFX”), it must comply with the relevant Offered Securities Rules and the relevant listing rules. Private domestic funds cannot be listed unless they convert to a public fund. Property funds which are public funds must list and take the form of an investment company established under the laws of the DIFC. 1.2.2 Foreign funds Some of the key features of the new regime relating to foreign funds include: • Offering and selling Foreign Funds: Authorised Firms (appropriately licensed by the DFSA) can offer and sell both domestic and foreign funds. However, Authorised Firms must meet additional conduct of business requirements when marketing foreign funds in or from the DIFC. • Designated Foreign Fund located in Recognised Jurisdiction: In particular, the foreign fund must be a “designated fund” domiciled in a “recognised jurisdiction”. The DFSA has issued and published a Recognised Jurisdiction Notice which sets out the list of countries and territories which have been accorded recognised status and specifies the types of funds which have been designated. In addition, the fund must be approved or authorised by the recognised jurisdiction’s financial services regulator and must satisfy the requirements in that jurisdiction to market funds to retail customers by way of a public offering. The only exception to this is where both the fund’s investment manager and custodian are located in the DIFC or in a recognised jurisdiction and are licensed by a financial services regulator in the relevant jurisdiction.
Country Surveys
288
• Prospectus and on-going obligations: There are specific prospectus requirements applicable in respect of the offering and selling of foreign funds, which must be observed by the Authorised Firm as well as ongoing disclosure and record-keeping requirements. • Listing: If a foreign fund intends to list its units on an AMI, such as the DIFX, it must comply with the relevant Offered Securities Rules and listing rules. 1.3 Concluding notes In striving to achieve the regulatory objectives of the financial services regime the DFSA administers, it has provided much needed flexibility by making available a number of internationally recognised vehicles to operate collective investment funds and by allowing a fund operator to delegate many of its functions subject to requirements that ensure such delegation does not result in any dilution of accountability. By allowing the marketing of not only domestic but also foreign funds, the DIFC is positioning itself as a well-regulated and competitive regulatory environment that should be attractive to the global financial services industry. The DFSA is already contemplating a number of significant enhancements to the new funds regime. These enhancements are primarily designed to facilitate the establishment of Real Estate Investment Trusts (REITS) and to remove certain impediments to the offering and selling of foreign funds in and from the DIFC. The proposals include the introduction of an Investment Trust Law with specific provisions relating to the establishment and operation of REITS in the DIFC. Currently, public funds in the DIFC cannot use a trust vehicle. The REITS specific proposals, contained in the DFSA Consultation Paper No.33, are designed to ensure that liquidity and other risks inherent in real estate investments are adequately addressed in a manner consistent with the international standards adopted for REITS. The DFSA has also issued for public consultation its proposals to expand the categories of foreign funds that can be marketed in and from the DIFC. The DFSA’s proposals arose due to industry concerns that the current categories are too restrictive. Following a risk based analysis, the DFSA now proposes to expand the categories of foreign funds that can be marketed and sold in and from the DIFC subject to certain due diligence and other obligations imposed on the distribution of those funds. The result of the current DFSA consultation process is yet to be finalised.
2. A NEW PROPERTY LAW FOR DUBAI 2.1 Introduction On 14 March 2006, His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE and Ruler of Dubai, passed the much-anticipated property law for Dubai. The new law has recently been published in the Official Gazette and is now law. The law is to be known as “Law
United Arab Emirates
289
No. (7) of 2006 concerning Real Property Registration in the Emirate of Dubai”. Amongst other things, it permits foreign ownership of property within designated areas of Dubai – the areas, however, are yet to be confirmed. There follows an overview of the new property law which is divided into three sections, namely: • Main features of the new law • Comparison of the Dubai property law with property laws in other GCC countries • Areas where further legislation is required 2.2 Main features of the new law The new property law is primarily an enabling law that creates a framework within which a complete property ownership law for Dubai can be built. It is a good first step in providing foreign purchasers (and lenders) with the key surety they seek in relation to property ownership in Dubai, namely the ability for foreigners to register their interest and obtain title to their property. The main features of the new law are: • Foreign ownership: Foreigner purchaser’s are now able to own land or a leasehold interest in land (not exceeding 99 years) in specified areas in Dubai, provided the “Ruler’s approval” is obtained – though the law itself does not specify these areas. It is also unclear at what point and how the Ruler’s approval is to be obtained, although in practical terms, it is likely this will take the form of a decree designating areas or developments within which foreign ownership is permitted (as is already the case in other GCC countries). In addition, GCC and UAE nationals will have an unfettered ability to purchase land anywhere in Dubai. • Registration of title: The new law allows foreigners, for the first time, to register their property rights at the Dubai Lands Department. Prior to the law coming into force, ownership rights for foreigners were essentially a series of contractual rights contained within the purchase agreement with the applicable developer. • Guarantee of title: A “guarantee” of title is provided for in the new law. The register of real property to be established by the Dubai Lands Department will be paramount and is deemed to be conclusive evidence of ownership. There is no need to “look behind” the register. The guarantee does not, however, go as far as some other countries (e.g. U.K., New Zealand) where registration serves not only as a guarantee of title but is also coupled with a statutory right of compensation in the event that an error has been made which results in competing claims against the property in question. • Registration and enforcement of securities (i.e. mortgages): While not providing a statutory right of enforcement or a power of sale on default (refer to our comments later in this article), the new law does provide lenders with some comfort. It provides that mortgages can be brought down on to all titles if land is subdivided or merged. • Empowerment of Dubai Lands Department: The Dubai Lands Department is empowered by the new law to pass regulations governing several areas of property related transactions, including regulating land
Country Surveys
290
brokers, specifying the standard form property contracts, regulations for conducting public auctions of real estate and surveying rules and regulations. The law gives the Dubai Lands Department a very powerful voice in creating and shaping the property law for Dubai in these key areas. 2.3 Comparison of the Dubai property law with property laws in other GCC Countries In a number of ways, the Dubai property law is similar to property laws in other Emirates within the UAE and other GCC countries, particularly in relation to foreign ownership. In particular, several other Emirates and GCC countries also allow foreign ownership and as with Dubai it is only in designated areas. The noteable exception is Abu Dhabi, which only permits foreign ownership of buildings erected on land (but not of the underlying land itself), and then still only in designated areas. Below is a table highlighting similarities and differences between the Dubai law and the laws of other Emirates within the UAE and other GCC Countries in relation to foreign ownership, registration and inheritance. 2.4 Areas where further legislation is required Whilst the new property law deals with the concern of foreign investors in relation to ownership, it does not (and could not fairly be expected to) provide a holistic solution to all property ownership and security related issues. The new law is a first step in creating a legal framework for property ownership in Dubai. Therefore, while further regulations and laws are contemplated, they are yet to be passed. To ensure that the confidence and momentum that has been achieved by Law No. (7) is retained the new regulations need to follow as soon as possible. There are several areas where further laws or regulations are required in order to create certainty for foreign owners and lenders. We have already mentioned some of these areas, but others include: • Inheritance: When a foreigner who owns real estate in Dubai passes away, there are conflicting opinions as to which law applies – either the law from the country or state of which the deceased is a national or the Shari‘a based inheritance laws of Dubai. The new law does not cure this uncertainty and is an issue that will need to be clarified in due course. The new law does however specify that any legal notice of inheritance shall be entered into the register, if such inheritance includes real property rights. No act by any heir in connection with such rights shall be valid or effective against any third parties unless such registration is made. • Statutory “self-help” remedies for mortgagees: Statutory “self-help” remedies, such as foreclosure and power of sale, would provide mortgagees with a greater level of comfort in relation to enforcement. Such remedies do not currently exist, and are not introduced by the new law. The current practical difficulties of enforcement through the courts in Dubai have been a major factor in the rates for secured lending being almost as high as those for unsecured lending. If “self-help” remedies are not provided
United Arab Emirates Country/ Emirate
291 Foreign Ownership (Other than GCC and UAE nationals)
Registration of Foreign Ownership
Inheritance
Dubai (Emirate in the UAE)
Yes, but only in designated areas.
Yes. However, procedures and regulations relating to registration are yet to be published.
Uncertainty remains over inheritance by foreigners.
Abu Dhabi (Emirate in the UAE)
Yes, but only in designated areas and only by way of long-term lease or sectional title i.e. not the underlying land.
No.
If the successor is a UAE national the inherited right will be registered in the name of the successor (provided that the successor is already noted on the title deed). If the successor is a non-UAE national they are required to sell their interest by court order. However, this provision is yet to be tested in or applied by the courts.
Ras Al Khaimah (Emirate in the UAE)
Yes, but only in designated areas and provided they have a commercial licence in Ras Al Khaimah Free Zone (i.e. must be owned by a company).
Yes, in the names of the licensed company.
Uncertainty remains over inheritance by foreigners.
Sharjah (Emirate in the UAE)
No.
No.
Shari’a Law applies.
Kingdom of Bahrain
Yes, but only in designated areas.
Yes. However, procedures and regulations relating to registration are yet to be published.
Law of the country of the deceased will apply to the transfer of inheritance of the property.
State of Kuwait
No.
No.
No.
Sultanate of Oman
Yes, but only in designated areas.
Yes. However, procedures and regulations relating to registration are yet to be published.
Law of the country of the deceased will apply to the transfer of inheritance of the property.
State of Qatar
Yes, but only in designated areas.
Yes. However, procedures and regulations relating to registration are yet to be published.
Law of the country of the deceased will apply to the transfer of inheritance of the property.
292
Country Surveys
to lenders at law, then the higher rates may continue despite the new property law allowing foreign ownership (which was the principal factor for high interest rates). The result may be that the property market, in particular the secondary property market, does not respond as positively as expected to the new law. • Sectional or Commonhold title: The new law does refer to owners of apartments and floors being noted on a supplementary page to the underlying title. However, the law does not expressly provide for sectional or commonhold titles. We understand a separate law is being prepared enabling commonhold ownership and the provision of separate title for owners of those interests. We hope that any such law will specify the rights and obligations of the respective owners in relation to the common areas of any such development. We believe that a minimum set of essential rules of conduct for each owner to observe to ensure harmony within the development should be provided by way of legislation. This, together with ensuring that successors in title are bound by such rules, are areas of the law that have been left for the developer to set up and police contractually. It is a role better suited to an association of the owners who have legislative power to enforce such rules. • Registration: Although the new law provides a framework enabling foreigners to register their interests in real property at the Dubai Lands Department, it provides no specifics as to the time frame within which such registration must occur, fees payable upon registration, or the consequences of failure to register an existing interest in land. It is unclear for example, how the law will treat existing interests in land which are not registered prior to the time of disposal, and whether there will be a separate body of regulation in respect of the protection and compulsory registration of such interests. In addition, we note that there is not more comfort provided in the new law for beneficiaries of easements over a freehold property, which pursuant to the Federal Civil Code can currently be withdrawn by the owner of such property, effectively at will. We would hope, however, that additional consideration will be given to such matters by the Dubai Lands Department in due course. • Marketing and selling property: The new law enables the Dubai Lands Department to prescribe regulations relating to the conduct of real estate agents and the form of sale contracts. Such regulations will be welcomed by purchasers and ideally would provide greater protection for “off the plan” purchasers (i.e. maximum deposits payable, deposits to be held in a trust account, prohibition on developer’s charging purchaser’s to transfer the property prior to completion, etc). • Timeshares: The Federal Civil Code already allows for joint ownership of property according to time. However, no further legislation or regulation is provided at either federal or individual Emirate level in Dubai. Given it has been permitted, this is an area where regulation by the Dubai government (and other Emirates for that matter) should be implemented. Law No. (7) creates the legal framework for further property laws and regulations in Dubai. We will provide further updates, as significant new property laws and regulations are passed.
293
Bahrain Husain M. Al Baharna*
During the period between May 2005 and May 2006, the Kingdom of Bahrain issued the following substantive Laws:
1 LOCAL LEGISLATION 2005 1.1 Law No. 13 of 2005, Amending certain provisions of the Law of Evidence in Civil and Commercial Matters, issued by Law by Decree No. (14) of 1996 Following parliamentary approval, this Law was ratified and issued by the King on 4 June 2005. By Article 1 of this amending Law, Article 64 of the amended Law has been substituted by the following provisions: Witnesses may also be accepted as replacement for written evidence in cases where: a. there is a material or moral impediment against obtaining written evidence: a married relationship is one of the moral impediments. b. the creditor has lost his written evidence on account of foreign reasons which are beyond his control. (Official Gazette No. 2690, dated 8 June 2005). 1.2 Law No. 20 of 2005, Establishing the Higher Council for Islamic Affairs Following parliamentary approval, this Law was ratified and passed by the King on 13 July 2005. *
PhD in International Law (University of Cambridge); Barrister-at-Law of Lincoln’s Inn London; Council Member of the International Council for Commercial Arbitration (ICCA); Member of the UN International Law Commission (ILC); Attorney before the Court of Cassation, Bahrain; Legal Consultant and Arbitrator; Former Minister for Legal Affairs, Bahrain.
294
Country Surveys
It is provided in Article 1 of this Law that the Higher Council for Islamic Affairs, formerly established by Decree No. (19) of 1996, shall have legal entity and financial and administrative independence, while it shall be subject to the direction of the Minister of Islamic Affairs who is appointed as its President (Official Gazette No. 2695, dated 10 July 2005). 1.3 Law No. 22 for 2005, Approving the Financial General Budget of the State for the Years 2005-2006 Following parliamentary approval, this Law, issued on 20 July 2005, approved the State’s General Budget for the two-year period 2005-2006. According to Article 1 of this Law, the revenue of the State is estimated to be BD. 2,525,960,000, in accordance with the two annexes Nos. 1 and 2 attached to this Law (Official Gazette Annex to No. 2696, dated 20 July 2005). 1.4 Law No. 24 of 2005, Approving the Loan Agreement concerning the General Hospital Project of King Hamad in Muharraq, between Bahrain and the Kuwait Fund for Arab Economic Development Following parliamentary approval, this Law, issued on 20 July 2005, approved the Loan Agreement (attached to this Law) concerning the above Hospital Project, concluded on 15 August 2004 (Official Gazette Annex to No. 2696, dated 20 July 2005). 1.5 Law No. 27 of 2005, Concerning Education Following parliamentary approval, this Law was ratified and issued by the King on 15 August 2005. According to Article 6 of this Law, basic education is a right for children who have reached six years of age and continue for a period of nine years thereof. The Kingdom is under an obligation to provide such basic education, and parents, or custodians of children, are obliged to execute it. According to Article 7 of the Law, both basic and secondary education in the Kingdom’s schools is free. According to Article 12 of this Law, the Minister of Education shall issue the regulations and decisions for the execution of this Law. The Law comprises 14 articles (Official Gazette No. 2700, dated 17 August 2005). 1.6 Law No. 28 of 2005, Amending certain Provisions of Law No. (17) of 2002 concerning the Regulation of Governorships Following parliamentary approval, this Amending Law was ratified and issued by the King on 15 August 2005. According to Article 2 of this Law, the following Article 8 (bis) shall be included in the original Law, issued by Decree No. (17) of 2002:
Bahrain
295
The Governor is responsible for peace, security, public order and general morals in the Governorate. He is assisted in executing this responsibility, by the Director of the Governorate’s Police, within the framework policy provided by the Minister of Interior. The Director of Police of the Governorate shall provide the plans concerned with the maintenance of the public security of the Governorate, provided that the Governor approves the necessary actions required in this regard.
(Official Gazette No. 2700, dated 17 August 2005). 1.7 Law No. 30 of 2005, Amending certain Provisions of the Labour Law in the Private Sector, issued by Law by Decree No. (23) of 1976 Following parliamentary approval, this Amending Law was ratified and issued by the King on 15 August 2005. According to Articles 1 of this Law, the first paragraph of Article 88 of the Labour Law of 1976 shall be substituted by the following provision: “The Muslim worker [employee] is entitled to 15 days’ leave, with full salary, for attending his pilgrimage [Haj] once only during the period of his service, on the condition that he has completed continued five years of service with his employer.” (Official Gazette No. 2700, dated 17 August 2005). 1.8 Law No. 31 of 2005, Concerning Social Insurance of Bahrainis Working outside Bahrain Following parliamentary approval, this Law was ratified and issued by the King on 15 August 2005. Article 2 of this Law provides that Bahraini workers (employees) who work outside Bahrain, or within, for an employer who is not covered by the provisions of the Law of Social Insurance issued by the Law by Decree No. (24) for 1976, shall be entitled to the benefits of this Law, as long as they possess the conditions that are provided in the Law. Article 3 of this Law provides that the Social Insurance Regulation, provided under this Law, includes insurance against old age, incapacity and death. According to Article 5 of this Law, the insured’s contribution, on account of this insurance, shall be 12 per cent per month of his assured monthly income. According to Article 6 of this Law, the contributions paid by the insured, who benefits from the provisions of this insurance, shall comprise the combined shares of both the employer and the insured worker, at the percentage rate of 12 per cent of the assumed category of the monthly income chosen by the insured worker (Official Gazette No. 2700, dated 17 August 2005). 1.9 Law No. 33 of 2005, Approving the Basic Regulation concerning the Standardisation Organisation of the G.C.C. Countries Following parliamentary approval, this Law, issued on 17 August 2005, approved the above Organisation (attached to this law), established by virtue of the Decision of the G.C.C. Higher Council, made in Kuwait on 21-22 December 2003.
296
Country Surveys
This Law repeals Decree No. (1) of 1986, approving the G.C.C. Basic Regulation Concerning Standardisation. 1.10 Law No. 34 of 2005, Establishing the Family Assistance (Nafaqah) Fund After parliamentary approval, this Law was ratified and issued by the King on 17 August 2005. According to Article 1 of this Law, the family assistance (Nafaqah) fund is established for the benefit of the wife or the divorcee or the parents or the children or any person entitled to benefit from this family assistance (Nafaqah) fund or any person legally authorised to receive, on their behalf, such family assistance under this fund. According to Article 14 of this Law, the Minister of Justice is authorised to issue the required decision for the implementation of this Law (Official Gazette No. 2701, dated 24 August 2005). 1.11 Law No. 36 of 2005, Ratifying the Loan Agreement concerning funding Shaikh Khalifa Bin Salman’s Harbour Project Following parliamentary approval, this Law, issued on 13 December 2005, ratified the above Agreement (attached to this Law), concluded in Kuwait on 21 November 2005, between Bahrain and the Arabic Fund for Economic and Social Development (Official Gazette No. 2717, dated 14 December 2005). 1.12 Law No. 37 of 2005, Approving the Regulation (Law) on Insecticides for the G.C.C. Countries Following parliamentary approval, this Law, issued on 13 December 2005, approved the above regulation (Law) (attached to this Law), concluded among G.C.C. member countries by virtue of the Decision of the G.C.C. Higher Council, held in Bahrain on 20, 21 December 2004 (Official Gazette No. 2717, dated 14 December 2005). 1.13 Law No. 38 of 2005, Approving Regulation (Law) concerning Fertilisers and Agricultural Social Improvement between G.C.C. Countries Following parliamentary approval, this Law, issued on 13 December 2005, approved the above regulation (Law) of the G.C.C. countries (attached to this Law), concluded among G.C.C. countries by virtue of the Decision of the G.C.C. Higher Council held in Bahrain on 20-21 December 2004 (Official Gazette No. 2717, dated 14 December 2005).
Bahrain
297
2006 1.14 Law No. 2 of 2006, Ratifying the Industrial Agreement concerning the Construction of the Harbour of Shaikh Khalifa Bin Salman, between the government of Bahrain and the Islamic Development Bank Following parliamentary approval, this Law, issued on 15 March 2006, ratified the above Agreement (attached to this Law), concluded by the government of Bahrain and the Islamic Development Bank on 13 December 2004. By this Agreement, the Islamic Development Bank is committed to provide 46 million dollars for this project (Official Gazette No. 2731, dated 22 March 2006).
2 TREATIES AND AGREEMENTS 2005 2.1 Law No. 7 of 2005, Ratifying the Agreement on the Encouragement and Protection of Investment between Bahrain and the OPEC Fund for International Development Following parliamentary approval, this Law, issued on 17 May 2005, ratified the above Agreement, concluded between Bahrain and the Opec Fund for International Development, made in Vienna on 22 July 2004 (Official Gazette No. 2688, dated 25 May 2005). 2.2 Law No. 8 of 2005, Ratifying the Basil Agreement of 1989 concerning the Regulation of the Transport of Dangerous Wastes and their Disposition beyond Frontiers Following parliamentary approval, this Law, passed on 17 May 2005, ratified the accession of Bahrain to the above Agreement, concluded in Geneva on 18-22 September 1995 (Official Gazette No. 2688, dated 25 May 2005). 2.3 Law No. 12 for 2005, Approving Bahrain’s Accession to the International Agreement for the Protection of New Plant Species Following parliamentary approval, Law No. (12) for 2005, issued on 4 June 2005, approved the accession of Bahrain to the above Agreement (attached to this Law), concluded in Geneva on 19 March 1991 (Official Gazette No. 2690, dated 8 June 2005).
298
Country Surveys
2.4 Law No. 14 of 2005 Approving Accession to the Agreement concerning the Prohibition and Punishment of Crimes committed against Persons entitled to International Protection, including Diplomatic Representatives Following parliamentary approval, this Law, passed on 4 June 2005, approved accession of Bahrain to the said Agreement (attached to this Law), concluded in New York on 14 December 1973 The Law contains Bahrain’s reservation to paragraph (1) of Article 13 of this Agreement concerning the arbitration clause (Official Gazette No. 2690, dated 8 June 2005). 2.5 Law No. 15 of 2005, Approving Accession of Bahrain to the Agreement concerning the Suppression of Illegal Acts directed Against the Safety of Sea, Navigation and the Protocol Attached to it on the Suppression of Illegal Acts directed against Oil Stands in the Continental Shelf Following parliamentary approval, this Law, passed on 4 June 2005, approved the above Agreement and Protocol (attached to this Law), concluded in Rome on 10 March 1988. Bahrain made a reservation to paragraph (1) of Article 16 of the Agreement, concerning the arbitration clause (Official Gazette No. 2690, dated 08 June 2005). 2.6 Law No. 16 of 2005, Approving the Accession of Bahrain to the International Agreement for the Prohibition of Taking Hostages Following parliamentary approval, this Law, passed on 10 July 2005, approved the above Agreement (attached to this Law) concerning the prohibition of taking hostages, concluded in New York on 18 December 1979. (Official Gazette No. 2696, dated 20 July 2005). 2.7 Law No. 17 of 2005, Ratifying the Agreement on Legal Assistance in Criminal Matters between Bahrain and India Following parliamentary approval, this Agreement which was concluded in New Delhi between the government of Bahrain and the government of India on 13 January 2004, was ratified and issued by the King on 10 July 2005 (Official Gazette No. 2695, dated 10 July 2005). 2.8 Law No. 18 of 2005, Approving the Accession of Bahrain to the Protocol of the Madrid Agreement Concerning the International Registration of Marks Following parliamentary approval, this Law, issued on 10 July 2005, approved the Accession of Bahrain to the Protocol of the Madrid Agreement (attached to this Law) concerning the International Registration of Marks which was concluded in Madrid on 27 June 1989. (Official Gazette, Annex to No. 2695, dated 13 July 2005)
Bahrain
299
2.9 Law No. 19 of 2005, Approving the Accession of Bahrain to the Treaty Concerning the Law of Patents and its Executive Regulations Following parliamentary approval, this Law, issued on 10 July 2005, approved the above Treaty, attached to this Law (Official Gazette, Annex to No. 2695, 10 July 2005). 2.10 Law No. 23 of 2005, Ratifying the Free Trade Agreement between Bahrain and the U.S.A. Following parliamentary approval, this Law, issued on 20 July 2005, ratified the above Agreement (attached to this Law), concluded in Washington on 14 September 2004 (Official Gazette No. 2697, dated 27 July 2005). 2.11 Law No. 29 of 2005, Ratifying the Agreement concerning the Establishment of a Free Trade Zone Between the G.C.C. Countries and the Lebanon Following parliamentary approval, this Law, issued on 15 August 2005, ratified the above Agreement (attached to this Law), concluded in Beirut on 11 May 2004 between the G.C.C. Countries and Lebanon (Official Gazette No. 2700, dated 17 August 2005). 2.12 Law No. 39 of 2005, Ratifying the Stockholm Agreement concerning proved Organic Pollution Following parliamentary approval, this Law, issued on 13 December 2005, ratified the above Agreement (attached to this Law), concluded in Stockholm on 22 May 2001 (Official Gazette No. 2717, dated 14 December 2005). 2.13 Law No. 42 of 2005, Ratifying the Agreement Between Bahrain and Belarus Concerning Air Services Following parliamentary approval, this Law, issued on 14 December 2005, ratified the above Agreement (attached to this Law) concluded in Minsk Town on 27 September 2004 (Official Gazette No. 2717, dated 14 December 2005). 2.14 Law No. 43 of 2005, Ratifying the Agreement of the G.C.C. Countries concerning the combating of Terrorism Following parliamentary approval, this Law, issued on 22 December 2005, ratified the above Agreement (attached to this Law), concluded in Kuwait on 4 May 2004 (Official Gazette No. 2719, dated 28 December 2005).
Country Surveys
300
2.15 Law No. 44 of 2005, Approving the Accession of Bahrain to the Treaty concerning cooperation in respect of Patents (PCT) and its Executive Regulations Following parliamentary approval, this Law, issued on 31 December 2005, approved the above Treaty attached to this Law. The following reservation was made in respect of this Treaty: “The Kingdom of Bahrain does not consider itself bound by the provisions of Article 59 of this Treaty” concerning arbitration. (Official Gazette No. 2722, dated 31 December 2005). 2.16 Decree No. 45 of 2005, Approving the Accession to the Kyoto Protocol attached to the U.N. Framework Agreement concerning the Change of Weather Following approval by the Cabinet, this Decree, passed on 11 July 2005, approved the accession of Bahrain to the Kyoto Protocol (attached to the above Decree), concluded on 28 December 1994 (Official Gazette No. 2696, dated 20 July 2005).
2006 2.17 Law No. 1 of 2006, Approving the Establishment of a Custom’s Union for the G.C.C. Countries This Law, issued on 12 March 2006, approved the establishment of the G.C.C. Custom’s Union by virtue of the Decision of the Higher Council of the G.C.C. Countries, made in Qatar on 21-22 December 2002 (Official Gazette No. 2730, dated 15 March 2006). 2.18 Law No. 4 of 2006, Approving the G.C.C. United Law (Regulation) on combating Dumping and Compensatory and Protective Measures Following parliamentary approval, this Law, issued on 29 April 2006, approved the above G.C.C. Law/Regulation (attached to this Law), by virtue of the Decision of the G.C.C. Higher Council made in Kuwait on 21-22 December 2003 (Official Gazette No. 2737, dated 3 May 2006). 2.19 Law No. 7 of 2006, Ratifying the Arab Charter of Human Rights Following parliamentary approval, this Law, issued on 8 May 2006, ratified the Arab Charter of Human Rights (attached to this Law), concluded by the Summit Council of the Arab League in its 16th Ordinary meeting held on 23 May 2004. (Official Gazette No. 2738, dated 10 May 2006).
301
Oman Emma Block*
1 SOURCES OF LAW, JUDICIAL AND LEGAL SYSTEM This year saw the Sultanate of Oman celebrating its 35th year under the guidance of His Majesty, Sultan Qaboos Bin Said. The Sultanate has continued its drive to secure total employment for nationals by creating new employment opportunities. There has been a marked move towards an economy that is not oil-dependent through improving infrastructure and diverting resources towards developing tourism. This was emphasised by Royal Decree 95/2005, which specifies the powers of the newly-constituted Ministry of Tourism (created by Royal Decree 61/2004 as mentioned in the previous Yearbook1).
2 INTELLECTUAL PROPERTY We mentioned the advent of the first telecommunications licences to Omantel Company S.A.O.C., the state telecommunications provider (“Omantel”) in the previous Yearbook.2 2005 brought the advent of Oman’s second licensed telecommunications provider, the Omani–Qatari Telecommunications Company S.A.O.C. (popularly known as “Nawras”), providing competition to Omantel. Royal Decree 17/2005 issued a first category licence to Nawras to provide basic general mobile telecommunication services. This development underlines the trend of privatisation, with moves being made to reduce government control over private sector industries and services, increasing economic freedom in the Sultanate. In keeping with the drive to improve access to modern and digital technology, Oman has joined the Arab Organisation for Telecommunications and Information Technology. This membership was ratified by Royal Decree 26/ 2005. * Senior Solicitor, Trowers & Hamlins, Muscat, Oman. 1 Yearbook of Islamic and Middle Eastern Law, Vol. 10, p. 247. 2 Yearbook of Islamic and Middle Eastern Law, Vol. 10, p. 245.
302
Country Surveys
3 CIVIL LAW (CONTRACT AND OBLIGATIONS) There have been no significant developments under this title.
4 CIVIL PROCEDURE AND EVIDENCE A Conciliation and Reconciliation Law (Royal Decree 98/2005) was passed in November 2005. This law allows recourse to a Conciliation and Reconciliation Committee (the “Committee”) established by the Ministry of Justice to settle civil legal disputes, as an alternative to recourse to the courts, but without prejudice to the jurisdiction of the Courts and the parties’ ability to bring a claim in the courts if settlement cannot be agreed. Recourse to the Committee is optional and must be agreed to by all parties to a dispute. The party initiating the claim may apply for a hearing before the Committee (a “Referral”), however the other party must agree to the Referral to the Committee. Referral effectively stays any time limits for claims before the Omani Courts. Disputes can be referred to the Committee free of charge, thereby avoiding the normal court filing fees, which are currently 2 per cent of the value of the claim (up to a maximum of RO 3,000). In proceedings before the Committee, the Omani Civil Procedure Rules do not apply, nor does the Oman Advocacy Law and it is not essential that parties be represented by an Omani registered lawyer. Where a settlement is agreed and recorded in the Committee’s decision, the decision can be enforced as if it were a court judgment. Royal Decree 64/2005 introduced a minor amendment to the Advocacy Law, extending the members of the family of the defendant who may appear in court to defend them. This now includes, wives/husbands, son-in-laws and relatives up to the 4th grade. Royal Decree 92/2005 amended certain civil and commercial court procedures. Such changes included confining the primary court, which consists of three judges, to settle cases related to bankruptcy, reconciliation to avoid bankruptcy, companies liquidation, insurance cases, disputes among dealers in securities and cases related to intellectual property and patents where the value of such cases is in excess of RO 70,000. The primary court which consists of one judge shall have the jurisdiction to settle all cases which are not within the jurisdiction of the primary court, which consists of three judges. The ruling of the primary court, which consists of one judge, with respect to such matters is final where such disputes are in respect of amounts of not more than RO 1,000.
5 CONSTITUTIONAL AND ADMINISTRATIVE Following Royal Decree 15/97, which organised the Ministry of Heritage and Culture (the “M.H.C.”), Royal Decree 24/2005 was passed to specify the powers of the M.H.C. and to endorse its organisational structure. This law reflects Oman’s increasing emphasis on tourism as a source of revenue for the State,
Oman
303
as it charges the M.H.C. with the role of safeguarding the numerous sites of historical and archaeological significance within the Sultanate, as well as strengthening and supporting the development of culture and the arts. This drive for an increasing emphasis on tourism and the development of the Sultanate as a major tourist attraction was further emphasised by Royal Decree 95/2005, which sets out the powers and responsibilities of the Ministry of Tourism, whose principal role is to preside over the development of a number of major tourist projects in the Sultanate thus ensuring the continued growth and development of the Sultanate as a major tourist venue. Royal Decree 48/2005 established the Oman Posts Company S.A.O.C, which has replaced the Directorate General of Posts and the Directorate General of Posts, Governate of Dhofar and assumed their assets for a nominal sum. All employees of the previous postal body have been transferred to the new company. Royal Decree 102/2005 sets out the rights and responsibilities of the Ministry of Commerce and Industr y (the “M.C.I.”) and approves the M.C.I.’s organisational structure. The M.C.I.’s role includes the preparation of rules and regulations required for the regulation of companies in the Sultanate, together with protecting copyrights including patents and innovations. A full list of the powers and functions of the M.C.I. are included in Annexure 1 to the Royal Decree.
6 COMMERCIAL LAW Royal Decree 41/2005 and Royal Decree 99/2005 both introduced further amendments to the Commercial Companies Law. Previously there was a requirement that where it was proposed that two companies merge there be a three-month waiting period in order for creditors to consider the merger. However, the amendments introduced by Royal Decree 41/2005 grant to the Minister of Commerce and Industry the ability to remove or reduce this three-month period where he believes that such reduction or removal is in the public interest. It had been the case that the nominal value of a share for a joint-stock company was fixed at RO 1 per share. There was no flexibility for a company to set different nominal values. In light of Royal Decree 99/2005, however, companies will now be able to split their shares, lowering the face value of each share. This new law is intended to provide greater flexibility to companies, by allowing each company to determine the nominal value of its shares as stated in its articles of association (subject to a maximum value of RO 1 per share). From our discussions with the Capital Market Authority in Oman, we understand that the main rationale behind this amendment was to increase market liquidity. Royal Decree 99/2005 has also altered the regulations regarding the permitted remuneration of the Board of Directors of joint-stock companies. These amendments to the law stem from a desire to regulate the remuneration payable to board members of joint-stock companies and to ensure that such remuneration is kept to a reasonable level, putting an end to substantial
Country Surveys
304
directors’ fees at some corporations. The previous legal position placed a cap on the remuneration of the Board of Directors of 10 per cent of the net profits of the company for the year (following deduction of statute-required reserves and the payment of dividends), this has now been reduced to 5 per cent of the company’s net profits of the year, subject to reserves and the payments of dividends. Additionally, the new law has also introduced a cap on the entire remuneration and sitting fees paid to the Board as a whole, at RO 200,000 per annum, and a cap on the sitting fee for each individual director of RO 10,000 per annum.
7 TAXATION There have been no major developments under this title, although two Ministerial Decisions (M.D.s 45/2005 and 46/2005) were published in July altering the rules for companies obtaining exemptions from income tax and customs duty in Oman. Whereas the potential exemptions have not been altered, there are alterations to the processes to be followed in order to obtain the exemptions, these processes are outside the scope of this text. The Sultanate has also endorsed a number of double taxation treaties (see 11.1 below).
8 EMPLOYMENT AND LABOUR LAW A number of amendments to the Social Insurance Law were introduced by Royal Decree 19/2005 and the contribution of an employer to his employee’s pension fund (held by the Public Authority for Social Insurance) has been increased to 9.5 per cent of the employee’s salary, meaning that the total contribution (when taken together with the employee’s contribution and various other donors) is 17 per cent of the employee’s salary. This increased contribution from the employer reflects the Sultanate’s drive for improved working conditions for employees. These amendments also increased the amount of money paid out as a pension to retired employees.
