On 12 November, 2009, I attended a talks held at Brunel University, London, UK, in the Newton Room of the Hamilton Building at the Uxbridge Campus. The paper was presented by Judge Awn Shawkat Al-Khasawneh, the previous vice president of the World Court (International Court of Justice).
His Excellency gave a thirty minute speech on Islamic Law's role in international courts: the application of international Islamic law (Siyar) in international courts and conflicts. His Excellency is not short of impressive credentials.
During the first five minutes of his lecture, Al-Khasawneh addressed the widely heard criticism that Islam sanctions harsh physical punishments. His argument in response was weak and somewhat disturbing to say the least:
“Well, during the eighteenth century the British in India argued that such punishments were too lenient...”
In essence, Al-Khasawneh – an experienced and learned judge of the World Court - is using the under-developed (or lack of) human rights standards of three hundred years ago to address a modern day criticism. How can the standards of three hundred years ago be applied to present day human rights standards?
During this speech, he argued that Islamic law is not the same as Sharia. When it was time for questions and answers, a man asked what the difference was, given that he had been led to believe by the British media that Islamic law and Sharia are one and the same. After discussing the origins of Islamic law, and the Muftis of the previous centuries, in responding to the question Judge Al-Khasawneh concluded, both to himself as well as the audience, that "Islamic law and Sharia...they are pretty much the same thing". Thus, the audience had the benefit of witnessing the Judge of the World Court correct his own claim that Islamic law and Sharia are different.
However, the most disturbing part of the lecture was when Al-Khasawneh, in addressing a question on Islamic law, referred to stoning in Islam. His Excellency argued that in Baghdad, Iraq, there had been "only" three reported cases of stoning in the last one thousand years. He said this with a smile as if three stonings in a millenium amounted to nothing. The point for concern is that an educated judge of the World Court appears to think that 'only' three stonings in one city over the last thousand years is acceptable. Any human rights advocate would argue that one stoning is one too many. As a learned and experienced Judge, one would expect His Excellency to be well versed in his own religion in order to be able to handle such criticisms with intellectual responses. In my Masters Degree dissertation, I researched and then argued that stoning is not legitimately within the remit of Islamic punishments – it is not once mentioned in the Quran. Concerning the recorded practices of Prophet Mohammad of Islam (hadith), any testament on proving adultery requires four male witnesses, whose testimonies must not have any discrepancy, and must account in detail that actual sexual penetration took place. This is highly improbable to satisfy in that any one who engages in adultery would not do so in an environment where there is a chance that they would be seen by even one person, let alone four! The requirement is even harder to satisfy when each of the witnesses must submit a testimony that does not in any way differ from one another; should there be any discrepancies in their testimonies, the erring witnesses would, thus, be subject to eighty lashes of the whip on the charge of 'false accusation' (qadf) - who would take such a risk in volunteering to be a witness?
It beggars belief why Al-Khasawneh drew on an example pertaining to the 'limited' cases of stoning that took place in a city over a millenium, when he should be more aware of his religion's jurisprudence and penology. His flawed and fallible arguments served to further arm critics of Shari'a, and supporters of human rights, with more ammunition.
I left the talks with an overwhelming sense of concern that the international courts are in the hands of such minded judges. Therefore, what hope does the enforcement of international human right law in offending countries have; especially those countries who claim to rely on Islamic law when administering their harsh physical punishments and other violations of human rights?