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Mohamed Elewa Badar

Abstract

Even though more than a decade has passed since the creation of the International Criminal Tribunal for the Former Yugoslavia, the law of the most fundamental concept in international criminal law – mens rea – remains unsettled. Through its jurisprudence, the Yugoslavia Tribunal has made enormous efforts to assign different degrees of mens rea for different categories of crimes under its Statute. The present study is an attempt to clarify several issues with regard to the law of mens rea as developed in the case law of the Yugoslavia Tribunal. Among these issues are the following: what precisely is to be understood by the terms "specific intent", "special intent", "dolus specialis", or "surplus intent"? Similarly, what are the precise meanings of the terms "deliberately", "intention", "intent", "intentionally", "wilful or wilfully", "knowledge", and "wanton" as provided for in the ICTY Statute or as employed by the Chambers within its judgments.

Mohamed Elewa Badar

In 1966, Judge Jessup of the International Court of Justice pointed out that the appearance of an English translation of the teaching on the ‘Islamic law of nations’ of an eighth-century Islamic jurist (Shaybānī) is particularly timely and of so much interest because of the debate over the question whether the international law, of which Hugo Grotius is often called the father, is so completely Western-European in inspiration and outlook as to make it unsuitable for universal application in the context of a much wider and more varied international community of States. However, there has been little analysis of the role of Islam in shaping the modern European law of war and its progeny, international humanitarian law. This article argues that there is a room for the contribution of the Islamic civilisation within international humanitarian law and a conversation between different civilisations is needed in developing and applying international humanitarian law norms.

Mohamed Elewa Badar

In the same manner as the Third Reich, Islamic State (is) uses law, terror and propaganda as ‘techniques of governance’ that serve to advance their political aims: securing themselves in power, preparing and waging war, and fostering the idea of an Islamic state. is have successfully used print and radio media systematically for the dissemination of lethal ideas and for the mobilization of the population on a grand scale in order to materialise these ideas. When such propaganda is laced with the dolus specialis of the crime of genocide, the severity of the mass action it brings about can be disastrous. This article analyses the hate propaganda used in the online publications of is. Evidence will then bring to light the fact that their hate propaganda amounts to direct and public incitement of others to commit genocide and the propagandists could, thus, be prosecuted for this crime at national or international courts.

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Mohamed Elewa Badar

Abstract

In terms of international law, the militant group which calls itself the Islamic State (IS) naturally poses questions of illegitimacy in the context of the law of belligerency and International humanitarian law (ius in bello). However, the group claims to operate within a distinct and parallel law, i.e. Islamic (international) law and the support it enjoys stems directly from this claim. A focus on public international law alone would thus provide only an external claim to their illegitimacy, one which they and their many supporters would disregard as meaningless, since it could never be above divine commands. In light of this and in light of the fact that in most Muslim majority states, secularism has never obtained the respect it enjoys in the west, it is thus important to ask the questions of the legitimacy of this group, their actions and their political formations from within the norms of Islamic international law. This study therefore essentially aims to provide answers to questions already raised by many scholars and international organisations: What are the justifications for waging war on which the group relies? Are these justifications valid under Islamic international law? Who can declare jihād and under what conditions? Could their political formation rightfully claim to be a Caliphate under Shariʿah? Why have the militants been denied the recognition of their chosen name by the vast majority of Muslims worldwide and have rather been branded with the derogatory acronym Da‘esh or named ‘the modern day Khārijites’? The answers to these questions are crucial because Da‘esh recruitment and rallying narrative relies on depicting their struggle as a just and noble jihād in line with the tenets of Islam. Arguably, this study would also assist any future prosecution of this group. It would help adjudicators in asserting the legitimacy of their judgments, if they were able to prove that such judgments are compatible with the legal and belief systems recognised by the actors at trial. 


Mohamed Elewa Badar and Nora Karsten

Abstract

This article covers developments at the international criminal tribunals that occurred during the period from January until November 2007.

Mohamed Elewa Badar and Noelle Higgins

Al Mahdi was the first case before the International Criminal Court (icc), which focused on the destruction of cultural property, and indeed, the first case before an international criminal tribunal which had the destruction of cultural property as the sole charge against a jihadist. This case note first addresses the international legal framework on the protection of cultural property in Section 2. Section 3 then assesses the concept of hisbah and its operation, including the reasons why the Hisbah in Mali destroyed cultural property. The next section considers the facts of the Al Mahdi case. Section 5 highlights the shortfalls in the Trial Chamber’s consideration of the rationales for the protection and destruction of cultural property, before the note concludes in Section 6.