9 FAMILY AND SUCCESSION There have been no significant developments under this title.
10 CRIMINAL LAW AND PROCEDURE Royal Decree 75/2005 amended the Oman Penal Code and introduced more stringent punishments for individuals who obstruct, ignore or otherwise hinder or prevent the enforcement of judgments of the Omani courts.
Oman
305
11 PUBLIC INTERNATIONAL LAW During 2005, the government entered into a number of bilateral and unilateral international conventions and agreements which include amongst other things the following: 11.1 Taxation Royal Decree 5/2005 ratifies the agreement signed between the government of the Sultanate of Oman and the government of The Islamic Republic of Iran on the avoidance of double taxation with regard to taxes on income and capital. Royal Decree 96/2005 ratifies the agreement signed between the government of the Sultanate of Oman and the government of the Arab Republic of Syria on the avoidance of double taxation and the prevention of tax evasion with regard to income taxes. Royal Decree 101/2005 ratifies the agreement on the avoidance of double taxation and tax evasion on income tax signed between the government of the Sultanate of Oman and the government of South Korea. 11.2 Trade Royal Decree 57/2005 ratifies the agreement on the creation of the free zone between the G.C.C. states and the Republic of Lebanon. Royal Decree 58/2005 ratifies the framework agreement on the technical, economic, trade and investment cooperation between the G.C.C. States and the People’s Republic of China. Royal Decree 90/2005 endorses the agreement between the government of the Sultanate of Oman and the government of the Arab Republic of Syria on the mutual promotion and protection of investments. 11.3 Transport Royal Decree 25/2005 endorses the agreement on the Cooperation in Commercial Sea Transport and Ports between the Sultanate of Oman and the Hashemite Kingdom of Jordan. Royal Decree 107/2005 endorses the cooperation agreement in land transport between the government of the Sultanate of Oman and the government of the Arab Republic of Syria. Royal Decree 108/2005 endorses the agreement in respect of the commercial marine transport and ports made between the government of the Sultanate of Oman and the government of the Arab Republic of Syria. 11.4 Tourism Royal Decree 106/2005 endorses the Memorandum of Understanding with respect to the cooperation between the government of the Sultanate of Oman and the government of the Kingdom of Thailand with respect to Tourism.
306
Country Surveys
11.5 Criminal/Penal Royal Decree 34/2005 endorses the agreement on extradition of the accused and convicted people which has been made between the Sultanate of Oman and the Republic of India. Royal Decree 37/3005 approves the Sultanate of Oman joining the United Nations Agreement on combating organised crime and its annexed protocols. Royal Decree 43/2005 endorses the cooperation agreement to combat international terrorism, illegal trading in drugs and psychotropic substances and organised crime between the government of the Sultanate of Oman and the government of the Republic of Turkey. Royal Decree 105/2005 endorses the G.C.C. pact on fighting terrorism. 11.6 Ratification of International Conventions Royal Decree 20/2005 approves the Sultanate of Oman joining the World Health Organization’s framework Convention on Tobacco Control. Royal Decree 21/2005 approves the Sultanate of Oman joining the Convention on International Interests in Mobile Equipment and the annexed Protocol on Matters specific to Aircraft Equipment. Royal Decree 42/2005 endorses the Sultanate of Oman joining the agreement to eliminate all types of discrimination against women. Royal Decree 56/2005 ratifying the agreement for the maintenance of intellectual and cultural heritage.
307
Yemen Nageeb Shamiri *
1 CONSTITUTIONAL AND ADMINISTRATIVE LAW 1.1 Promulgation of an amendment to the General Elections and Referendum Law No. 13/2001 The President of the Republic promulgated Law No. 11/2005, in relation to Amending Paragraph (a) of Section 12 of General Elections and Referendum Law No. (13/2001), which provides as follows: The revision of the electors registers – and amendment thereof – shall take place within thirty days, once every two years, with effect from the registers becoming final, and once during at least six months prior to the date of issuing the Resolution of the President of the Republic calling the voters to any general elections or referendum. Should the period between the date for revision of the registers and the date of issuing the Call Resolution be less than two years, the revision of the registers shall take place once: and that is six months prior to issuing the Call Resolution for holding any general elections or referendum.1
1.2 Promised legislative powers for women A call by the General People’s Congress (GPC), the ruling party in Yemen, for a quota of seats for women in parliamentary and local elections – 10 per cent as regards the former, i.e. 30 out of 301 seats, and 15-20 per cent as regards the latter – has recently been approved by the highest organ of the party at its 4th Session, held in Sana’a, during February 2005, in the context of “Women’s Rights”.
* Justice of the Supreme Court and Member of the Supreme Judicial Council. 1 The original Paragraph (a) of section (12), before the amendment, provided as follows: “Revision or modification of the electors registers shall be undertaken, within thirty days, once every two years, and at least once four months prior to date of issuing the Call Resolutions for the electors, and addition of the names of the citizens who have become eligible to vote. Under no circumstances shall the elections registers be modified after issuing the Resolution Calling the Electors to an Election or Referendum.”
308
Country Surveys
The initiative is intended to enhance the decision-making role of women. The call, too, would like the political parties and organisations to “reach an understanding amongst themselves to put that proposal [on quotas] into force, with effect from the September 2006 local council elections”. The decision of the ruling party would improve the position of women in the parties, improve their participation in political life and revive hopes in developing the political movement of Yemeni women. 1.3 Amendment of Article (8) (a) of the Joint Defence Treaty and Economic Cooperation amongst the Arab League States The President of the Republic promulgated Law No. (15/2005) in connection with the above-mentioned subject, agreed upon by the 16th Arab Summit, held on 22 May 2004. The President of the Republic further promulgated Law No. (50/2005), in connection with the ratification of the provisions amending the Charter of the League of Arab States, agreed upon by the Council of the Arab League in its 17th Ordinary Session. The President of the Republic also promulgated Law No. (51/2005), ratifying Resolution No. (292/2005) of the League of Arab States, at its 17th Ordinary Session convened at the Summit Level, in connection with the establishment of the transitional Arab parliament, as well as the standing orders of the said transitional Arab parliament. 1.4 Accession of the Republic of Yemen to the International United Nations Anti-Corruption Treaty The President of the Republic issued on 3 August 2005, Law 47/2005 ratifying Yemen’s accession to the above treaty. In this connection, the State is intending to set up an Independent National Commission/Association as regards “anticorruption”. 1.5 De-centralisation strategy The Cabinet approved, during July 2005, the National Decentralisation Plan, to increase the power of local governmental administrative and financial bodies. The new plan is designed to modernise the infrastructure of local governments, administrative development, local financial management, and to revise the Local Authority Law 4/2000. In addition, it is intended to empower women to participate in the process of development. The Cabinet also ordered the Ministr y of Local Administration to commission a team to draft a decentralisation strategy compatible with ministerial rules. The President of the Republic further declared, during a speech commemorating the 43rd anniversary of the “26th September Revolution” (which overthrew the monarchy that ruled the northern part of Yemen for almost 11 centuries) that: “the next local councils elections, due to take place during September 2006, would witness amendments to the Local Authority Law 40/2000 as regards the direct election by the public of the Governor
Yemen
309
[who is the Chairman of the Governorate’ Local Council] and the DirectorGeneral of the District [who is, also, the Chairman of the Local Council of the District].”
2 HUMAN RIGHTS AND NON-GOVERNMENTAL ORGANISATIONS 2.1 U.S.A. (2004) Human Rights Report (February 2005) This report says, inter alia, that Yemen’s human rights record remained poor during the year 2004. The report says: In many cases, the Government failed to hold members of the security forces accountable for abuses, although the number of officers in the PSO or MOI police forces tried for abuses increased for a second consecutive year. Prison conditions remained poor, although the Government took some steps to alleviate the situation.
In this connection, the Yemeni Journalists Syndicate and the Yemeni Bar Association are demanding a “more liberal press law”, and say that “press freedoms sink to all-time lows”, adding that they have formed a committee to advocate laws that meet the aspirations of freedom of expression, which do not limit information, which put an end to press censorship, and which are consistent with the provisions of the Constitution. On the other hand, the government has prepared an official memorandum, in reply to the Report of the U. S. State Department. At the same time, the Human Rights Ministry launched, during the last week of June 2005, the 2004 Yemen Human Rights Report. 2.2 Yemeni Forum on Democratisation, Development and Human Security The Forum was established in Sana’a (by the Yemeni government, the Political Affairs Department of the United Nations, the U.N.D.P., the United Nations Commission on Human Rights), during 21-23 February 2005, as a “follow-up of the Inter-Governmental Regional Conference on Democracy, Human Rights and the Role of the International Criminal Court” – held in Sana’a during 1012 January 2004. Those participating included Yemeni government officials, parliamentarians, other prominent public figures, representatives of civil society, community-based and religious organisations, diplomatic missions in Sana’a, U.N. agencies, the World Bank, the Organisation of Islamic Conference, the League of Arab States, the Council of the European Union and international experts on Yemen. The Forum is expected to enhance economic cooperation with Yemen and further contribute to strengthening the environment of openness, modernisation and democratisation in Yemen. The Forum intends to address the following three issues: 1. the promotion of strong governance, advancing human rights and strengthening security prospects and challenges; 2. meeting the social aspects of human security: meeting basic needs;
Country Surveys
310
3. economic reforms and meeting Millennium Development Goals: the way ahead. 2.3 Two important women events held in Yemen, 1-5 December 2005 2.3.1 The Unifying Conference of the Arab Women Federation – “frozen” since the 1990s – has ratified the Basic Constitution (Al-Nidham Al-Asaasi) as well as the Strategy of Action of the Federation. In addition to the election of the Secretary-General (from Yemen), three assistants from Kuwait, Algeria and Palestine have been elected for the next three years. The Yemeni Capital Sana’a has been selected as the Permanent Headquarters of the Federation for the next three years, as well. 2.3.2 The Arab Conference, regarding the Rights of Women in the Arab World, under the slogan: “The Rights of Women: From Words to Deeds”. The Conference was organised by the Yemeni Ministr y of Human Rights. Approximately 300 women, representing prominent female leaders in Yemen, the Arab States and in the European Union attended. Amongst them were ten Arab women ministers from Yemen, Egypt, Bahrain, Syria, Qatar, Jordan, Sudan, Palestine, Iraq and the United Arab Emirates – in addition to female representatives from civil society organisations and academic institutions. Three main sectors discussed the political participation of women; women’s role in development; the political rights of women as between the legal provisions and actual application/implementation; women and political decision-making; and the current efforts to enhance and sustain the participation of Yemeni as well as Arab women in political life. In this regard, the Conference considered the experiments of certain Arab states.
3 JUDICIAL AND LEGAL SYSTEM 3.1 Training course for judicial inspection of the Law Courts and Public Prosecutors This training course was held at the Judicial Institute in Sana’a, from 10-14 September 2005. It was organised by the Ministries of Justice in Yemen and Egypt, and run by the Assistant to Egypt’s Minister of Justice for judicial inspection. 3.2 Ratification of the strategy for modernisation and development of the Yemeni judicial system The Supreme Judicial Council in the Republic of Yemen – the highest organisational as well as administrative organ in the land – ratified, in a session held in Sana’a, on Sunday, 27 November 2005, the Strategy for the Modernisation and Development of the Yemeni Judiciary. The Minister of Justice, in a press conference in this respect, said the “strategy for the modernization and development of the judiciary is a ten-year strategy”.
Yemen
311
3.3 Reform of the judiciary in Yemen The government, in the final statement of the 7th Congress of the ruling party’s People’s General Congress convened during the period 15-17 December 2005, passed a number of resolutions and recommendations in order to reform the political, economic, financial, cultural, social and judicial organisations and the performance thereof in the future. As far as the judiciary is concerned: • The strategy for modernisation and development of the judiciary would start to be implemented. • The Judicature Law 1/1991 would be implemented, in conformity with the Constitution, enhancing the judicial, financial and administrative independence of the Judicial Power as one important power of the State; • The establishment of an independent organisation for the struggle against corruption. • The establishment of an independent organisation for government tenders and auctions. • The establishment of an independent organisation for forensic medicine and criminal evidence. • The merger of the two judicial inspection authorities of the Courts (now at the Ministry of Justice) and the other of the Public Prosecutions (now at the Attorney-General’s Office) in one single Authority, under the Supreme Judicial Council. • The conferring of wide powers and responsibilities – and resources – to local authorities/councils. • The closure of all educational institutions which represent breeding-places for extremism and sectarianism/racism. • Emphasising the supervisory and legislative roles of the House of Representatives, Local Councils and the Central Organisation for Control and Accountancy; • The Arab and International Partnership; • Political reforms involving the legislative, consultative, executive and judicial state powers. In addition, the government will be addressing the issue of social tranquillity in society by accelerating the passage of a bill in connection with carrying and possession of arms to deal with blood feuds, arms carr ying, etc. The government will also be undertaking the development of the national culture – in its components: Pan-Arab, Islamic, humanitarian – in addition to reflecting on all levels of the educational system, and struggling against sectarian and regional tendencies. • The struggle against corruption: The government undertakes to fight against financial and administrative corruption, thereby enhancing its administration, and the principle of transparency comprehensively in all administrative as well as organisational processes, and to implement the principle of equal opportunities as regards the civil service and military service. • The State will be undertaking the development of the Advisory (Shura) Council by re-constituting the Council, extending the functions of the
312
• •
• • • •
Country Surveys legislative power through the reconstitution of the Shura Council as well as responsibilities thereof; and, likewise, the development of the electoral system in order to ensure regular presidential, local and parliamentary elections with a view to the real exercise of democratic participation and full participation by all the political parties and organisations with foreign observers; and in addition to the development of the institutionalised building-up and organisational structure of the Supreme Electoral Commission, in the light of the experiments of the past elections and in addition to the role to be played by civil society institutions. Enhancing the independence of the judiciary (see above). Development of local authorities: development of the functions thereof, through the appropriate amendments to the Local Authority Law to ensure extension of popular participation – including direct election of the Governors of the Provinces and Administrators of the Districts – and more supervision over local affairs, such as right of control, undertaking tenders, supervising the execution of local development projects, responsibility for the preparation and execution of development budgets of local authorities; as well as amendment of the various laws and regulation in order to bring them into conformity with Local Authority Law No. 4/2000; the completion of the construction of the Local Councils’ buildings and provision of the training of the staff thereof. Support and protection of human rights. Guarantee of freedom of expression. Enhancing the status and conditions of women. Moderation as regards the religious consultancy and guidance.
3.4 The Yemeni Minister of Legal Affairs declared at the end of December 2005 that a number of specialist legal committees have been set up to discuss the Bill to Fight Corruption and the Bill on Tenders and Auctions The consequences of passing and promulgating the two laws will lead to the “Establishment of the National Authority for Fighting Corruption” and the “Higher Authority for Government Tenders and Auctions”. At the same time, the House of Representatives (at present, the Yemeni Parliament) will soon be debating a “Bill on Consumer’s Protection” and another bill so that Yemen can become a Party to the Rome Statute of the International Criminal Court. As far as the future is concerned, during the year 2006 the Local Authority Law 4/2000 will be amended to confer more powers on the local councils as regards tenders and auctions for development projects. In addition, a Constitutional Referendum shall take place after the presidential elections due to be held on 23 December 2006 with a view to granting more powers on the Advisory (Shura) Council, in order to render it part of the legislative power of the State; this effectively means a “Bi-cameral Parliament” as is the case with many Arab and other countries (such as Egypt, Jordan, Morocco, the United Kingdom and the United States of America).
Yemen
313
3.5 Resolution of the President of the Republic/Chairman of the Supreme Judicial Council No. 19/2005, establishing a First Instance Court for the Local Districts of Al-Al-Nashamah, Al-Ma’afer ans Al-Mawaset, in the Province of Ta’iz – the most densely-populated Province in the Republic of Yemen 3.6 The Supreme Judicial Council ratified the establishment, for the first time in the history of Yemen, Administrative Courts, in the Capital Secretariat and in the Provinces of Aden, Ta’iz, Hadhramawt and AlHudaidah. These were established as primary courts with the right of appeal to the Civil Appeals Divisions at the Appeals Courts in the Capital Secretariat and the Provinces of Aden, Ta’iz, Hadhramawt and Al-Hudiadah, within the judicial system of the State; and with jurisdiction to hear and determine the following administrative cases and disputes: 1. Disputes regarding salaries, pensions, end of service benefits to which civil servants or their heirs are entitled. 2. Applications filed by the parties concerned, appealing against the final administrative resolutions, issued as regards appointments to public jobs, or promotions, or the granting of allowances. 3. Applications filed by the public ser vants for setting-aside the administrative resolutions issued, as regards pensioning them off, or discharging them from public office – not through disciplinar y proceedings. 4. Applications filed for damages in respect of the afore-mentioned resolutions. 5. Disputes related to contracts of obligations; public works; imports or any other administrative contract.
4 FAMILY AND WOMEN’S RIGHTS AND RIGHTS OF THE CHILD 4.1 50,000 women to take sewing courses during 2005 The National Programme for Improving Productive Families is planned with a view to improving the living conditions of the families, through the training of some 50,000 women from different provinces in 62 centres in sewing and embroidery as well as household affairs. 4.2 Status of Yemeni women reviewed at the United Nations With the objective of reviewing the Beijing Declaration and Platform of Action, and the appraisal of women’s status in 2005, the 49th session of the Commission of the Status of Women took place during February and March 2005. This brought Yemen in line with the agreement in the Political Declaration at the
314
Country Surveys
United Nations General Secretariat at the 23rd special session in June 2000, where the member states agreed to assess regularly further implementation of the Beijing Platform for Action with a view to bringing together all parties involved in 2005 to assess progress and consider new initiatives, as appropriate, 10 years after the adoption of the Beijing Platform for Action.
The Yemeni Delegation stated the achievements in promoting gender issues in the various sectors since the Beijing Declaration. Amendments to the discriminatory laws are taking place. The challenges Yemeni women face in terms of education, health, infrastructure, economy and political participation are improving, the Yemeni Delegation said, adding that women are demanding more rights in order to enhance their status in Yemen. The “quota system of 10 per cent in Parliamentary seats, and 15-20 per cent in Local Councils seats is a positive initiative by the ruling party since last February 2005, though the said quota ought to increase in the future to 30 per cent, in all elected as well as non-elected decision-making organs, which is only fair, taking into consideration that at least half of the population are women,” said the National Women’s Commission. 4.3 Prime Minister issues Resolution 25/2005 in connection with the Organisational Regulations of the National Commission for Women This consists of 34 sections in four parts, as follows: • Title, definitions, objectives and responsibilities. • Leadership and members of the Commission: which involve the duties and responsibilities of the leadership and the various departments of the Commission. • Duties and responsibilities of the Branches of the Commission in the Provinces. • General provisions. 4.4 “Prime Minister’s Resolution” No. 180/2005, in connection with the Executive Regulations of the Child’s Rights Law No. 45/2002 The Minister of Labour and Social Welfare supervises implementation in coordination with the Supreme Council for Motherhood and Childhood and other ministries concerned with the care of family welfare (for example, the Ministry of Justice, which is in charge of the Juvenile’s Courts in the Republic). Further, Law 45/2002 and Resolution 18/2005 are consistent with the International Convention on the Rights of the Child. The Regulations consist of 92 sections in 7 parts, as under: 1. Title and definitions. 2. Medical care: primary medical care – which involves seven of the serious diseases, and the medical card. 3. Education: nursery schools and education of children. 4. Culture and information: cultural education of children and informationmedia addressed to children.
Yemen
315
5. Social care: kindergardens and alternative care. 6. Care of the working child and child protection offices: care of the handicapped child, children’s clubs and child protection offices. 7. Conclusion provisions. 4.5 50 Yemeni children received from Saudi Authorities About 50 Yemeni children smuggled into Saudi Arabia for work, have been received back by the Social Care Centre in Haradh – at the border between Yemen and Saudi Arabia – from the Saudi authorities. The Centre had contacted the families of the children, to take them back, on condition that they write pledges not to let their children return to Saudi Arabia. The Centre hopes that the Yemeni authorities would cooperate with the Centre and would keep a close watch on the borders to prevent the flow of Yemeni children going to work in Saudi Arabia. 4.6 Arab women’s rights: from words to deeds A Conference took place in SANA’A, from 3-5 December 2005, attended by the Arab States, the European Union and the United States, as well as ten European and Western NGOs. A number of themes were discussed: women’s political participation and the barriers which hinder the full participation of women in having a political identity in the Arab world; whether this participation is related to elections, everyday life or issues of violence against women and how this violence can be stopped; legal support for women’s participation in the judiciary as lawyers, judges and prosecutors, as well as being the beneficiaries of services of law and the judiciary and how women can get these services easily and the right of equality between men and women, as well as the major barriers in the Arab world which deny women that right; enhancement of women’s rights in the development process and and in the economy; and the role of the Arab League in supporting and consolidating women’s rights in development and economy. 4.7 Yemeni women demand equal blood money A number of Yemeni reliable religious sources agreed unanimously that there is no clear-cut legal evidence in the Qur’an/Kitab and Sunna/Hadith that prescribe making “Blood Money” of women “not equal to men”, in homicide cases. They all pointed out that the issue is controversial as amongst religious scholars. But there is no clear-cut evidence – as stated earlier – to prevent “Blood Money/Diyyah” being equal to that of men. In a forum organised by the Speaker of the Yemeni Parliament during the first week of July 2005, a number of religious researchers and scholars stressed the point that this controversy ought to be settled once and for all through intellectual and scientific dialogue. This controversy has been provoked by the provisions of Penal Code No. 93/1994, which provide that woman’s blood money is equal to half of the other man’s blood money. Many specialists
Country Surveys
316
participated in the forum, each with an opinion one way or the other, without resolving the issue, and without suggesting a unified decision. They agreed that this is a “controversial issue, due to the multiplicity of Islamic sects in the Republic of Yemen”. However, human rights and civil society organisations have been waging a campaign to amend the provisions of the Yemeni Penal Code to stipulate equality between women and men as regards blood money, while Mosque Preachers are strongly against any change in the Penal Code in this respect.
5 COMMERCIAL AND INVESTMENT LAWS 5.1 Bi-Lateral agreements 1. Republican Resolution 14 of 2005, ratifying the Cooperation Agreement in the fields of Finance, Taxation and Customs, between Yemen and Lebanon. 2. Republican Resolution 41 of 2005, ratifying the Cooperation Agreement in the field of Land Transport of People and Goods, between Yemen and Lebanon. 3. Republican Resolution 238 of 2005, ratifying the Sea Transport Agreement, between Yemen and Syria. 4. Law 27 of 2005, ratifying the Avoidance of a Double Taxation Agreement, as regards Taxes on Income and Capital, between the Republic of Yemen and the Kingdom of Bahrain. 5. Law 28 of 2005, ratifying the Avoidance of Double Taxation Agreement, as regards Taxes on Income and Capital, between the Republic of Yemen and the Islamic Republic of Pakistan. 6. Law 29 of 2005, ratifying the Avoidance of a Double Taxation Agreement, as regards Taxes on Income and Capital, between the Republic of Yemen and the Islamic Republic of Iran. 7. Law 36 of 2005, approving the Production Sharing Agreement (PSA), between the Yemeni Ministry of Oil and Minerals (MOM) and the Companies of (DNOESE) Insan and Wyfix Hadhramawt Ltd., and (TJ) Hokdings Yemen and Co., for Block 72 in Hadhramawt. 8. Law 37 of 2005, approving the Production Sharing Agreement (PSA), between the Yemeni Ministry of Oil and Minerals (MOM) and Sinopeck International Exploration and Production Corporation, for Block 71 in Hadhramawt. 9. Law 38 of 2005, approving the Production Sharing Agreement (PSA), between the Yemeni Ministry of Oil and Minerals (MOM) and Doaf Energy Co. Ltd., for Block 73 in Hadhramawt. 10. Law 39 of 2005, approving the Production Sharing Agreement (PSA), between the Yemeni Ministry of Oil and Minerals (MOM) and Sinopeck International Exploration and Production Corporation, for Block 69 in Shabwah. 11. Law 40 of 2005, approving the Production Sharing Agreement (PSA), between the Yemeni Ministry of Oil and Minerals (MOM) and the
Yemen
12.
13. 14.
15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.
317
Korean National Oil Corporation and Di-Samsung International Co. Ltd., for Block 70 in Shabwah. Republican Resolution 86 of 2005, ratifying the Cooperation Memorandum in the fields of Oil and Mineral Wealth, between the Yemeni Ministry of Oil and Minerals (MOM) and its Saudi counterpart. Republican Resolution 140 of 2005, ratifying the Cooperation Agreement in the fields of Oil, Gas and Minerals, between the Republic of Yemen and the State of Eritrea. Law 10 of 2005, ratifying the Development Loan Agreement, between the Republic of Yemen and the Islamic Bank for Development, for US$ 10,350,000.00, in Contribution for Financing Hajjah/Kusmah Road Project. Law 33 of 2005, ratifying the Loan Agreement, between the Republic of Yemen and the Arab Fund for Economic and Social Development, for US$ 51 millions, for Financing the 3rd Public Works Project. Law 34 of 2005, ratifying the Loan Agreement, between Yemen and the Chinese Export and Import Bank, for US$ 23,022,000.00, for Financing the Project of Equipments for Testing Containers and Oil Tankers. Republican Resolution 88 of 2005, ratifying the Cooperation Agreement in the field of Procuring and Encouraging Tourism, between Yemen and Indonesia. Republican Resolution 174 of 2005, ratifying the Executive Programme in the field of Tourism Cooperation, for the years 2005/2007, between Yemen and Tunisia. Republican Resolution 179 of 2005, ratifying the Executive Programme in the field of Tourism Cooperation, for the years 2005/2007, between Yemen and Jordan. Republican Resolution 181 of 2005, ratifying the Tourism Cooperation Agreement, between the Republic of Yemen and the State of Eritrea. Republican Resolution 89 of 2005, ratifying the Cooperation Economic Protocol, between Yemen and China. Republican Resolution 90 of 2005, ratifying the Cooperation Agreement in the field of Encouraging and Protecting Investments, between Yemen and Italy. Republican Resolution 144 of 2005, ratifying the Bi-Lateral Reciprocal Cooperation Agreement in the field of Encouraging and Protecting Investments between Yemen and Eritrea. Republican Resolution 139 of 2005, ratifying the Economic and Technical Cooperation Agreement, between Yemen and China. Republican Resolution 39 of 2005, ratifying the Cooperation Protocol in the field of Investments, between the Yemeni Public Investments Authority and its Algerian counter-part. Republican Resolution 206 of 2005, ratifying the Cooperation Agreement in the field of Enhancement and Protection of Investments, between Yemen and South Korea. Republican Resolution 114 of 2005, ratifying the Agricultural Cooperation Agreement, between Yemen and Saudi Arabia.
Country Surveys
318
28. Republican Resolution 25 of 2005, ratifying the Memorandum of Understanding in the field of Agriculture and Irrigation, between Yemen and Iran. 29. Republican Resolution 26 of 2005, ratifying the Memorandum of Understanding in the field of Agriculture, between Yemen and Algeria. 30. Republican Resolution 173 of 2005, ratifying the Framework Cooperation Agreement for Training in the field of Agriculture and Fisheries, between Yemen and Tunisia. 5.2 Republican Resolution 79/2005, in connection with the Organisation of the Establishment, Administration and Supervision of the Industrial Areas This consists of 30 sections in 7 chapters. It is worth while mentioning, however, that the Ministry of Industry and Trade is in charge of the application of the said Resolution. 5.3 The President of the Republic promulgated Law No. 1/2006, in connection with the Regulation of Fishing and Utilisation of the Water Lives and Protection thereof This consists of 67 sections in 6 parts.
6 LABOUR, EMPLOYMENT AND INSURANCE LAW 6.1 Bi-Lateral agreements 1. Republican Resolution 30 of 2005, ratifying the Cooperation Social Activities Agreement, between the Yemeni Ministry of Labour and Welfare and its Algerian counterpart. 2. Republican Resolution 143 of 2005, ratifying the Cooperation National Insurance Agreement, between Yemen and Jordan. 3. Republican Resolution 214 of 2005, ratifying the Memorandum of Understanding in the field of Labour Force and Development of Human Resources, between the Republic of Yemen and the Kingdom of Bahrain. 4. Republican Resolution 215 of 2005, ratifying the Cooperation Agreement in the field of Labour and Welfare, between the Republic of Yemen and the United Arab Emirates. 6.2 Law and Strategy for salaries and wages of the Yemeni civil servants The President of the Republic promulgated on 18 July 2005 Law 43/2005 in connection with Posts, Wages and Salaries. This is the first such law enacted since re-unification on 22 May 1990. It consists of 41 sections in 6 parts.
Yemen
319
7 SOCIAL, EDUCATION, COMMUNITY RELATIONS AND CULTURAL LAWS 7.1 Bi-Lateral agreements 1. Law 10 of 2005, ratifying the Loan Agreement for US$ 65,000,000, between the government of the Republic of Yemen and the International Development Association, to finance the Basic Education Development Project. 2. Republican Resolution 145 of 2005, ratifying the Educational Cooperation Agreement, for the years 2004/2006, between Yemen and China. 3. Republican Resolution 27 of 2005, ratifying the Cooperation Agreement in the field of Technical Education, between Yemen and Sudan. 4. Republican Resolution 176 of 2005, ratifying the Executive Programme in the field of Higher Education, between Yemen and Tunisia. 5. Republican Resolution 177 of 2005, ratifying the Cooperation Agreement in the field of Technical Education and Vocational Training, between Yemen and Jordan. 6. Republican Resolution 209 of 2005, ratifying the Executive Programme of the Educational Cooperation Agreement, for the years 2005/2007, between Yemen and Tunisia. 7. Republican Resolution 208 of 2005, ratifying the Cooperation Agreement in the fields of Social Affairs, Labour and Vocational Training, between Yemen and Syria. 8. Republican Resolution 71 of 2005, ratifying the Memorandum of Understanding in the field of Supporting Health Development, between the Republic of Yemen and the Islamic Republic of Iran. 9. Republican Resolution 200 of 2005, ratifying the Cooperation Protocol in the field of Health, between Yemen and Jordan. 10. Republican Resolution 201 of 2005, ratifying the Cooperation Protocol in the field of Health and Medicines, between Yemen and Egypt. 11. Republican Resolution 178 of 2005, ratifying the Executive Programme of the Cultural Cooperation Agreement, for the years 2005/2007, between Yemen and Jordan. 12. Republican Resolution 180 of 2005, ratifying the Cultural Cooperation, between Yemen and Eritrea. 7.2 Promulgation of Law 26/2005, in connection with the struggle against smoking and treatment of the damage therefrom The President of the Republic promulgated the said Law, consisting of 28 sections in 8 chapters.
320
Country Surveys
7.3 Republican Resolution 80/2005, in connection with the establishment of the Yemeni Centre for Distance-Sensitivity and Systems of Geographical Data This consists of 21 sections in 4 parts. The Centre comes under the supervision of the Ministry of Telecommunications and Information Technology. 7.4 The Prime Minister issued Resolution No. 168/2005 on historical and cultural Protectorates This is in connection with the Declaration that the following areas of the capital/secretariat historical and cultural protectorates become part of the Old City of Sana’a: • The village of Al-Qabel. • The village of Haddah. • The village of Sena’. • The village of ‘Attann. • The village of Bait-bows. • Ae-Riwdhah. • Beer-al-Azabb, built by the Ottoman Turks within its historical perimeter represented by its old wall, in accordance with the map by “Rathjens and Wissmann”, 1929.
321
Iran M. A. Ansari-Pour*
During the period covered by this survey many legal developments occurred either through the interpretation of the Constitution by the Council of Guardians (hereinafter referred to as the CG), or by the enactment of many laws by Parliament and/or by the delivery of several judgments by the Plenary Assembly of the Supreme Court (hereinafter referred to as the PASC). In addition, a number of very important plans, approved by the Head of the Judiciary, are being implemented in order to modernise the judicial system. This survey deals with the most important legal developments which occurred between 21 March 2004 and 31 December 2005.1
1 CONSTITUTIONAL LAW 1.1 Interpretation of the Constitution Under Article 98 of the Constitution, the power to interpret the Constitution has been vested in the CG. Following this provision, a number of Articles of the Constitution were interpreted by the CG in reply to different government authorities. The following Articles are the most important ones. 1.1.1 The first part of Article 112 of the Constitution provides: The Council for Determining the Expediency of the State [hereinafter referred to as the CDES]2 will meet by the order of the Leader to decide what is most expedient in cases where the Council of Guardians considers a bill approved by the Islamic Consultative Assembly to be inconsistent with the principles of Islamic law or the Constitution and the Assembly, by taking into account the expediency of the state, is unable to satisfy the Council of Guardians’ demand.
* LL.B, LL.M, PhD, Formerly Iranian Judge; Chairman, Iranian Law Institute. 1 I.e. from the beginning of 1383 up to 10.10.1384 according to the Iranian calendar. 2 It is Majma‘-i Tashkhis-i Maslahat-i Nizam in Persian.
322
Country Surveys
The above provision was interpreted by the CG in 1383 (2004). The CG stated that, according to Article 112, the CDES can determine the expediency in a bill of Parliament with respect to which the CG has given its opinion and has declared that the whole or part of the bill is inconsistent with Islamic law or with the Constitution. If the CG finds part of a bill ambiguous and asks Parliament to clarify its intent concerning that part so that the CG can declare its opinion, and before Parliament expresses its intent and the CG states its opinion about it, the CDES cannot consider and ratify the bill on the basis of the expediency.3 1.1.2 Article 55 of the Constitution, inter alia, states: in accordance with the procedure specified by law the Auditing Court will inspect and audit all the accounts of the ministries, government institutions and companies as well as other organizations that draw in any way on the general budget of the country, to ensure that no expenditure exceeds approved credits and that all sums are spent for their specified purpose.
The CG was asked by the rector of Tehran University whether the Auditing Court, apart from the allocated budget by government, can inspect and examine other accounts and financial affairs including gifts and donations given to the University. The CG stated that Article 55 applies to the moneys that have been allocated in the national budget and the competence of the Auditing Court in considering and auditing is limited to that extent.4 1.1.3 Article 59 of the Constitution provides: in very important economic, political, social, and cultural matters, the functions of the legislature may be exercised by direct recourse to public opinion through a referendum. Any request for such direct recourse to public opinion must be approved by two-thirds of the members of the Islamic Consultative Assembly.
