Yemen: A Crime Against Us All

By David M. Crane 

In a bombing, the dust settles slowly over the strike zone. What emerges are grey images, living beings neutralized to monochrome. Bleeding from the ears, deaf, and dumb from the concussions the survivors walk about in a haze. These zombies are the first things you see staggering down the street away from the rubble behind them, rubble that is the tomb of loved ones, neighbors, and friends.

“For a decade or so, the rule of law prevailed regarding holding those who commit war crimes and crimes against humanity accountable. Yet we have slipped down a slippery slope. That political will is waning.”

There is no militarily necessary reason for the destruction, the strike carried out by one of the combatants who knew or should have known about the laws of armed conflict. The rules do not matter in most conflicts of the 21st century. Welcome to the dirty little wars that nip at the heels of civilization, a civilization grown weary of it all and who look the other way. It is just too hard to marshal enough political will to do something.

A powerless United Nations can do nothing other than to help ease the pain of air strikes by caring for the wounded and the terrified refugees. The once proud mandate of restoring international peace and security has changed to maintaining at best that peace and security.

The three nations that could restore that prominence, the United States, China, and Russia are its biggest challenges and all three could certainly live without the paradigm of peace set forth in 1945. All three of those nations over the past years are also the biggest human rights abusers led by strong men.

International Law has evolved over centuries through customary practice and the consent of nations to bind themselves to certain norms. Indeed the day-to-day actions in commerce, trade, and finance all hinge upon these norms. Over time, other norms that declare that human beings have rights to be free from want, fear, and to speak their minds and worship freely are now enforceable and carry an accounting if violated.

From all this just twenty-five years ago, modern international criminal law began. For a decade or so, the rule of law prevailed regarding holding those who commit war crimes and crimes against humanity accountable. Yet we have slipped down a slippery slope. That political will is waning and the use of the law to govern international relations regarding humanity challenged.

In this kaleidoscopic void, dirty little wars flourish like weeds in an abandoned lot. Yemen is one of those weeds thriving in the dusty haze of airstrikes.

The likes of the Yemeni conflict exists but for this condition and circumstance. A surrogate conflict backed by cynical nations vying for power and influence in the greater region that is the Middle East, the possibility of a peaceful resolution hinges on the rule of law. It is not going to happen …

Read the whole article.


“Armed Conflict and Compliance in Muslim States” with Corri Zoli Now Online

Although many empirical studies have explored state conflict behavior by a range of factors, relatively few studies have examined the conflict behavior of Muslim-majority states. Even less research systematically examined the role of state compliance with international humanitarian law as a variable in such conflict behavior.

This work builds a new dataset based on an international humanitarian law definition of war, and provides an overview of modern armed conflict behavior and compliance with international law governing armed conflict for Muslim states from 1947-2014.

PARCC Conversations in Conflict Studies 2017.

Boko Haram: Nigeria’s Islamist Insurgency

A Review of Boko Haram: Nigeria’s Islamist Insurgency by Virginia Comolli (Hurst & Company, 2015)

By Isaac Kfir

(Re-published from Journal of Islamic Studies, 28:1) The emergence in Northern Nigeria of Boko Haram—Jamāʿat ahl al-Sunna li-l-daʿwa wa-l-jihād (“The Group Committed to the Propagation of the Prophet’s Teachings and Jihad”)—has spawned a number of studies offering to explain its origins, rise, and rationale. In Boko Haram: Nigeria’s Islamist Insurgency, Virginia Comolli, a research fellow for security and development at the International Institute for Strategic Studies, offers her interpretation for the rise of the group and the continued threat that it poses to Nigeria, the region and possibly the international system. The threat stems from Boko Haram nurturing and building relations with various al-Qaeda affiliates in Africa and beyond. An additional objective of the book is to highlight how counterinsurgency operations can feed an insurgency.

“Yusuf managed to appeal to these individuals because he was charismatic and also wealthy, able to provide micro-loans.”

Comolli’s study frankly admits to the inherent difficulties of gathering primary information about the group and Northern Nigeria in general. This is because the group generally does not engage with Westerners (senior members of the group do not give interviews for example), its public statements are limited (some are available on YouTube, but Comolli does not seem to use them). Rather, Boko Haram opts for action, and access to its area of operation is restricted mainly by the Nigerian security services. Thus, Comolli bases her research on interviews with Nigerian security services, ordinary Nigerians (including some survivors of Boko Haram attacks), open-source information, and historical materials. This approach allows her to put together a compendium about the group. In some respects, the book’s goal, as Comolli recognizes, is to develop a more comprehensive approach to the dynamics of religious extremism in Nigeria and the region. To achieve such a goal Comolli’s takes a historical, societal approach to what prompted the emergence of the group. The book’s chapters, though meant to be thematically organized, read more chronologically, which makes sense as Comolli traces the evolution of Boko Haram to its current manifestation as a regional entity committed to violence across the Sahel and West Africa.

