Jurisprudence

Terror and Terrorism in International Humanitarian Law

Research Assistants Law, International humanitarian Law, Jurisprudence, Treaties 0

Terror: Terror refers to action taken by the State that consists of political and military terror, which may take place both in times of war and peace for the purpose of social control or military action. In the cases of armed conflict, acts of terror may apply to methods of warfare and acts or threats of violence—the primary purpose of which is to spread terror among the civilian population. Such acts include indiscriminate bombardment, attacks against the civilian population or civilian objects, persecutions, acts of violence designed to spread terror among the population, acts of terrorism, pillage, rape, arbitrary arrests and extrajudicial executions, hostage taking and enforced disappearances, and ethnic cleansing that forcibly displaces the civilian population. Reprisals against civilians and their property are prohibited (Geneva Conv. IV, Art. 33; API Art. 51; Ad. Protocol II, Art. 4, 13). State Terror may happen outside the context of armed conflict. State response to protests, riots, demonstrations, disturbance of public order, and internal strife, may qualify as Terror. International Humanitarian Law applies in that it limits the power of governments to use coercive measures as well as police and armed forces to defend or reestablish public order. These rules can be found in fundamental guarantees such as the one provided for by non-derogable international human rights provisions and the principles of Common Article 3 to the four Geneva Conventions. Terrorism: Unlike acts of Terror that State may unleash during conflict and peace times, the definition of terrorism is less established in International […]

PERKEMBANGAN POLITIK HUKUM ISLAM PASCA REFORMASI DALAM PERSPEKTIF NEGARA HUKUM HANS KELSEN

Research Assistants Journal, Jurisprudence Indonesia, Islamic Law Reform 0

by Marsono Wibowo Abstract As a country with the largest Muslim population in the world, it will directly or indirectly affect the development of the living order of the Indonesian people. The regimes change from time to time with policies that different from one to another, provide a variety of colors in the life of the nation and state. As a legal expert, Hans Kelsen explains the connection between law, morality and religion. How do each other influence each other, and what is the connection of that thing in the life of the nation and state in Indonesia.

Torture and Islamic Law

Research Assistants Essays, Jurisprudence Torture 0

Abstract This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today’s Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves “Islamic states.” The status of investigative torture in Islamic law has long been unsettled: most early classical jurists forbade it, but some later classical jurists permitted it in at least certain circumstances. The permission some jurists gave the practice in Islamic jurisprudence (fiqh) was matched and augmented by a broader license jurists gave executive actors in the realm of governance or administration (siyasa), a realm seen as necessarily less constrained by jurisprudential limitations. Historical evidence indicates that investigative torture was indeed practiced by executive actors at various periods and places of the pre-modern Muslim world. Nevertheless, statistical analysis indicates little or no correlation between the absence or practice of torture in today’s Muslim-majority countries and the degree of commitment these countries profess to Islamic law. Instead, this article concludes, the absence or practice of torture in a given Muslim-majority country today (and the willingness of Muslim-majority countries to join international covenants that ban torture) […]

Sharia and Human Rights

Prof. Souaiaia Essays, Journal, Jurisprudence Human Rights, Sharia 0

by Ahmed E. Souaiaia* Abstract: Being an extremely dynamic determinant system that can be both formalized and popularized, Sharia has the potential to be used to promote and protect rights as well as to be an instrument of exclusion and human rights abuse. In fact, that is the role Sharia has played throughout the history of Islamic civilization: rulers, from Yazid to Numeiri, justified their transgressions by their role as enforcers of God’s Sharia; and rebels, aggrieved, and dissenting social groups, from the Ibadis to the Muslim Brotherhood, invoked the Sharia for motivation and justification in their pursuit of delegitimizing and overthrowing unjust regimes. With an eye on its effects on human rights in historical and modern contexts, let’s take a close look at the definitions, functions, and history of Sharia. ________________ In Muslim-majority countries, where leaders debate and negotiate legal reforms, the persistent question is whether Sharia should be the source of law or a source of law. In countries where Muslims are minorities, some local and national governments have proposed laws banning the adoption of Sharia. In territories and countries controlled by Islamist armed groups, Sharia courts have been established and self-styled scholars have imposed themselves as chief Sharia judges (sing. qadi shar`i). Social movements, violent and non-violent ones, have emerged in many Muslim-majority countries have been demanding the “implementation of Sharia” in their communities. These events might give the impression that Sharia is a concrete and well-defined concept, body of law, and legal system. In reality, the […]