The CG was asked to express its opinion on whether the provisions of Article 94 of the Constitution apply to a bill passed by Parliament concerning the issue of referendum, the subject matter of Article 59 of the Constitution. The CG stated that legislating for a referendum, the subject matter of Article 59 of the Constitution, is one example of Parliamentary bills and, according to Article 94 of the Constitution, it must be sent to the CG for ratification.5 It should be noted that under Article 94 of the Constitution all legislation or bills passed by Parliament must be sent to the CG. Therefore there is no difference between a bill that deals with social, economic or legal matters and that of a referendum.
3 Ruznami-yi Rasmi (hereinafter referred to as RR, is the Official Gazette of the Islamic Republic of Iran which is published by the Organization of Official Gazette affiliated with the Judiciary), 5.12.1383, No. 17477; Majmu‘ah Qawanin (hereinafter referred to as MQ, is the Collection of Laws which is published annually by the same organisation), 1383, vol. 1 (Section on CG’s Opinions), pp. 9-10. 4 RR, 5.12.1383-17477; MQ, 1383, vol. 1 (Section on CG’s Opinions), pp. 10-11. 5 RR, 5.12.1383-17477; MQ, 1383, vol. 1 (Section on CG’s Opinions), p. 14.
Iran
323
1.2 Supervision of international contracts Article 77 of the Constitution provides that all international treaties, protocols, contracts and agreements must be approved by Parliament. In addition, Article 80 of the Constitution states that any kind of borrowing or lending or grantin-aid by the government must be approved by Parliament. A law which had been passed by Parliament in 1381 (2002) but promulgated in 1384 (2005) relates to the parliamentary supervision of contracts made by the government departments with foreign natural or legal persons.6 It provides that in order to make sure that laws and regulations are observed in making contracts with foreign natural or legal persons, all government departments that make a contract for more than $20,000.000 or its equivalent as loan, usance, buy-back, finance and so on, have to inform the Program and Budget, Auditing and Economic Committees and other relevant committees of Parliament in all stages of those contracts. It is stated that the Ministry of Economic Affairs must, at the end of each year, prepare the list of contracts made by government departments with foreign parties along with the type of contract and its amount and present it to the Economic, Program and Budget, and Auditing Committees of Parliament.
2 LEGAL SYSTEM 2.1 The jury Article 168 of the Constitution provides that political and press offences must be tried by a jury. The manner of the selection of the jury, its qualification and powers, and the definition of political offences, will be determined by law in accordance with Islamic criteria. As noted earlier,7 the jury trial concept has been referred to in the Islamic legal texts but without any further explanation as to the role of the jury, its members and how they are selected. The constitution does not refer to these issues either. In 1384 Parliament adopted a law that provides for the activation of the jury with the intention of implementing the provisions of Article 168 of the Constitution.8 This Act provides that from the date of the adoption of this Act until the revision and amendment of the 1382 Jury Act9 by Parliament and until the preparation of necessary means, such as financial matters, for the enforcement of the 1382 Act, the former Jury Act of 1379 will be enforced for a maximum period of one year.
6 7 8 9
RR, 22.1.1384-17508; MQ, 1383, vol. 1, pp. 532-533. See the previous volume of this Yearbook, vol. 10 (2003-2004), pp. 267-268. RR, 15.6.1384, No. 17631. The 1382 Jury Act was explained earlier in the previous volume of this Yearbook, vol. 10 (20032004), pp. 268-269.
Country Surveys
324
This Act has one Note dealing with the procedure of selecting jurors. It states that every two years and in the seventh month of the year a council consisting of five people from five different organisations (such as the Judiciary, the Ministry of Islamic Guidance, the Islamic Council of the City, etc.) and following the invitation of the Head of the Judiciary or his representative for Tehran and the invitation of the representative of the Head of the Judiciary for other provinces will be convened. The above council would select 21 trustworthy people for Tehran and 14 for other provinces from among different social groups (such as clerics, university professors, medical doctors, engineers, writers, journalists, lawyers, teachers, civil servants, farmers, artists, etc.) as members of the jury. If the members of the jury decreased to ten members or less, the council has to convene within one month and complete the members of the jury. 2.2 Due process of law Parliament adopted a law in 1383 (2004) entitled: Respecting Lawful Freedoms and Protecting Citizens’ Rights Act. This law is a single-Article Act consisting of 15 paragraphs.10 A number of issues have been raised in this Act. For example, in paragraph 1, it has been emphasised repeatedly that in criminal prosecutions, every act or measure must be carried out according to the letter of law. Personal inclinations, abuse of power, resorting to any form of violence and any unnecessary detention must be avoided. Under paragraph 2, passing of sentences must be based on law and they must be restricted to the offender, his joint-principal(s) and his accomplice(s). As long as the offence is not proved in the competent court, the principle of innocence prevails and the accused enjoys protection under the law. According to paragraph 3, the accused must be given the opportunity to introduce his lawyer and to benefit from the opinion of experts. In short, this Act is a repetition of general principles of law regarding the due process of law and observance of moral standards in criminal prosecutions.
3 CIVIL LAW The age of capacity before the revolution was 18 for both boys and girls without differentiating between puberty (bulugh) and prudence (rushd). The Civil Code provisions regarding the age of capacity, in particular Articles 1209 and 1210, were repealed and amended respectively. Consequently, the age of 18 as the age of capacity was abolished. Instead, two different ages as the age of puberty (or majority) were fixed for boys and girls11 but no reference was made to the age of prudence because there is no clear statement in Islamic law about the age of prudence.
10 RR, 2.3.1383, No. 17249; MQ, 1383, vol. 1, pp. 8-10. 11 See Article 1210 (Note 1) of the CC.
Iran
325
Generally speaking, government departments in practice still apply the age of 18 as the age of capacity even though there is no legal provision to support it. People who have reached the age of puberty but not 18 must take legal action for the acquisition of contractual or full capacity. If the court, after examining the claimant, finds that he has reached the age of prudence, then it would rule for his prudence. It is to be noted that, in terms of capacity, a person who has reached the age of puberty but his prudence has not been established is different from a minor. He enjoys a limited capacity.12 He lacks contractual capacity because such a capacity is dependent on both puberty and prudence. On the other hand, a minor has no capacity at all except for a discriminating minor who can accept beneficial offers.13 One of the instances where a person who has reached the age of puberty but not 18 is different from a minor, is his capacity to take legal action. In two different cases, two chambers of the Appeal Court had given conflicting judgments. In the first case where a person under 18 had taken legal action claiming he was unable to pay the legal costs, the court of first instance on the basis that: • the action involved financial matters, • the plaintiff was under 18 and • his prudence had not been proved, ruled that he had no legal capacity to take legal action. This judgment was upheld by the Appeal Court. In the second case, a person under 18 had inflicted an injur y on his victim and consequently he was condemned to pay compensation (diyah). Then he took legal action and claimed that he was unable to pay the compensation immediately and asked the court to rule for the payment of the compensation in instalments. The court accepted the motion and ruled for him. This judgment was upheld by the Appeal Court too. The PASC convened in order to decide which of the above judgments of the Appeal Court represented the law. It ruled that a person under 18 can take legal action and claim his inability to pay the compensation immediately.14 In other words, the PASC upheld the second judgment.
4 COMMERCIAL LAW 4.1 Financial markets Parliament adopted a law in 1383 (early 2005) dealing with the regulation of the unconsolidated financial market.15 It consists of five Articles. The main provisions have been incorporated into Article 1. 12 For example, under Article 1214 of the CC, the contract of a person who has reached the age of puberty but not 18 is not void but voidable. 13 See Articles 1207 and 1212 of the CC. 14 Judgment 668-14.7.1383, in RR, 6.8.1383, No. 17381; MQ, 1383, vol. 1, (Judicial Decisions Section) pp. 12-15. 15 RR, 24.11.1383, No. 17469; MQ, 1383, vol. 1, pp. 425-427.
Country Surveys
326
Article 1 of the Act states that engagement in banking operations by natural or legal persons under any name plus establishment and registration of any business for banking operations, without the permission of the Central Bank, is forbidden. Banking operations, under this Act, consist of being an intermediary between the depositors and borrowers in the form of receiving different kinds of funds, such as savings, deposit and the like, and the granting of loans, credit and other banking facilities as well as issuing electronic payment cards and credit cards. Note 2 of the above Article states that other natural or legal persons who, without having permission from the Central Bank, are engaged in banking operations must, within one month from the entry into force of this law, refer their case along with the required documents to the Central Bank in order to obtain the relevant licence. Otherwise, following the demand of the Central Bank, the financial activity of these persons will be halted. If they have any objection, they can take the case to the court. The Central Bank must, within three months, examine the applications for banking operations and inform the applicant of the result. Where no licence is issued, the Central Bank must inform the applicant of the shortcomings and incompleteness of his application. 4.2 Tenders A law was passed by Parliament in 1383 (2004) referred to as the Holding Tenders Act.16 It consists of 30 Articles. According to Article 1 of this Act, all government departments including the ministries, state companies and organisations (except for armed forces) must observe the provisions of this Act when holding a tender (munaqasah). Under Article 30 of this Act, all other laws and regulations inconsistent with this Act shall be abolished from the date of the adoption of this Act.
5 CRIMINAL LAW 5.1 Abortion Parliament adopted a law in 1384 (2005) entitled the Abortion for Treatment Act.17 It makes the abortion for the treatment of the mother lawful if the following conditions are met: 1. the diagnosis is carried out by three specialised doctors; 2. this diagnosis is approved by the department of Legal Medicine; 3. the diagnosis shows the feotus’s illness in that it is either handicapped or disabled and this would cause hardship to the mother; 4. or the diagnosis shows the illness of the mother in a way that this illness threatens her life;
16 RR, 29.11.1383, No. 17474; MQ, 1383, vol. 1, pp. 432-447. 17 RR, 8.4.1384, No. 17573.
Iran
327
5. the abortion is carried out before the entry of the soul (before four months); and 6. the abortion is carried out with the consent of the mother. Provided that these conditions are met, the medical doctor carrying out the abortion will face no criminal responsibility. 5.2 Human trafficking Parliament adopted a law in 1383 (2004) entitled: Combating the Human Trafficking Act. It consists of eight Articles.18 Some of the salient provisions of this Act are referred to here. Article 1 of the Act defines human trafficking as the export or import or transit of an individual or individuals from the country’s border by force or coercion or threat or deception, or by abuse of power or abuse of position or abusing the situation of the mentioned individual or individuals, for the purpose of sex, or using their organs, or slavery and/or marriage. It is added that this includes the delivery or transfer or hiding or providing any assistance for the hiding of the individual or individuals (mentioned above) after crossing the border with the same purpose. Article 2 states that the following acts will be considered to be human trafficking: a. the establishment or management of a band or group with the intention of committing the offences mentioned in Article 1 of this Act; b. taking (exporting or importing or transit), transport or transfer of an individual or individuals in an organised way for sex or other purposes, the subject matter of Article 1 of this Act even if it is with their consent; and c. taking (exporting or importing or transit), unlawful transport or transfer of individuals for the purpose of sex even if it is with their consent. Article 3 deals with the punishment for human trafficking. It states that if the act committed is one of the offences mentioned in the Islamic Penal Code, the offender will be sentenced to the punishments stated there. Otherwise they will be sentenced from two to ten years’ imprisonment and a fine equal to twice the profit obtained through this crime or twice the money which has been promised to the offender by the victim or a third party. This Article has three notes. Under Note 1, if the victim is less than 18 years of age and the offence committed is not one of the examples of muharabah (terrorising people and denying their freedom by use of weapon) or ifsad fi alard (corrupting the earth),19 the offender will be sentenced to the maximum punishment. Under Note 2, the punishment for the attempt of human trafficking is from six months to two years’ imprisonment. Under Note 3, the punishment for the accomplices, depending on the case concerned, is from two to five years’ imprisonment plus a fine equal to twice the profit obtained through this offence or twice the money which has been promised to the offender by the victim or a third party.
18 RR, 11.6.1383, No. 17334; MQ, 1383, vol. 1, pp. 53-54. 19 For the definition of these offences, see Articles 183-188 of the Islamic Penal Code.
Country Surveys
328
Article 7 states that if an Iranian national commits one of the offences mentioned in this Act, outside the Iranian territory, he will be subject to the provisions of this Act.
6 CRIMINAL PROCEDURE 6.1 Extension of the Criminal Procedure The Criminal Procedure (which is referred to as the Procedure of General and Revolution Courts Code [Second Book] hereinafter referred to as the PGRCC) was adopted in 1378 (1999) to be implemented on an experimental basis.20 Parliament again extended the experimental implementation of this Code for another two years.21 6.2 Limitation of actions The Plenary Assembly of the Supreme Court dealt with the application of limitation of actions to the offence of bribery and to the violation of foreign exchange regulations in two different cases.22 Before dealing with these two cases, a reference should be made to Article 173 of the PGRCC that deals with the limitation of actions and Articles 16 and 17 of the Islamic Penal Code (hereinafter referred to as the IPC) defining ta‘zir and deterrent punishments. Article 173 of the PGRCC first provides that in crimes the punishment of which is a deterrent punishment or security and corrective measure and from the date of the commission of the crime until the expiry of the following periods no prosecution has been brought against the offender, or from the date of the first step for the prosecution of the offender until the following periods no judgment has been delivered, the prosecution will be terminated. The periods are as follows: a. where the maximum punishment for the offence is more than three years’ imprisonment or a fine is more than one million rials, after the expiry of ten years; b. where the maximum punishment for the offence is less than three years’ imprisonment or a fine up to one million rials, after the expiry of five years; c. where the punishment for the crime is not imprisonment or fine, after the expiry of three years. Article 16 of the IPC states: “ta‘zir is a corrective measure or punishment the kind and amount of which has not been fixed in Islamic law and it has been left to the discretion of the judge, such as imprisonment, fine …”.23 Article 17 of the IPC states: 20 21 22 23
RR, 18.7.1378, No. 15911. RR, 10.10.1384, No. 17727. RR, 19.5.1384, No. 17608. This definition comes from Islamic law. See M.H. Najafi, Jawahir al-kalam, vol. 41, 7th Edn., Beirut, 1981, pp. 254-255.
Iran
329
a deterrent punishment is a corrective measure or punishment which is fixed by the state in order to protect order and to observe public interest against the violation of the state’s regulations and rules, such as imprisonment, fine, closure of the business, cancellation of licence, deprivation of social rights …
The question was whether the punishment for these offences (bribery and violation of foreign exchange regulations) was a ta‘zir punishment to which the limitation of actions does not apply or it was a deterrent punishment to which the limitation of actions applies. 6.2.1 Bribery case Two conflicting judgments had been given by two chambers of the Appeal Court regarding the application of the limitation of actions to the offence of bribery. This question was referred to the PASC to create a precedent in this regard. The PASC stated that the founder of those crimes punished by deterrent punishments is the state. According to Article 17 of the IPC adopted in 1370, the deterrent punishments are enforced in order to maintain order and observe social interest against violations of government regulations. In accordance with Note 1 of Article 2 of the PGRCC adopted in 1378: t‘azir punishment consists of a punishment that has not been fixed in Islamic law for the commission of a prohibited act or omission of a duty without fixing its kind and its amount. Islamic law has stated the law relating to the paying and taking of bribes. Under the IPC provisions relating to bribery adopted in 1370, and Article 3 of the Intensification of Punishment of Bribery, Embezzlement and Fraud 1367, bribery by government employees for any reason has been prohibited expressly. In Notes 2 and 5 of the latter Act the punishment for bribery has been referred to as a ta‘zir punishment. Therefore deterrent punishments, introduced by the state, cannot be applied to bribery. In addition, under Islamic law, there is a ta‘zir punishment for bribery and consequently the provisions of Article 173 of the PGRCC on limitation of actions do not cover bribery.24 6.2.2 Foreign exchange case In this case again two chambers of the Appeal Court had given two conflicting judgments regarding the application of the limitation of actions in relation to the violation of foreign exchange regulations. This issue was also sent to the PASC to set a precedent. The PASC held that the Assigning the Foreign Exchange Transactions to the National Bank of Iran Act and the Monetary and Banking Act 1351 are some of the state regulations which have been adopted for the observance of public interest, and protection of national interest, and the punishments stated in the above Acts are deterrent punishments. Under Article 173 of the PGRCC, those crimes the punishment of which is of the kind of deterrent punishment 24 Judgment 677-14.4.1384.
Country Surveys
330
or security and corrective measures, provided that the conditions mentioned in the above Article are met, are subject to the limitation of actions.25
7 PUBLIC INTERNATIONAL LAW During the period covered by this survey, the Iranian government entered into several multilateral and bilateral treaties. The following are the most important developments in this regard. 1. Parliament allowed the government to accede to the 1988 Protocol to the International Convention for the Safety of Life at Sea (SOLAS), 1974.26 2. Parliament allowed the government to accede to the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of 31 October 1958.27 3. Parliament ratified an agreement between Iran and the Algerian government relating to judicial cooperation and assistance in criminal cases.28 It consists of 19 Articles. 4. Parliament allowed the government to accede to the International Treaty on Plant Genetic Resources for Food and Agriculture, approved in 2001.29 This Treaty consists of 35 Articles. Under Article 22 of the Treaty if the dispute relating to the interpretation or execution of the treaty between the parties to this Treaty is not settled through negotiation and mediation, then two other ways for the settlement of dispute (arbitration according to the procedure stated in part 1 of Annex 2 of the Treaty and referring the issue to the International Court of Justice) are proposed in Paragraph 3 of this Article. Each party can choose one or both of these ways. The Iranian Parliament approved both ways provided that the provisions of Article 139 of the Constitution are observed.30 5. Parliament allowed the government to accede to the World Health Organization’s Framework Convention on Tobacco Control.31 Parliament added two Notes (tabsirah) to this Act. The first one states that the acceptance of arbitration, the subject matter of paragraph 2 of Article 27 of the above Convention, by the government, is subject to the observance of Article 139 of the Constitution. Note 2 states that the Ministry of Health as the responsible department for the control of tobacco, the subject matter of Article 5 of the Convention, has to draw up national and comprehensive strategies for the control of tobacco and then execute them. It also has responsibility to review these strategies periodically and in order to reach this purpose, to implement, in 25 26 27 28 29 30
Judgment 678-28.4.1384. RR, 4.7.1383, No. 17353; MQ, 1383, vol. 1, pp. 65-69. RR, 27.12.1383, No. 17496; MQ, 1383, vol. 1, pp. 519-530. RR, 17.12.1383, No. 17487; MQ, 1383, vol. 1, pp. 448-453. RR, 4.5.1384, No. 17595. Article 139 of the Constitution, inter alia, states: “in cases where one party to the dispute is a foreigner, or where it is an important case, the approval of the Assembly must also be obtained”. 31 RR, 29.8.1384, No. 17693.
Iran
331
coordination with other government departments, educational and executive programmes for the reduction of the use of tobacco. 6. Parliament allowed the government to accede to the Protocol of 1988 relating to the International Convention on Load Lines (1966).32 7. Parliament allowed the government to accede to the Kyoto Protocol to the U.N. Framework Convention on Climate Change.33 Parliament added that the government can use Article 18 of the Protocol and 14 of the Convention with respect to the settlement of disputes if it is preceded by the approval of Parliament. 8. Parliament ratified the Framework Convention for the Protection of the Marine Environment of the Caspian Sea.34
8 FUTURE PLANS FOR THE JUDICIARY AND LEGAL SYSTEM Apart from the above legal developments, the Head of the Judiciary has taken several measures for the improvement of the Judiciary and implementation of justice. One of these is the Second Plan for Judicial Development and its Executive Programme.35 This plan started in 1383 (2004) and ends in 1387 (2008). Another measure is the introduction of a very important executive regulation dealing mainly with having access to a lawyer in legal proceedings.36 Article 1 of the said executive regulation is the core of this regulation and provides that in all civil cases, the legal proceedings (taking legal action and the defence) must be conducted by attorney-at-laws on behalf of the parties to the dispute.
32 33 34 35 36
RR, 8.4.1384, No. 17573. RR, 8.4.1384, No. 17573. RR, 8.4.1384, No. 17573. RR, 21.1.1384, No. 17507. RR, 16.3.1384, No. 17553.
332
333
Morocco Michèle Zirari-Devif *
Cette chronique présente les textes publiés au Bulletin officiel en 2005. L’activité législative n’a pas été très importante au cours de cette année contrairement à ce qu’elle avait été pendant les années précédentes. On relève principalement la publication en langue française de la traduction officielle du code de la famille, une loi relative à la communication audiovisuelle, deux lois relatives l’une au transport ferroviaire, l’autre à l’organisation et la gestion des ports, une loi relative la responsabilité civile en matière de dommages nucléaires, et des décrets pour l’application du code du travail promulgué et publié en 2003 et pour l’application de la loi sur la couverture médicale de base promulguée et publiée en 2002.
1 LIBERTES PUBLIQUES 1.1 Loi n° 77-03 relative à la communication audiovisuelle1 Selon son préambule, la loi n° 77-03 relative à la communication audiovisuelle constitue un maillon important dans le processus visant à mettre en place le cadre juridique de la libéralisation de ce secteur qui a commencé avec le dahir portant création de la Haute autorité audiovisuelle et le décret loi prévoyant la suppression du monopole de l’Etat en matière de radiodiffusion et de télévision.2 La loi comporte quatre vingt cinq articles, répartis en cinq titres. Le premier est consacré aux définitions et principes généraux. Il pose le principe de la liberté de la communication audiovisuelle. Sous réserve de la préservation du caractère pluraliste des courants d’expression, les sociétés de communication audiovisuelle conçoivent librement leur programme et en portent l’entière responsabilité. Le spectre des fréquences radioélectriques fait partie du * Professeur à la faculté des sciences juridiques, économiques et sociales de Rabat-Agdal, Université Mohammed V, Rabat, Maroc. 1 Promulguée par dahir n° 1-04-257 du 7 janvier 2005, Bulletin officiel du 3 février 2005, p. 117. 2 Voir Yearbook of Islamic and Middle Eastern Law, Vol. 9, 2002-2003, p. 351.
334
Country Surveys
domaine public de l’Etat. Les fréquences ne peuvent être utilisées que par les titulaires d’une licence ou d’une autorisation délivrée par la haute autorité de la communication audiovisuelle. L’usage de ces fréquences constitue un mode d’occupation privatif du domaine public de l’Etat. Ce titre prévoit les obligations des opérateurs notamment fournir une information pluraliste et fidèle, respecter la législation en matière de droits d’auteur, donner dans la composition de leur offre de programme, la préférence à la production audiovisuelle nationale…Il leur interdit également de porter atteinte aux valeurs fondamentales constitutionnelles, à la moralité publique, de faire l’apologie de la violence, etc.. Le titre II est consacré à la communication audiovisuelle privée. Il prévoit les conditions d’octroi de la licence (nécessaire pour la diffusion de services de communication par voie hertzienne, satellites, réseaux câblés ou tout autre mode technique), de l’autorisation (nécessaire pour émettre à l’occasion de manifestations d’une durée limitée) et la déclaration (qui doit être effectuée pour l’installation de réseaux pour la diffusion de services de communication audiovisuelle desservant un ensemble de foyers). Le titre III traite du secteur public de la communication audiovisuelle. Il prévoit le contenu du cahier des charges que doivent respecter les sociétés nationales de l’audiovisuel et prévoit les droits et devoirs de ces sociétés qui sont définies comme les opérateurs de communication audiovisuelle constitués sous forme de sociétés anonymes dont le capital est détenu en majorité ou en totalité par l’Etat. Le titre IV est consacré à des dispositions diverses: accès des opérateurs au domaine public, réception des programmes par les particuliers, conservation des programmes, publicité, dispositions pénales. Le titre V intitulé «dispositions transitoires et finales» prévoit l’entrée en vigueur de la loi, les délais d’élaboration des cahiers des charges et les abrogations. 1.2 Décret pris pour l’application du dahir réglementant le droit d’association3 Pour une association, la reconnaissance d’utilité publique présente un certain nombre d’avantages, notamment fiscaux. Dans le dahir de 1958 réglementant le droit d’association, la reconnaissance d’utilité publique était accordée discrétionnairement par dahir et les demandes des associations restaient le plus souvent sans suite. Une des revendications des associations était donc la mise en place d’une procédure plus transparente pour cette reconnaissance. En 2002, une modification du dahir de 19584 annonçait que les conditions nécessaires à la reconnaissance d’utilité publique des associations seraient fixées par voie réglementaire. Le décret n° 2-04-969 du 10 janvier 2005, fixe les conditions que doit remplir l’association et prévoit que la demande est présentée au gouverneur qui, dans un délai de trois mois à compter du dépôt de la demande, fait effectuer une enquête et transmet le dossier au secrétaire 3 Décret n° 2-04-969 du 10 janvier 2005, Bulletin officiel du 4 août 2005, p. 583. 4 Voir Yearbook of Islamic and Middle Eastern Law, Vol. 9, 2002-2003, pp. 350-351.
Morocco
335
général du gouvernement. Ce dernier saisit pour avis le ministre des fiances et l’autorité gouvernementale concernée par les activités de l’association. Le dossier est transmis au Premier ministre et la reconnaissance se fait par décret. Selon l’article 9 du dahir de 1958 modifié en 2002, il doit être statué sur la demande dans un délai de six mois à compter de son dépôt ; Toutefois, en cas de refus, le décret n° 2-04-969 ne prévoit pas dans quelle forme et par qui ce refus est communiqué au demandeur, ce qui laisse ouverte la question des possibilités de recours dans cette hypothèse.
2 ORGANISATION JUDICIAIRE 2.1 Création des sections des affaires de la famille dans les tribunaux de première instance C’est une loi n° 73-03 modifiant le dahir du 15 juillet 1974 fixant l’organisation judiciaire du Royaume,5 qui prévoit ces nouvelles structures, créées pour accompagner la réforme du droit de la famille. Ces sections connaissent: des affaires de statut personnel, des successions, de l’état civil et des affaires d’homologation et des mineurs, de la kafala et de tout ce qui a trait à la sauvegarde et à la protection de la famille.
Elles ont pour mission à la fois de super viser toutes les procédures administratives relatives aux affaires de la famille, et de trancher les litiges relatifs à l’application du nouveau code.6 2.2 Modification du code de procédure civile7 Une loi n° 72-03 promulguée le 3 février 2004, modifie le code de procédure civile. Cette modification accompagne la création des sections des affaires de la famille dans les tribunaux de première instance, afin d’harmoniser les dispositions procédurales avec celles du code de la famille et de simplifier et d’accélérer la procédure. La loi rend obligatoire l’intervention du ministère public comme partie principale dans toutes les affaires relatives aux personnes et à la famille; celuici peut prendre toutes les mesures qu’il juge utiles pour assurer la protection des enfants et celle du conjoint exclu abusivement du domicile conjugal. Deux types de procédures coexistent désormais: l’une purement administrative soumet à une à autorisation du tribunal l’exercice de certains droits (mariage du mineur, répudiation, polygamie…). Les décisions prises 5 Loi n° 73-03 modifiant et complétant le dahir portant loi n° 1-74-338 du 15 juillet 1974 fixant l’organisation judiciaire du Royaume, Bulletin officiel du 6 octobre 2005, p. 708. 6 Voir Mohamed Loukili et Michèle Zirari-Devif, «le nouveau code marocain de la famille, une réforme dans la continuité», dans ce même numéro du Yearbook of Islamic and Middle Eastern Law. 7 Loi n° 72-03 modifiant le code de procédure civile, promulguée par dahir n° 1-04-23 du 3 février 2004, Bulletin officiel du 6 octobre 2005, p. 708.
Country Surveys
336
dans ce cadre ne sont susceptibles d’aucun recours. Une partie des commentateurs de la nouvelle législation soutient qu’il faut assimiler ces décisions à des décisions administratives susceptibles de recours devant les tribunaux administratifs, mais cette interprétation ne semble pas faire école. Une autre procédure est purement contentieuse et tranche les conflits familiaux.
3 DROIT ADMINISTRATIF 3.1 Loi n° 52-03 relative à l’organisation, la gestion, et l’exploitation du réseau ferroviaire national8 Selon son texte de présentation, cette loi a pour objectif, «le développement du secteur du transport ferroviaire par l’intervention de l’initiative privée à travers la mise en œuvre de formule de partenariat Etat/secteur privé». Jusque là le transport ferroviaire relevait de l’Office National des chemins de fer (ONCF), établissement public, placé sous la tutelle du ministère des transports. Dans son titre premier, la loi distingue entre le réseau ferroviaire et son exploitation. Le réseau ferroviaire est constitué par les infrastructures que la loi définit avec précision (terrains d’emprise, ouvrages d’art, passages à niveau, etc.). Le réseau fait partie du domaine public de l’Etat. Le classement et le déclassement dans le domaine public ferroviaire s’effectuent conformément à la législation relative au domaine public de l’Etat. L’exploitation s’entend de la gestion des infrastructures et de l’exploitation technique et commerciale de services de transport de marchandises et de voyageurs. Le titre II de la loi crée une société anonyme dénommée Société Marocaine des Chemins de Fer (SMCF). Le capital de la société est entièrement souscrit par l’Etat. Une convention de concession sera passée entre l’Etat et cette société pour la gestion des infrastructures ferroviaires du réseau national et pour l’exploitation technique et commerciale de ce réseau. En contrepartie de la mise à disposition des biens du réseau ferroviaire concédé, la SMCF sera soumise envers l’Etat à des obligations qui seront définies par la convention de concession. La SMCF sera seule habilitée à passer avec les tiers des conventions pour la construction, la gestion ou l’utilisation des infrastructures. 3.2 Loi n° 15-02 relative aux ports et portant création de l’Agence nationale des ports et de la société d’exploitation des ports9 Selon le préambule de cette loi la refonte de l’organisation et de la gestion des ports est motivée par le fait que – le secteur portuaire doit s’adapter, d’une part aux mutations socio-économiques caractérisées par des exigences de développement internes au pays, par des engagements du pays dans des accords de libre échange et par les nouveaux 8 Promulguée par dahir n° 1-04-256 du 7 janvier 2005, Bulletin officiel du 20 janvier 2005, p. 67. 9 Promulguée par dahir n°1-05-146 du 23 novembre 2005, Bulletin officiel du 15 décembre 2005, p. 846
Morocco
337
contextes de la mondialisation et de la globalisation du commerce et d’autre part, aux nouvelles contraintes et évolutions économiques, institutionnelles, technologiques et environnementales du transport maritime.
Le titre premier traite du régime juridique des ports. Ceux-ci font partie du domaine public. Le plan d’aménagement interne de chaque port est établi par l’Agence nationale des ports. L’exploitation peut faire l’objet d’autorisation ou de concession. Le titre II crée l’Agence nationale des ports, établissement public placé sous la tutelle de l’Etat dont la mission est de veiller au développement, à la maintenance et à la modernisation des ports, ainsi qu’à leur gestion. Le titre III crée la société d’exploitation des ports dont l’objet est d’exercer, concurremment avec les titulaires d’une autorisation ou d’une concession d’exploitation, l’exploitation des activités portuaires et, le cas échéant, la gestion des ports. Une convention de concession sera passée entre l’Agence et la société qui fixera la liste des activités portuaires exercées par la société et les infrastructures et superstructures objet de la concession.
4 DROIT DE LA FAMILLE ET DES SUCCESSIONS 4.1 Code de la famille10 Il s’agit de la traduction officielle en langue française du code de la famille publié en langue arabe en février 2004.11 4.2 Textes d’application du code de la famille Plusieurs textes d’application du code de la famille ont été publiés au Bulletin officiel en même temps que le code. 4.2.1 Décret n° 2-04-22 du 3 février 2004 relatif à la composition et aux attributions du conseil de famille12 Ce décret remplace un décret du 26 décembre 1994 relatif à la constitution et aux attributions du conseil de famille, conseil créé en 1993 par un dahir portant loi modifiant et complétant la Moudawwana. Le nouveau texte n’apporte guère de changements sinon une diminution des attributions du conseil de famille. Le Conseil est composé du juge, président, du père, de la mère, du tuteur testamentaire ou datif et de quatre membres désignés par le juge, à égalité entre les parents du côté du père et du côté de la mère. Ce conseil a des attributions uniquement consultatives. Il
10 Loi n° 70-03 portant code de la famille, promulguée par dahir n° 1-04-22 du 3 février 2004, Bulletin officiel du 6 octobre 2005, p. 667. 11 Le code a été présenté dans Yearbook of Islamic and Middle Eastern Law, Vol. 10. Sur le code on peut voir également dans ce volume «Le nouveau code marocain de la famille…». 12 Bulletin officiel du 6 octobre 2005, p. 702.
Country Surveys
338
«assure l’arbitrage en vue de réconcilier les époux et donne son avis sur toutes les questions liées aux affaires de la famille». Dans la pratique, jusqu’à présent, le conseil de famille est très rarement réuni et joue un rôle tout à fait négligeable. 4.2.2 Arrêtés du ministre de la justice n° 269-04 à 275-04 du 3 février 200413 • fixant la forme et le contenu du formulaire spécial de la demande d’autorisation pour instrumenter l’acte de mariage • complétant la liste des documents constitutifs du dossier de l’acte de mariage ainsi que son contenu • fixant les informations devant être portées sur l’extrait d’acte de mariage • fixant la forme et le contenu du registre réservé à la transcription du libellé de l’acte de mariage • fixant les informations que doit contenir l’extrait du document de divorce sous contrôle judiciaire ou l’extrait de la décision de divorce judiciaire, de résiliation ou de nullité de l’acte de mariage • fixant les informations que doit contenir l’extrait du document de reprise en mariage • fixant la forme et le contenu du registre des actes prévu à l’article 250 du code de la famille.14 4.2.3 Arrêtés conjoints du ministre de la justice et du ministre de l’intérieur n° 321-04 et 377-04 du 2 mars 200415 • fixant les indications que doit contenir l’attestation administrative relative aux fiancés • fixant le contenu et les modalités de délivrance du certificat prénuptial.
5 DROIT CIVIL 5.1 Loi n° 12-02 relative la responsabilité civile en matière de dommages nucléaires16 Cette loi a pour objet d’assurer la réparation civile des dommages que pourraient causer certaines utilisations pacifiques de l’énergie nucléaire, conformément aux dispositions de la convention de Vienne relative à la responsabilité civile en matière de dommages nucléaires du 21 mai 1963. La loi comporte six chapitres. Le premier «dispositions générales» pose des définitions qui sont reprises de la convention de Vienne.
13 Bulletin officiel du 6 octobre 2005, p. 702. 14 L’article 250 du code de la famille prévoit la tenue d’un registre relatif aux biens des mineurs et des interdits. 15 Bulletin officiel du 6 octobre 2005, p. 706. 16 Promulguée par dahir n° 1-04-278 du 7 janvier 2005, Bulletin officiel du 20 janvier 2005, p. 64.