Comolli opens with an account of religious extremism in Nigeria, focused mainly on Usman Dan Fodio’s Jihad and the Sokoto Caliphate. Included in this account is Britain’s preference for indirect rule in Nigeria, which allowed, if not encouraged, the adoption of Shariʿa in Northern Nigeria. The chapter underlies the North-South division that has plagued Nigeria from the moment of independence. The next chapter describes the origins of many contemporary Islamist groups, noting how they formed, splintered, transformed and reformed, as seen for example with Ansaru (in full, Jamāʿat anṣār al-Muslimīn fī bilād al-Sudān). This provides the foundation for Comolli to deconstruct and explain Boko Haram, which she does in ch. 4. She describes its social make-up, funding and support networks.

In reviewing the evolution of the group, Comolli explores its first leader, Yusuf’s role and how he sought ties with the people, particularly the children who become almajirai—a complex term that has elicited different descriptions from different scholars, some seeing them as unemployed vagabonds, others as those who come to study the Qurʾān, or who migrate to avoid the hardship of the dry season, to those who are essentially street hustlers. Yusuf managed to appeal to these individuals because he was charismatic and also wealthy, able to provide micro-loans. What Yusuf did was to give many of the young men an identity and a sense of belonging …

To read the full article, click here.

Isaac Kfir, Associate Professor of International Relations and the Middle East at Tokyo International University, is an INSCT Research and Practice Associate.

Corri Zoli Named Maxwell School Research Assistant Professor

INSCT Director of Research Corri Zoli has been named to the position of Research Assistant Professor of Political Science in the Maxwell School of Citizenship and Public Affairs at Syracuse University.

The position, announced by INSCT Faculty Member and Maxwell School Dean David M. Van Slyke, Interim Vice President for Research Peter A. Vanable, and Syracuse University Vice Chancellor and Provost Michele G. Wheatly, is in recognition of Zoli’s professional accomplishments in research and is endorsed by the faculty of the Political Science department.

Zoli’s research focuses on contemporary problems of warfare from an interdisciplinary social science, public policy, and law perspective, with attention to the culture and governance of contemporary conflict dynamics, changing patterns of global conflict, and the role of international humanitarian law in contemporary conflict dynamics.

One track of Zoli’s research investigates the changing nature of the US military force structure, the challenges of asymmetric warfare for military personnel, and data-driven inquiry into servicemembers’ and veterans’ service and post-service experiences, including post-9/11 veterans’ reintegration and subsequent pathway in higher education, civic engagement, and employment. Zoli’s veterans research uses both qualitative and quantitative methods to help prioritize their perspectives, as in the co-authored white paper, Missing Perspectives: Servicemembers’ Transition from Service to Civilian Life.

On another track, Zoli analyzes the role of technology, culture, and religion in contemporary security dynamics and in postconflict transition. This includes the role of Islamic law in mitigating conflict and postconflict dynamics; Muslim-majority states’ international law conflict and compliance behavior; problems of law and governance in Afghanistan and Pakistan; and the importance of Islamic and international norms for transitioning post-Arab Spring states.

In her graduate/law seminar “Law and War,” Zoli prioritizes interdisciplinary research with various partners in and beyond Syracuse University, including the Institute for Veterans and Military Families (IVMF); United States Institute of Peace (USIP); New America Foundation (NAF); International Institute of Higher Studies in Criminal Sciences (ISISC); the US Department of State; and others.

Zoli’s research has been supported by the National Science Foundation, the Social Science Research Council, the Andrew Mellon Foundation, and Google. Her work has been published in Foreign Policy, Harvard National Security Journal, and the Fletcher Forum of World Affairs, among other venues.

Zoli earned her Ph.D. in cultural studies and international relations at SU (2004) and completed all credits in the professional policy master’s degree program at SU Maxwell School. In addition to her position at INSCT and the Maxwell School, Zoli is a senior researcher at IVMF; an honorary professor at the Institute for Religion, Politics, and Society at Australian Catholic University, Melbourne; and Chair of the Academic Advisory Board for the Warrior-Scholar Program.

Required Reading: The Arabs at War in Afghanistan

By Isaac Kfir

Review of The Arabs at War in Afghanistan by Mustafa Hamid and Leah Farrall in conversation (London: Hurst & Company, 2015).

(Re-published from the Journal of Islamic Studies, 27:3 (September 2016)) Unquestionably The Arabs at War in Afghanistan should become required reading for anyone interested in the development of the global jihadi movement. The book is unique, structured as a series of conversations between Farrall and Hamid known by the nom de guerre of Abu Walid Al Masri, an Egyptian-born, former journalist and close friend of Mullah Omar, Jalaluddin Haqqani and many others of those present at the creation of the strand of Islamism that was to produce such devastation and horror in the world.

“The book is filled with such wonderful little insights, including the interesting revelation in respect of Bin Laden’s 1996 Declaration of Jihad against the United States, which Hamid opposed.”

The principal aim of The Arabs at War in Afghanistan is to address a tremendous gap in the literature about what transpired in Afghanistan during the war against the Soviets and how the war impacted the development of the jihadi movement. Hamid, one of the few Arabs to have taken the oath of allegiance to Mullah Omar provides an absorbing behind-the-scenes perspective on how the war against the Soviet Union evolved in Afghanistan, the role of the Arab fighters and events such as the Battle of Jaji (there is a fascinating critique of Abu Abdullah, a.k.a. Osama bin Laden’s faith in the trenches), the Battle of Jalalabad and its implication for the Arab Afghan movement. Hamid goes to great length about the Jalalabad School (School of Youth/School of Jihad), the internal competition between the various Arab and Afghan actors including a review of the determination of the Ikhwan leadership in Peshawar in 1989 and 1990 to ensure that Bin Laden did not become ‘the leader of the Ummah’ (p. 163).

