Law Conference Papers

Law, Religion and Violence: The Importance of Islamic Law as a Tool for Refuting the Ideology of Violent Extremists

Ben Clarke — Wed, 01 Sep 2010 00:46:03 PDT

Violent attacks by radical Islamists against civilians represents a serious and continuing threat to human security in a number of States, including India and to a lesser extent Australia. Causes of such violence have been extensively debated in the literature of a variety of disciplines including law, psychology and political science. This paper examines one aspect of this debate: the use by extremists of concepts derived from Islamic law to justify violence against civilians. It does so by identifying religious norms that underpin the ideology of radical Islamists who engage in terrorism. The thesis advanced here is that an effective response to such violence requires, among other things, that the ideology propagated by radical Islamists be challenged. To do so, their approach to interpretation and application of Islamic law must be refuted. It is argued that Muslim States and the schools of Islamic jurisprudence must energetically engage in this task if the ideology that motivates such attacks is to be thoroughly discredited. Until this occurs, it will be difficult to counter the process of radicalisation of young Muslims who, through exposure to the ideology of radical Islamist organisations such as al-Qaeda and Jamaa Islamia ('JI'), often regard violence against civilians as permitted by their religion.

At the Cutting Edge: Therapeutic Jurisprudence

The Hon David K. Malcolm — Wed, 07 Apr 2010 21:20:35 PDT

In the last decade or so, a series of specialised or problem-solving Courts or court processes have evolved in Australia. These courts are based upon the principles of therapeutic jurisprudence which regard the law, court procedures and rules, as a social force whose goal is to produce therapeutic consequences to the participants in the legal proceedings and to society at large. Taking a holistic approach to an offender and the offenders problematic history is not an altogether new concept, as this is usually taken into account during sentencing. The ideal of tailoring sentences and having options available for treatment of an underlying problem however is one which marks a departure from simply imposing a sanction by way of sentence. This can only improve the state of our criminal justice system. In my experience, one can often feel hamstrung when dealing with offenders whose life has been ravaged by drug abuse, but will appear before the Court as an accused, most often on charges of assault, burglary or in some cases what might be an armed robbery on the lower end of the scale. If we as a community wait to provide assistance to individuals until they offend and are imprisoned, I would suggest, it is frequently too late for both the community and the offender.

The Independence of the Judiciary in the Asia-Pacific Region

The Hon David K. Malcolm — Wed, 07 Apr 2010 20:19:38 PDT

It is almost universally acknowledged that one of the hallmarks of a democracy is the independence of the Judiciary. A Judiciary which exists merely to do a Government's bidding or to implement Government policy provides no guarantee of liberty. What do we mean by independence of the Judiciary? The former Chief Justice of Tasmania, Sir Guy Green has defined it as "the capacity of the courts to perform their constitutional function free from actual or apparent interference by, and to the extent that it is constitutionally possible, free from actual or apparent dependence upon, any persons or institutions, including, in particular, the executive arm of government, over which they do not exercise direct control."

The maintenance of public confidence in the impartiality of Judges is essential to public acceptance of the law and the legal system. A loss of that public confidence can lead to instability and even a threat to the very existence of society. In the late seventeenth century in England, the politicisation of the Judiciary and its subservience to the Crown was a material factor in the Revolution of 1688. One of the complaints against George III recited in the American Declaration of Independence was that, "He has made Judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries."

The Independence of the Judiciary as the Base of Business and Economic Development

The Hon David K. Malcolm — Wed, 07 Apr 2010 20:11:19 PDT

The rapid nature of information exchange, the increasingly porous nature of international boundaries through electronic communications and the movement of capital and labour have presented a range of new issues in the administration of justice. These have major implications for the Courts and the role of the Courts, particularly in newly liberalised economies. International trade has raised issues concerning both substantive law and procedure. Foreign investment in the Asia Pacific region and the increasing affluence of particular socio-economic groups in countries throughout Asia and the Pacific has seen increasing demands for the reform of the law and the methods of its enforcement in order to provide consistency and coherency in commercial relationships.