Morocco
339
Le deuxième chapitre intitulé «De la nature de la responsabilité civile» pose le principe de la responsabilité de l’exploitant et détermine précisément qui doit être considéré comme exploitant. La responsabilité est une responsabilité objective, détachée de toute idée de faute et pèse sur l’exploitant même en cas de dommage causé par une matière nucléaire volée, perdue, larguée ou abandonnée. Le troisième chapitre est consacré aux exceptions à la responsabilité civile. Aucune responsabilité n’incombe à l’exploitant pour les accidents résultant directement d’actes de conflit armé, guerre civile ou insurrection. Il n’est pas non plus responsable des dommages causés à l’installation elle-même. Le texte prévoit un partage de responsabilité ou l’exonération totale de l’exploitant, lorsque le dommage résulte en tout ou en partie d’une faute grave ou d’une faute intentionnelle de la personne qui l’a subi. Le chapitre IV traite de la couverture de la responsabilité civile. Il impose à tout exploitant d’une installation nucléaire d’avoir une assurance ou garantie financière et fixe le montant de la responsabilité civile de l’exploitant, Le chapitre V pose les règles relatives au recours et aux actions en réparation. Le dernier chapitre «dispositions pénales» prévoit des sanctions pénales pour les exploitants qui n’auraient pas contracté les assurances ou garanties prévues au chapitre trois.
6 DROIT DU TRAVAIL ET DE LA SÉCURITÉ SOCIALE 6.1 Décrets d’application du code du travail17 Dix sept décrets du 29 décembre 200418 et un décret du 13 juillet 2005.19 Il serait long et fastidieux d’entrer dans le détail de ces textes réglementaire. Ils sont de deux natures: les uns fixent la composition d’un certain nombre de conseils prévus par le code du travail, les autres fixent les conditions de travail et de rémunération des salariés. Un des objectifs du code du travail promulgué en 2003 est la promotion du dialogue social. Dans ce cadre, il a prévu de nombreux organes consultatifs, tant au niveau local que national, dont la mise en place demeurait suspendue à la publication de textes réglementaires relatifs à leur composition et à leur fonctionnement. Cinq décrets sont consacrés au conseil supérieur de la promotion de l’emploi, à la commission provinciale chargée d’examiner et de statuer sur les demandes de licenciement des salariés et la fermeture partielle ou totale des entreprises ou des exploitations, au conseil de médecine du travail et de prévention des risques professionnels, à la commission spécialisée relative aux entreprises d’emploi temporaire et au conseil de la négociation collective.
17 Loi n° 65-99 relative au code du travail, promulguée par dahir n° 1-03-194 du 11 septembre 2003, Bulletin officiel du 6 mai 2004, p. 600. Le code a été présenté dans Yearbook of Islamic and Middle Eastern Law, Vol. 10 18 Bulletin officiel du 6 janvier 2005, pp. 16-29 19 Bulletin officiel du 21 juillet 2005, p. 559
Country Surveys
340
Les autres décrets fixent les conditions de travail des salariés (travaux interdits aux mineurs de moins de 18 ans, aux femmes et aux salariés handicapés, repos hebdomadaire, liste des jours fériés, délai de préavis pour la rupture unilatérale du contrat de travail à durée indéterminée, etc.). Ces textes n’apportent pas de modifications majeures par rapport à la législation antérieure. 6.2 Décrets d’application de la loi sur la couverture médicale de base Un décret du 16 février 2005, neuf décrets du 18 juillet 2005 et un décret du 30 novembre 2005.20 La loi n° 65-00 portant code de la couverture médicale de base21 subordonnait son entrée en vigueur à publication des décrets d’application «nécessaires à la mise en place des organes d’administration et de gestion», en l’occurrence l’Agence nationale de l’assurance maladie, la Caisse nationale des organismes de prévoyance sociale et la Caisse nationale de sécurité sociale. Les décrets d’application publiés en 2005 permettent donc l’entrée en vigueur de cette loi. Ils concernent la modification du conseil d’administration de la Caisse nationale de sécurité sociale lorsqu’il délibère sur les questions relatives à l’Assurance maladie obligatoire, les conditions d’affiliation et d’immatriculation, le taux de couverture des prestations médicales, le taux des cotisations, les ressources de l’Agence nationale de l’assurance maladie et la modification du conseil d’administration de la Caisse nationale des organismes de prévoyance sociale.
7 DROIT DE L’ENVIRONNEMENT 7.1 Décret n° 2-04-553 du 24 janvier 2005 relatif aux déversements, écoulements, rejets, dépôts directs ou indirects dans les eaux superficielles ou souterraines22 La loi sur l’eau promulguée en 199523 consacre un chapitre à la lutte contre la pollution des eaux. Son article 52 prévoit [qu’]aucun déversement, écoulement, rejet, dépôt direct ou indirect dans une eau superficielle ou une nappe souterraine susceptible d’en modifier les caractéristiques physiques, y compris thermiques et radioactives, chimiques, biologiques ou bactériologiques, ne peut être fait sans autorisation préalable accordée après enquête par l’agence de bassin. Cette autorisation donne lieu au paiement d’une redevance dans les conditions fixées par voie réglementaire.
Le décret du 24 janvier 2005 fixe, dans son premier chapitre, les conditions dans lesquels sont autorisés les déversements. La demande d’autorisation est 20 Respectivement aux Bulletins officiels du 3 mars 2005, p. 327, du 18 août 2005, pp. 607-616, et du 15 décembre 2005, p. 883. 21 promulguée par dahir n° 1-02-296 du 3 octobre 2002, Bulletin officiel du 21 novembre 2002, p. 1333, voir Yearbook of Islamic and Middle Eastern Law, Vol. 9, p. 39. 22 Bulletin officiel du 17 février 2005, p. 162. 23 Voir Yearbook of Islamic and Middle Eastern Law, Vol. 2, 1995, p. 97.
Morocco
341
adressée à l’agence de bassin qui, après une enquête publique prend la décision qui doit fixer notamment les analyses à faire par l’attributaire, les valeurs limites des rejets et les modalités de recouvrement de la redevance. Le deuxième chapitre définit la valeur limite des rejets comme la valeur limite d’un paramètre indicateur de la pollution qui ne doit pas être dépassé dans le sens de la détérioration de la qualité de l’eau en cas de déversements. Cette valeur limite est fixée par arrêté conjoint des autorités gouvernementales chargées de l’intérieur, de l’eau, de l’environnement, de l’industrie et de toute autre autorité gouvernementale concernée. Le chapitre trois prévoit les modalités de fixation et de paiement de la redevance.
342
343
Tunisia Afif Gaigi *
L’activité législative a été relativement faible au cours de l’année 2005, objet du présent rapport. Quelques modifications ont été apportées à d’anciens textes concernant particulièrement le droit des sociétés commerciales, le droit pénal et le droit de procédure civile et commerciale.
1 DROIT IMMOBILIER 1.1 Loi n° 2005-4 du 11 mai 2005 complétant le décret du 4 juin 1957 relatif aux opérations immobilières La loi a ajouté à l’article 7 du décret du 4 juin 1957 trois paragraphes qui dispensent de l’autorisation administrative préalable les opérations effectuées par les étrangers pour l’acquisition, ou le bail des terrains et des locaux bâtis dans les zones industrielles et des terrains dans les zones touristiques et ce, pour la réalisation de projets économiques. Cette dispense vise à alléger les procédures d’acquisition par les étrangers de biens immobiliers visant à développer l’industrie et le tourisme et à faciliter l’investissement étranger.
2 DROIT COMMERCIAL 2.1 Loi n° 2005-12 du 26 Janvier – 2005 modifiant quelques dispositions du code des sociétés commerciales La loi a réduit le montant minimum du capital social des SARL, SA, et sociétés en commandite par action, désormais ce montant ne doit pas être inférieur à mille dinars pour les SARL, 5000 dinars pour les SA et les sociétés en commandite par action.
* Avocat à la Cour de Cassation – Enseignant universitaire.
Country Surveys
344
2.2 Loi n° 2005-65 du 27 Juillet 2005, modifiant et complétant le code des sociétés commerciales Les modifications introduites par cette loi ont visé les articles du code des sociétés commerciales relatifs aux procédures et aux effets de la dissolution de ces sociétés et aux sanctions encourues en cas de non respect des dispositions prévues par la loi. La loi a également modifie les dispositions du code des sociétés concernant la gestion de la société à responsabilité limitée ainsi que les dispositions relatives à la constitution de la société anonyme à sa gestion et à son organisation.
3 DROIT DE PROCEDURE CIVILE ET COMMERCIALE 3.1 Loi n° 2005-79 du 4 Août 2005, relatif à la modification du paragraphe de l’article 425 du code de procédure civile et commerciale La nouvelle version du paragraphe 6 de l’article 425 du code de procédure civile et commerciale prévoit qu’en cas d’absence d’enchérisseur le tribunal doit ajourner l’audience d’adjudication à une date ultérieure et rabaisser le montant de la mise à prix de 40 %. La nouvelle audience doit se tenir dans un délai ne dépassant pas soixante jours. Cette date doit être annoncée quinze jours à l’avance par les moyens de publicité prévus par le code. 3.2 Loi n° 2005-78 du 4 août 2005, modifiant et complétant le code des droits réels promulgués par la loi n° 65 - 5 du 12 février 1965 Les modifications prévues par la présente loi ont concerné les articles relatifs à la copropriété des immeubles divisés par étages ou par appartements et plus précisément les articles organisant le syndicat des propriétaires. La présente loi a notamment doté le syndic de moyens de procédure lui permettant de contraindre les copropriétaires récalcitrant de payer les charges communes. La loi a également concerné certaines dispositions relatives au syndic immobilier professionnel en ce qui touche sa définition son remplacement et les sanctions pouvant lui être infligées en cas de manquement à ses obligations. La loi a également modifié les dispositions du code des droits réels concernant la transformation de la destination initiale de l’immeuble et de son usage.
4 DROIT PENAL 4.1 La loi n° 2005-46 du 6 juin 2005 portant approbation de la réorganisation de quelques dispositions du code pénal et leur rédaction. La présente loi a réorganisé le code pénal sans porter aucune modification au fond.
Tunisia
345
4.2 La loi n° 2005-45 du 6 Juin 2005 modifiant et complétant certains articles du code pénal. La loi a supprimé la peine de bannissement prévue aux article 68.70 et 71 du code pénal cette loi a modifié l’article 16 et le paragraphe 10 de l’article 53 du code pénal, relatifs à la peine d’amende qui ne doit pas être inférieure à un dinar en matière de contravention, et à 60 dinars dans tous les autres cas et si la peine d’amende est seule encourue, elle peut être réduite à un dinar quelque soit la juridiction saisie de l’affaire. La loi a modifié les articles 250, 251 et le paragraphe premier de l’article 252 du code pénal concernant la capture, la détention et la séquestration d’une personne. Les nouveaux articles prévoient une peine d’emprisonnement de 10 ans et de 20.000 dinars d’amende. La peine est aggravée en la portant à vingt ans d’emprisonnement et à 20000 dinars d’amende si la capture, arrestation, détention ou séquestration a été accompagnée de violences ou de menaces, ou si cette opération a été exécutée à main armée ou par plusieurs auteurs. 4.3 Loi n° 2005-93 du 3 octobre, complétant quelques dispositions du code de procédure pénale en imposant désormais l’examen médicopsychologique de l’inculpé si celui-ci encourt une peine d’emprisonnement supérieure ou égale à 10 ans
5 DROIT DES ASSURANCES 5.1 Loi n° 2005-86 du 15 août 2005 La présente loi a réorganisé le code des assurances en introduisant notamment un régime d’indemnisation des préjudices résultant des atteintes aux personnes dont les accidents de la circulation. Le nouveau régime impose l’indemnisation de toutes les victimes sans égard quant à la responsabilité mais en introduisant un barème applicable selon les termes de la loi et ouvrant la voie à une procédure amiable toute en laissant la possibilité d’un recours par la voie judiciaire en donnant au juge une possibilité d’appréciation du montant de l’indemnité dan la limite de 15 pour cent.
6 LOIS DIVERSES 6.1 Loi n° 2005-13 du 26 janvier 2005 modifiant et complétant le code forestier La loi règlemente le contrat de cession du domaine forestier de l’état pour cause d’utilité publique, elle a fixé la durée maximale de l’occupation temporaire à cinq ans renouvelable par périodes d’un an. L’autorité chargée d’accorder l’autorisation d’occupation est le ministère chargé des forêts. La loi a redéfini les crimes de chasse et leur régime juridique dans le but de conserver l’équilibre et la durabilité des écosystèmes.
346
Country Surveys
6.2 Loi n° 2005-15 du 16 février, 2005, relative à l’organisation des métiers La loi a pour objet d’organiser le secteur des métiers, de le développer et de le promouvoir en vue d’inciter l’investissement et l’emploi et d’améliorer la compétitivité des activités de métiers de façon à contribuer à la croissance du rythme de développement conformément aux orientations générales de développement. 6.3 Loi n° 2005-17 du 1er mars 2005 relative aux métaux précieux Cette loi a défini la notion de métaux précieux, et elle a organisé les opérations d’exportation des ouvrages en métaux précieux, les opérations d’importation et de distribution de l’or. La même loi prévoit les infractions pouvant porter atteinte à ses dispositions ainsi que leurs sanctions. 6.4 Loi n° 2005-50 du 27 Janvier 2005, relative à la zone économique exclusive aux larges des côtes Tunisiennes Cette loi prévoit l’institution d’une zone économique exclusive au large de côtes tunisiennes. La république tunisienne exerce dans cette zone, ses droits souverains aux fins d’exploration, d’exploitation, de conservation, de gestion et de protection des ressources naturelles biologiques ou non biologiques ainsi que toutes autres compétences prévues par la convention des nations unies sur le droit de la mer de 1982. 6.5 Loi n° 2005-60 du 18 Juillet 2005 imodifiant et complétant la loi n° 91 -64 du 29 Juillet 1991 relative à la concurrence et aux prix La loi a concerné l’institution d’une commission dénommée conseil de la concurrence, qui jouit de la personnalité morale et de l’autonomie financière et dont le budget est rattaché pour ordre au ministère chargé du commerce. Le conseil de la concurrence est chargé d’élaborer des requêtes aux pratiques, anticoncurrentielles et de donner des avis sur les demandes de consultation présentées par le ministère chargé du commerce. La nouvelle loi prévoit que le conseil de la concurrence peut, sur rapport du rapporteur, général et après avoir entendu le commissaire du gouvernement, se saisir d’office des pratiques anticoncurrentielles sur le marché et ses décisions sont susceptibles d’appel devant le tribunal administratif conformément à la loi 72-40 du 1er juin 1972. 6.6 Loi n° 2005-83 du 15 août 2005 relative à la promotion et à la protection des personnes handicapées. Cette loi vise à garantir l’égalité des chances entre les personnes handicapées et les autres personnes ainsi que leur promotion et leur protection contre toutes formes de discrimination.
Tunisia
347
Loi n° 2005-94 du 18 octobre 2005 relative aux sociétés mutuelles et services agricoles La loi a prévu les règles de constitution, de fonctionnement des différentes sociétés mutuelles de services agricoles. 6.7 Loi n° 2005-96 du 18 octobre 2005 relative au renforcement de la sécurité des relations financières La loi a modifié les dispositions du code des sociétés commerciales dans le but de rendre la désignation d’un commissaire aux comptes obligatoire de manière plus large. Cette désignation est obligatoire dans les sociétés anonymes. Dans les autres formes de sociétés la loi accorde certaines dispenses selon les conditions qu’elle prévoit. Elle accorde désormais la possibilité à tout associé ou à plusieurs associés détenant le cinquième du capital social dans une SARL de demander par voie d’ordonnance au juge compétent de désigner un commissaire aux comptes. La loi a également cherché à renforcer le contrôle des comptes des sociétés, leur transparence, la responsabilité de leurs organes de contrôle et de direction, de la politique de divulgation de leur état financier, avec des dispositions particulières applicables aux sociétés faisant appel public à l’épargne. La dite loi a par ailleurs prévu des dispositions spécifiques pour le renforcement du rôle du conseil du marché financier dans l’exercice de ses missions et ce notamment en lui donnant accès à toute information lors des investigations qu’il peut mener auprès de toute personne physique ou morale sans la possibilité de lui opposer le secret professionnel. 6.8 Loi n° 2005-95 du 18 octobre 2005, relative à l’élevage et aux produits animaliers 6.9 Loi n° 2005-89 du 3 octobre 2005, portant organisation de l’activité de plongée 6.10 Loi n° 2005-90 du 3 octobre 2005, relative aux parcs urbains et notamment à la concession pouvant être accordée à des privés pour l’exploitation de ces parcs 6.11 Loi n° 2005-91 du 3 octobre, portant encouragement du secteur privé à recruter les diplômés de l’enseignement supérieur 6.12 Loi n° 2005-92 du 3 octobre 2005, modifiant et complétant la loi n° 9470 du 20 juin 1994, portant institution d’un système d’accréditation des organismes d’évaluation de la conformité.
Part III Selected Documents
350
351
Text of the Iraqi Constitution We the sons of Mesopotamia, land of the prophets, resting place of the holy imams, the leaders of civilisation and the creators of the alphabet, the cradle of arithmetic: on our land, the first law put in place by mankind was written; in our nation, the most noble era of justice in the politics of nations was laid down; on our soil, the followers of the prophet and the saints prayed, the philosophers and the scientists theorised and the writers and poets created. Recognizing God’s right upon us; obeying the call of our nation and our citizens; responding to the call of our religious and national leaders and the insistence of our great religious authorities and our leaders and our reformers, we went by the millions for the first time in our history to the ballot box, men and women, young and old, on January 30 2005, remembering the pains of the despotic band’s sectarian oppression of the majority; inspired by the suffering of Iraq’s martyrs – Sunni and Shiite, Arab, Kurd and Turkomen, and the remaining brethren in all communities – inspired by the injustice against the holy cities in the popular uprising and against the marshes and other places; recalling the agonies of the national oppression in the massacres of Halabja, Barzan, Anfal and against the Faili Kurds; inspired by the tragedies of the Turkomen in Bashir and the suffering of the people of the western region, whom the terrorists and their allies sought to take hostage and prevent from participating in the elections and the establishment of a society of peace and brotherhood and cooperation so we can create a new Iraq, Iraq of the future, without sectarianism, racial strife, regionalism, discrimination or isolation. Terrorism and “takfir” (declaring someone an infidel) did not divert us from moving forward to build a nation of law. Sectarianism and racism did not stop us from marching together to strengthen our national unity, set ways to peacefully transfer power, adopt a manner to fairly distribute wealth and give equal opportunity to all. We the people of Iraq, newly arisen from our disasters and looking with confidence to the future through a democratic, federal, republican system, are determined – men and women, old and young – to respect the rule of law, reject the policy of aggression, pay attention to women and their rights, the elderly and their cares, the children and their affairs, spread the culture of diversity and defuse terrorism. We are the people of Iraq, who in all our forms and groupings undertake to establish our union freely and by choice, to learn yesterday’s lessons for tomorrow, and to write down this permanent constitution from the high values and ideals of the heavenly messages and the developments of science and human civilization, and to adhere to this constitution, which shall preserve for Iraq its free union of people, land and sovereignty.
Selected Documents
352 CHAPTER ONE: BASIC PRINCIPLES
Article (1): The Republic of Iraq is an independent, sovereign nation, and the system of rule in it is a democratic, federal, representative (parliamentary) republic. Article (2): 1st – Islam is the official religion of the state and is a basic source of legislation: (a) No law can be passed that contradicts the undisputed rules of Islam. (b) No law can be passed that contradicts the principles of democracy. (c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution. 2nd – This constitution guarantees the Islamic identity of the majority of the Iraqi people and the full religious rights for all individuals and the freedom of creed and religious practices. Article (3): Iraq is a multiethnic, multi-religious and multi-sect country. It is part of the Islamic world and its Arab people are part of the Arab nation. Article (4): 1st – Arabic and Kurdish are the two official languages for Iraq. Iraqis are guaranteed the right to educate their children in their mother tongues, such as Turkomen or Assyrian, in government educational institutions, or any other language in private educational institutions, according to educational regulations. 2nd – the scope of the phrase “official language” and the manner of implementing the rules of this article will be defined by a law that includes: (a) issuing the official gazette in both languages. (b) speaking, addressing and expressing in official domains, like the parliament, Cabinet, courts and official conferences, in either of the two languages. (c) recognition of official documents and correspondences in the two languages and the issuing of official documents in them both. (d) the opening of schools in the two languages in accordance with educational rules. (e) any other realms that require the principle of equality, such as currency bills, passports, stamps. 3rd – Federal agencies and institutions in the region of Kurdistan use both languages. 4th – The Turkomen and Assyrian languages will be official in the areas where they are located. 5th – Any region or province can take a local language as an additional official language if a majority of the population approves in a universal referendum. Article (5): The law is sovereign, the people are the source of authority and its legitimacy, which they exercise through direct, secret ballot and its constitutional institutions. Article (6): Government should be rotated peacefully through democratic means stipulated in this constitution. Article (7): 1st – Entities or trends that advocate, instigate, justify or propagate racism, terrorism, “takfir” (declaring someone an infidel), sectarian cleansing, are banned, especially the Saddamist Baath Party in Iraq and its symbols, under any name. It will not be allowed to be part of the multilateral political system in Iraq, which should be defined according to the law. 2nd – The state will be committed to fighting terrorism in all its forms and will work to prevent its territory from being a base or corridor or an arena for its (terrorism’s) activities. Article (8): Iraq shall abide by the principles of good neighbourliness and by not
Text of the Iraqi Constitution
353
intervening in the internal affairs of the other countries, and it shall seek to peacefully resolve conflicts and shall establish its relations on the basis of shared interests and similar treatment and shall respect its international obligations. Article (9): 1st – (a) The Iraqi armed forces and security apparatuses consist of the components of the Iraqi people, keeping in consideration their balance and representation without discrimination or exclusion. They fall under the command of the civil authority, defend Iraq, don’t act as a tool of oppression of the Iraqi people, don’t intervene in political affairs and they play no role in the rotation of power. (b) Forming military militias outside the framework of the armed forces is banned. (c) The Iraqi armed forces and its personnel – including military personnel working in the Defence Ministry and in any offices or organizations subordinate to it – are not allowed to run as candidates in elections for political office. They should not engage in election campaigning for candidates and should not take part in activities forbidden by the regulations of the Defence Ministry. This ban includes the activities of the previously mentioned individuals acting in their personal or professional capacities, but does not include their right to vote in the elections. (d) The Iraqi national intelligence service shall gather information and assess threats to national security and offers advice to the Iraqi government. It is under civilian control; it is subjected to the supervision of the executive authority; it operates according to the law and to recognized human rights principles. (e) The Iraqi government shall respect and implement Iraq’s international commitments regarding the non-proliferation, non-development, non-production, and non-use of nuclear, chemical, and biological weapons. Associated equipment, material, technologies, and communications systems for use in the development, manufacture, production, and use of such weapons shall be banned. 2nd – Military service shall be regulated by a law. Article (10): The holy shrines and religious sites in Iraq are religious and cultural entities. The state is committed to maintain and protect their sanctity and ensure the exercising of (religious) rites freely in them. Article (11): Baghdad is the capital of the republic of Iraq. Article (12): 1st – The flag, emblem and national anthem of Iraq shall be fixed by law in a way that symbolizes the components of the Iraqi people. 2nd – Medals, official holidays, religious and national occasions and the official calendar shall be fixed by law. Article (13): 1st – This constitution shall be considered as the supreme and highest law in Iraq. It shall be binding throughout the whole country without exceptions. 2nd – No law that contradicts this constitution shall be passed; any passage in the regional constitutions and any other legal passages that contradict this constitution shall be considered null.
Selected Documents
354 CHAPTER TWO: RIGHTS AND FREEDOMS PART ONE: RIGHTS FIRST: Civil and political rights.
Article (14): Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, colour, religion, sect, belief, opinion or social or economic status. Article (15): Every individual has the right to life and security and freedom and cannot be deprived of these rights or have them restricted except in accordance to the law and based on a ruling by the appropriate judicial body. Article (16): Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this. Article (17): 1st – Each person has the right to personal privacy as long as it does not violate the rights of others or general morality. 2nd – The sanctity of the home is protected. They cannot be entered or searched or violated except by judicial decision and in accordance with the law. Article (18): 1st – An Iraqi is anyone who has been born to an Iraqi father or an Iraqi mother. 2nd – Iraqi nationality is a right to all Iraqis and it is the basis of their citizenship. 3rd – (a) It shall be forbidden to withdraw the Iraqi citizenship from an Iraqi by birth for any reason. Those who have had their citizenship withdrawn have the right to reclaim it and this should be regulated by law. (b) Iraqi citizenship shall be withdrawn from naturalized citizens in cases stated by law. 4th – Every Iraqi has the right to carry more than one citizenship. Those who take a leading or high-level security position must give up any other citizenship. This shall be regulated by law. 5th – Iraqi citizenship may not be granted for the purposes of a policy of population settlement disrupting the demographic makeup in Iraq. 6th – Citizenship regulations shall be determined by law, and the proper courts should hear suits arising from the regulations. Article (19): 1st – The judiciary is independent, with no power above it other than the law. 2nd – There is no crime and no punishment except by the text (of law). And there is no punishment except for an act that the law considers a crime at the time of its commission. No punishment can be enacted that is heavier than the punishment allowed at the time of the crime’s commission. 3rd – Trial by judiciary is a right protected and guaranteed to all. 4th – The right to defence is holy and guaranteed in all stages of investigation and trial. 5th – The accused is innocent until his guilt is proven in a just, legal court. The accused cannot be tried for the same accusation again after he has been freed unless new evidence appears. 6th – Every individual has the right to be treated in a just manner in all judicial and administrative procedures. 7th – Court sessions will be open unless the court decides to make them secret. 8th – Punishment is for individuals.
Text of the Iraqi Constitution
355
9th – Laws do not apply retroactively unless otherwise has been legislated, and this exception does not include laws of taxes and duties. 10th – Punitive law shall not be applied retroactively unless it is best for the defendant. 11th – The court shall appoint an attorney to defend defendants charged with a felony or a misdemeanour who don’t have an attorney and it shall be at the state’s expense. 12th – (a) (Arbitrary) detention shall not be allowed. (b) Arrest or imprisonment is not allowed in places other than those designated for that according to prison laws that are covered by health and social services and are under the control of the state. 13th – Preliminary investigation papers shall be shown to the concerned judge no later than 24 hours from the time of the detention of the accused and cannot be extended except once and for same duration. Article (20): Citizens, male and female, have the right to participate in public matters and enjoy political rights, including the right to vote and run as candidates. Article (21): 1st – An Iraqi shall not be handed over to foreign bodies and authorities. 2nd – Political asylum to Iraq shall be regulated by law and the political refugee shall not be turned over to a foreign body or forcefully returned to the country from which he has fled. 3rd – Political asylum shall not be granted to those accused of committing international or terror crimes or to anyone who has caused Iraq harm. SECOND: Economic, social and cultural rights Article (22): 1st – Work is a right for all Iraqis in a way that guarantees them a good life. 2nd – The law regulates the relation between employees and employers on an economic basis, while keeping in consideration rules of social justice. 3rd – The state guarantees the right to form or join syndicates or professional unions. This shall be regulated by law. Article (23): 1st – Private property is protected and the owner has the right to use it, exploit it and benefit from it within the boundaries of the law. 2nd – Property may not be taken away except for the public interest in exchange for fair compensation. This shall be regulated by law. 3rd – (a) An Iraqi has the right to ownership anywhere in Iraq and no one else has the right to own real estate except what is exempted by law. (b) Ownership with the purpose of demographic changes is forbidden. Article (24): The state shall guarantee the freedom of movement for workers, goods and Iraqi capital between the regions and the provinces. This shall be regulated by law. Article (25): The state shall guarantee the reforming of the Iraqi economy according to modern economic bases, in a way that ensures complete investment of its resources, diversifying its sources and encouraging and developing the private sector. Article (26): The country shall guarantee the encouragement of investments in the different sectors. This shall be regulated by law. Article (27): 1st – Public property is sacrosanct, and its protection is the duty of every citizen. 2nd – Regulations pertaining to preserving and administrating state property, the conditions set for using it and the cases when giving up any of the property may be allowed shall be regulated by law.
Selected Documents
356
Article (28): 1st – Taxes and fees shall not be imposed, amended, collected or eliminated except by law. 2nd – Low-income people should be exempted from taxes in a way that guarantees maintaining the minimum level necessary for a living. This shall be regulated by law. Article (29): 1st – (a) The family is the foundation of society and the state should preserve its (the family’s) existence and ethical and religious value. (b) The state shall guarantee the protection of motherhood, childhood and old age and shall take care of juveniles and youths and provide them with agreeable conditions to develop their capabilities. 2nd – Children have the right to upbringing, education and care from their parents; parents have the right to respect and care from their children, especially in times of want, disability or old age. 3rd – Economic exploitation of children in any form is banned and the state shall take measures to guarantee their protection. 4th – Violence and abuse in the family, school and society shall be forbidden. Article (30): 1st – The state guarantees social and health insurance, the basics for a free and honourable life for the individual and the family – especially children and women – and works to protect them from illiteracy, fear and poverty and provides them with housing and the means to rehabilitate and take care of them. This shall be regulated by law. Article (31): 1st – Every Iraqi has the right to health service, and the state is in charge of public health and guarantees the means of protection and treatment by building different kinds of hospitals and health institutions. 2nd – Individuals and associations have the right to build hospitals, dispensaries or private clinics under the supervision of the state. This shall be regulated by law. Article (32): The state cares for the disabled and those with special needs and guarantees their rehabilitation to integrate them in society. This shall be regulated by law. Article (33): 1st – Every individual has the right to live in a correct environmental atmosphere. 2nd – The state guarantees protection and preservation of the environment and biological diversity. Article (34): 1st – Education is a main factor for the progress of society and it is a right guaranteed by the state. It is mandatory in the primary school and the state guarantees fighting illiteracy. 2nd – Free education is a right for Iraqis in all its stages. 3rd – The state encourages scientific research for peaceful purposes in a way that benefits humanity and it promotes excelling, creativity and the different manifestations of excellence. 4th – Private and national education is guaranteed and regulated by law. PART TWO: FREEDOMS Article (35): 1st – (a) The freedom and dignity of a person are protected. (b) No one may be detained or investigated unless by judicial decision. (c) All forms of torture, mental or physical, and inhuman treatment are forbidden.
Text of the Iraqi Constitution
357
There is no recognition of any confession extracted by force or threats or torture, and the injured party may seek compensation for any physical or mental injury that is inflicted. 2nd – The state is committed to protecting the individual from coercion in thought, religion or politics, and no one may be imprisoned on these bases. 3rd – Forced labour, slavery and the commerce in slaves is forbidden, as is the trading in women or children or the sex trade. Article (36): The state guarantees, as long as it does not violate public order and morality: 1st – the freedom of expressing opinion by all means. 2nd – the freedom of press, publishing, media and distribution. 3rd – freedom of assembly and peaceful protest will be organized by law. Article (37): 1st – Freedom to establish and belong to political organizations and parties is guaranteed, and it will be organized by law. 2nd – No person can be forced to join or remain a member of a political party or organization. Article (38): The freedom of communications and exchanges by post, telegraph, telephone and by electronic and other means is guaranteed. They will not be monitored or spied upon or revealed except for legal and security necessity in accordance with the law. Article (39): Iraqis are free in their adherence to their personal status according to their own religion, sect, belief and choice, and that will be organized by law. Article (40): 1st – The followers of every religion and sect are free in: (a) the practice of their religious rites, including the (Shiite) Husseiniya Rites. (b) the administration of religious endowments and their affairs and their religious institutions, and this will be organized by law. 2nd – The state guarantees freedom of worship and the protection of its places. Article (41): Every individual has freedom of thought and conscience. Article (42): 1st – The Iraqi citizen has freedom of movement and travel and residence within Iraq and outside it. 2nd – No Iraqi can be exiled or forced out or forbidden to return to his nation. Article (43): 1st – The state is keen to strengthen the role of civil society groups and to support, develop them and preserve their independence in accordance with peaceful means to realize legitimate goals. This shall be regulated by law. 2nd – The state is keen to advance Iraqi tribes and clans and it cares about their affairs in accordance with religion, law and honourable human values and in a way that contributes to developing society and it forbids tribal customs that run contrary to human rights. Article (44): All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don’t run contrary to the principles and rules of this constitution. Article (45): Restricting or limiting any of the freedoms and liberties stated in this constitution may only happen by, or according to, law and as long as this restriction or limitation does not undermine the essence of the right or freedom. [Article (46) not in text]
Selected Documents
358 CHAPTER THREE: THE FEDERAL AUTHORITIES PART ONE: THE LEGISLATIVE AUTHORITY
Article (47): The federal legislative authority is made up of the Council of Representatives and the Council of Union. FIRST: The Council of Representatives (Parliament). Article (48): 1st – The Council of Representatives is made up of a number of members at a proportion of one seat for every 100,000 people from the population of Iraq. They represent the entire Iraqi people and are elected by general, direct, secret ballot, and they take care to represent all groups of people. 2nd – A candidate for membership in the Council of Representatives must be a fully qualified Iraqi. 3rd – Conditions for candidates and voters and everything connected to elections will be regulated by law. 4th – The Council of Representatives will promulgate a law dealing with replacing of its members when they resign or are removed or die. 5th – It is not permitted to hold membership in the Council of Representatives and another official position. Article (49): Members of the Council of Representatives shall take the constitutional oath in front of the council before starting their work, as follows: “I swear by God almighty to carry out my legal duties and responsibilities with dedication and devotion and to preserve the independence and sovereignty of Iraq and to look after the interests of its people and to see to the safety of its land, sky, water, wealth and democratic, federal system and to work to preserve the public and private freedoms and the independence of the judiciary and to abide by honestly and impartially implementing the legislation. God is the witness of what I say.” Article (50): The Council of Representatives shall establish an internal system to regulate its work. Article (51): 1st – The Council of Representatives should determine the correctness of the membership of a member by a two-third majority within 30 days of the registering of an objection. 2nd – The council’s decision may be challenged before the Supreme Federal Court within 30 days of the day it was issued. Article (52): 1st – Sessions of the Council of Representatives shall be public unless it is necessary to do otherwise. 2nd – Sessions reports shall be published in the way the council sees fit. Article (53): The president of the republic calls on the council to convene by a presidential decree within 13 days of the date that the results of the general elections have been certified. The session shall be held under the chairmanship of the oldest member, to elect the president of the council and his deputies. Extensions for more than the previously mentioned period are not allowed. Article (54): In its first session, the council shall elect by absolute majority its president, then a first deputy and a second deputy by direct, secret balloting.