The book is filled with such wonderful little insights, including the interesting revelation in respect of Bin Laden’s 1996 Declaration of Jihad against the United States, which Hamid opposed. Hamid intimates that the Declaration was not about Bin Laden seeking to gain control over a heterogeneous jihadi movement, but about internal Saudi politics. That is, Bin Laden issued the Declaration as a way to get Saudis angry at what was taking place inside of the Kingdom to shift attention beyond Saudi Arabia. His doing so, at least according to Hamid, ensured that Saudi Arabia did not follow the civil war that plagued Algeria, which in part was fueled by returning jihadists (pp. 212–14).

Hamid, who spent over twenty-years years in Afghanistan and another ten under house arrest in Iran makes it clear that one of the worst legacies of the Afghan jihad was the Jalalabad School – established according to him to ‘weaken al-Qaeda and break the dominance of Abu Abdullah [Bin Laden]’ (p. 316). The Jalalabad School, Hamid emphasizes, instilled in the youth a ‘desire for martyrdom’ as opposed to a commitment to liberate Afghanistan and ensure that it was governed according to Shariʿa law. These, at least for Hamid, placed the Islamist liberation movement on the wrong path not only because in its current manifestation it claims countless lives (whether of the mujahidin who engage in needless sacrifices or civilians) but because its real purpose seems to be ‘bragging’ (p. 315). With this in mind, it is rather unsurprising that Hamid is highly critical of Saudi Arabia, Wahhabism and even Salafism, holding each element responsible for the high level of violence impacting the Muslim and non-Muslim world, which undermines the liberation of the umma.

Notably, Hamid provides his version of history and of events. He paints Bin Laden as someone whom the Taliban never really welcomed nor wanted, because they were concerned with his incessant threats vis-à-vis the West and particularly the United States. This was something that the Taliban, particularly Mullah Omar, felt would create tensions between the movement and Washington and therefore undermine the rebuilding of Afghanistan. Clearly, in his narrative Hamid disproved of some, if not most, of Bin Laden’s actions, views and behaviour. For instance he describes how angry he was with the East Africa bombing as it took place a few weeks after Bin Laden met Mullah Omar, and even though the operation was evolving, Bin Laden chose not tell the Taliban leader of the impending attack.

Hamid sees such behaviour first as rude and second as Bin Laden putting the Taliban at great risk, as he would have anticipated an American response (pp. 232–5). Another example of how badly Bin Laden treated Mullah Omar was the former’s refusal to let his daughter marry Omar, claiming that she was too young, only to marry her ‘to one of the Saudi boys’—this, Hamid claims, meant that Bin Laden ‘refused to give her to Mullah Omar’ (p. 225). Yet, the Taliban allowed Bin Laden to stay because he was rich, respected by his followers and, most importantly, because Mullah Omar could not turn Bin Laden over to the Americans or even the Saudis as Islamic and tribal customs prohibited it and to countenance such a measure would bring shame to Omar (p. 243).

Evidently, the focus of the book is with Hamid and the Arab Afghans, but attention and credit has to be given to Farrall as she navigates this unique project so deftly, engaging in a conversation with Hamid, allowing him to trust the former senior Counter Terrorism Intelligence Analyst with the Australian Federal Police …

To read the full article, click here.

Isaac Kfir, Associate Professor of International Relations and the Middle East at Tokyo International University, is an INSCT Research and Practice Associate.


On Being an American of Muslim Faith in the US Military

By Syed H. Tanveer, US Navy (E-5)

The recent argument between Khzir and Ghazala Khan, parents of Bronze Star Medal recipient Capt. Humayun Khan who was killed in Iraq in 2004, and presidential candidate Donald Trump have raised many questions about Americans who practice the Muslim faith serving in the United States military, including whether the military is safe with Muslims in it and whether Muslims should have the opportunity to serve their country when some believe this country is at war with Islam.

“If the United States as a whole could learn from the diverse and evolving culture of the military, we would be a stronger nation.”

I am one of 5,900 service members—a mere 0.02%—who identify themselves as an American of Muslim faith in the US military. Just like every other service member, we have taken an oath to “Support and defend the Constitution of the United States against all enemies, foreign and domestic” and to “bear true faith and allegiance to the same.” But not only have we sworn to represent and defend the United States and its Constitution, we are also bestowed the task of representing our cultures, which in my case is an American of Pakistani descent and of the Islamic faith, and to teach fellow service members who Muslims really are.

I enlisted into the United States Navy to give back to the country that gave me everything: a home, a public education, a childhood that most Pakistani children only dream of, and the tools necessary to have a stable and successful life. American is near and dear to my heart, but my faith stands alongside it.

Being an American of Muslim faith in the US military is neither a task that is too daunting nor a task that is too simple. The atmosphere in the military is diverse but because the objective is always “mission-oriented,” it is very easy for us to fit into our respected commands and to do the jobs we are given adequately and with equal opportunity. No non-Muslim servicemember will come up to a Muslim servicemember and say, “Hey, you must be a terrorist because you sure look like one.” In fact, most people approach me with many questions about what Pakistani Muslim culture is like and what my religion sets out to teach. In return, I always give them the answer that I’ve learned and followed growing up as a Pakistani-American Muslim: Islam is a faith that teaches peace, not harm.