Effective Counter-Terrorism Policy: A Human Rights Based Approach

Ben Clarke — Thu, 04 Jun 2009 21:28:03 PDT

In this essay a multi-dimensional counter-terrorism strategy is proposed. It draws upon lessons learned by States and international organisations in their current struggle to halt international terrorism The essay begins with an obvious caveat: terrorism cannot be completely eradicated. Even if terrorism in eliminated in the present era, one cannot rule out the prospect of future terrorist campaigns. Terrorism is a 'method of warfare' which has been employed by clandestine resistance movements against great powers for thousands of years The contemporary struggle against terrorism is no different. States are engaged in an asymmetrical struggle against terrorist organisations and networks whose ideologies and methods offend the prevailing international legal order. Radical Islamists seek what the UN Charter forbids: the violent overthrow of 'apostate' regimes and the imposition of their vision of Islam. There will be no decisive military victory as often occurs in an encounter between two standing armies on the battlefield. Instead, either the infrastructure of specific terrorist organisations will be dismantled, and the ideologies that underpin them will be discredited, or these ideologies will gain sufficient traction to be adopted as the official ideology of a number of Muslim States. For reasons outlined below, the former is more likely than the latter. History has proved that specific terrorist organisations can and have been dismantled. While total victory in an ideological 'war on terrorism' is unattainable, specific ideologies can be defeated over the medium to long term (eg Nazism).

The UN Charter was founded upon the bold vision of the attainment of a world without violence. It is only by addressing the conditions that give rise to terrorism that such violence can be quelled. These conditions may be complex. They can include such disparate factors as: (a) present and historical injustices and oppression, and (b) religious instruction that emphasises past injustices and oppression and instils within children doctrines of' hatred, violence, and ethnic or religious intolerance. In order to overcome conditions that cause terrorism, States need to know whether particular strategies are effective, counter productive or inconsequential, and pursue the former. In this subchapter suggestions are offered as to how States, regional organisations and international bodies may identify and pursue effective strategies to counter the threat posed by terrorist organisations and ideologies.

Ideological Extremism and the Abuse of Religion: 'Punishment of Apostasy' as a Rationale for Religious Violence by State and Non-State Actors

Ben Clarke — Tue, 12 May 2009 20:26:12 PDT

This paper critiques the phenomena of religious violence in Arab and Islamic States from a human rights perspective. It highlights the tendency of Islamists who engage in violence to justify their actions by reference to the religious doctrine of ‘apostasy’. The inherent conflict between the notion that apostasy is a punishable crime and universal human rights norms (such as freedom of conscience and religion) is explored. It is argued that one way out of the cycle of religious violence and sectarian hatred is for Arab and Muslim States to adopt non-discriminatory laws modelled on the Covenant on Civil and Political Rights (which most of these States have ratified). By moving towards a universal human rights based approach to law and punishment, religion becomes a matter of personal conscience and belief. In time the danger of violent abuse of religion by State and non-State actors is likely to recede as there is a cultural shift away from the justification of violence by reference to religion. The thesis advanced below may not appeal to everyone. However so long as the status quo prevails, religious minorities and others will continue to be exposed to discrimination and in some cases violence from religious extremists - be they State or non-State actors - who justify their actions by reference to religious laws that permit violent punishment of ‘apostates’ and ‘heretics’.

Normative Conflict in Occupied Iraq: Reconciling Jus Cogens and Chapter VII Mandates of the Security Council in Territory Occupied Through the Unlawful Use of Force

Ben Clarke — Thu, 07 May 2009 23:32:48 PDT

This article focuses on a number of antimonies that arose during the occupation of Iraq. The genesis of these antimonies was three fold: the absence of a legal foundation for the use of force against Iraq, the unwillingness of pro-Ba'ath elements to surrender to Coalition forces even after the collapse of their government, and the hostility of Iraqis from across the religious and ideological spectrum to foreign occupation.