Text of the Iraqi Constitution
359
Article (55): 1st – The duration of the council’s cycle is four calendar years, starting with the first session and ending by the end of the fourth year. 2nd – The election of a new Council of Representatives takes place 45 days before the cycle ends. Article (56): The Council of Representatives has two legislative seasons a year, running for eight months. Internal rules will determine how they shall be held. The season in which the general budget is submitted to the council shall not end before it is approved. Article (57): 1st – The president of the republic, the prime minister, the president of the Council of Representatives or 50 members of the council may call for an extraordinary session, and the meeting shall be confined to the issues that have made it necessary to call for the session. 2nd – The legislative season for the Council of Representatives may be extended for no longer than 30 days to accomplish the tasks that require this, based on a request from the president of the republic, the prime minister, the president of the Council of Representatives or 50 members. Article (58): 1st – Quorum for sessions of the Council of Representatives shall be reached by the attendance of the absolute majority of its members. 2nd – Decisions shall be made in the Council of Representatives by simple majority, as long as it has not been stated otherwise. Article (59): The Council of Representatives is given the following duties: 1st – Legislating federal laws. 2nd – (a) Examining draft laws submitted by 10 of the council’s members or by one of its specialized committees. (b) Examining draft laws suggested by the president of the republic and the prime minister. 3rd – Overseeing the performance of the executive authority. 4th – Certifying treaties or international agreements by a two-thirds majority of the members of the Council of Representatives, as will be regulated by law. 5th – Approving the appointments of: (a) the head and members of the Federal Cassation Court, the head of the General Prosecutors Office and the head of the Judiciary Inspection Department by absolute majority, based on the recommendation of the Supreme Judicial Council. (b) ambassadors and those with special ranks, based on the recommendation of the Cabinet. (c) the army chief of staff, his deputies and those who hold the title of division leader and up, the head of the intelligence service, based on the recommendation of the Cabinet. 6th – (a) Questioning the president of the republic based on a request that mentions the reason for questioning, passed by an absolute majority of the Council of Representatives. (b) Relieving the president of the republic of his duties by absolute majority of the members of the Council of Representatives after he has been convicted from the Supreme Federal Court in one of the following cases: 1 – Violating the constitutional oath. 2 – Violating the constitution. 3 – Grand treason. 7th – (a) A member of the Council of Representatives has the right to ask the prime minister and the ministers questions about any subject that falls under any their specialties, and each has the right to answer the members. He/she who asks the question is the only one who has the right to comment on the answer.
360
Selected Documents
(b) At least 25 members of the Council of Representatives may propose a general topic for discussion to clarify the policy or performance of the Cabinet or one of the ministries, and it is then presented to the president of the Council of Representatives, and the prime minister or the ministers set a date to come before the Council of Representatives to discuss it. (c) A member of the Council of Representatives, with the approval of 25 members, may direct an interpellation to the prime minister or the ministers to hold them accountable for the affairs under their specialty. Discussing the interpellation may not take place before seven days from the date it was submitted. 8th – (a) The Council of Representatives may withdraw confidence from a minister by absolute majority, and he/she is considered removed from the date of the withdrawal of confidence. The issue of confidence in a minister can only be put forth at his request or because of a request signed by 50 members as a result of discussing an interpellation directed to him. The council may not decide on the request except after at least seven days from the day it has been submitted. (b) 1 – The president of the republic may submit a request to the Council of Representatives to withdraw confidence from the prime minister. 2 – The Council of Representatives, based on a request from one-fifth of its members, may vote to withdraw confidence from the prime minister. This request may not be submitted except after an interpellation directed to the prime minister and after at least seven days from the submission of the request. 3 – The Council of Representatives decides the withdrawal of confidence from the prime minister by absolute majority of its members. (c) The Cabinet shall be dissolved in the case that confidence is withdrawn from the prime minister. (d) In the case of a vote withdrawing confidence from the whole Cabinet, the prime minister and ministers remain in their positions to run the daily affairs for a period no longer than 30 days until a new Cabinet is formed. (e) The Council of Representatives has the right to question and relieve the officials of independent associations from their duties according to the procedures relating to the ministers and by absolute majority. 9th – (a) Approving the declaration of war and a state of emergency by a two-thirds majority, based on a joint request by the president of the republic and the prime minister. (b) The state of emergency may be declared for 30 days, which may be extended by approving it each time. (c) The prime minister shall be given the necessary powers to enable him to run the country’s affairs during the period of a declaration of war or a state of emergency. These powers shall be regulated by law in a way that does not run contrary to the constitution. (d) The prime minister presents to the Council of Representatives the measures adopted and the results during the period of a declaration of war or a state of emergency within 15 days from the time they have ended. Article (60): 1st – The Cabinet presents the general budget bill and the final accounting statement to the Council of Representatives for approval. 2nd – The Council of Representatives has the right to rearrange between the parts of the general budget, reduce its total amount of money and it may, when necessary, propose to the Cabinet to increase general costs. Article (61): 1st – The rights and privileges given to the president of the Council of Representatives and his deputies and the members of the council shall be fixed by law.
Text of the Iraqi Constitution
361
2nd – (a) A member of the Council of Representatives enjoys impunity that covers the opinions he expresses during the time of convening (the council); he shall not be sued before courts for this. b) A member may not be arrested during the duration of the council’s cycle unless he is accused of a felony and by the approval of the absolute majority of the members that he be stripped of his immunity or if he was arrested red-handed. Article (62): 1st – The Council of Representatives shall be dissolved by the absolute majority of its members, based on a request from one third of its members or a request from the prime minister and with the approval of the president of the republic. The council may not be dissolved while interpellating the prime minister. 2nd – The president of the republic calls for a general election in the country no later than 60 days after the council of representatives has been dissolved. In that case, the Cabinet is considered dissolved and it continues to run the daily affairs. SECOND: The Council of Union Article (63): 1st – A legislative council called the “Council of Union” will be established and will include representatives of regions and provinces to examine bills related to regions and provinces. 2nd – The makeup of the council, the conditions for membership and all things related to it will be organized by law. PART TWO: THE EXECUTIVE AUTHORITY Article (64): The federal executive authority consists of the president of the republic and the Cabinet. It carries out its authorities based on the constitution and the law. FIRST The President Article (65): The president of the republic is the president of the country and the symbol of the nation’s unity and represents the sovereignty of the country and oversees the guarantees of adherence to the constitution, the preser vation of Iraq’s independence and unity and the security of its territory, in accordance to the law. Article (66): The candidate for the president’s post must: 1st – be Iraqi by birth from Iraqi parents. 2nd – be legally competent and have reached the age of 40. 3rd – have a good reputation and political experience and be known for his integrity, rectitude, justice and devotion to the homeland. 4th – not have been convicted of a crime that violates honour. Article (67): The rules of nomination for the president’s post shall be regulated by law. Article (68): 1st – The Council of Representatives selects from among the candidates a president of the republic by a two-thirds majority. 2nd – If no single candidate gets the required majority, the two candidates with the highest votes will compete and whoever wins a majority of votes in the second round is declared president of the republic.
Selected Documents
362
Article (69): The president of the republic is sworn in in front of the Council of Representatives, using the wording mentioned in article 49 in the constitution. Article (70): 1st – The term of president of the republic is limited to 4 years. 2nd – The Council of Representatives elects a new president for the republic, three months before the end of the former president’s term. Article (71): The president of the republic enjoys the following powers: (a) issuing special amnesty, upon a recommendation from the prime minister, to pardon those convicted in international crimes, terrorism, financial or administrative corruption or crimes against personal rights. (b) endorsing treaties and international agreements following approval by the Council of Representatives. (c) endorsing and issuing laws enacted by the Council of Representatives. They are considered validated 15 days after the date they were sent to him. (d) calling for the elected Council of Representatives to convene within a period not exceeding 15 days from the date that election results are ratified, and in other cases stated in the constitution. (e) awarding medals and badges upon recommendation of the prime minister and in accordance with the law. (f) receiving ambassadors. (g) issuing republican protocols. (h) endorsing execution verdicts issued by the proper courts (i) taking leadership of the armed forces for ceremonial and commemoration purposes. (j) practicing any other presidential powers mentioned in the constitution. Article (72): The law determines the salary and allowances for the president of the republic. Article (73): 1st – The president of the republic can present a written resignation to the prime minister, and it is considered valid after seven days of the date it is lodged to the Council of Representatives. 2nd – A «deputy» of the president of the republic replaces the president during his absence. 3rd – The deputy of the president of the republic replaces the president of the republic when the post is empty for any reason, and the Council of Representatives has to elect a new president within a period not exceeding 30 days from the date the post is vacant 4th – In the case when the post of the president of the republic is vacant, the president of the Council of Representatives replaces the president if there is no deputy for him, and a new president should be elected in a period not exceeding 30 days from the time the position is vacant, according to the laws of the constitution. SECOND: The Cabinet. Article (74): 1st – The president assigns the candidate of the parliamentary majority to form a Cabinet during the first 15 days from the date of the first session of the Council of Representatives. 2nd- The prime minister is assigned to name members of his Cabinet within a period of 30 days, at the longest, from the date of the assignment. 3rd – The president assigns a new candidate to be the prime minister within 15 days if the prime minister assigned from the cabinet during the period mentioned in the 2nd Clause fails.
Text of the Iraqi Constitution
363
4th – The assigned prime minister presents the names of the members of his cabinet and its ministerial platform to the Council of Representatives. He is considered to have won confidence when his ministers are approved individually and his ministerial platform is approved by an absolute majority. 5th – The president will take up the assigning of another candidate to form a cabinet within 15 days if the Cabinet does not win confidence. Article (75): 1st – The prime minister must meet the conditions set for the president of the republic. He must have a university degree or an equivalent and must be no younger than 35. 2nd – Ministers must meet the same conditions set for candidates to the Council of Representatives. A minister must have a university degree or an equivalent. Article (76): The prime minister is the direct executive responsible for the general policy of the nation, the general commander of the armed forces and carries out the administration of the Cabinet and presides over its sessions. The prime minister has the right to remove ministers, with the consent of the Council of Representatives. Article (77): The prime minister and the ministers carry out the constitutional oath of office before the Council of Representatives in the manner laid out in Article (49) of the constitution. Article (78): The Cabinet carries out the following duties: 1st – planning and implementing the general policy of the state; general plans; supervising the work of the ministers and offices not subordinate to a ministry. 2nd – proposing draft laws. 3rd – issuing regulations, instructions and decisions to implement the laws. 4th – preparing the draft of the general budget and the final accounting statement and development plans. 5th – recommending to the Council of Representatives for approval the appointments of undersecretaries of ministers, ambassadors, those who have special ranks; the army chief of staff, his deputies and those who are division leaders or higher; the head of the national intelligence service and the heads of the security apparatuses. 6th – negotiating treaties and international agreements and signing them or designating someone to sign. Article (79): 1st – The president of the republic becomes the acting prime minister when the position is empty for any reason. 2nd – The president of the republic must name another prime minister within no more than 15 days and in accordance with the provisions of Article 74 in this constitution. Article (80): The salaries and allowances of the prime minister and the ministers and those at their rank shall be fixed by law. Article (81): The responsibility of the prime minister and the ministers before the Council of Representatives shall be collective and personal. Article (82): 1st – The work of the security apparatuses and the intelligence service shall be fixed by law; their duties and powers shall be specified and they shall work according to the principles of human rights and shall be subjected to the supervision of the Council of Representatives. 2nd – The national intelligence service is tied to the Cabinet.
Selected Documents
364
Article (83): The Cabinet shall lay down a system of internal rules to regulate its work. Article (84): The forming of ministries and their functions and responsibilities and the powers of the minister shall be regulated by law. Article (85): The judiciary is independent and will be represented by courts of different kinds and levels, and they will issue their rulings according to law. Article (86): Judges are independent, with no authority over them in their rulings except the law. No authority can interfere in the judiciary or in the affairs of justice. Article (87): The federal judiciary will include the Supreme Judiciary Council, the Supreme Federal Court, the Federal Cassation Court, the Prosecutor’s Office, the Judiciary Inspection Department and other federal courts that are organized by law. FIRST: The Supreme Judiciary Council Article (88): The Supreme Judiciary Council will administer judicial affairs in accordance with the law. Article (89): The Supreme Judiciary Council will exercise the following powers: 1st – administering and supervising the federal judiciary system. 2nd – nominating the head and members of the Supreme Federal Court and presenting their names to parliament for endorsement. 3rd – nominating the head of the Federal Cassation Court, the chief prosecutor and the head of the Judiciary Inspection Department, and presenting them to parliament for approval. 4th – proposing the annual budget for the federal judiciary system and presenting it to parliament for approval. SECOND: The Supreme Federal Court Article (90): 1st – The Supreme Federal Court is an independent judicial body, financially and administratively, its work and its duties will be defined by law. 2nd – The Supreme Federal Court will be made up of a number of judges and experts in Sharia (Islamic Law) and law, whose number and manner of selection will be defined by a law that should be passed by two-thirds of the parliament members. Article (91): The Supreme Federal Court will have the following duties: 1st – overseeing the constitutionality of federal laws before they are issued. 2nd – overseeing the constitutionality of the laws and standing regulations. 3rd – interpreting the text of the constitution. 4th – ruling in cases that emerge from the implementation of federal laws. 5th – ruling in disputes between the federal government and the governments of the regions and the provinces and local administrations. 6th – ruling in disputes between the governments of the regions or provinces. 7th – ruling in accusations against the president of the republic, the prime minister and the ministers. 8th – endorsing the final results of parliamentary general elections. Article (92): Resolutions of the Supreme Federal Court are binding for all authorities.
Text of the Iraqi Constitution
365 THIRD: General Provisions
Article (93): Establishing private or exceptional courts is forbidden. Article (94): The law shall regulate the establishment of courts, their kinds, degrees, duties and the means of appointing judges, members of the General Prosecutors Office, the provisions for disciplining them and moving them into retirement. Article (95): Judges shall not be impeached except in the cases determined by law; the law will also specify the rules pertaining to them and regulate disciplinary actions against them. Article (96): It is forbidden for a judge or a member of the prosecution to: 1st – simultaneously hold a judicial position and a legislative or executive position or any other job. 2nd – belong to any party or political organization or engage in any political activity. Article (97): The military judiciary shall be fixed by law and the responsibilities of the military courts, which are limited to crimes with a military nature committed by members of the armed forces and security forces, shall be specified within the limits of the law. Article (98): It is forbidden to legislate into a law provisions protecting any administrative action or decision from being challenged in court. Article (99): It is permissible by law to establish a state council to handle the tasks of the administrative judiciary, advising, phrasing, representing the state and all other public associations in front of the judiciary, except what the law exempts. PART FOUR: INDEPENDENT ASSOCIATIONS Article (100): The Supreme Commission for Human Rights and the Supreme Independent Commission for Elections and the Integrity Agency are considered independent associations subject to the supervision of the Council of Representatives. Their work is regulated by law. Article (101): 1st – The Iraqi Central Bank, the Financial Inspection Office, the media and communications agency, and the offices of (religious) endowments are considered financially and administratively independent associations. Each of their activities is regulated by law. 2nd – The Iraqi central bank is responsible before the Council of Representatives, and the Financial Inspection Office and the media and communications agency are tied to the Council of Representatives. 3rd – Offices of endowments are affiliated to the Cabinet Article (102): An agency shall be established called the Institution of the Martyrs, affiliated to the Cabinet, and its operations and powers will be regulated by law. Article (103): A public agency will be founded to guarantee the right of the regions and of provinces that do not belong to a region to fair participation in the administration of the various federal state institutions, missions, fellowships, delegations and regional and international conferences. It shall be made up of representatives of the federal government, regions and provinces that do not belong to a region, and it shall be regulated by law.
Selected Documents
366
Article (104): A general body shall be established by law to monitor and allocate federal incomes; the body shall consist of experts from the federal government, the regions and the provinces and representatives from them. It should shoulder the following responsibilities: 1st – verifying fairness in distribution of international grants, aid and loans based on what the regions and the provinces that do not belong to a region deserve. 2nd – ensuring that federal financial resources are being used and distributed in the best way. 3rd – ensuring transparency and justice when allocating money to the regional governments and provinces according to the decided ratios. Article (105): A council, to be called the federal public service council, shall be established and it shall be responsible for regulating the affairs of the federal public office, including appointments and promotions. Its formation and responsibilities shall be regulated by a law. Article (106): It is allowed to establish other independent associations according to need and necessity and by law. CHAPTER FOUR: POWERS OF THE FEDERAL AUTHORITIES Article (107): The federal authority will maintain the unity of Iraq, its integrity, independence, sovereignty and its democratic federal system. Article (108): The federal authorities will have the following exclusive powers: 1st – drawing up foreign policy, diplomatic representation, negotiating international accords and agreements, negotiating and signing debt agreements, drawing up foreign sovereign economic and trade policies. 2nd – drawing up and executing national defence policy including setting up and operating the armed forces to ensure the protection and security of Iraq’s borders and its defence. 3rd – drawing up financial and customs policy, issuing currency, organizing trade policy among regions and provinces in Iraq, setting the general budget for the nation, drawing up currency policies and establishing and administering a central bank. 4th – organizing issues of weights and measures. 5th – organizing issues of nationality and naturalization, residence and asylum rights. 6th – organizing a policy of broadcast wavelengths and the mail. 7th – setting the general and investment budgets. 8th – planning policies connected to water resources from outside Iraq and guaranteeing levels of water flow into Iraq, according to international law and custom. 9th – conducting the general census of the population. Article (109): Oil and gas is the property of all the Iraqi people in all the regions and provinces. Article (110): 1st – The federal government will administer oil and gas extracted from current fields in cooperation with the governments of the producing regions and provinces on condition that the revenues will be distributed fairly in a manner compatible with the demographical distribution all over the country. A quota should be defined for a specified time for affected regions that were deprived in an unfair way by the former regime or later on, in a way to ensure balanced development in different parts of the country.
Text of the Iraqi Constitution
367
This should be regulated by law. 2nd – The federal government and the governments of the producing regions and provinces together will draw up the necessary strategic policies to develop oil and gas wealth to bring the greatest benefit for the Iraqi people, relying on the most modern techniques of market principles and encouraging investment. Article (111): All that is not written in the exclusive powers of the federal authorities is in the authority of the regions. In other powers shared between the federal government and the regions, the priority will be given to the region’s law in case of dispute. Article (112): The following duties will be shared by the federal and regional authorities: 1st – administering and organizing customs, in coordination with the regional government, and this will be regulated by law. 2nd – organizing and distributing the main electrical power resources. 3rd – drawing up environmental policy to guarantee the protection of the environment from pollution and the preservation of its cleanliness, in cooperation with the regions. 4th – drawing up general planning and development policies. 5th – drawing up general health policy, in cooperation with the regions. 6th – drawing up general education and childrearing policy, in consultation with the regions. CHAPTER FIVE: AUTHORITIES OF THE REGIONS Article (113): The federal system in the republic of Iraq is made up of the capital, regions, decentralized provinces, and local administrations. Article (114): 1st – The regions comprise one province or more, and two regions or more have the right to join into one region. 2nd – One province or more have the right to form a region, based on a request for a referendum, which can be presented in one of two ways: (a) a request by a third of the members of each of the provincial councils in the provinces that desire to form a region. (b) a request by 1/10 (one-tenth) of the voters in each of the provinces that desire to form a region. 3rd – (a) The general referendum is held among the residents of the particular provinces concerned with what is referred to in «1st» of this article. The referendum takes place when the provincial councils are in session, and the referendum is considered a success with the agreement of the majority of voters. (b) the referendum is not repeated, unless 2/3 (two-thirds) of the members in each of the provincial councils, or ¼ (one-quarter) of the concerned provinces’ residents, put forward a request for a new referendum. Article (115): The authorities of each region include legislative, executive and judicial authorities. Article (116): 1st – The governments of regions have the right to practice legislative, executive and judicial powers according to this constitution, except in what is listed as exclusive powers of the federal authorities. 2nd – The regional authority has the right to amend the implementation of the federal law in the region in the case of a contradiction between the federal and regional laws in matters that do not pertain to the exclusive powers of the federal authorities.
Selected Documents
368
3rd – It is permissible to delegate the authorities practiced by the federal government to the regional governments and vice versa, with the approval of both. 4th – A fair share of the revenues collected federally is designated to regions, in a way that suffices their duties and obligations, taking into consideration the (region’s) resources and needs. 5th – Offices for regions and provinces are to be established in embassies and diplomatic missions to follow up on cultural, social and local development affairs. PART ONE: LEGISLATIVE AUTHORITIES OF THE REGION. Article (117): The legislative authority of a region consists of one council called the National Council for the Region. Article (118): Members of the National Council for the Region are elected by residents of the region through universal direct secret ballot. Article (119): 1st – The National Council for the Region devises the regional constitution, stipulates laws, in a way that does not contradict with this constitution and the federal laws. 2nd – The regional constitution is put up for a referendum to the residents of the region and becomes effective after approval by a majority and its publication in the official newspaper. PART TWO: EXECUTIVE AUTHORITIES OF THE REGION. Article (120): The executive authority is made up of the president of the region and the regional cabinet. Article (121): The executive authority carries out its responsibilities as designated in the regional constitution, in a way that does not contradict this constitution. FIRST: The president of the region Article (122): The president of the region is the highest executive president in the region. Article (123): The president of the region is elected according to the constitution of the region. Article (124): The constitution of the region determines the responsibilities of the president and the authorities designated to the regional constitutional agencies in a way that does not contradict this constitution. SECOND: The Cabinet of the region Article (125): The Cabinet is the highest executive authority in the region and practices its authorities under the supervision and guidance of the president of the region. Article (126): The Cabinet consists of the prime minister and a number of ministers set according to the constitution of the region. Article (127): The Cabinet practices the authorities accorded to it following the constitution of the region.
Text of the Iraqi Constitution
369
Article (128): 1st – The revenues of the region are made up of its designated share from the state budget and from the region’s local resources. 2nd – The Cabinet of the region prepares the annual budget for the region and the final expense account, and a law is issued for them by the National Council for the Region. The Cabinet presents a copy of the region’s general budget and the final expense account to the federal finance ministry, after they are approved by the National Council for the region. Article (129): The region’s government is responsible for all that is required to manage the region, in particular establishing and organizing internal security forces for the region such as police, security and regional guards. PART THREE: JUDICIAL AUTHORITIES OF THE REGION Article (130): The judicial authority of the region consists of the judicial council of the region, the courts, the prosecutor’s offices, and the regional court of cassation is considered the highest judicial authority in the region. Article (131): The types of courts, their levels and specializations are organized according to the judicial authority law of the region, provided it does not contradict this constitution. PART FOUR: PROVINCES NOT ORGANIZED INTO A REGION Article (132): 1st – Provinces consist of districts, counties and villages. 2nd – Provinces that were not included into a region are given extensive administrative and financial authorities to enable them to self-manage according to the principal of administrative decentralization, and this is regulated by law. 3rd – The provincial governor, who is elected by the provincial council, is considered the highest executive president of the province to carry out the responsibilities designated to him by the council. 4th – The election of the provincial council, the governor and their authorities will be regulated by law. 5th – The provincial council is not subject to the domination or the supervision of any ministry or any party unrelated to a ministry, and it has its independent finances. Article (133): It is permissible to delegate the federal government’s authorities to the provinces or vice versa, with the two parties’ approval, and this is regulated by law. PART FIVE: THE CAPITAL Article (134): Baghdad with its administrative boundaries is the capital of the republic of Iraq, and it consists of the province of Baghdad with its administrative boundaries, and its status is regulated through a law.
Selected Documents
370 PART SIX: LOCAL ADMINISTRATIONS
Article (135): This constitution guarantees the administrative, political, cultural, educational rights for the various ethnicities such as Turkomen, Chaldeans, Assyrians, and the other components, and this is regulated through a law. CHAPTER SIX: FINAL AND TRANSITIONAL GUIDELINES FIRST: Final Guidelines Article (136): 1st – The president of the republic and the Cabinet together, or onefifth of the members of the Council of Representatives, can suggest amending the constitution. 2nd – The basic principles of the constitution mentioned in Chapter One of this constitution cannot be amended, except after two consecutive parliament cycles and based on the consent of two-thirds of the members of the Council of Representatives, a public referendum and the endorsement of the president of the republic within seven days. 3rd – Other items not covered by the 2nd clause of this article can only be amended by two-thirds of the members of the Council of Representatives, the consent of the people in a general referendum and the endorsement of the president within seven days. 4th – No amendment is allowed that lessens the powers of the regions that are not among the exclusive powers of the federal authority, except with the agreement of the legislative council of the concerned region and the consent of a majority of its population in a general referendum. 5th – An amendment is considered in effect upon the date of its publication in the official gazette. Article (137): It is not permitted for the president of the republic, the prime minister and Cabinet, the president of the Council of Representatives and its members and delegates, members of the judicial authority and holders of special positions to use their influence to buy or rent anything from the finances of the state or to sell or rent to the state anything from their own finances or to bring suit against the state over these things or to strike contracts with the state in their capacity as concessionairies, importers or contractors. Article (138): Laws and judicial rulings are issued in the name of the people. Article (139): Laws are published in the official gazette, and are in effect from the publishing date as long as it is not legislated otherwise. Article (140): Legislation remains in effect as long as it is not nullified or amended in accordance to the rules of this constitution. Article (141): Every referendum mentioned in this constitution is passed by a simple majority unless mentioned otherwise. SECOND: Transitional Guidelines Article (142): 1st – The state guarantees the welfare of political prisoners and those who were harmed by the practices of the former dictatorial regime. 2nd – The state guarantees compensation to the families of martyrs and those who
Text of the Iraqi Constitution
371
were wounded by terrorist acts. 3rd – What is provided for in these first and second clauses will be regulated by law. Article (143): The Council of Representatives shall rely in its first session on the internal organization of the Transitional National Assembly until its own internal organization is decided. Article (144): The Supreme Iraqi Criminal Court will continue its activities as an independent judicial agency, looking into the crimes of the dictatorial regime and its leading figures. The Council of Representatives can dissolve it by law once its work is finished. Article (145): 1st – The National De-Baathification Committee will continue its work as an independent body in coordination with the judiciary and the executive authorities in the framework of law regulating its work. The committee is linked to the Parliament. 2nd – The Council of Representatives can dissolve the committee after it finishes its work. 3rd – It is a condition upon candidates for the positions of president of the republic, prime minister, ministers, parliament speaker and parliament members, head of the Federal Council and its members and all similar posts in the regions, and members of the judiciary and other posts included under de-Baathification, that they not be included under the provisions of de-Baathification. 4th – The condition mentioned in the 3rd clause of this article will remain in effect until it is abolished by law. Article (146): 1st – The Property Claims Agency will continue its operations as an independent body in coordination with judicial authorities and executive bodies in accordance with the law, and it is linked to the Council of Representatives. 2nd – The Council of Representatives can dissolve the agency by a two-thirds majority. Article (147): Rules in articles concerning the Council of Union wherever they appear in this constitution will not come into effect until a decision is reached by the Council of Representatives, with a two-thirds majority, in its second cycle following the enactment of this constitution. Article (148): 1st – The phrase (Presidential Council) replaces the phrase (President of the Republic) wherever it appears in this constitution, and regulations concerning the president of the republic will come into effect after one session following the enactment of this constitution. 2nd – (a) The Council of Representatives will elect a president for the nation and two deputies for him to form a council called the Presidential Council. It will be elected in one list with a two-thirds majority. (b) The rules for removing the president of the republic in this constitution apply to the president and members of the Presidential Council. (c) The Council of Representatives can remove any member of the Presidential Council for reasons of lack of competence or integrity with a three-quarters majority vote by its members. (d) If any position in the Presidential Council should come empty, the Council of Representatives shall elect a replacement by a two-thirds majority. 3rd – Members of the Presidential Council must meet the same conditions as those for a member of the Council of Representatives, that they must: (a) have reached 40 years of age. (b) possess a good reputation, integrity and uprightness. (c) have left the dissolved party at least 10 years before its fall if they were members in
372
Selected Documents
it. (d) not have participated in the repression of the 1991 uprising or the Anfal Campaign or have committed any crime against the Iraqi people. 4th – The Presidential Council must take its decisions unanimously, and any member can delegate his position to one of the other two members. 5th – (a) Laws and resolutions passed by the Council of Representatives are sent to the Presidential Council for approval by unanimity, to be issued within 10 days of the date of their arrival at the council. (b) If the Presidential Council does not approve, the laws and resolutions are returned to the Council of Representatives to examine the aspects that were objected to and to vote on them once more by majority, whereupon they are sent again to the Presidential Council for approval. (c) If the Presidential Council does not approve the laws or resolutions again with 10 days of their arrival, they are returned to the Council of Representatives which can adopt them by a three-fifths majority of its members. This cannot be opposed and it is considered approved. 6th – The Presidential Council practices the powers provided for the president of the republic until the issuing of a decision by the Council of Representatives as provided for in the 1st clause of this article. Article (149): 1st – The executive authority will take the necessary steps to complete implementation of the requirements of Article (58) of the Transitional Administration Law for the Iraqi State, with all its clauses. 2nd – The responsibilities placed on the executive authority provided for in Article (58) of the Transitional Administration Law for the Iraqi State are extended to and will continue for the executive authority until the completion of (normalization, census, ending with a census in Kirkuk and other disputed areas to determine the will of the people) in a period no longer than 12/31/2007. Article (150): Laws legislated in Kurdistan since 1992 remain in effect, and decisions made by the government of the Kurdistan region – including contracts and court decisions – are effective unless they are voided or amended according to the laws of the Kurdistan region by the concerned body, as long as they are not against the constitution. Article (151): A proportion of no less than 25 percent of the seats in the Council of Representatives is specified for the participation of women. Article (152): The Transitional Administration Law for the Iraqi State and its appendix are voided upon creation of the new government, except for what appears in paragraph (a) of Article (53) and Article (58) of the Transitional Administration Law. Article (153): This constitution comes into effect after its approval by the people in a universal referendum and its publication in the official newspaper and the election of the Council of Representatives in accordance with its provisions.