Servicemembers have a mindset that differs from the general population. We are taught to be curious, which creates us a thirst for learning, but still obey the orders of those appointed over us and learn from the people next to us in order to create comradery that assists us during harsh conditions. Most of my peers in the military have learned what type of people Muslims really are through my own actions, such as always helping your peers before yourself, giving back to the community as often as you can, and being calm in any circumstance. Through my actions, my colleagues see what we Muslims are taught to do and why we do it on a daily basis, such as not eating pork because we believe it is unclean or giving 2.5% of your income to the needy.

In fact, spreading Muslim awareness within military commands is a way to reiterate who the enemy target really is. We need to stay away from ideas of who average Americans think the war on terrorism is against. In the military, we know that the target isn’t the Muslim populous; the target is the ideology of terrorism. Having American Muslims in the military is a way to reinforce a positive image of Islam because we can teach the true message of the faith to our peers, and when we fight alongside our comrades, who are from many faiths and many cultures, it is in pursuit of one goal—to subdue those who threaten the national security of the United States and who are opposed to what the US Constitution represents.

Recently, I fasted through the month of Ramadan, a month in which Muslims don’t eat from sunrise to sunset for 29 or 30 days. Most of my military peers didn’t know what Ramadan was about, what it represents, and what happens after the last day of this Islamic holy month. So I answered the questions they had to the best of my abilities and shared the knowledge of the Islamic faith throughout the month itself, which enlightened them enough to want to learn more on their own. Specifically, one of the sincerest actions that anyone has done for me in my time of service is when my supervisor—or LCPO, a Chief Petty Officer at rank E-7—fasted all 30 days during the holy month herself! She had set out the goal to go through Ramadan with me in order to support my goal of fasting. I was astounded, especially because we were going through a very vigorous and stressful inspection, which also included going out to sea, and the Hawaiian heat was at its peak during the month of June. I never would have thought a fellow servicemember—who isn’t Muslim at all—would want to go through the demanding month of Ramadan with me, let alone complete all 30 days of it. It made me so excited to see what servicemembers will go through in order to understand and support their peers.

In those 30 days, my supervisor learned more than the struggles of not eating or drinking anything from sun up to sun down, she learned why Muslims do this and what it represents, and thus she learned the history behind Ramadan, some of the teaching of the Quran, and the “five pillars of Islam.” This personal example shows how being an American of Muslim faith in the military makes me an effective representative of Islam. I and my fellow Muslim servicemembers are able to encourage others to take the knowledge we give them about Islam and make it positively influence their views on the faith, as a way to spread understanding about what Islam is properly trying to teach. This new found knowledge of Islam can aid those who fight our wars in the Middle East because they will better understand and communicate with the local populous.

When military members swear to defend the United States and its Constitution, one of the core values we are defending is “equality.” Equality is one of the core ideas of the American experiment, but throughout American history this concept has been beaten and battered around, always with a new social, religious, or ethnic group claiming its right to this value. First there were the American colonists shaking off English King George III’s reign; then there was the abolition of slavery during the US Civil War, followed by the fight to end the Segregation; and along the way the fight for women’s rights included securing a woman’s right to vote. Now we’re seeing other diverse communities—such as American Muslims—raise issues about equality.

Recently, the fight for Muslim equality has centered around political discussions of Islam, immigration, and patriotism (as in the case of the Khans and Trump) and around trying to change the perspective of those who view all Muslims as radical Islamists. As American Muslims, I and my fellow servicemembers want to help shape the image of Islam in a positive way and to encourage others to look past the image of the radical Islamist. The fight for equality might never end, but hopefully progress will always be ongoing. In my case, being able join the military as a Muslim shows me just how far the battle for equality and equal opportunity for American Muslims has come. If the United States as a whole could learn from the diverse and evolving culture of the military, we would be a stronger nation. Freedom of religion, equality under the law, and equal opportunity is what separates this nation from the rest of the world, and it is what I believe makes us the United States of America.

Syed Tanveer attended the Warrior-Scholar Program Academic Boot Camp at Syracuse University in summer 2016. He is an active duty member of the US Navy (E-5 rank) and has applied for a transfer to become a computer science major at SU in fall 2017.

Islamic Contributions to International Humanitarian Law

By Corri Zoli

(Re-published from AJIL Unbound, March 17, 2016) This short essay focuses on the involvement of Muslim-majority state leadership in the pre-World War II development of international humanitarian law (IHL), including their appeals to Islamic norms.[1]  This historical snapshot reveals how national leaders joined debates during conferences leading up to the revised 1949 Geneva Conventions, the heart of modern IHL. Such accounts complicate our assumptions about the cultural and national composition of public international law as “Western,” and shed light on global hierarchies involving modern Arab and Muslim states and their investment in such norms. The essay argues by example that, ultimately, in Third World Approaches to International Law (TWAIL)[2] more emphasis is needed on history, traditions of governance, and states’ distinctive responses to macrostructural pressures—rather than on static notions of identity, resistant narratives, and presumed shared ideologies. TWAIL seeks alternatives to international law’s presumed oppressive role in Western-non-Western power dynamics, and new ideas and opportunities for a “third-world” legal scholarship beyond current global underdevelopment dynamics.[3]  Yet too rarely have scholars probed deeply into the history of third-world[4] participation and leadership in developing international law norms, particularly at the state level or from the semi-periphery.[5]  In fact, non-Western leaders have played a role in the pre-World War II period of lawmaking and have used existing cultural and legal traditions to do so. Accounting for this history makes for a more accurate, inclusive, and culturally-grounded approach to the law made by and for states. More pointedly, it reaffirms that cornerstone premise of sovereignty—in all of its diverse national expressions—an idea challenged today by global political-economic forces.[6]

“[T]oo rarely have scholars probed deeply into the history of third-world participation and leadership in developing international law norms.”

In comparative international law, legal history, and Islamic studies, it is fairly well established that Islamic norms historically governing use of force are broadly compatible with principles of the international law of war. BeyondQuranic verses, the classic example is Abu Bakr’s instructions to Arab armies invading Syria on the eve of the Riddawars (632/3 CE) in which the prophet Muhammad’s first successor sought to defeat and reintegrate rebellious Arab tribes into the newly-formed Islamic empire or caliphate.[7]  In laying out some of the first humanitarian norms—prohibitions against “treachery,” pillage, the killing of children, women, the elderly—Abu Bakr helped legitimize a young politico-religious community in its own early relations of rule, and defined lasting standards for conduct in warfare.[8]  Many scholars see an early Islamic footprint in the very idea of international law, its emphasis on treaties, and IHL.[9]

If the compatibility thesis is well-known,[10] less explored are Islamic contributions to the shared history of public international law, modern Muslim leadership in IHL,[11] and the too-rarely-treated role of Muslim states in the early Geneva and Hague diplomatic conferences. In fact, when we think of the 1949 Geneva conference, convened to update existing Hague and Geneva law, rarely do attendees from Afghanistan, Egypt, Iran, Lebanon, Pakistan, Syria, Turkey, and Albania spring to mind. Not only did delegates from these Muslim-majority states take part in deliberations, they signed the resulting agreements known as the revised Geneva Conventions of Aug. 12, 1949, including the unprecedented Fourth Convention covering civilians in war.[12]

It is worth noticing several features of this contribution. Firstly, and empirically, one sees an increase over time (see below) in Muslim state conference participation, a trend that continues until the 1960s, after which many states—partly through the Organization of Islamic Cooperation—begin to develop culturally-specific interpretations of international law with complex motives and results.

Secondly, an emphasis is placed on “humanity” as a collective project by Conference participants in keeping with the IHL framework. Less noted, though important—in light of TWAIL critiques of empire—is how often such humanitarian priorities emerge from an expressly imperial framework and its philosophy of largesse, notably by Persian and Turkish representatives (both coming from empires).

Two examples bundle these points: Note the following declaration by General Mirza Khan, the first delegate of Persia to the 1899 Hague Peace Conference:

The Russian Government having done Persia the honor of inviting it . . . and His Imperial Majesty the Shah, my august sovereign, having deigned to choose me to undertake this honorable mission. . . . All these marks of interest impose upon me the duty of adding also on my side . . . support of the great cause which is that of all humanity and with which we have here to deal.[13]

To refute critics who detect arrogance in the Emperor of Russia’s initiative, Khan relays this story:

“Permit me, gentlemen, to cite to you a proof of [Emperor Nicholas II’s] . . . elevated sentiments. In the first year after my appointment . . . [for] Persia at the Russian Court, I was accompanying on my horse the Emperor who was going from the Winter Palace to the Field of Mars . . . to be crowned. As I was somewhat ill that day, I fainted and slipped from my horse. The Emperor, seeing this, stopped his brilliant cortege and did not continue . . . until I had been put in a carriage. . . . Several times [he] sent his aides-de-camp to learn of my condition. Our celebrated poet Saadi has . . . describe[ed] pride: ‘Its glance is like that of a king who causes his army to pass before him.’ The young Emperor, an autocrat of 26 years of age, who, for the first time, after his accession to the throne, was passing in review a brilliant army of 30,000 men, did not, in that moment of legitimate pride, forget an accident . . . to a stranger. . . . He who acts thus can not be selfish, and . . . the initiative that he has taken for this Conference, can only proceed from a . . . noble heart. Gentlemen, let us fulfil our duty before the civilized world, and not discourage Their Majesties.” [14][15]

To read the full article, click here

[1] See James Cockayne, Islam and International Humanitarian Law, 84 Int’l Rev. Red Cross 597 (2002); Mohamed Badar, Ius in Bello under Islamic International Law, 13 Int’l Crim L. Rev. 593 (2013); Ahmed Mohsen Al-Dawoody, The Islamic Law of War (2011).

[2] James Thuo Gathii, TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography, 3 Trade, L. & Dev. 26 (2011); Karin Mickelson, Taking Stock of TWAIL Histories, 10 Int’l Community L. Rev. 355 (2008).