373
Iraq United Nations Security Council Resolutions regarding Iraq RESOLUTION 1637 (2005) ADOPTED BY THE SECURITY COUNCIL AT ITS 5300th MEETING ON 8 NOVEMBER 2005 The Security Council, Welcoming the beginning of a new phase in Iraq’s transition and looking forward to the completion of the political transition process as well as to the day Iraqi forces assume full responsibility for the maintenance of security and stability in their country, thus allowing the completion of the multinational force mandate, Recalling all of its previous relevant resolutions on Iraq, Reaffirming the independence, sovereignty, unity, and territorial integrity of Iraq, Reaffirming also the right of the Iraqi people freely to determine their own political future and control their own natural resources, Welcoming the commitment of the Transitional Government of Iraq to work towards a federal, democratic, pluralistic, and unified Iraq, in which there is full respect for political and human rights, Calling upon the international community, particularly countries in the region and Iraq’s neighbours, to support the Iraqi people in their pursuit of peace, stability, security, democracy, and prosperity, and noting the contribution that the successful implementation of this resolution will bring to regional stability, Welcoming the assumption of full governmental authority by the Interim Government of Iraq on 28 June 2004, the direct democratic elections of the Transitional National Assembly on 30 January 2005, the drafting of a new constitution for Iraq and the recent approval of the draft constitution by the people of Iraq on 15 October 2005, Noting that the Government of Iraq established as a result of the election scheduled to take place by 15 December 2005 will play a critical role in continuing to promote national dialogue and reconciliation and in shaping the democratic future of Iraq and reaffirming the willingness of the international community to work closely with the Government of Iraq with respect to efforts to assist the Iraqi people, Calling upon those who use violence in an attempt to subvert the political process to lay down their arms and participate in the political process, including in the election scheduled for 15 December, and encouraging the Government of Iraq to engage with all those who renounce violence and to promote a political atmosphere conducive to national reconciliation and political competition through peaceful democratic means,
374
Selected Documents
Reaffirming that acts of terrorism must not be allowed to disrupt Iraq’s political and economic transition, and further reaffirming the obligations of Member States under resolution 1618 (2005) of 4 August 2005 and other relevant resolutions and international obligations with respect, inter alia, to terrorist activities in and from Iraq or against its citizens, Recognizing the request conveyed in the letter of 27 October 2005 from the Prime Minister of Iraq to the President of the Council, which is annexed to this resolution, to retain the presence of the multinational force in Iraq, and further recognizing the importance of consent of the sovereign Government of Iraq for the presence of the multinational force and of close coordination between the multinational force and that government, Welcoming the willingness of the multinational force to continue efforts to contribute to the maintenance of security and stability in Iraq, including participating in the provision of humanitarian and reconstruction assistance, as described in the letter of 29 October 2005 from the United States Secretary of State to the President of the Council, which is annexed to this resolution, Recognizing the tasks and arrangements set out in the letters annexed to resolution 1546 (2004) of 8 June 2004 and the cooperative implementation by the Government of Iraq and the multinational force of those arrangements, Affirming the importance for all forces promoting the maintenance of security and stability in Iraq to act in accordance with international law, including obligations under international humanitarian law, and to cooperate with relevant international organizations, and welcoming their commitments in this regard, Recalling the establishment of the United Nations Assistance Mission for Iraq (UNAMI) on 14 August 2003, underlining the particular importance of UNAMI assistance for the upcoming election by 15 December 2005 of a government pursuant to a newly adopted Constitution, and affirming that the United Nations should continue to play a leading role in assisting the Iraqi people and government with further political and economic development, including advising and supporting the Government of Iraq, as well as the Independent Electoral Commission of Iraq, contributing to coordination and delivery of reconstruction, development and humanitarian assistance, and promoting the protection of human rights, national reconciliation, as well as judicial and legal reform in order to strengthen the rule of law in Iraq, Recognizing that international support for security and stability is essential to the well-being of the people of Iraq as well as the ability of all concerned, including the United Nations, to carry out their work on behalf of the people of Iraq, and expressing appreciation for Member State contributions in this regard under resolution 1483 (2003) of 22 May 2003, resolution 1511 (2003) of 16 October 2003 and resolution 1546 (2004), Recognizing that the Government of Iraq will continue to have the primary role in coordinating international assistance to Iraq and reaffirming the importance of international assistance and development of the Iraqi economy and the importance of coordinated donor assistance, Recognizing the significant role of the Development Fund for Iraq and the International Advisory and Monitoring Board in helping the Government of Iraq to ensure that Iraq’s resources are being used transparently and equitably for the benefit of the people of Iraq, Determining that the situation in Iraq continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, (1) Notes that the presence of the multinational force in Iraq is at the request of the Government of Iraq and, having regard to the letters annexed to this resolution,
U.N. Security Council Resolutions regarding Iraq
(2) (3)
(4)
(5) (6) (7)
375
reaffirms the authorization for the multinational force as set forth in resolution 1546 (2004) and decides to extend the mandate of the multinational force as set forth in that resolution until 31 December 2006; Decides further that the mandate for the multinational force shall be reviewed at the request of the Government of Iraq or no later than 15 June 2006, and declares that it will terminate this mandate earlier if requested by the Government of Iraq; Decides to extend until 31 December 2006 the arrangements established in paragraph 20 of resolution 1483 (2003) for the depositing into the Development Fund for Iraq of proceeds from export sales of petroleum, petroleum products, and natural gas and the arrangements referred to in paragraph 12 of resolution 1483 (2003) and paragraph 24 of resolution 1546 (2004) for the monitoring of the Development Fund for Iraq by the International Advisory and Monitoring Board; Decides further that the provisions in the above paragraph for the deposit of proceeds into the Development Fund for Iraq and for the role of the International Advisory and Monitoring Board shall be reviewed at the request of the Government of Iraq or no later than 15 June 2006; Requests that the Secretary-General continue to report to the Council on UNAMI’s operations in Iraq on a quarterly basis; Requests that the United States, on behalf of the multinational force, continue to report to the Council on the efforts and progress of this force on a quarterly basis; Decides to remain actively seized of the matter. ANNEX I Letter dated 27 October 2005 from the Prime Minister of Iraq addressed to the President of the Security Council [Original: Arabic]
Sir, On 15 October 2005 Iraq voted in a general referendum held at the national level for the purpose of approving a new Constitution for Iraq. The country thus took another important step towards building a strong democratic future and establishing a Government elected in accordance with a permanent Constitution. At the same time, Iraq is approaching the completion of its political transformation through the process of electing its future legislative authority and forming a new Government, which is to take place in December 2005. There still remains an extensive agenda for reconstruction and political development, the realization of which will require security and stability. We are proceeding towards political stability and economic prosperity and taking fundamental steps towards restoring security and stability. Yet Iraq is still confronted by forces of terrorism that incorporate foreign elements which carry out horrific attacks and terrorist acts in an attempt to thwart political and economic development in Iraq. The Iraqi security forces, which are growing in size, capacity and experience day by day, need more time to fill out their ranks, fully equip themselves and complete their training with a view to assuming responsibility for all security matters and providing adequate security for the Iraqi people. Until such time as the Iraqi security forces assume full responsibility for Iraq’s security, we need the continued support of the international community, including the participation of the Multinational Force, in order to establish lasting peace and security in Iraq. We understand that the Multinational Force is willing to continue its efforts. We therefore request the Security Council to extend, for a period of 12 months starting 31 December 2005, the mandate
376
Selected Documents
of the Multinational Force, as provided in Council resolution 1546 (2004), including the tasks and arrangements specified in the letters annexed thereto, with the proviso that the Council shall review that mandate upon being so requested by the Government of Iraq or at the end of a period of eight months from the date of the resolution and declare, in the extension, that it will terminate the mandate before the expiry of that period should the Government of Iraq so request. The Government of Iraq believes that the provisions of resolution 1546 (2004) relating to the deposit of proceeds into the Development Fund for Iraq and the role of the International Advisory and Monitoring Board will help to ensure that Iraq’s natural resources are used for the benefit of the Iraqi people. We understand that the funds deposited in the Development Fund for Iraq belong to Iraq and will continue to enjoy the immunities and privileges of the Fund, given the importance of those terms for the Iraqi people during this critical period. We request the Security Council to extend the validity of those terms for an additional 12 months and to review them upon being so requested by the Government of Iraq or at the end of a period of eight months from the date of the resolution. The Iraqi people are determined to establish for themselves a stable, peaceful democracy, which will provide the basis for the establishment of a vibrant economy. This vision of Iraq’s future can become a reality with the help of the international community. It is my understanding that the sponsors intend to have the present letter annexed to the resolution on Iraq currently being drafted. In the meantime, I should be grateful if you would have copies of this letter circulated to the members of the Security Council as soon as possible. (Signed) Ibrahim Aleshaiker Al-Jaafari Prime Minister 27 October 2005
U.N. Security Council Resolutions regarding Iraq
377
ANNEX II Letter dated 29 October 2005 from the Secretary of State of the United States of America to the President of the Security Council Having reviewed the request of the Government of Iraq to extend the mandate of the Multinational Force (MNF) in Iraq (S/2005/687) and following consultations with the Government of Iraq, I am writing to confirm, consistent with this request, that the MNF under unified command stands ready to continue to fulfil its mandate as set out in Security Council resolution 1546 (2004). Since the end of the occupation on 28 June 2004, the Government of Iraq and the MNF have developed an effective and cooperative security partnership to address the evolving nature of Iraq’s security environment, including the continuing need to prevent and deter acts of terrorism. This partnership plays a critical role in the daily efforts to improve security throughout Iraq. In the context of this partnership, the MNF is prepared to continue to undertake a broad range of tasks to contribute to the maintenance of security and stability and to ensure force protection, acting under the authorities set forth in resolution 1546 (2004), including the tasks and arrangements set out in the letters annexed thereto, and in close cooperation with the Government of Iraq. The forces that make up the MNF will remain committed to acting consistently with their obligations under international law, including the law of armed conflict. Substantial progress has already been made in helping to build and train the Iraqi Security Forces (ISF), allowing them to take on increasing security responsibilities. The Government of Iraq and the MNF are developing a security plan to set forth the conditions necessary for transfer of security responsibility from the MNF to the ISF. Conditions permitting, we look forward to notable progress in the next year. Together, we will build towards the day when the Iraqi forces assume full responsibility for the maintenance of security and stability in Iraq. The co-sponsors intend to annex the present letter to the resolution on Iraq under consideration. In the meantime, I request that you provide copies of the present letter to members of the Council as quickly as possible. (Signed) Condoleezza Rice
378
379
Lebanon United Nations Security Council Resolutions regarding Lebanon RESOLUTION 1636 (2005) ADOPTED BY THE SECURITY COUNCIL AT ITS 5297th MEETING ON 31 OCTOBER 2005 The Security Council, Reaffirming all its previous relevant resolutions, in particular resolutions 1595 (2005) of 7 April 2005, 1373 (2001) of 28 September 2001, and 1566 (2004) of 8 October 2004, Reiterating its call for the strict respect of the sovereignty, territorial integrity, unity and political independence of Lebanon under the sole and exclusive authority of the Government of Lebanon, Reaffirming that terrorism in all its forms and manifestations constitutes one of the most serious threats to peace and security, Having examined carefully the report of the international independent investigation Commission (S/2005/662) (“the Commission”) concerning its investigation into the 14 February 2005 terrorist bombing in Beirut, Lebanon, that killed former Lebanese Prime Minister Rafiq Hariri and 22 others, and caused injury to dozens of people, Commending the Commission for the outstanding professional work it has accomplished under difficult circumstances in assisting the Lebanese authorities in their investigation of all aspects of this terrorist act, and taking note of the Commission’s conclusion that the investigation is not yet complete, Commending States which have provided assistance to the Commission in the discharge of its duties, Commending also the Lebanese authorities for the full cooperation they have provided to the Commission in the discharge of its duties, in accordance with paragraph 3 of resolution 1595 (2005), Recalling that pursuant to its relevant resolutions, all States are required to afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to terrorist acts, and recalling in particular that it had requested in its resolution 1595 (2005) all States and all parties to cooperate fully with the Commission, Taking note of the Commission’s findings that although the inquiry has already made considerable progress and achieved significant results, it is of the utmost importance to continue the trail both within and outside Lebanon in order to elucidate fully all
Selected Documents
380
aspects of this terrorist act, and in particular to identify and hold accountable all those who bear responsibility in its planning, sponsoring, organization and perpetration, Mindful of the demand of the Lebanese people that all those responsible for the terrorist bombing that killed former Lebanese Prime Minister Rafiq Hariri and others be identified and held accountable, Acknowledging in this connection the letter of the Prime Minister of Lebanon to the Secretary-General of 13 October 2005 (S/2005/651) requesting that the mandate of the Commission be extended to enable the Commission to continue to assist the competent Lebanese authorities in any further investigation of the various dimensions of the terrorist crime, Acknowledging also the concurrent recommendation of the Commission that continued international assistance is needed to help the Lebanese authorities get right to the bottom of this terrorist act, and that a sustained effort on the part of the international community to establish an assistance and cooperation platform together with the Lebanese authorities in the field of security and justice is essential, Willing to continue to assist Lebanon in the search for the truth and in holding those responsible for this terrorist act accountable for their crime, Calling upon all States to extend to the Lebanese authorities and to the Commission the assistance they may need and request in connection with the inquiry, and in particular to provide them with all relevant information they may possess pertaining to this terrorist attack, Reaffirming its profound commitment to the national unity and stability of Lebanon, emphasizing that the future of Lebanon should be decided through peaceful means by the Lebanese themselves, free of intimidation and foreign interference, and warning in this regard that attempts to undermine the stability of Lebanon will not be tolerated, Taking note of the Commission’s conclusions that, given the infiltration of Lebanese institutions and society by the Syrian and Lebanese intelligence services working in tandem, it would be difficult to envisage a scenario whereby such a complex assassination plot could have been carried out without their knowledge, and that there is probable cause to believe that the decision to assassinate former Prime Minister Rafiq Hariri could not have been taken without the approval of top-ranked Syrian security officials, Mindful of the Commission’s conclusion that while the Syrian authorities, after initial hesitation, have cooperated to a limited degree with the Commission, several Syrian officials have tried to mislead the investigation by giving false or inaccurate statements, Convinced that it is unacceptable in principle that anyone anywhere should escape accountability for an act of terrorism for any reason, including because of his own obstruction of the investigation or failure to cooperate in good faith, Determining that this terrorist act and its implications constitute a threat to international peace and security, Emphasizing the importance of peace and stability in the region, and the need for peaceful solutions, Acting under Chapter VII of the Charter of the United Nations, == 1 == (1) Welcomes the report of the Commission; (2) Takes note with extreme concern of the Commission’s conclusion that, there is converging evidence pointing at the involvement of both Lebanese and Syrian officials in this terrorist act, and that it is difficult to envisage a scenario whereby such complex assassination could have been carried out without their knowledge; (3) Decides as a step to assist in the investigation of this crime and without prejudice to the ultimate judicial determination of the guilt or innocence of any individual;
U.N. Security Council Resolutions regarding Lebanon
381
(a) that all individuals designated by the Commission or the Government of Lebanon as suspected of involvement in the planning, sponsoring, organizing or perpetrating of this terrorist act, upon notification of such designation to and agreement of the Committee established in subparagraph (b) below, shall be subject to the following measures: – All States shall take the measures necessary to prevent entry into or transit through their territories of such individuals, provided that nothing in this paragraph shall obligate a state to refuse entry into its territory to its own nationals, or, if such individuals are found within their territory, shall ensure in accordance with applicable law that they are available for interview by the Commission if it so requests; – All States shall: freeze all funds, financial assets and economic resources that are on their territories that are owned or controlled, directly or indirectly, by such individuals, or that are held by entities owned or controlled, directly or indirectly, by such individuals or by persons acting on their behalf or at their direction; ensure that no funds, financial assets or economic resources are made available by their nationals or by any persons within their territories to or for the benefit of such individuals or entities; and cooperate fully in accordance with applicable law with any international investigations related to the assets or financial transactions of such individuals, entities or persons acting on their behalf, including through sharing of financial information; (b) to establish, in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council consisting of all the members of the Council to undertake the tasks described in the annex to this resolution; (c) that the Committee and any measures still in force under subparagraph (a) will terminate when the Committee reports to the Security Council that all investigative and judicial proceedings relating to this terrorist attack have been completed, unless otherwise decided by the Security Council; (4) Determines that the involvement of any State in this terrorist act would constitute a serious violation by that State of its obligations to work to prevent and refrain from supporting terrorism, in accordance in particular with resolutions 1373 (2001) and 1566 (2004) and that it would amount also to a serious violation of its obligation to respect the sovereignty and political independence of Lebanon; (5) Takes note with extreme concern also of the Commission’s conclusion that, while the Syrian authorities have cooperated in form but not in substance with the Commission, several Syrian officials tried to mislead the Commission by giving false or inaccurate information, and determines that Syria’s continued lack of cooperation to the inquiry would constitute a serious violation of its obligations under relevant resolutions, including 1373 (2001), 1566 (2004) and 1595 (2005); (6) Takes note of the recent statement by Syria regarding its intention now to cooperate with the Commission and expects the Syrian Government to implement in full the commitments it is now making; == II == (7) Acknowledges that continued assistance from the Commission to Lebanon, as requested by its Government in its letter to the Secretary-General of 13 October 2005 and recommended by the Commission in its report, remains necessary to elucidate fully all aspects of this heinous crime, thus enabling that all those involved in the planning, sponsoring, organizing and perpetrating of this terrorist act, as well as their accomplices, be identified and brought to justice;
Selected Documents
382
(8) Welcomes in this regard the decision of the Secretary-General to extend the mandate of the Commission until 15 December 2005, as authorized by the Security Council in its resolution 1595 (2005), and decides that it will extend the mandate further if recommended by the Commission and requested by the Lebanese Government; (9) Commends the Lebanese authorities for the courageous decisions they have already taken in relation to the inquiry, including upon recommendation of the Commission, in particular the arrest and indictment of former Lebanese security officials suspected of involvement in this terrorist act, and encourages the Lebanese authorities to persist in their efforts with the same determination in order to get right to the bottom of this crime; == III == (10) Endorses the Commission’s conclusion that it is incumbent upon the Syrian authorities to clarify a considerable part of the questions which remain unresolved; (11) Decides in this context that: (a) Syria must detain those Syrian officials or individuals whom the Commission considers as suspected of involvement in the planning, sponsoring, organizing or perpetrating of this terrorist act, and make them fully available to the Commission; (b) the Commission shall have vis-à-vis Syria the same rights and authorities as mentioned in paragraph 3 of resolution 1595 (2005), and Syria must cooperate with the Commission fully and unconditionally on that basis; (c) the Commission shall have the authority to determine the location and modalities for interview of Syrian officials and individuals it deems relevant to the inquiry; (12) Insists that Syria not interfere in Lebanese domestic affairs, either directly or indirectly, refrain from any attempt aimed at destabilizing Lebanon, and respect scrupulously the sovereignty, territorial integrity, unity and political independence of this country; == IV == (13) Requests the Commission to report to the Council on the progress of the inquiry by 15 December 2005, including on the cooperation received by the Commission from the Syrian authorities, or anytime before that date if the Commission deems that such cooperation does not meet the requirements of this resolution, so that the Council, if necessary, could consider further action; (14) Expresses its readiness to consider any additional request for assistance from the Lebanese Government to ensure that all those responsible for this crime are held accountable; (15) Decides to remain seized of the matter.
U.N. Security Council Resolutions regarding Lebanon
383
ANNEX The following are the functions of the Committee established pursuant to paragraph 3 of this resolution: (1) To register as subject to the measures in paragraph 3 (a) in this resolution an individual designated by the Commission or the Government of Lebanon, provided that within two working days of receipt of such designation no member of the Committee objects, in which case the Committee shall meet within fifteen days to determine the applicability of the measures in paragraph 3 (a). (2) To approve exceptions to the measures established in paragraph 3 (a) on a caseby-case basis: (i) with respect to the travel restrictions, where the Committee determines that such travel is justified on the ground of humanitarian need, including religious obligation, or where the Committee concludes that an exemption would otherwise further the objectives of this resolution; (ii) with respect to the freezing of funds and other economic resources, where the Committee determines that such exceptions are necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges, or exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services, or fees or service charges for routine holding or maintenance of frozen funds or other financial assets or economic resources; (3) To register the removal of an individual from the scope of the measures in paragraph 3 (a) upon notification from the Commission or the Government of Lebanon that the individual is no longer suspected of involvement in this terrorist act, provided that within two working days of receipt of such designation no member of the Committee objects, in which case the Committee shall meet within fifteen days to determine the removal of an individual from the scope of the measures in paragraph 3 (a). (4) To inform all Member States as to which individuals are subject to the measures in paragraph 3 (a).
384
Selected Documents RESOLUTION 1644 (2005) ADOPTED BY THE SECURITY COUNCIL AT ITS 5329th MEETING ON 15 DECEMBER 2005
The Security Council, Reaffirming all its previous relevant resolutions, including resolutions 1595 (2005) of 7 April 2005, 1373 (2001) of 28 September 2001, and 1566 (2004) of 8 October 2004, and reaffirming in particular resolution 1636 (2005) of 31 October 2005, Reaffirming its strongest condemnation of the 14 February 2005 terrorist bombing, as well as of all other terrorist attacks in Lebanon since October 2004, and reaffirming also that all those involved in these attacks must be held accountable for their crimes, Having examined carefully the report of the International Independent Investigation Commission (S/2005/775) (“the Commission”) concerning its investigation into the 14 February 2005 terrorist bombing in Beirut, Lebanon, that killed former Lebanese Prime Minister Rafiq Hariri and 22 others, and caused injury to dozens of people, Commending the Commission for the outstanding professional work it has accomplished under difficult circumstances in assisting the Lebanese authorities in their investigation of this terrorist act, and commending in particular Detlev Mehlis for his leadership in the discharge of his duties as the Head of the Commission and for his dedication to the cause of justice, Reiterating its call upon all States to extend to the Lebanese authorities and to the Commission the assistance they may need and request in connection with the inquiry, and in particular to provide them with all relevant information they may possess pertaining to this terrorist attack, Acknowledging the letter of the Prime Minister of Lebanon to the Secretary-General of 5 December 2005 (S/2005/762) requesting that the mandate of the Commission be extended for a further period of six months, with a possibility of an additional extension as necessary, to enable the Commission to continue to assist the competent Lebanese authorities in the ongoing investigations of the crime, and to explore possible follow-up measures in order to bring the perpetrators of the said crime to justice, and acknowledging also the concurrent recommendation of the Commission in that regard, Acknowledging also the letter of the Prime Minister of Lebanon to the SecretaryGeneral of 13 December 2005 (S/2005/783) requesting the establishment of a tribunal of an international character to try all those who are found responsible for this terrorist crime and requesting also that the mandate of the Commission be expanded or that another international investigation Commission be created, to investigate the terrorist attacks that took place in Lebanon since 1 October 2004, Noting that Syrian authorities made available Syrian officials for questioning, but deeply concerned at the Commission’s assessment of Syrian performance to date, and noting that the Commission is still awaiting the provision of other requested materials from Syrian authorities, Reaffirming its determination that this terrorist act and its implications constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, (1) Welcomes the report of the Commission; (2) Decides, as recommended by the Commission and requested by the Lebanese Government, to extend the mandate of the Commission, as set forth in resolutions 1595 (2005) and 1636 (2005), initially until 15 June 2006; (3) Takes note with satisfaction of the progress of the inquiry achieved since the Commission’s last report to the Council, and notes with extreme concern that, while the inquiry is not yet complete, it confirms its previous conclusions and that
U.N. Security Council Resolutions regarding Lebanon
(4)
(5)
(6)
(7)
(8) (9)
385
the Syrian Government has yet to provide the Commission with the full and unconditional cooperation demanded in resolution 1636 (2005); Underscores Syria’s obligation and commitment to cooperate fully and unconditionally with the Commission, and specifically demands that Syria responds unambiguously and immediately in those areas adduced by the Commissioner and also that it implements without delay any future request of the Commission; Requests the Commission to report to the Council on the progress of the inquiry every three months from the adoption of this resolution, including on the cooperation received from the Syrian authorities, or anytime before that date if the Commission deems that such cooperation does not meet the requirements of this resolution and of resolutions 1595 and 1636; Acknowledges the Lebanese Government’s request that those eventually charged with involvement in this terrorist attack be tried by a tribunal of an international character, requests the Secretary-General to help the Lebanese Government identify the nature and scope of the international assistance needed in this regard, and requests also the Secretary-General to report to the Council in a timely manner; Authorizes the Commission, following the request of the Lebanese Government, to extend its technical assistance as appropriate to the Lebanese authorities with regard to their investigations on the terrorist attacks perpetrated in Lebanon since 1 October 2004, and requests the Secretary-General in consultations with the Commission and the Lebanese Government to present recommendations to expand the mandate of the Commission to include investigations of those other attacks; Requests the Secretary-General to continue to provide the Commission with the support and resources necessary for the discharge of its duties; Decides to remain seized of the matter.
386
Selected Documents RESOLUTION 1664 (2006) ADOPTED BY THE SECURITY COUNCIL AT ITS 5401st MEETING ON 29 MARCH 2006
The Security Council, Recalling all its previous relevant resolutions, in particular resolutions 1595 (2005) of 7 April 2005, 1636 (2005) of 31 October 2005 and 1644 (2005) of 15 December 2005, Reiterating its call for the strict respect of the sovereignty, territorial integrity, unity and political independence of Lebanon under the sole and exclusive authority of the Government of Lebanon, Mindful of the demand of the Lebanese people that all those responsible for the terrorist bombing that killed former Lebanese Prime Minister Rafiq Hariri and others be identified and brought to justice, Recalling the letter of the Prime Minister of Lebanon to the Secretary-General of 13 December 2005 (S/2005/783) requesting inter alia the establishment of a tribunal of an international character to try all those who are found responsible for this terrorist crime and recalling its request to the Secretary-General in its resolution 1644 (2005) to help the Government of Lebanon identify the nature and scope of the international assistance needed in this regard, Having examined the report of 21 March 2006 submitted by the Secretary-General pursuant to paragraph 6 of resolution 1644 (2005) (S/2006/176), and welcoming the common understanding reached between the Secretariat and the Lebanese authorities on the key issues regarding the establishment and the main features of a possible tribunal, Willing to continue to assist Lebanon in the search for the truth and in holding all those involved in this terrorist attack accountable, (1) Welcomes the report of the Secretary-General, and requests him to negotiate an agreement with the Government of Lebanon aimed at establishing a tribunal of an international character based on the highest international standards of criminal justice, taking into account the recommendations of his report and the views that have been expressed by Council members; (2) Acknowledges that the adoption of the legal basis of, and framework for, the tribunal, would not prejudice the gradual phasing-in of its various components and would not predetermine the timing of the commencement of its operations, which will depend on the progress of the investigation; (3) Requests the Secretary-General to update the Council on the progress of the negotiation as he deems appropriate and to submit in a timely manner for the consideration of the Council a report on the implementation of this resolution, in particular on the draft agreement negotiated with the Lebanese Government, including options for a funding mechanism appropriate to ensure the continued and effective functioning of the tribunal; (4) Decides to remain seized of the matter.
U.N. Security Council Resolutions regarding Lebanon
387
RESOLUTION 1701 (2006) ADOPTED BY THE SECURITY COUNCIL AT ITS 5511th MEETING ON 11 AUGUST 2006 The Security Council, Recalling all its previous relevant resolutions on Lebanon, in particular resolutions 425 (1978), 426 (1978), 520 (1982), 1559 (2004), 1655 (2006) 1680 (2006) and 1697 (2006), as well as the statements of its President on the situation in Lebanon, in particular the statements of 18 June 2000 (S/PRST/2000/21), of 19 October 2004 (S/PRST/2004/36), of 4 May 2005 (S/PRST/2005/17), of 23 January 2006 (S/PRST/ 2006/3) and of 30 July 2006 (S/PRST/2006/35), Expressing its utmost concern at the continuing escalation of hostilities in Lebanon and in Israel since Hizbollah’s attack on Israel on 12 July 2006, which has already caused hundreds of deaths and injuries on both sides, extensive damage to civilian infrastructure and hundreds of thousands of internally displaced persons, Emphasizing the need for an end of violence, but at the same time emphasizing the need to address urgently the causes that have given rise to the current crisis, including by the unconditional release of the abducted Israeli soldiers, Mindful of the sensitivity of the issue of prisoners and encouraging the efforts aimed at urgently settling the issue of the Lebanese prisoners detained in Israel, Welcoming the efforts of the Lebanese Prime Minister and the commitment of the Government of Lebanon, in its seven-point plan, to extend its authority over its territory, through its own legitimate armed forces, such that there will be no weapons without the consent of the Government of Lebanon and no authority other than that of the Government of Lebanon, welcoming also its commitment to a United Nations force that is supplemented and enhanced in numbers, equipment, mandate and scope of operation, and bearing in mind its request in this plan for an immediate withdrawal of the Israeli forces from southern Lebanon, Determined to act for this withdrawal to happen at the earliest, Taking due note of the proposals made in the seven-point plan regarding the Shebaa farms area, Welcoming the unanimous decision by the Government of Lebanon on 7 August 2006 to deploy a Lebanese armed force of 15,000 troops in South Lebanon as the Israeli army withdraws behind the Blue Line and to request the assistance of additional forces from the United Nations Interim Force in Lebanon (UNIFIL) as needed, to facilitate the entry of the Lebanese armed forces into the region and to restate its intention to strengthen the Lebanese armed forces with material as needed to enable it to perform its duties, Aware of its responsibilities to help secure a permanent ceasefire and a long-term solution to the conflict, Determining that the situation in Lebanon constitutes a threat to international peace and security, (1) Calls for a full cessation of hostilities based upon, in particular, the immediate cessation by Hizbollah of all attacks and the immediate cessation by Israel of all offensive military operations; (2) Upon full cessation of hostilities, calls upon the Government of Lebanon and UNIFIL as authorized by paragraph 11 to deploy their forces together throughout the South and calls upon the Government of Israel, as that deployment begins, to withdraw all of its forces from southern Lebanon in parallel; (3) Emphasizes the importance of the extension of the control of the Government of Lebanon over all Lebanese territory in accordance with the provisions of resolution 1559 (2004) and resolution 1680 (2006), and of the relevant provisions
388
(4) (5)
(6)
(7)
(8)
(9)
(10)
(11)
Selected Documents of the Taif Accords, for it to exercise its full sovereignty, so that there will be no weapons without the consent of the Government of Lebanon and no authority other than that of the Government of Lebanon; Reiterates its strong support for full respect for the Blue Line; Also reiterates its strong support, as recalled in all its previous relevant resolutions, for the territorial integrity, sovereignty and political independence of Lebanon within its internationally recognized borders, as contemplated by the IsraeliLebanese General Armistice Agreement of 23 March 1949; Calls on the international community to take immediate steps to extend its financial and humanitarian assistance to the Lebanese people, including through facilitating the safe return of displaced persons and, under the authority of the Government of Lebanon, reopening airports and harbours, consistent with paragraphs 14 and 15, and calls on it also to consider further assistance in the future to contribute to the reconstruction and development of Lebanon; Affirms that all parties are responsible for ensuring that no action is taken contrary to paragraph 1 that might adversely affect the search for a long-term solution, humanitarian access to civilian populations, including safe passage for humanitarian convoys, or the voluntary and safe return of displaced persons, and calls on all parties to comply with this responsibility and to cooperate with the Security Council; Calls for Israel and Lebanon to support a permanent ceasefire and a long-term solution based on the following principles and elements: – full respect for the Blue Line by both parties; – security arrangements to prevent the resumption of hostilities, including the establishment between the Blue Line and the Litani river of an area free of any armed personnel, assets and weapons other than those of the Government of Lebanon and of UNIFIL as authorized in paragraph 11, deployed in this area; – full implementation of the relevant provisions of the Taif Accords, and of resolutions 1559 (2004) and 1680 (2006), that require the disarmament of all armed groups in Lebanon, so that, pursuant to the Lebanese cabinet decision of 27 July 2006, there will be no weapons or authority in Lebanon other than that of the Lebanese State; – no foreign forces in Lebanon without the consent of its Government; – no sales or supply of arms and related materiel to Lebanon except as authorized by its Government; – provision to the United Nations of all remaining maps of landmines in Lebanon in Israel’s possession; Invites the Secretary-General to support efforts to secure as soon as possible agreements in principle from the Government of Lebanon and the Government of Israel to the principles and elements for a long-term solution as set forth in paragraph 8, and expresses its intention to be actively involved; Requests the Secretary-General to develop, in liaison with relevant international actors and the concerned parties, proposals to implement the relevant provisions of the Taif Accords, and resolutions 1559 (2004) and 1680 (2006), including disarmament, and for delineation of the international borders of Lebanon, especially in those areas where the border is disputed or uncertain, including by dealing with the Shebaa farms area, and to present to the Security Council those proposals within thirty days; Decides, in order to supplement and enhance the force in numbers, equipment, mandate and scope of operations, to authorize an increase in the force strength
U.N. Security Council Resolutions regarding Lebanon
(12)
(13)
(14)
(15)
(16)
(17)
389
of UNIFIL to a maximum of 15,000 troops, and that the force shall, in addition to carrying out its mandate under resolutions 425 and 426 (1978): (a) Monitor the cessation of hostilities; (b) Accompany and support the Lebanese armed forces as they deploy throughout the South, including along the Blue Line, as Israel withdraws its armed forces from Lebanon as provided in paragraph 2; (c) Coordinate its activities related to paragraph 11 (b) with the Government of Lebanon and the Government of Israel; (d) Extend its assistance to help ensure humanitarian access to civilian populations and the voluntary and safe return of displaced persons; (e) Assist the Lebanese armed forces in taking steps towards the establishment of the area as referred to in paragraph 8; (f) Assist the Government of Lebanon, at its request, to implement paragraph 14; Acting in support of a request from the Government of Lebanon to deploy an international force to assist it to exercise its authority throughout the territory, authorizes UNIFIL to take all necessary action in areas of deployment of its forces and as it deems within its capabilities, to ensure that its area of operations is not utilized for hostile activities of any kind, to resist attempts by forceful means to prevent it from discharging its duties under the mandate of the Security Council, and to protect United Nations personnel, facilities, installations and equipment, ensure the security and freedom of movement of United Nations personnel, humanitarian workers and, without prejudice to the responsibility of the Government of Lebanon, to protect civilians under imminent threat of physical violence; Requests the Secretary-General urgently to put in place measures to ensure UNIFIL is able to carry out the functions envisaged in this resolution, urges Member States to consider making appropriate contributions to UNIFIL and to respond positively to requests for assistance from the Force, and expresses its strong appreciation to those who have contributed to UNIFIL in the past; Calls upon the Government of Lebanon to secure its borders and other entry points to prevent the entry in Lebanon without its consent of arms or related materiel and requests UNIFIL as authorized in paragraph 11 to assist the Government of Lebanon at its request; Decides further that all States shall take the necessary measures to prevent, by their nationals or from their territories or using their flag vessels or aircraft: (a) The sale or supply to any entity or individual in Lebanon of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitar y equipment, and spare parts for the aforementioned, whether or not originating in their territories; and (b) The provision to any entity or individual in Lebanon of any technical training or assistance related to the provision, manufacture, maintenance or use of the items listed in subparagraph (a) above; except that these prohibitions shall not apply to arms, related material, training or assistance authorized by the Government of Lebanon or by UNIFIL as authorized in paragraph 11; Decides to extend the mandate of UNIFIL until 31 August 2007, and expresses its intention to consider in a later resolution further enhancements to the mandate and other steps to contribute to the implementation of a permanent ceasefire and a long-term solution; Requests the Secretary-General to report to the Council within one week on the implementation of this resolution and subsequently on a regular basis;
390
Selected Documents
(18) Stresses the importance of, and the need to achieve, a comprehensive, just and lasting peace in the Middle East, based on all its relevant resolutions including its resolutions 242 (1967) of 22 November 1967, 338 (1973) of 22 October 1973 and 1515 (2003) of 19 November 2003; (19) Decides to remain actively seized of the matter.
391
Kingdom of Morocco The Justice and Reconciliation Commission Three-part Summary of the Final Report PART 1: ESTABLISHING THE TRUTH AND DETERMINING RESPONSIBILITY Taking into account that the period covered by the Justice and Reconciliation Commission is the longest compared to similar experiences (43 years), that the various crises of political violence have caused gross human rights violations, involving state actors and sometimes non-state actors too, and the lack of reliable records and academic studies covering specific periods in the contemporary history of Morocco, the Commission’s truth-seeking mission took on various aspects. The hearing sessions with the victims, made public by way of the media, and the hundreds of testimonies registered and preserved in the Commission’s archives, as well as the academic conferences and dozens of seminars organized by the Commission or by non-governmental organizations from various sectors of society have allowed the broadening of a pluralistic and composed public debate addressing half a century of national history. Furthermore, these activities made it possible to achieve a substantial leap in the process of establishing the truth about many events in this period of time, as well as about several types of violations, which had remained until then marked by silence, taboo or rumors, most notably the issue of forced disappearances. During the national debate on the issue of human rights, this notion was used to cover several categories of missing people. For the sake of more clarity, the Commission adopted a work methodology based on field investigation coupled with records-based research. – Field investigation: The Commission visited the families of missing individuals and received them in its offices, to collect their testimonies, define their demands and explain its approach and methodology in handling this issue. It also held closed hearings with witnesses who had spent time with individuals considered missing. The Commission further carried out inspection visits to former detention centers and held hearings with former wardens who had practiced in these centers. – Research and examination of records and documents: the Commission gathered and analyzed all the records made available by various local and international sources (lists, reports, etc.), and which, in one way or another, point to cases of disappearances (lists of local human rights groups, of Amnesty International, and of the UN Working Group on Enforced and Involuntary Disappearances). It also examined the answers presented by security forces and the Royal Armed Forces, as
392
Selected Documents
well as the documents that the International Commission of the Red Cross have regarding those individuals who went missing as a result of armed clashes in the Southern provinces. Following the hearings, cross-checking and examination of the public answers, the Commission reached the following results: – The Commission discovered, verified and specified the identity and places of burial of 89 individuals who died during captivity in Tazmamart (31), Agdez (32), Qal’at Mgouna (16), Tagounite (8), Gourrama (1) and in the surroundings of the Mansour Ad-Dahbi dam (1) – The Commission discovered and specified the identity and places of burial of 11 individuals who died during armed clashes, 7 of whom died in 1960 (Barkatou Group and Moulay Chafii) and 4 others died in 1964 (Sheikh Al Arab Group). – The Commission arrived at the conclusion that 325 people of those who were considered missing in fact died as a result of the public forces’ disproportionate use of force during the riots of 1965, 1981, 1984, 1990 as follows: • 50 in Casablanca in 1965, • 114 in Casablanca in 1981, • 112 in Fes in 1990, • 49 during the events of 1984 as follows: 13 in Tetouan, 4 in Ksar El Kebir, 1 in Tangiers, 12 in Al Hoceïma, 16 in Nador and its surroundings, 1 in Zaïo and 2 in Berkane. – The Commission managed to localize some of the burial places without the identity of some of the victims, and in other cases, it identified the victims without being able to localize the places of burial. Excepting the 1981 events of Casablanca, the Commission reached the conclusion that the victims were buried at night, in regular graves, in the absence of their families, and without any intervention by the public prosecution. A medical source further informed the Commission that the overall number of victims who died during the June 1981 events in Casablanca reached 142. However this figure needs to be verified. – The Commission further determined that 173 people died during their arbitrary detention or disappearance between 1956 and 1999, in illegal detention centers such as Dar Bricha, Dar al Maqarri, Derb Moulay Cherifm Tafnidilte, Courbiss, etc., but was unable to determine their places of burial. 39 case of deaths occurred in the first years following the independence during clashes opposing non-state actors, 14 deaths occurred in the 1960s, and a high number of deaths, namely 109 cases, occurred in the 1970s. The 1980s and 1990s were marked by a significant drop in the number of deaths: 9 cases in the 1980s and 2 cases in the 1990s. – In the context of the conflict in the Southern provinces, the Commission’s investigations allowed the elucidation of 211 cases of individuals who had been accounted for as missing, and these cases include: • 144 persons died during armed clashes: the identity and places of burial of 40 of these have been determined, while the identity and places of the remains of 88 have been determined, but not their places of burial. Also, the Commission was unable to identify 12 people among those deceased, while 4 others died as a result of injuries incurred during clashes, after having been detained and hospitalized. They were buried in regular graves. • 67 people among those presumed missing were in fact handed over to the International Commission of the Red Cross on October 31, 1996.