[3] Mutua writes: “The regime of international law is illegitimate. It is a predatory system that legitimizes, reproduces and sustains the plunder and subordination of the Third World by the West . . . Historically, the Third World has generally viewed international law as a regime and discourse of domination and subordination, not resistance and liberation. This broad dialectic of opposition to international law is defined and referred to here as Third World Approaches to International Law (TWAIL).” See Makau Mutua, What Is TWAIL?, 94 Proc. Ann. Mtg. ASIL 31 (2000); Madhav Khosla, TWAIL Discourse: The Emergence of a New Phase, 9 Int’l Community L. Rev. 291 (2007) (arguing for three phases of concerns: colonialist, hegemonic uses of international law by powerful nations; international legal institutions embedded in North-South politics of globalization; and extreme post-9/11 violations of norms).

[4] For social scientific debate of “Third World,” see Carl E. Pletsch, The Three Worlds, or the Division of Social Scientific Labor, circa 1950–1975, 23 Comp. Stud. Soc. & Hist. 565 (1981); Vicky Randall, Using and Abusing the Concept of the Third World, 25 Third World Q. 41 (2004).

[5] But see, Muhammad Munir, Islamic International Law, 20 Hamdard Islamicus 37 (2012); Antony Anghie,Imperialism, Sovereignty & the Making of International Law (2005); Surya Prakash Sinya, Legal Polycentricity & International Law (1996); Arnulf Becker Lorca, Mestizo International Law (2014).

[6] See UN Charter art. 2(1), “The Organization is based on the principle of the sovereign equality of all its Members.”

[7] See Fred M. Donner, Muhammad & the Believers (2010); and Fred M. Donner, Early Islamic Conquests (1986). For Quranic verses echoing related norms, see Yusuf Ali, The Holy Qur’an 47.4; 2.205; 48.25 (1934)—but see id. at 59.5 and 47.4.

[8] Abu Bakr’s instructions include: “Oh army, stop and I will order you [to do] ten things; learn them from me by heart. You shall not engage in treachery; you shall not act unfaithfully; you shall not engage in deception; you shall not indulge in mutilation; you shall kill neither a young child nor an old man nor a woman; you shall not fell palm trees.”See The History of al-Tabari Vol.10: The Conquest of Arabia (Fred M. Donner trans., 1983); Rudolph Peters, Islam & Colonialism 23 (1979) (noting other schools using the Prophet and Quran i.e. 59.5 permitted these acts, justified them, and refuted Abu Bakr’s prohibitions, as the “deeds of the companions can never abrogate deeds of the Prophet”).

[9] For non-Western contributions in Africa studies, see Emmanuel G. Bello, Shared Legal Concepts between African Customary Norms & International Conventions on Humanitarian Law, 23 Mil. L. & L. War Rev. 285 (1984). But see, Modirzadeh on incompatibilities in Islam and IHRL, Naz K. Modirzadeh Taking Islamic Law Seriously: INGOs and the Battle for Muslim Hearts & Minds, 19 Harv. Hum. Rts. J. 191 (2006).

[10] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (2005). See Cockayne, supra note 1,;Al-Dawoody, supra note 1.

[11] See Emilia Justyna Powell, Islamic Law States and Peaceful Resolution of Territorial Disputes, 69 Int’l Org. 777 (2015).

[12] For Conference sources cited, see James Brown Scott, The Proceedings of the Hague Peace Conferences, 1899(1920) [hereinafter Scott 1920]; A. Pearce Higgins, The Hague Peace Conferences Concerning the Laws & Usages of War (1909); James Brown Scott, The Geneva Convention of 1906 for the Amelioration of the Condition of the Wounded in Armies in the. Field (1916) [hereinafter Scott 1916]; 1-3 Final Record of the Diplomatic Conference, Geneva, Apr. 1-12 Aug. 1949 (1968).

[13] Scott 1920, supra note 12, at 305 (Hague, June 23, 1899).

[14] Id. at 306 (Hague, Jun. 23).

[15] The work of Saadi Shirazi (d. 1291) adorns the UN entrance. See Saadi Shirazi, Rose Garden, The Manners of Kings (1258): “All human beings are members of one frame; Since all, at first, from the same essence came. When time afflicts a limb with pain; The other limbs at rest cannot remain. If thou feel not for other’s misery, A human being is no name for thee.”

Five Lessons from the Iran, Saudi Arabia Blowup

By Miriam Elman

(Re-published from Legal Insurrection, Jan. 5, 2016) The fallout from the execution of prominent Shiite cleric Nimr al-Nimr in Saudi Arabia on Saturday will roil the Middle East region for some time to come. Below, I review the recent developments since our last posts (see here and here) and discuss some of the lessons to be learned from this latest episode in the unraveling of the Muslim Middle East

1. The International Community Rewards the Region’s Abusive Regimes

Over the last 24 hours, considerable disagreement over Nimr’s status as a dissident has emerged:

In the Arab world as well as the West, the discussion of [the] execution of Saudi Shi’ite cleric Nimr al-Nimr has been strident: Sunni Gulf states applaud the action as a step forward in the struggle against terrorism, Iran and Arab Shi’ites condemn it as part of a war on their sect, and in the West, Nimr has mostly been cast as a nonviolent opposition leader, unjustly imprisoned and wrongfully killed.

So basically, from the standpoint of the Iranians (and many Western governments and human rights groups), Sheikh Nimr was a political dissident, convicted on “trumped up terrorism charges” merely for encouraging largely non-violent protests in Saudi Arabia’s long repressed Eastern Province.