Kingdom of Morocco. The Justice and Reconciliation Commission
393
Conclusions • The total number of people whose fate was determined is 742; • The Commission is convinced that 66 of the cases it examined have the constituting elements which suggest that they are cases of enforced disappearances, and the Commission believes that it is the State’s responsibility to pursue the investigations to the end of uncovering these victims’ fate. The Commission’s investigations have allowed for great progress to be achieved in the truth-seeking process, therefore it is the Commission’s recommendation that its experience, findings, testimonies, indicators and investigations be taken advantage of, and these constitute part of the Commission’s archives. The Commission faced obstacles in its truth-seeking mission, including the limitations and fragility of certain oral testimonies. However, these were overcome by referring to written sources. Other difficulties related to the deplorable state of national archives and the inadequate cooperation of certain authorities, whereby certain officials gave incomplete answers about cases they were questioned about, while certain former, retired officials refused altogether to contribute to the efforts to reveal the truth. Having reached the end of its mandate, the Commission believes that it has accomplished an important step towards establishing the right to know the truth, by way of non-conventional methods, and that it has contributed to finding the truth about the gross human rights violations Morocco has experienced in its past. PART II: REPARATIONS The IER made decisions on the files of 16,861 individuals who applied for reparations. 1 – Compensation The IER has made the following decisions: – 9280 victims will benefit from compensation, – Among these beneficiaries, 1895 were recommended to receive other forms of reparations (for example, social reintegration, professional/administrative reparations); – 1499 of those who have already benefited from compensation granted by the previous arbitration board between 1999-2003, were also recommended to receive supplemental forms of reparations by the IER. These decisions benefited to victims of the following violations: • Forced disappearance; • Arbitrary detention with or without due process and/or followed by execution; • The killed, wounded, or arbitrarily detained during urban demonstrations/riots; • Forced exile; • Sexual violence. The IER based its decisions on six criteria of experience, treating all victims with equal respect: – Deprivation of liberty; – Specificity of forced disappearance (as a complex violation of the very basic human rights mainly the right to life); – Detention conditions; – Torture and other cruel, degrading or inhumane treatment; – The aftermath of physical or psychological abuse.
394
Selected Documents
In all of its decisions, the IER paid specific attention to gender, taking into consideration the specificity of suffering endured by women in their experience with grave violations of human rights. 2 – Medical and Psychological Rehabilitation During its mandate the IER opened a medical unit to take care of victims needing immediate/urgent care. Moreover, in the course of its work, the IER analyzed 9992 files of individuals who declared that they suffer physical or psychological illness caused by the grave human rights violations they experienced. As a result, the IER recommended the following: • The extension of obligatory health benefit to all victims and their relatives • The immediate care of close to 50 victims suffering from severe or chronic aftereffects of violations • The creation of a permanent mechanism to give medical assistance to victims of grave violations of human rights 3 – Communal reparations Based on the conviction that certain communities and regions are believed to have suffered, whether directly or indirectly, from the effects of political violence and the ensuing violations, the Commission brought a particular focus to the issue of communal reparations. As such it: • Organized and participated in seminars in various cities and regions (Figuig, Al Hoceïma, Errachidia, Khenifra, Marrakech, etc.); • Organized a national forum on reparations, with the participation of over 200 organizations and 50 national and international experts; and • Held consultative meetings with both the public authorities and civil society actors. In this regard, the Commission recommends the adoption and support of socioeconomic or cultural development plans tailored to a number of cities (such as Casablanca), and to specific groups (namely women), and regions (Rif, the Figuig region, Tazmamart, Agdez-Zagora, the Middle Atlas, etc.). The Commission particularly recommends the transformation of the former illegal detention centers (Tazmamart, Agdez, Derb Moulay Cherif in Casablanca, etc.). Measures to that effect have already been initiated; indeed, the army has already dismantled the military barrack near Tazmamart, and the dismantling of the former detention center in Derb Moulay El Cherif has started, whereby the residents of the building where the detention center was located on the ground floor, are being evacuated and relocated.
Kingdom of Morocco. The Justice and Reconciliation Commission
395
PART III: RECOMMENDATIONS In order to guarantee the non-repetition of the gross human rights violations that took place in Morocco and in order to advance the ongoing reforms, the IER is making a series of recommendations concerning institutional reforms, a national strategy for the fight against impunity, and the necessary follow-up stages for implementing the recommendations. 1 – Consolidating constitutional guarantees to human rights Namely by ascribing to the principle of the primacy of international law on human rights over domestic law, and the presumption of innocence and the right to a fair trial, the Commission recommends the reinforcement of the principle of separation of powers, and the constitutional prohibition of any interference by the executive power in the functioning of the judiciary power. The Commission also recommends to further clarify the constitutional provisions that guarantee the basic freedoms and rights, such as the freedom of movement, of expression, of demonstration, of association, of political organization, of gathering and of striking, the confidentiality of communications, the sanctity of residence, and the respect of private life. The Commission further recommends strengthening the control of the constitutionality of laws and independent decrees issued by the executive power, by including in the constitution the right of a person under the jurisdiction of a court to claim an exception of unconstitutionality of a law or a decree. Just as one-party rule is prohibited by the constitution, the Commission recommends the constitutional prohibition of forced disappearance, arbitrary detention, genocide and other crimes against humanity, torture and other forms of cruel treatment or sentence, or inhuman or degrading treatment, as well as all forms of internationally prohibited discrimination, as well as any incitation to racism, hatred and violence. 2 – Adopting and implementing an integrated national strategy to struggle against impunity Based on the results of its final report, the Commission recommends the development of a comprehensive national strategy, integrated and mufti-faceted in this field. This strategy should be based on the notion that the struggle against impunity requires, in addition to legal reforms, the development and implementation of a general set of policies in the fields of justice, security, order maintenance, education, and permanent training, as well as the active participation of the society as a whole. The Commission believes that this strategy needs to be grounded in the rules of international law on human rights, making the penal code consistent with Morocco’s international commitments, by: – Incorporating and defining the responsibility and sentences as stipulated international instruments; – Empowering and holding responsible any employee in the public sector with the application of laws to report any information about the crimes committed, regardless of the party responsible for this act; – To establish specific requirements for the protection of victims of gross human rights violations and their right-holders, as for example during hearings, by ensuring means of recourse for civil parties to appeal for justice through rehabilitation and reparations.
396
Selected Documents
3 – The Commission believes that in order to promote a state of law, there must be, in addition to all this, reforms in the sectors of security, justice, law, and penal policy. Therefore, it specifically recommends the following: A – The governance of the security apparatus requires the habilitation, clarification and publication of the regulations and laws related to the prerogatives, the organization, the decision-making process in the sectors of security, the means of intervention during security operations, the super vision and the assessment of all the intelligence service organs and executive authorities or any other party having the power to resort to public force. B – Strengthening the judiciary’s autonomy requires in addition to the recommendations related to the constitution, a reassessment of the statutes of the Higher Magistracy Council, by way of an organic law reviewing its constitution and mission. This would be necessary to ensure the representation of other, non-judicial actors within the Council, and to establish its autonomy with regard to its human and financial resources. This would also serve to grant it enough prerogatives to organize the profession and determine restraints, and assess the judges’ work, educate them and task them with presenting an annual report about the judicial authority’s work. C – Finalizing new legislation on the penal code and criminal system requires the strengthening of the legal and procedural guarantees against human rights violations and the implementation of the recommendations presented at the national forum on penal policies held in Meknes in 2004. It also necessitates developing a clear and precise definition of violence against women, in conformity with national norms, and put into action the recommendations of the Human Rights Advisory Council (CCDH of Morocco) specific to prisons (expanding the scope of jurisdiction of the judge in charge of carrying out sentences, adopting alternative sanctions, etc.). 4 – Follow-up mechanisms Being at the end of its mandate, the Commission recommends the adoption of mechanisms and norms charged with following-up on these steps: – Implement the decisions related to compensation and follow-up on the implementation of recommendations about other forms of reparations, including medical and psychological rehabilitation of victims and communal reparations programs; – Implement the recommendations specific to the truth-seeking processes with regard to still unresolved cases; – Implement the Commission’s recommendations related to reforms; – Preserve the IER’s private and public archives.
397
Max Planck Institute Afghan Family Law Workshop Report Martin Haars*
1 INTRODUCTION Following the international community’s pledge to strengthen the judicial reconstruction efforts of Afghanistan’s current government, a number of conferences, seminars and workshops are regularly being organised by various institutions and governmental and non-governmental organisations. Very often the activities only take place in the capital city of Kabul, due to its comparative advantages in infrastructure, security and possible attendance of experts in their respective field of interest. The process of (re)constructing the system of the administration of justice in Afghanistan is multi-faceted with regard to actors, target groups, objectives, fields of law and methodology. Seminars on selected family law-related issues like women’s rights, domestic violence or childcare have been organised; foreign state organisations and the Afghan Ministry of Justice have been implementing training for judges, lawyers and administrative officers on aspects of constitutional law and procedural law (both in administrative and civil law), and research activities are being conducted by scholars in institutions of higher education in and outside Afghanistan. However, most of the activities are not coordinated and one gets the feeling that most actors work independently, each following their own programmes. While the general framework of Islamic hanafi law, which is the predominant school of law in Afghanistan and Afghanistan’s codified civil law, has been studied reasonably well, the legal situation on the ground in Afghanistan is hard to assess. There is not yet a comprehensive strategy for analysing Afghan family law in theory and practice. In order to compile first-hand information on family law in Afghanistan, the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany (hereafter MPI) conducted a three-day workshop on family law in Afghanistan in Kabul, from 10-12 June, 2006 with funding from the German Federal Foreign Office. The workshop was conceived as a platform for discussions between the legal experts of the * Martin Haars is at the Max Planck Institute of Comparative and Private International Law, Hamburg, Germany.
398
Selected Documents
MPI-Team and the Afghan legal community in order to identify the main problems and possible solutions in the field of family law, with the intention of devising in early 2007 a textbook on Afghan family law for Afghanistan’s university faculties of law and shari‘a. Originally seminars were planned in Kabul, Herat and Mazaar-e Sharif. However, because of the unstable security situation in early June 2006, it was decided to leave out the provinces until the atmosphere had cooled down. Therefore the provincial actors were invited to come to Kabul and for the talks to be carried out in the capital. The MPI-team consisted of Afghan and international legal experts of both traditional Islamic family law and/or contemporary Middle Eastern legal systems: Dr. Nadjma Yassari and Hamid Saboory from the MPI, Professor Mohammad Hashim Kamali (Kuala Lumpur, Malaysia), Professor Irene Schneider (Göttingen, Germany), Dr. Martin Lau (School of Oriental and African Studies, London, U.K.), and Dr. Najibullah Kamali (Encyclopaedia of Islamic Law, Kuwait). The Afghan participants came from the provinces of Kabul, Nangarhar and Balkh. There were representatives of the Ministry of Justice, the Afghanistan Independent Human Rights Commission, the Supreme Court, the Kabul Court of Appeals, the Family and the Juvenile Court in Kabul, some members of the current Loya Jirga, lecturers and professors from the universities of Kabul, Balkh and Nangarhar, as well as non-governmental organisations such as the Afghan Women’s Council, the Afghan lawyer’s associations, and the International Legal Foundation. Some other non-Afghan guests came from the United Nations Organisation, the Italian Justice Office of the Italian Embassy in Kabul, the U.S. Embassy, and the German Embassy. More than 50 persons attended the workshop and debated on a wide range of matters of Afghan family law such as engagement, conclusion of marriages, marriage-related rights and duties, registration of personal status, and divorce. Other topics like maintenance of children or family law-related inheritance issues had to be left out, in order to give the participants more time for detailed discussion of the core themes. The discussions were mostly very lively and covered the Islamic foundations of family law and general concepts of human relations as well as modern factors influencing marriages in Afghanistan. In the following, some of the points of discussions will be outlined in brief.
2 DEBATED ISSUES OF AFGHAN FAMILY LAW The workshop was structured in three sections beginning with solicitation and engagement, going on to the requirements for a valid marriage including forced marriages, child marriages, clauses in marriage contracts, and finishing with the registration of matters of personal status and polygamy and divorce. All topics were introduced by brief presentations from members of the MPIteam summarising the legal situation in Afghanistan according to the Afghan civil code of 1977 (hereafter CC). They were mirrored and contrasted with matters of Islamic jurisprudence, codifications of family law in other Islamic countries like Jordan, Morocco or Iran, and reports on legal pluralism in Afghanistan.
Max Planck Institute Afghan Family Law Workshop Report
399
2.1 Engagement agreements The promise of a person, man or woman, and the honour of his family weigh heavily in Afghanistan’s societies. Engagement agreements are often concluded by promises between the guardians of children. They must be honoured at all times in any circumstance and are considered binding agreements for the child’s family. Therefore, the consent of the child or adolescent to his/her engagement and subsequent marriage contract is often not the decisive factor for the actual confirmation of the agreement between the respective families. One female participant exemplified this practice when reporting a case in which two pregnant women promised themselves that their children would marry in the event that one gave birth to a girl and the other to a boy. While the civil code determines the age of marriage – Art. 70 of the CC stipulated 18 years for males and 16 or under certain conditions 15 for females – it is silent on the minimum age for engagement. Some participants, therefore, requested that a minimum age for engagement be introduced in the civil code. Others demanded that a father or a guardian who supports the practice of quasi-irrevocable engagement should be punished: either by a heavy fine or imprisonment. Many shared the view that in this regard currently neither Islamic law nor the Afghan civil code, which both require the free consent of the spouses for the conclusion of a valid marriage, enjoy the respect they deserve. 2.2 Dower and bride price Islamic law demands that the bridegroom deliver a dower (mahr) to his bride, but it does not oblige him also to pay a bride price (walwar) in order to compensate the parents or the clan of the bride for her upbringing or the expected loss of labour in their household. The payment of a bride price is nevertheless an obligation dictated by tradition and custom. The practice of bride price payments is widespread and many Afghan heads of family impose heavy sums of money as walwar on their potential sons-in-law. Most of the participants expressed their strong opposition to the social obligation to pay a bride price, and even more tradition-oriented participants joined in their opinion that walwar had no base in Islamic law. However, so far the enforcement of any legislation aimed at criminalisation has failed entirely.1 Interestingly, the Afghan civil code does not contain any provision on walwar payments at all. The general consensus was that the civil code must address the issue and produce a suitable solution for Afghan society. The dower (mahr), contrary to walwar, is recognised both under Islamic law and the civil code. An agreement on dower is not a requirement for a valid marriage. Many Afghan participants emphasised, that in the majority of cases the dower is not given to the bride. The women mostly do not know about their dower, since the family of the bride withhold information about it. The participants were in agreement regarding the importance of better informing
1 See Mohammad Hashim Kamali, Law in Afghanistan (1985), p. 84 ff.
400
Selected Documents
women on their rights. Hamid Saboory proposed to create a provision that would prescribe that the bride must take part in negotiations on her dower, so that she is properly informed about its amount and the time it is due. 2.3 Consent of the spouses According to hanafi law, as a general rule, the consent of both spouses is necessary to conclude a marriage. If a bride or bridegroom has not consented to the marriage, it is not validly concluded: then sexual intercourse between man and woman is strictly prohibited and will be considered fornification (zina). Children born into such a relationship will be considered illegitimate. In practice the guardians of the minor children frequently agree on the conclusion of the marriage without asking for their approval. Very often in this traditional marriage process young girls are married to much older men. These forced child marriages create huge social problems that are not infrequently “resolved” by the running away or in some cases by the suicide of the girl. According to hanafi law, when a minor who has been married at minority reaches the age of puberty, he/she can endorse the marriage, i.e. subsequently approve of the marriage (takid) or contest its validity, i.e exercise the so-called ‘option of puberty’ (kiyar al-bulugh). The participants openly discussed these legal options. Many agreed that the court should adopt a complaisant policy towards these options of dissolving unwanted marriages. 2.4 Marriage age and age difference of the spouses As mentioned earlier, Arts. 70 and 71 of the CC stipulate minimum marriage ages for males (18) and females (15/16). However, Islamic law knows minimum age limits that are comparatively low, ranging from 11 to 15 years and in practice the age of marriage in Afghanistan can be as low as 9 years. The fact that widespread practice and tradition stand out against a legal stipulation was seen as problematic. One participant asked: “Where does violence against women originate from?”; he then answered the question himself: “First, marriages at young age, secondly, multiple marriages that are unnecessary, and thirdly, marriages with large age differences between the spouses”, to which another attendee added a report of a case of a 60-year old man marrying a 9-year old girl. A number of participants therefore demanded that the law should not contend itself with a minimum age for marriage, but should prescribe also the maximum relative age difference between the spouses. Hashim Kamali referred to Jordan’s code of personal status that limits this age difference so that the man may not be more than 20 years older than a minor bride.2 Najibullah Kamali went as far as saying that a difference in age of more than ten years
2 See Art. 7 Law No. 61 of 1976 (The Law of Personal Status), as published in: Dawoud Sudqi El Alami/Doreen Hinchcliffe (eds.), Islamic Marriage and Divorce Laws of the Arab World (1996), p. 79 ff.
Max Planck Institute Afghan Family Law Workshop Report
401
should not be permitted. Many participants agreed that child marriages are morally unacceptable, while some supported the idea of changing the current laws accordingly. Furthermore, it was pointed out that the issue of child marriage is linked to problems in registration procedures (see below, at 2.6.). “The age of a person cannot be specified [by imams or judges] because there is no functioning system of birth registration”, Homa Alizai, the head of the Family Court in Kabul, remarked. 2.5 Marriage contract clauses In many Islamic countries, state authorities provide marriage contract forms that the fiancés must use for their marriage. The question whether certain clauses like the waiver of the unilateral right to divorce of the husband (talaq-e tafwid) should be incorporated in this standard form caused heated debates. Some regarded this kind of clause as a door opener for an “easy” divorce that is generally discouraged in Islamic theology and jurisprudence. In Afghanistan there used to be a model form for marriage contracts, but it is hardly ever used and if so, only in Kabul. While discussing the potential benefit or disservice of a written marriage contract, the participants greatly supported the idea of promoting a standard marriage contract form. Nevertheless, one participant was of the opinion that the widespread use of such marriage contract forms could also lead to the disfranchisement of men. In view of the extremely limited opportunities of Afghan women to achieve recognition as citizens with the same rights and duties as men,3 to most participants this position was considered to be too farfetched. However, it was the legitimate expression of an opinion that is popular among male Afghans and which needs to be taken seriously. The legal argument that such a model contract form will help determining the rights of the spouses in court proceedings – irrespective of gender issues – is rather weak in the case of Afghanistan, since marriage disputes are virtually taboo and are considered as a source of dishonour to the affected families and thus, state courts are not accepted as dispute settlement bodies. Be that as it may, marriage contracts could serve as a means of evidence in many other cases, e.g. where the disappearance of a husband due to conflict or migration needs to be proven by the wife or where wives of a polygamous man claim their respective rights of inheritance. 2.6 Registration of matters of personal status In her opening presentation, Irene Schneider stressed the importance of formal registration procedures in matters of personal status, not only with regard to marriage, but also birth, divorce and death. While there was no clear reaction to the proposal of registering engagements, the majority of the participants agreed that registration as such is useful and necessary.
3 See Martin Lau, An Introduction to Afghanistan’s Legal System, in: Yearbook of Islamic and Middle Eastern Law, Vol 8 (2001-2002), 27-44, p. 41 ff.
Selected Documents
402
Today, registration of personal status is not widespread. It was said that many Afghans do not see the benefit of registration procedures and refrain from registering because they actually fear corrupt administration officers. Afghan participants then asked how other states ensure that people register matters of personal status. Nadjma Yassari pointed out that in Iran a young couple must present a valid marriage certificate in order to be able to rent a flat. Martin Lau gave the example of Bangladeshi migrants who live in the U.K. and abide by the registration requirements in their home country because the validity of their documents may decide on their application for a work permit in Great Britain. Other participants suggested that non-registration should be penalised, and that those who did not register should be barred from applying for a job in the public sector, for a passport, an identity card or a visa. Articles 37, 46-50 and 61 of the CC stipulate that registration should be administered by state institutions. The question who should act as the registration officers was intensely debated. A number of participants argued that the imams should act as registration officers since they were trusted by the communities. Others said that this was the duty of the state and if imams were integrated into the system of registration, they would only work as agents of the state. In general, one can say that the participants were positive about a stronger involvement of the religious elite in the administration of matters of civil law. 2.7 Levirate/re-marriage of widows In the session on polygamy and divorce, the participants touched upon many issues that arise due to a man’s obligation or wish to marry another wife. One participant claimed that, “with regard to polygamy there is a social problem in our society.” He supported his view by giving this example: “if there are two brothers, and one marries a woman and dies, then the brother [of the deceased] needs to take care of the widow and is obliged to marry her, which in turn creates all sorts of social problems.” Hashim Kamali commented that this kind of levirate is well-known in war-torn societies where a lot of men have died during war, like in Chechnya at the present time, but he added that there was no general rule in Afghan or in Islamic law that would require the widow or brother to accept such a marriage, since in Islam marriage is a contract between the spouses based on their free will.
3 THE WAY AHEAD Many Afghan participants stressed that family law is and has always been a very sensitive issue in Afghanistan. While there are forces who feel comfortable with changing traditional ways of life, there are others who strongly oppose what is seen as the “Westernisation of social interaction” of the Afghan people. All participants, regardless of their political background and attitude towards change, were concerned about the current legal situation. Some of the suggestions that were proposed by the participants are sketched out below:
Max Planck Institute Afghan Family Law Workshop Report
403
3.1 Legal publications in Dari and Pashtu One female participant, a member of the Provincial Council of Logar Province, complained that the availability of books written in Dari and Pashtu was very poor: “We do not have sources like books on justice. We have some respected teachers, but no sources in our own languages, Pashtu and Dari. We have books in Arabic, but not in our languages. It is the responsibility of our teachers to publish books in our languages!” So far, the manuals on Afghan family law that can be found among law school students definitely need updating.4 Many articles and monographs are published in international academic languages, like English, French, and Arabic, but little is (re)translated and made accessible for Dari/Pashtu-speakers. The MPI has recently published its conference proceedings of the 2004 Hamburg conference on “Shari‘a in the Constitution of Afghanistan” in both English and Dari.5 3.2 Legal education for the public One concern that was voiced many times during the workshop was that the majority of the rural population of Afghanistan are poorly informed about their rights and duties. With regard to the promotion of women’s rights, the high level of illiteracy among women remains worrisome. Therefore, many participants demanded that the government and NGOs should start a campaign to create awareness for the teachings of Islam and Islamic law in the rural areas. It was suggested to make use of modern mass communication media, like radio and television. Apart from setting up such an education programme, the Ministry of Education was asked to consider the idea of introducing a subject in the curriculum of primary schools that would put Islamic family law principles across to the pupils. Moreover, it was suggested that it should be obligatory for all university students, irrespective of their subject, to take courses in family law. 3.3 Legal education for Islamic scholars Another suggestion was to establish a new programme that would focus on the legal training of Islamic scholars (mullahs and imams). As mentioned above (in 2.5), it was suggested that certain administrative tasks concerning registration of matters of personal status be assigned to the imams and mullahs. However, a Kabuli judge reminded the audience that “marriage is a civil act and marriage registration should therefore be carried out in administrative offices.” If one accepts the idea of introducing religious scholars into the formal administration of the state, one must also provide training opportunities for 4 See Mohammad Hamid Saboory, Report on the Activities in the Legal Sector (2005) Hamburg: MPI, available under: www.mpipriv-hh.mpg.de/deutsch/Forschung/LaufendeProjekte/ Afghanistan/afghanistan.htm. 5 See Nadjma Yassari (ed.), The Sharîca in the Constitutions of Afghanistan, Iran and Egypt – Implications for Private Law (2005).
Selected Documents
404
them. If authority should be given to the mullahs by parliament, as was demanded by one participant, the mullahs need better education. As participants readily admitted, even the mullahs’ knowledge of Islamic law is very poor. 3.4 Amendments to the civil code The participants and members of the MPI-team had discussions on many aspects of the statutory family law of Afghanistan, which uncovered two general approaches: on the one hand, participants stated that the family law provisions, as found in the civil code, suffice and just lack proper enforcement; on the other hand, it was held that certain sections of the civil code needed to be amended. One reason given is that the Afghan civil code is modelled according to the Egyptian and Iraqi code of the time and has never been fully assimilated to the conditions prevailing in Afghanistan. While it is obvious that there is some uneasiness with regard to engagement agreements, bride price payments, conditions for rescission of a marriage agreement, and other aspects of law, it is also clear that family law reform should not be carried out piecemeal, but rather a concentrated effort is required by all the stakeholders concerned, i.e. parliament, the judiciary, the administration, the religious leadership, the women’s councils and the members of the local jirgas.
4 CLOSING REMARKS Debating Afghan family law can never be isolated from the social, economic, and political situation in the country. Therefore, not only is greater input by lawyers and other jurists necessary, but also further academic research, e.g. studies by anthropologists, social workers, or economists. The MPI welcomes suggestions, comments, and proposals for its subsequent project, the publication of a textbook for law school students on Afghan family law, which should be directed to the following address: [email protected].
405
Part IV Selected Cases
406
407
Palestine: High Court of Justice, Constitutional Challenge No. 5/2005 Anis Al-Qasem*
The recent decision of the High Court of Justice acting as a constitutional court in Constitutional Challenge No. 5/2005 raises important matters, some formal and procedural and others substantive.
THE FACTS The facts, as may be derived from the judgment, are as follows. The claimant, the Human Rights Association of Arab Lawyers (the Association), brought this action, on 17 November 2005, against the President of the Palestinian National Authority (PNA) and the Legislative Assembly, challenging the constitutionality of Law No. 15 of 2005, the Judicature Law, published in the Palestinian Official Gazette Number 60 on 9 November 2005 which, according to its provisions, entered into force on the day of its publication in the Official Gazette. This Law was originally intended to amend certain provisions of the Judicature Law No. 1 of 2002, and, for that purpose, the President issued a decree that created a special commission to consider and recommend the required amendments, and the Commission was charged with consulting the High Judiciary Council, established by Law No. 1 of 2001, in the preparation of the proposed amendments.
CLAIMS OF UNCONSTITUTIONALITY The claimant alleged that, on reviewing the challenged Law, its form, and the procedure followed in its consideration, approval and promulgation, it concluded that the Law contravened constitutional provisions set out in the
* Barrister and Consultant on the laws of the Middle East.
Selected Cases
408
Basic Law (as amended) of 2003, in that: a. Article 100 of the Basic Law provided for the establishment of a High Judiciary Council whose composition, jurisdiction, and procedure shall be determined by law, and whose opinion must be sought in connection with bills that regulate any matter pertaining to the judiciary, including the office of public prosecution. However, the Legislative Assembly discussed and approved the bill without seeking the opinion of the High Judiciary Council established under the legislation referred to in Article 100 of the Basic Law, namely Law No. 1 of 2001. Not only that, the claimant alleged, but the Law contravened the opinion of the Commission established by the abovementioned Presidential Decree. Since the Law was discussed and approved without taking the opinion of the High Judiciary Council, as required under the constitution, it has become tainted with unconstitutionality. b. The Law contravened Article 107 of the Basic Law, which dealt with the appointment of the Attorney-General, by providing, in Article 65, that the Attorney-General shall be appointed by the President, on the recommendation of the Minister of Justice and confirmation of the Legislative Council (Article 65 of the Law), whereas the said Article 107 of the Basic Law provided that the Attorney-General was to be appointed by the President on the recommendation of the High Judiciary Council. c. Article 103 of the Law is unconstitutional in that it provided for the creation of an ad hoc transitional judiciary council, the majority of whose members were not to come from the judiciary, and entrusted to it numerous powers and responsibilities without accountability to any body, in contravention of Articles 97 and 98 of the Basic Law, which emphasised the independence of the judiciary and prohibited interference in the affairs of the judiciary and conduct of justice. The claimant found it strange to have such an ad hoc body while there was a permanent High Judiciary Council. d. Consequently, the claimant pleaded with the Court (1) to issue a temporaneous order, with immediate effect, suspending the operation of the Law and, in particular, suspending the creation of the ad hoc judiciary council, and (2) to decide that the Law was unconstitutional in its totality or, at least that the provisions complained of were unconstitutional.
THE DEFENCE The Attorney-General, acting for the respondents, challenged the legality of the composition of the Court, alleging that it should have been constituted of two thirds of the membership of the High Court as in a previous case, not five, as in the present. He argued further that the claim was unacceptable in form, alternatively, that it should be rejected on the merits. As to form, no direct original challenge was permissible since, as the law then stood, constitutional supervision of laws was limited to the following three cases, none of which was present in the action at hand:
Palestine
409
a. A court seized with an action may, on its own initiative, consider the constitutionality of a provision presumably relevant to the action in order to determine its applicability or otherwise. b. Where a party raises the defence of unconstitutionality of a provision relied upon against him. c. The role of the Palestinian judiciary, when exercising this supervisory power, was limited to suspension of the application of an unconstitutional provision, and did not extend to its annulment. Law No. 5 of 2001 on the Formation of Regular Courts, entrusted the High Court of Justice, pending the creation of a constitutional court, with constitutional supervision of legislation, thus removing it from the jurisdiction of ordinary courts; however, such power of supervision was limited to situations where such ordinary courts are seized with a matter involving a question of constitutionality, as stated above, but are obliged to refer it to the constitutional court for decision instead of deciding on it. In this way the legislator avoided the possibility of having conflicting decisions by ordinary courts in constitutional matters and ensured stability of interpretation of challenged provisions since decisions of the High Court in these matters would be final. This means that no direct action challenging the constitutionality of legislation can be brought before the High Court acting as a constitutional court. Article 103 of the Basic Law, which provided for the creation by special legislation of a constitutional court, stipulated that such law should determine the composition and procedure of the court. However, a law relating to the constitutional court has not yet been passed. Consequently, the High Court, acting as a constitutional court, is barred from following special procedure in considering matters pertaining to the constitutionality of legislation or the annulment of such legislation, even if unconstitutionality is established, because the Basic Law left the elucidation of procedure and effect of decision to a law which has not yet been promulgated. Under the rules of procedure prevailing before ordinary courts, a claimant must have an interest in the action before the court that he wants to protect and should have suffered damage when raising the defence of unconstitutionality. In the present action, the claimant was an association whose basic law does not include, as one of its objects, the protection of the constitutionality of the Judicature Law. Consequently, it lacked the interest required by law. Similarly, the first respondent has no capacity in this action since there was no substantive case raised before courts of law in which he was made a party. As to the substance of the claim, there had been consultations with the High Judiciary Council by the Commission established by Presidential Decree and the Council of Ministers sent the draft law to the Council for its comments, but received no reply. As to Article 65 of the Law, concerning the appointment of the AttorneyGeneral, it is true that it conflicts with Article 107 of the Basic Law, but the Legislative Assembly is in the course of amending this Article to correspond to Article 65. As to Article 103 of the Law concerning the ad hoc transitional judicial council, this provision appears in the section of the Law dealing with “Exceptional Provisions”; it is of a transitory nature intended to reform the judiciary and remedy situations which have led to the present shortcomings.
Selected Cases
410
THE COURT One of the landmarks of the Basic Law of the Palestinian National Authority, as amended, is Article 6, which provided that supremacy of the law is the foundation of governance in Palestine, emphasising that all authorities shall be subject to the law in the same manner as individuals. For the first time in the history of Palestine, the Basic Law established the principle of judicial supervision of the constitutionality of legislation and regulations and provided for a constitutional court whose functions were entrusted to the High Court pending legislation creating such court, and until such legislation is enacted, the High Court has been chosen as a guardian who will not take lightly the obligation to apply the provisions of the Basic Law. Our people have the right to rest assured that no one will touch the Basic Law and that supremacy of the law will remain the foundation of government in our country.
After these comforting words, the Court moved to consider the various defences. As to the defence that the Court was not competent to entertain the action because it was submitted as an original direct claim, Articles 104 of the Basic Law and 37 of the Law on the Formation of Regular Courts have entrusted to the High Court, provisionally, the functions of the constitutional court until its law is enacted. Since this law has not been enacted as yet to provide for the procedure to be followed in constitutional challenges, the law that governs judicial proceedings before all courts, including the High Court, is the Civil and Commercial Procedure Code No. 2 of 2001, on the basis that it is the general law applicable in all cases in the absence of special legislation. Consequently, the rules set out in the said Code, which permit raising a direct action, subject to the existence of capacity, interest and damage, would apply to the present claim, and the Court is undoubtedly competent to be seized with it. The defence was rejected. As to the defence that the claim should not be accepted because of the absence in the claimant of capacity, interest and damage, it was proven to the Court from the basic law of the Association, which has been certified by the Ministry of the Interior and produced to the Court, that these conditions were satisfied in the present action. One of the objects of the Association is the exertion of efforts for the realisation of the principle of the independence of the judiciary, and the present action is an attempt to carry out this object, thus establishing its capacity and interest, indeed its obligation, to pursue this action. Its failure to do so would result in grave damage to the Association and its objects. “If,” the Court continued, “it is observed that the President of the Claimant Association and in his capacity as a practicing lawyer, is one of the assistants of the judiciary in accordance with Article 75 of the Judicature Law, his capacity and interest in raising this claim become abundantly clear.” As to the invalidity of the composition of the Court, this defence had no basis in law. The requirement that the Court should be composed of two thirds of the judges of the High Court was restricted, under Article 25 of the Law on the Formation of Regular Courts, to specific situations provided for in that Article, and the present case was not one of them.