But for the Saudis, according to an analyst writing for the Foreign Policy Research Institute, “Nimr [was] the Shi’ite equivalent of Sunni members of ISIS and al-Qaeda whom they believe to have blood on their hands.” To them, he was an unrepentant insurgent who continued to openly advocate for the use of force to topple the Saudi regime.

To be sure, who Nimr was and what he did will continue to be debated for some time although, given all the evidence, it’s a stretch to view him as a “peaceful preacher of reform.” But the controversy over Nimr sidesteps the larger issue: Saudi Arabia’s ongoing authoritarian repression, its marginalization of a disaffected Shiite citizenry, and the international community’s shameful tolerance of it.

Even if Nimr’s execution is considered within the context of the Kingdom’s legitimate effort to combat terrorism by groups like al-Qaeda and Iran and its proxies, Saturday’s mass execution was the largest in Saudi Arabia since 1980 and follows last year’s “two-decade high in capital punishment.” It’s a miserably poor record. Still, it hasn’t stopped the Saudis from serving on human rights committees at the UN.

Writing on Sunday for Commentary, Michael Rubin puts the point well:

Nimr’s execution—and the bloodshed which will inevitably flow from it—should be cause for reflection by United Nations Secretary-General Ban Ki-Moon. After all, it was on his watch—and after Nimr’s arrest and death sentence—that the United Nations not only allowed Saudi Arabia to take a seat on the Orwellian 47-member UN Human Rights Council but also appointed Saudi Arabia to chair the Consultative Group, an elite UN human rights panel which selects applicants to several dozen UN human rights posts. Ki-Moon and other UN cheerleaders can cite procedure and explain the moral and cultural equivalence which has done so much to drive a wedge between the vision of the UN’s founders and the reality of the organization today, but the simple fact is that allowing Saudi Arabia to use UN positions to launder its human rights credentials has convinced senior Saudi leaders that they literally can get away with murder. It’s time for some serious introspection at the UN and among those in the White House and Congress who, with rhetorical support and funding, pumped new life into a corrupt and venal body that, rather than protect human rights, instead has become a club for abusers.

2. The Region’s Human Rights Abusers Always Point Fingers at Others, Never at Themselves

Over the last few days one notorious human rights violator in the Middle East has attacked another for being a repressive regime. It proves that in this region of the planet the pots are always calling the kettles black. Iran condemned Saudi Arabia for being just like ISIS on Twitter and official websites; meanwhile, “Iran executes three Iranians every day”, imprisons whoever disagrees with the regime, severely represses religious minorities, and hangs gays from cranes.

According to Amnesty International, Iran is the most prolific executioner in the world after China. It also tops the global list statistically for executions of juvenile offenders. Since the election of so-called “moderate” President Hassan Rouhani in 2013, the number of executions has gone markedly up. According to Amnesty, Iranian authorities executed nearly 700 people in the first half of last year alone.

3. The US Needs to Stop Apologizing for the Region’s Challenges

As noted this weekend by Aaron David Miller, Vice President of the Woodrow Wilson International Center for Scholars, “it would be irrational to conclude that US actions and inactions hadn’t contributed to the messes in the Middle East.” Put simply, the disastrous Iran Deal has deepened the rift between Sunnis and Shi’ites in the region. As Josh Rogin and Eli Lake wrote yesterday in a thoughtful op-ed:

At the root of the problem for Sunni Arab states is the nuclear deal reached last summer by Iran and Western nations. When the White House sold the pact to Congress and Middle Eastern allies, its message was clear: Nothing in the deal would prevent the US from sanctioning Iran for non-nuclear issues. Yet that has not been the case.

Basically, the Saudis are now convinced that they can no longer rely on the US security umbrella and must “compensate” for the perceived US disengagement from the region with a new assertive foreign policy to counter Teheran. It puts Nimr’s execution in a whole different light.

Writing for Reuters, Angus McDowall remarks that the execution …

… seemed to be an attempt by the government to reassure conservative Sunnis that Saturday’s executions [of mostly Sunni ‘inciters of violence and terrorism’] did not mean Riyadh would stop championing their sect against what it portrays as Shi’ite aggression across the Middle East.

Still, Nimr’s execution and the region’s stormy reactions to it can’t all be pinned on to the Obama administration’s lack of leadership. The rivalry between the Al Saud ruling family and Iran’s mullahs has been ongoing for decades, while the Sunni-Shi’ite schism is ancientMiller rightly points out that:

the region’s challenges are rooted in internal, religious, and sectarian problems that are not amenable or conductive to US military power or political persuasion; and they are spread among allies who have their own needs and agendas … whatever responsibility US action or inaction bears for the state of the Middle East, it pales next to that of a region that lacks leadership, representative institutions, moderate ideologies, a commitment to functional governance, and a willingness to face its problems.