Palestine
411
As to the merits, the Court accepted all the submissions of the claimant and rejected those of the respondents. It found that the Legislative Assembly has discussed and approved the Law without consulting the High Judiciary Council, as required by Article 100 of the Basic Law. The formalities set out in the Basic Law regarding such consultation had to be be followed, and this obligation could not be circumvented. Consequently, the challenged Law had violated the procedure set out in the Basic Law and should by annulled. The Court held that Article 65 of the challenged Law regarding the appointment of the Attorney-General, by adopting a system of appointment different from that provided for in Article 103 of the Basic Law, had violated the provisions of said constitutional Article and should be annulled. The Court held that, in the exercise of its functions, the Legislative Assembly could not violate any rule of constitutional value. The Legislative Assembly did not express the general will except within the limits provided for in the constitution, and should therefore approve only legislation which corresponded to its provisions in form, foundation and objectives. Otherwise, it would be annulled. The Court held that Article 103 of the challenged Law was unconstitutional, because it provided for the creation of an ad hoc transitional judiciary council, the majority of whose members were from outside the active judiciary, and entrusted it with numerous powers concerning the formation of all judicial bodies, including the appointment, promotion and retirement of judges, violating thereby Articles 97 and 98 of the Basic Law, which emphasised the independence of the judiciary and placed matters concerning it in the hands of the judicial authority and noone else. Moreover, the Court argued, ad hoc transitional committees were formed only for the regulation of a newly-created system and not an existing one in which there was a High Judiciary Council, which could carry out these responsibilities. The Court concluded that the challenged Law was, as a whole, unconstitutional and should be deemed null and non-existent.
COMMENT Different reactions have been expressed about this decision. There is little doubt that the decision was correct according to law in most of its conclusions. However, in the opinion of this writer, some pertinent questions were not dealt with convincingly. For example, why was it not sufficient for the Council of Ministers to request the opinion of the High Judiciary Council, as alleged by the Attorney-General to have had happened, and not challenged by the Claimant, to satisfy the constitutional requirement of consultation? The Basic Law is not clear as to who should consult the High Judiciary Council, but the Court seems to imply that the obligation is on the Legislative Assembly which, it is submitted, seems to be contrary to normal processes of consultation on legislation. What would be the effect on the process of consultation of the failure of the High Judiciary Council to respond, as alleged by the Attorney General and does not seem to have been refuted by the Claimant? Is the Council entitled to sabotage legislation affecting the judicial system by simply not responding? Does the constitutional requirement of consultation rest with
412
Selected Cases
the Legislative Assembly or with the government in the course of the preparation of the law? As to the ad hoc transitional judicial council, the holding of the Court is questionable. It is not unusual, when the reform of a system is needed, as it has been needed in Palestine, to entrust the matter to an ad hoc committee from outside the system. This is not always interference in the independence of the judiciary, which is guaranteed under the Basic Law. A different view may stall reform and entrench a system which has failed to reform itself. In the opinion of this writer, the Court was unnecessarily protective of the existing system. It is of interest to note that the Court held that a practising lawyer can be a proper party to an original constitutional challenge pertaining to the judiciary, and that a civil society organisation can also raise a direct challenge within its own objects. This may be going a little too far, if followed in all cases. The role of the High Court acting as a constitutional court is now approaching its end. A law, the Constitutional Court Law, under No. 3 of 2006, has been enacted and promulgated on 17 February 2006, and has now come into force. However, the Court has not yet been established.
413
Pakistan: Legality of a Hisba Bill to introduce an Islamic Ombudsman in the North-Western-Frontier Province Makhdoom Ali Khan*
Every Muslim, exhorts the Qur’an, should command good and forbid evil. One of the avowed objectives for the creation of Pakistan was to enable Muslims to order their lives in accordance with the teachings of Islam. Almost immediately after independence, therefore, efforts were made to implement this religious injunction through legislation. The endeavour did not succeed. The position remained unchanged until the government of the religious parties alliance (MMA) in the North West Frontier Province passed the Hisba Bill. The Governor had no authority to refuse assent. Having serious reservations, in the matter, he wrote to the Prime Minister requesting that the President be advised to seek the opinion of the Supreme Court on the constitutionality of the measure. A reference seeking the opinion of the Court was made. The Supreme Court obser ved that the authority conferred on the Ombudsman to check bureaucratic excesses was not unconstitutional. With regard to the powers of the Ombudsman to prosecute or punish citizens for non-performance of religious obligations or for the defiance of his orders, the Court declared that these did interfere with the private life, personal thoughts and individual beliefs of the citizens. These were, therefore, unconstitutional. Until now the courts in Pakistan have been excessively deferential in their examination of Islamic laws. The Hisba judgment is indeed important for its discussion of the various aspects of life and law in an Islamic State. Its greater significance lies in the fact that for the first time in the history of Pakistan, the Supreme Court has declared that legislative authorities will not be allowed to trump individual freedoms and transgress constitutional limits by the expedient use of an Islamic label. * Senior Advocate of the Supreme Court of Pakistan and the Attorney-General for Pakistan since September 2001.
Selected Cases
414
Please note that the following text of the ‘Hisba’ judgment of the Supreme Court of Pakistan has been edited in order to make it more readable. The original, unedited, text of the judgement can be found on the website of the Supreme Court of Pakistan at http:// www.scp.com.pk/sub_links/pr/hasba.htm
In the Supreme Court of Pakistan (Advisory Jurisdiction) Present Mr.Justice Iftikhar Muhammad Chaudhry, C.J. Mr.Justice Javed Iqbal Mr.Justice Abdul Hameed Dogar Mr.Justice Sardar Muhammad Raza Khan Mr.Justice Muhammad Nawaz Abbasi Mr.Justice Faqir Muhammad Khokhar Mr.Justice Mian Shakirullah Jan Mr.Justice M. Javed Buttar Mr.Justice Saiyed Saeed Ashhad Reference No. 2 of 2005 Reference by the President of Pakistan under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973
OPINION Iftikhar Muhammad Chaudhry, C.J.: The President of Pakistan has referred the following questions of law for opinion of this Court under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as “the Constitution”): (1) Whether the Hisba Bill or any of its provisions would be constitutionally invalid if enacted? (2) Whether the Hisba Bill or any of its provisions, would, if enacted; be violative of the fundamental rights guaranteed in Part-II, Chapter 1 of the Constitution, including but not limited to Articles 9, 14, 16 to 20, 22 and 25 thereof? (3) Whether the Hisba Bill or any of its provisions would, if enacted, be violative of Articles 2A, 4, 203G, 212, 229 and 230 of the Constitution? (4) Whether the enactment of the Hisba Bill would encroach on an occupied field, violative of the Constitution by creating a parallel judicial system, undermine judicial independence and deny citizens their right of access to justice? (5) Whether the enactment of the Hisba Bill would violate the principle of separation of powers enshrined in the Constitution? (6) Whether the Hisba Bill, and in particular sections 10 and 23 thereof, is unconstitutionally overbroad and vague and suffers from excessive delegation? (7) If the answer to any one or more of the above questions is in the affirmative, whether the Governor, NWFP is obliged to sign into law the Hisba Bill passed by the NWFP Assembly?
Legality of a Bill to introduce an Islamic Ombudsman in the NWFP
415
2. Precisely stated, the circumstances which necessitated the seeking of opinion from this Court by the President of Pakistan, are that on 19 June 2003, a draft Bill titled “Hisba Bill” was submitted under the NWFP Rules of Business 1985, to the Governor of the NWFP for his approval prior to its presentation before the NWFP Assembly. The Governor returned the draft Bill to the NWFP Government (hereinafter referred to as the “Provincial Government”) on 26 June 2003, with the advice that before moving it for leave to introduce, it may be appropriate, inter alia, to take the following into consideration: i.
It is an established principle that legislation should be precise, clear and unambiguous so that the legitimate rights of the citizens are protected from the abuse or excess of powers vested in an authority. The draft Bill in its present form is vague, more particularly the powers envisaged to be vested in the proposed Mohtasib. This lack of clarity and precision could lead to unnecessary and unlawful infringement of the rights of the citizens besides intrusion in the realm of such areas of private morality which may neither be desirable nor just and fair. Moreover, terms used in the draft Bill need to be clearly defined, such as, inter alia, un-Islamic social customs, Islamic moral values, respect and customss for prayers etc. ii. Islam is indeed a complete code of life and any legislation in the name of Islam has to be exercised with caution and utmost care because if the powers thereunder are abused it inevitably damages the image of a dynamic religion. The draft Bill envisages giving wide discretionary powers to the proposed Mohtasib, particularly in section 23 thereof, however the powers have been vaguely worded. Such wide, vague and loosely worded/drafted legislation will inevitably cause immense difficulties for the citizens besides jeopardising their civil liberties, privacy and constitutional rights. iii. The explanation to sub-section (iii) of section 2 of the proposed Bill categorically points out that this law would be invoked, when no other legal, judicial or administrative remedy is available. Contrary to it, five cases mentioned in sub-section (v) of section 2 and various subsections of section 9 are dealt by comprehensive Efficiency & Disciplinary laws/rules, NAB Ordinance and other punitive laws/rules. iv. There are valid and enforced laws relating to most of the powers mentioned in section 23 of the draft Bill. All such laws, inter alia, relating to employment of children, Ehtaram-e-Ramazan, hoarding and black marketing, prohibition of wasteful expenditure in marriages, weights and measures, prevention of cruelty to animals, gambling, regulation of loudspeakers, vagrancy, price control and prevention of profiteering and many others are not only in existence and enforced by various institutions and authorities are provided there-under for administering these laws and the expenditure for which is paid by the exchequer. There is a need to examine all the laws which are already in existence, and to make the respective executing authorities/agencies more effective and accountable rather than creating parallel institutions and authorities in haste and vesting them with unbridled and vague powers. This would neither be in the interest of good governance or the citizens. Moreover, it will be an unnecessary burden on the already strained exchequer of the province. v. The Draft bill proposes to touch upon certain laws which fall under the domain of Federal Legislation, inter alia, the Police Order. Section 2, sub-section (iii) read with section 20 of this proposed Bill refers to the creation of a Hisba force which is contrary to the Police Ordinance 2002. Any change/amendment to this Order would require permission from the President of Pakistan as it is included in Schedule VI of the 1973 Constitution of the Islamic Republic of Pakistan. vi. Prior approval of the President would be required for the extension of the proposed law to Provincially Administered Tribal Areas (PATA). It is therefore advisable to consult the Federal Government through the Law and Justice Division and Interior Division before taking further action on the proposed Bill. vii. Vide sub-section (16) of section 2 of the proposed Bill, the definition of journalist is very vague. It accepts any person as a journalist who is an MA(Journalism) or has an attachment with journalism for ten years irrespective of the fact whether he holds a journalism degree or any other such equivalent qualification. viii. The proposed appointment and removal of the Mohtasib and the procedure for conducting inquiries and investigations also need to be reviewed so as to make the respective procedures transparent and more accountable.
416 ix.
Selected Cases The matter being of a sensitive and important nature, instead of legislating in haste, as a first stage the treasury benches may consider seeking the opinion of the Council of Islamic Ideology for the purposes of Article 230 of the Constitution in respect of all the existing laws relating to the proposed powers enumerated in the draft Bill and to seek recommendations as to the measures of bringing such existing laws in conformity with the injunctions of Islam. In the second stage, clear precise and unambiguous legislation may be proposed in relation to areas/issues, which are not covered in the existing laws. It would also require taking into consideration prudent and diligent regard vis-à-vis the exchequer.
3. The Provincial government, in compliance with the above advice of the Governor, agreed to refer the matter to the Council of Islamic Ideology (hereinafter referred to as “CII”). The CII rendered its opinion and pointed out inherent defects in the proposed legislation and specifically stated that the draft Hisba Bill violated a number of constitutional provisions and was capable of being exploited for political motives. The opinion of the Council was communicated to the Provincial government on 18 September 2004. The Provincial government, without taking into consideration the opinion of the CII, tabled the draft Hisba Bill in the NWFP Provincial Assembly on 11 July 2005 and got it approved. The Governor of the NWFP, on 11 July 2005, requested the Prime Minister to make a request to the President of Pakistan for making a Reference to this Court for its opinion on the constitutionality of the draft Hisba Bill under Article 186 of the Constitution as serious questions of law of public importance are involved in the matter. 4. In the light of the request of the Governor and the attending controversy, the Hisba Bill which generated serious and substantial questions of constitutionality of fundamental human rights, the Prime Minister of Pakistan was pleased to advise the President of Pakistan to seek the opinion of this Court and refer the above questions of law of public importance for opinion on the constitutionality of the draft Hisba Bill. As this Court is required to give its opinion about the constitutionality of the draft Hisba Bill, therefore, it is deemed appropriate to reproduce hereinbelow the following provisions from the draft Hisba Bill: A BILL to provide for the establishment of the institution of Hisba in the North-West Frontier Province. WHEREAS sovereignty over the entire Universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan through their chosen representatives within the limits prescribed by Him is a sacred trust; AND WHEREAS implementation of Islamic way of life revolves around Amer-bil-Maroof and Nahi-unal-Munkir and to achieve this objective it is necessary apart from other steps to establish an institution of accountability which could keep a watch on securing legitimate rights of various classes of the society, including females, minorities and children and to protect them from emerging evils and injustices in the society; AND WHERE it is further necessary to extend the jurisdiction of Mohtasib to Government’s administration and offices in order to have a check upon injustices, abuse of powers and other similar excesses; It is hereby enacted as follows: 1. Short title and commencement (1) This Act may be called the North-West Frontier Province Hisba Act, 2005. (2) It shall extend to whole of the North-West Frontier Province. (3) It shall come into force at once. 2. Definitions In this Act, unless the context otherwise requires, (a) “Agency” means a Department, Commission or any office of Provincial Government, a Corporation or similar other institutions which the Provincial Government may have established or which may be working under its control, the Secretariat of the Provincial Assembly of the North West Frontier Province, but does not include the High Court and the Courts working under its administrative control;
Legality of a Bill to introduce an Islamic Ombudsman in the NWFP
417
(b) “Amer-bil-Maroof” means fulfilling the obligations of enjoining the good as laid down in Holy Quran and the Sunnah; (c) … (d) … (e) … (f) … (g) … (h) … (i) “Maladministration” includes all such decision, processes, recommendations, acts and deficiencies which – (i) Are contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or (ii) Are perverse, arbitrary, unreasonable, unjust, biased, oppressive or discriminatory; or (iii) Are based on irrelevant grounds; or (iv) Involve the exercise of powers or the failure or refusal to do so, for corrupt or improper motives, such as bribery, jobbery, favoritism, nepotism and administrative excesses; or (v) Amount to negligence, inattention, delay, incompetence, inefficiency and inaptitude in the administration or discharge of duties and responsibilities; (j) … (k) “Nahi-unal-Munkir” means fulfilling the obligations of forbidding the evil as laid down in the Holy Quran and the Sunnah; (l) … (m) … (n) “Provincial Advisory Council” means the Council established under this Act; (o) … (p) … (q) … (r) … 3. … 4. … 5. … 6. … 7. … 8. … 9. … 10. Powers and duties of Mohtasib The Mohtasib shall, on a written complaint of any person, or on reference from the High Court, the Supreme Court or the Provincial Assembly, or suo motu, shall have the power to – (a) Enquire into the allegations of mal-administration against any Agency or its employees: – provided that no Government servant, during his service, shall be entitled, in relation to affairs of his employment, to lodge a complaint with the Mohtasib; (b) Protect/watch over Islamic values and customs at the provincial level; (c) Keep watch on the media established by Government or working under the administrative control of Government to ensure that its publications are useful to the purpose of upholding Islamic values; (d) Forbid persons, agencies and authorities working under the administrative control of Government to act against shariah and to guide them to good governance; (e) Formulate such directives and principles, which may help in making the conduct of authorities working under this section to be effective and purposeful; (f) Extend help to the provincial administration in discharging its functions smoothly and effectively; provided that the Mohtasib shall not interfere in any matter which is sub judice before a Court of competent jurisdiction or which relates to external affairs of Pakistan or the relations or dealings of Pakistan with any foreign State or Government or relates to or is connected with the defence of Pakistan or any part thereof, the Military, Naval and Air Forces of Pakistan or the matters covered by laws relating to these forces;
418
Selected Cases
(g) For the purposes of attaining the objectives of this Act, with particular reference to doing away with the maladministration and to remove social injustices, take steps for providing facilities of training, study and research; and (h) Mohtasib shall, in the discharge of his duties and functions, be entitled to engage the services of experts and Consultants with or without remuneration. 11. … 12. Implementation of orders, etc. (1) On completion of the action in relation to a complaint, the Mohtasib shall have the power to issue a directive to the competent officer of the Department concerned for its implementation and may, at the same time, take up such steps as he considers expedient. The concerned Agency within the time limit mentioned in the directive, should inform the Mohtasib about the action taken in that behalf, failing which the concerned Agency or competent officer, on the recommendation of the Mohtasib, shall render itself or himself, as the case may be, to the following actions: (a) One or more actions under the law relating to removal from Service; (b) In case of non-cooperation with the Mohtasib or his staff during investigation, legal action for interference in smooth functioning of Government. (c) Where the Mohtasib is satisfied in respect of a complaint under consideration that any functionary of Government has committed a cognizable offence or rendered himself to civil liability, he shall direct the concerned Agency to initiate action as aforesaid in accordance with law. (2) In case of non-compliance of the directive of the Mohtasib, he shall refer the matter to Government, which shall ensure its compliance and inform the Mohtasib of its compliance. (3) A report of such non-compliance of the official shall form part of his personal file. (4) The official concerned shall have the right of representation to the Chief Minister within a period of 30 days from the date of recommendation under sub-section (1). 13. … 14. Contempt of Mohtasib The Mohtasib shall, mutatis mutandis, have the same powers which are available to the High Court to punish a person who – (a) Hinders or becomes a source of hindrance in the smooth proceedings before the Mohtasib or does any act causing difficulties in the completion of such proceedings; (b) Gives such statement which defames Mohtasib, or any of his officials or representatives; (c) Acts in a manner which, in relation to proceedings before the Mohtasib, influences the mind of the Mohtasib to take a partial decision; or (d) Acts in a manner which, under any law for the time being in force, falls within the definition of contempt; provided that any comments made in good faith and in the public interest on any act or on report of the Mohtasib or his employer or representative shall not be treated as contempt. (2) The person aggrieved against any order of the Mohtasib under sub-section (1) may, within 30 days of such order, appeal in the High Court, which shall be heard by a Division Bench of the said Court. 15. … 16. … 17. … 18. … 19. … 20. … 21. … 22. … 23. Special powers of Mohtasib Without prejudice to the powers conferred by section 10, the Mohtasib shall have the following powers: (i) To monitor adherence of moral values of Islam at pubic places; (ii) To discourage Tabdhir or extravagance, particularly at the time of marriages and other family functions; iii) To follow the code of Islam in giving dowry; (iv) To discourage beggary;
Legality of a Bill to introduce an Islamic Ombudsman in the NWFP (v)
24. 25.
26. 27. 28.
29. 30. 31.
419
To monitor adherence of Islamic values and its respect and regard at the times of “Iftar” and “Taravih”; (vi) To discourage entertainment shows and business transactions at the times of Eideen and Jumma’ah prayers around mosques where such prayers are being held; (vii) To remove causes of dereliction in performance and proper arrangement of Eidain and Jumu’ah prayers; (viii) To discourage employment of under-age children; (ix) To remove unnecessary delay in discharge of civil liability which is not disputed between the parties; (x) To prevent cruelty to animals; (xi) To remove causes of negligence in the maintenance of mosques; (xii) To observe decorum of Islam at the times of Azan and Fard prayers; (xiii) To prevent misuse of loud-speakers and sectarian speeches in mosques; (xiv) To discourage un-Islamic and inhuman customs; (xv) To check the tendency of indecent behaviour at public palaces including harassment of females; (xvi) To eradicate the deal as profession in “Taweez”, “Gunda”, palmistry, sorcery, etc; (xvii) To protect the rights of minorities, particularly to regard the sanctity of their religious places and places where they perform their religious ceremonies; (xviii) To eliminate un-Islamic traditions which affect the rights of women, particularly taking measures against their murder in the name of “Ghairat”, to remove the tendency of depriving them of their rights of inheritance, to eliminate the tradition of “sura”, and to protect their rights conferred by Shariah and law; (xix) To monitor weights and measures and eliminate impurity; (xx) To eliminate artificial price-hikes; (xxi) To protect Government properties; (xxii) To eliminate bribery from Government Departments/offices; (xxiii) To incite feelings of service to people at large amongst Government functionaries; (xxiv) To advise those who are found to be disobedient to their parents; (xxv) To perform any other function or functions which the Provincial Mohtasib determines from time to time in consultation with the Advisory Council; (xxvi) To mediate amongst parties and tribes in matters pertaining to murders, attempts to murder and similar other crimes threatening to law and order situation. (xxvii) To perform any other function/functions which the Provincial Mohtasib determines from time to time in consultation with the Advisory Council. … Restriction on the rights of hearing (1) No Court or authority shall be competent to question the legal status of the proceedings before a Mohtasib. (2) No Court or authority shall have the power to pass any injunction or any interim or a stay order with regard to any matter under consideration of the Mohtasib. (3) No suit or legal proceeding shall lie against the Mohtasib or his employees for anything in good faith done or intended to be done. … … Offences to be non-cognizable (1) Defiance of the order of the concerned Mohtasib in the performance of his duties under section 23 of this Act shall be a non-cognizable offence punishable with imprisonment for a term up to six months and a fine up to two thousand rupees. No Court shall take cognizance of an offence under this section, except on a complaint in writing of the Mohtasib or his authorized representative. (2) The offence under sub-section (1) shall be tried by the Court in accordance with Code of Criminal Procedure, 1898 (V of 1898) and the order shall be appealable. … … …
420
Selected Cases
5. Notices were issued to the Provincial Government of NWFP through the Chief Secretary as well as the Secretary Assembly, its Advocate General in addition to the Advocates Generals of all other Provinces. 6. “Hisba” is an Arabic word, which in plain language means “to count” or “accountability” or “to prohibit from evil things”, as per available literary sources. The Institution of the office of “Hisba” did not exist at the time of the Holy Prophet (PBHU) and the Khulafa-e-Rashideen. Initially the office of “Amil al-suk” was created by “Umayyads” to regulate markets. However, later on it was expanded into the office of the Mohtasib by the “Abbasids”. Reference in this behalf may be made to the following: 1. An Introduction to Islamic Law by Joseph Schacht . . . The office of the “inspector of the market” (ayopavouos, in Arabic amil al- suk or sahib alsuk, a literal translation) who had a limited civil and criminal jurisdiction; it was later, under the early “Abbasids” to develop into the Islamic office of the muhtasib. Similarly, the Muslims took over from Sassanian administration the office of the “clerk of the Court” who became an assistant of the kadi; this was well known to the ancient authors.
2. A History of Islamic Law by N.J Coulson One particular administrative office taken over by the Umayyad regime was that of the Byzantine market inspector, or agronomos. This official, bearing the equivalent Arabic title of “amil assuq”, possessed limited powers of jurisdiction concerning such things as weights and measures used in the market and petty offences committed there. At a later stage he was entrusted with the peculiarly Islamic function of hisba, or the duty of safeguarding the proper standards of religious morality. Accordingly he now took the title of muhtasib, but still retained the marketplace jurisdiction as a legacy of his historical origin.
3. A History of the Arab People by Albert Hourani . . . In the market there was a special official, the muhtasib, who supervised prices, weights and measures, the quality of goods and the conduct of business; his authority was derived from, a verse of the Qur’an which enjoined upon Muslims the duty of ‘bidding unto good and rejecting what is disapproved’, and in some circumstances he was appointed from among the religious class, but in others from the military . . .
4. Islami Riasat Main Mohtasib Ka Kirdar by Dr. M.S. Naz Urdu text reads in translation: The office of the Chief Justice was established by the Abassids. According to some scholars it is better to refer to it as the office of the Law Minister. The Chief Justice appointed qadis and mohtassibs (ombudsmen). His official functions included receiving reports about their conduct and passing orders for their transfer.
7. To substantiate the above definitions, a good number of books can be quoted including: The Concept of Administrative Accountability in Islam by Dr. Riaz Mehmood, Urdu Daira Ma’arif-e-Islamia (Urdu Encyclopedia of Islam), Vol. VIII, published under the auspices of the University of Punjab Lahore, Ehkamul Sultania by Imam-Abul-Hassan Bin Muhammad Bin Habib-e-Baseeri (translated by Maulvi Syed Muhammad Ibrahim), Adbul Qazi by Dr. Mehmood Ahmed Ghazi, Edarai-e-Tehkekqat-e-Islami, Badae-ulSana’ay by Alama Allauddin Abubakar Bin Sulemani (translated by Professor Khan Muhammad Chawla) and The Concise Encyclopedia of Islam by Cyril Glasse. The relevant portion from the last mentioned book is reproduced below: Muhtasib. A public functionary whose task, as it has existed since ‘Abbasid times, has been that of supervising the merchants’ quality and prices. The muhtasib checks and verifies weights and measures and the use of materials in crafts. He gives expert appraisal of the value of cloth, rugs, woven articles, brass and copper utensils. These estimates are not binding as a price between buyer and seller, but are indicative of the fair market price. The muhtasib is still found in some traditional markets.
Legality of a Bill to introduce an Islamic Ombudsman in the NWFP
421
8. A study of the definitions of “Hisba” from the above books indicates that although it was a very old institution, its origin is not well known. Some of the authors, as is evident from the above definitions, say that in the beginning, the terms “Hisba” and “Mohtasib” were not used but the terms “Sahib al-Suk” or “Amil ul-rusul” (in charge of trade or trade administrator/administrator of streets) were used. The word “Sahib ulSuk” is said to be a translation of a Greek term. However, history reveals that the term “Mohtasib” started to be used instead of “Sahib ul-Suk” during the Khilafat of “Mamoonur-Rashid” and the Mohtasib used to look after the market business in addition to his religious duties, such as to bring reformation in social life. A careful perusal of the documents on the subject clearly depicts the fact that the duties of the Mohtasib were to inspect instruments of the scales of weights and measures. These scales were so complicated and different that the people could easily deceive each other. In addition to this he had also to keep a vigilant eye over each kind of shortcoming and dishonesty that could be committed during the preparation and sale of commodities. It is also evident from the history books that bearing in mind the economic conditions of Muslims, the Mohtasib used to check prices of the goods although he had no power to determine them. He had also to ensure that the construction and repair of houses and shops would not endanger the public peace or cause obstacles in the way of pedestrians and traffic. Street cleanliness, repair of shelters for commuters and supply and drainage of water were amongst his duties and due to such functions the Mohtasib in the Islamic period used to be considered a City Officer. Unfortunately, at the end of the Middle Ages, with the economic downturn and social crises, the office of Mohtasib started to lose respect. During the era of the Mamlukes, the post of Mohtasib, like other institutions, was sometime seized by the giving of bribes. The buyer of this office reimbursed this money by imposing illegal levies. Eventually, fighting started to occur among the contenders for the post. Sometime the post was given to an Army Officer in reward for his performance or for strategic reasons. This office remained established in Muslim countries until the beginning of the 20th century. It is most important to note that the office of the Mohtasib effectively functioned, even when there was no codified law and there was no regular Government to control State affairs, to spread virtue and to battle against evils as per the comprehensive meanings of the word “Hisba”. In this sense every Muslim can act as Mohtasib for himself as well as for others, in view of the Injunction of the Holy Quran (Surah Al-Imran, verse 104), the translation of which is, “And there must be a section among you to call towards good, to order the right and prevent the bad.” Similarly, Holy Quran in Surah Al-Nisa, verse 59 ordained, “Oh Muslims, obey Allah, His Prophet (PBUH) and those in authority from amongst you.” Dr. Riaz Mehmood in his book, The Concept of Administrative Accountability in Islam, while taking into consideration both these Injunctions of Holy Quran and dealing with the subject of “Hisba” and “Legislature” (Chapter IX, page 173), has opined as follows: In the third verse it is emphatically proposed that there must be a body to call to good, to beneficial state of affairs, to order good and to check bad. Lastly the men in authority or the men who have been assigned some work, who have been deputed or are engaged in the task of some peremptory nature must be obeyed. So a representative or consultative body has been provided. In Ul-Al-AMR the legislature, the executive and judiciary all are encompassed.
Dr. Sabhi Mehmasani has concluded by referring to many Quranic verses and traditions that Ijma is an admitted and proved source of Islamic law. So the entity of Shura is established. Hadrat Umer formed a Shura. It has also been discussed in the preceding chapters that the Holy Prophet (PBUH) and the rightly guided Caliphs conducted Ihtisab themselves. Ihtisab of the public
422
Selected Cases
and officials had all along been there. However the nomenclature, Muhtasib, appeared in the time of Caliph Mehdi. The Muhtasib and the Shura are therefore to consult each other. Hisba and Shura may coincide in a single body notwithstanding whatever qualification of piety or fiqh be laid down for them. The Muhtasib is a successor of the ruler and the legislature, i.e. parliament is the successor of Shura. Shura’s relationship as referred to in the encyclopaedia is reproduced below. Linked with these tasks was another which has caused modern scholars to stress the view that the traditions of antiquity concerning the councillors of the town were perpetuated in the duties of the Muhtasib.
The councillor is the representative of the urban electorate at the local councils level. He too is often elected on a party basis. The members of parliament have comparatively larger constituencies. Their functions are almost the same. They attend to the small disputes of the voters, redress their complaints and are the overall overseers of public officials. The councillors are also invested with some judicial responsibilities. The legislators progress the Bills in parliament, keeping in view the problems of their respective areas. The parliament of Pakistan is officially called the Majlis-i-shura. Thus the members of parliament (Legislature) themselves act as Muhtasibs in their areas and also advise the rulers. In all countries where there is a parliamentary form of government, the parliament (Legislature) almost acts as the Muhtasib of the executive. The same is the position in Pakistan. The relevant articles of the constitution of the Islamic republic of Pakistan are referred to in this respect. Article 9: The Cabinet 1. There shall be a cabinet of ministers with the Prime Minister at its head, to aid and advise the president in the exercise of his functions. … 4. The cabinet, together with the Minister of State, shall be collectively responsible to the National Assembly.
There is a slight difference between the Ombudsman and Hisba, which is discussed in paragraph 9. However, their relationship with the Legislature is almost the same. An excerpt from the Annual Report of Wafaqi Muhtasib of Pakistan 1992, may be referred to in this connection. Wafaqi Mohtasib vis-à-vis the Parliament: The institution of Wafaqi Mohtasib was established through a presidential order in 1983 (p.o. of 1983), during the days when the country was under Martial Law. The Ombudsman law thus does not stipulate linkage between this institution and the parliament which has created a contradiction in the context of the world-wide practice in similar institutions. In all the countries of the world, where this institution exists, the Ombudsman is considered to be a Parliamentary watchdog operating in the administrative domain on behalf of the Parliament, to which alone he is responsible.
After the restoration of democracy in Pakistan in 1985, this office has continuously required the creation of a formal linkage between this institution and the parliament, either through a constitutional amendment or by the setting up of a Public Administration Committee of the Parliament, on the model of the Public Accounts Committee, but to no effect. All efforts seem to have been wasted. Committees of this nature would not only act as a liaison between the Mohtasib and the Parliament, but would also provide necessar y guidance and support to this institution in the performance of its functions in various fields. Matters relating to the Ombudsman’s office, such as its Annual report, budget proposals and amendments to the law, prudence demands, are required to be scrutinised first by that committee for the
Legality of a Bill to introduce an Islamic Ombudsman in the NWFP
423
purpose of evolving bipartisan consensus before these are placed before the Parliament for consideration 9. The NWFP Assembly, despite having all functional democratic institutions under the Constitution, intended to establish the institution of “Hisba”, as per the draft Hisba Bill. Its preamble identifies the following two objects: i. Whereas implementation of the Islamic way of life revolves around Amar-bil-Maroof and Nahi-unal-Munkir and to achieve this object, it is necessary – apart from any other steps – to establish an institution of accountability, which could keep a watch on securing legitimate rights of various classes of society, including females, minorities and children, and to protect them from emerging evils and injustices in the society; ii. And whereas it is further necessary to extend the jurisdiction of Mohtasib to the Government’s administration and Offices in order to have a check upon injustices, abuse of powers and other similar excesses.
A careful perusal of the above preamble demonstrates that the Hisba Bill was drafted to achieve a two-fold objective: one, to establish an institution of accountability to fulfil the command of “Amar-bil-Maroof and Nahi-unal-Munkir”, as far as the personal lives of the different segments of society are concerned; and second, to extend the jurisdiction of the Mohtasib to official affairs of the Provincial government. So far as the second part is concerned, its object seems to be in line with the legislation already available on the subject, i.e. the Establishment of Office of the Wafaqi Mohtasib Order 1983, which has been mandated by the Constitution under item 13 of the Federal Legislative List; Establishment of the Office of Ombudsman for the Province of Balochistan Ordinance 2001; Punjab Office of the Ombudsman Act 1997; Establishment of the Office of Ombudsman for the Province of Sindh Act 1991, respectively. Definition clauses in the Hisba Bill and the other laws on the subject, relating to maladministration in Government offices, are identical in substance. 10. The concept of Ombudsman has been discussed in a Commentary on Ombudsman by Mubeen Ahmed Khan, the substance whereof is that it is an institution which takes care of a large segment of population or a large number of residents against the maladministration of Government functionaries. Dr. Riaz Mehmood, in The Concept of Administrative Accountability in Islam, in the chapter, “Ombudsman: concept and growth”, has described the role of the Ombudsman as a person or an office which on complaint or reference or even suo motu can look into administrative actions, omissions and commissions of government or semi-governmental agencies, affecting their subjects in case they in their own place term them partial, improper, arbitrary, oppressive, harsh, discriminator y, biased, victimizing, or the result of neglect, lethargy or incompetence, and after necessary investigation, offer possible redressal, within statutory spheres. Three renowned scholars on the subject, namely Gerald E. Caiden, Nail Macdermot and Ake Sandler, have detailed the concept of Ombudsman in a lucid manner: a new and to many people, a foreign word is being heard more frequently, it is “Ombudsman”. A term that refers to special office or officer to whom people can go with their grievances about the way their business with large anonymous bureaucracies has been handled. The Ombudsman records public complaints, investigates them, and reports the findings to the complainants and the organisations investigated. Should any wrong be discovered, it is expected that it will be put right, if not to the complete satisfaction of the aggrieved party, then at least better than it would have been without the Ombudsman’s intervention. For the public, the Ombu