4. The Middle East’s Muslims Will Remain Silent Over the Genocide of its Christians

In numerous recent posts (see, for example, here and here) we’ve highlighted the world’s shocking indifference to the plight of Christians in the Middle East, and President Obama’s inaction on the issue. Tragically, the fierce responses to Nimr’s execution suggest that the region’s beleaguered Christians shouldn’t expect too much in the way of support and assistance from their Muslim neighbors—even those not directly responsible for the killing and persecution. Christopher D. Burton’s withering critique in yesterday’s Breitbart rams home this heartbreakingly sad truth:

… on January 2, 2016, an epic war of words broke out between leaders of nations. Violent protests, riots, Molotov Cocktails, threats, and now fire at the Saudi embassy in Tehran. The Arab world has come undone over the death of one Muslim Cleric. No life, or any unjust death, is insignificant, and the details of Arab Spring proponent Sheikh Nimr’s life and the accusations against him are, and will be debated around the world, yet the scale of silence, neglect, indifference, and hypocrisy regarding the death of many others in their midst, once again, is staggering. Think about that, the scale of silence. Can pitch black be any blacker? Can a back turned be any broader? Deafening.

5. No Matter What Goes Wrong in the Middle East, Israel is Blamed

Ever since Nimr was sentenced to death, pro-Iranian Shiite groups in Bahrain and Iraq have blamed America for his imprisonment and threatened attacks if his death sentence was carried out. Yesterday, for good measure, an Iranian commander threw the British and the “Zionists” into the mix of guilty parties. Speaking at a conference in Iran, Brigadier General Mohammad Reza Naqdi, commander of the Basij militia of Iran’s Revolutionary Guards, reportedly declared that:

Sunni and Muslims alike will avenge Nimr’s blood and in particular take revenge against the main factors responsible for his death: the UK, the US and the Zionist entity.


Read the full article at

INSCT Faculty Member Miriam F. Elman is an associate professor of political science at the Maxwell School of Citizenship & Public Affairs, Syracuse University. She is the editor of five books and the author of over 60 journal articles, book chapters, and government reports on topics related to international and national security, religion and politics in the Middle East, and the Israeli-Palestinian conflict.

William C. Banks Speaks to WSJ About the Unconstitutionality of a Religious Test for Entry Into US

Donald Trump Calls for Ban on Muslim Entry Into US

(Wall Street Journal, Dec. 8, 2015) Donald Trump evoked outrage from across the political spectrum Monday by calling for a “total and complete shutdown” of Muslims entering the U.S., a proposal that taps into voter anxiety about the recent spate of terrorist attacks yet likely runs afoul of religious freedoms enshrined in the Constitution.

“Aside from being outrageous, it would be unconstitutional.”

“It is obvious to anybody the hatred [among Muslims] is beyond comprehension,” Mr. Trump said. “Where this hatred comes from and why, we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in jihad, and have no sense of reason or respect for human life.”

His campaign said he would keep the ban intact “until our country’s representatives can figure out what is going on,” including the facts around the two attackers who killed 14 people in San Bernardino, Calif., last week. Syed Rizwan Farook, a U.S. citizen, and his wife, Tashfeen Malik, a legal immigrant who had a green card, were killed in a shootout with the police after the massacre.

In an interview on Fox News, Mr. Trump said he would ease the ban in the case of Muslims serving in the U.S. military and allow them to return home.

Mr. Trump’s proposal, which many legal scholars deemed unconstitutional, was immediately attacked by many Republican and Democratic presidential candidates.

The announcement came the same day Mr. Trump lost ground in a poll in Iowa, and also after President Barack Obama gave a speech from the Oval Office on Sunday night in which he asked Americans to show tolerance for the Islamic faith and avoid the temptation to “turn against one another.” Mr. Obama said anti-Muslim rhetoric would be a recruitment tool for the terrorist group Islamic State.

In Trump style, the celebrity businessman refused to back down in the face of the broad criticism. It is that tenacious style that has largely kept him at the forefront of the GOP primary.

At a rally in South Carolina on Monday night, Mr. Trump drew cheers from a large crowd when he repeated his message. “It’s going to get worse and worse, folks,” he said. “You are going to have more World Trade Centers,” he added in a reference to the Sept. 11, 2001, attacks in New York and Washington.

His candidacy relies on an unusual Republican coalition: blue-collar voters who are impatient with career politicians and unnerved by the direction of the country. These are voters who see him as a strong leader and aren’t worried about the nuances of his policy pronouncements.

Although establishment Republicans find his rhetoric incendiary, there also are indications that a large swath of party’s rank-and-file voters relish his tough-sounding messages and a sizable number are worried about religious extremism.

In September, a poll by the Democratic-leaning firm PPP found that 30% of Republicans think Islam should not be legal in the U.S., while 21% weren’t sure.

A Pew Research Center survey in 2014 found that Republicans take a cool view toward Muslims. Asked to rate a series of religious groups from zero to 100, with 100 reflecting the warmest feelings, Republicans gave Muslims an average rating of 33, almost equal with atheists and below all other major religions.

Legal scholars said the Constitution forbids the sort of ban Mr. Trump envisions. John Yoo, a conservative law professor at the University of California, Berkeley, said the proposal is unconstitutional, pointing to First Amendment guarantees of the free exercise of religion.

“The United States cannot discriminate on the basis of religion,” Mr. Yoo said. He added that in the past, the U.S. has discriminated based on country of origin, but that is different from a wholesale religious ban.

William Banks, a constitutional law scholar at the Syracuse College of Law, agreed that Mr. Trump’s plan would not pass constitutional muster, pointing to 14th Amendment guarantees of due process under law.

“Aside from being outrageous, it would be unconstitutional,” Mr. Banks said …

To read the full article, click here.