International News
15 MARCH 2021
Saudi Arabia codifies its laws Anna Fenton-Jones, BA Middle Eastern Studies Amidst a turbulent period for the House of Saud, Crown Prince Mohammad Bin Salman has announced sweeping reforms to the Saudi Arabian legal system. The reforms are designed to modernise the country and ease its transition away from decentralised Sharia towards a comprehensive, codified legislation. In February 2021, four new draft laws were introduced - a Penal Code for Discretionary Sanctions, a Law of Evidence, a Civil Transactions Law, and a Personal Status Law. In contrast to other Arab states, uncodified Sharia law still governs much of how the Saudi judiciary functions. Without standardisation, rulings are decided by individual judges who apply their experience and understanding of the texts of the Hadith and the Quran. Similar cases can result in vastly different outcomes depending on the personal inferences of judges. The Prince, often referred to as MBS, has cited this capacity for legal incongruity as his reason to introduce new laws. ‘The absence of applicable legislation has led to discrepancies in decisions and a lack of clarity in the principles governing facts and practices,’ he said. ‘In addition, the absence of a clear legal
framework for private and business sectors has led to ambiguity with respect to obligations. This was painful for many individuals and families, especially women. It also permitted some people to evade their responsibilities. This will not take place again.’ The late King Abdullah took significant steps towards remaking the judicial order in Saudi Arabia in the decade following the millennium. He created a Supreme Court to absorb the religious Supreme Judicial Council and consolidated various quasijudicial bodies spread across the Kingdom. Saudi legal scholar Frank E. Vogal described them as ‘not a shot but a barrage across the bow of his partners in rule, the conservative religious establishment.’ Considerable pushback by religious leaders and judiciary meant that little had been done to change Saudi law until MBS became the de facto leader. Some argue that to modernise Saudi legislation is to actually make it more European, as was the case with many other Islamic countries in the 20th century. Others suggest that the act of codifying Sharia might be profane in itself. Nathan J Brown, political science professor at George Washington University, suggests this is most obvious in the legal language of the kingdom. ‘The Saudis studiously avoid words used elsewhere in the Arab world for law, qanun, since it suggests that human words rather
than divine ones lay at the basis of the legal order.’ ‘Nizam’, system, is used to refer to the decrees issued by the Royal Family instead. ‘Making law is a critical attribute of sovereignty,’ Brown continues. ‘And that is precisely the concern in Saudi Arabia, a polity that takes divine sovereignty quite seriously. Law is to be made in accordance with God’s will.’ The Personal Status Law is being touted by Saudis as an important step towards improving the rights of women, building on the reforms made to the kingdom’s guardianship laws in 2019 that, amongst other changes, gave women the right to drive. Human Rights Watch have criticised this implication, suggesting that ‘without significant input from women’s rights advocates, the discrimiation in practice may simply be codified into law.’ They also draw attention to the remaining guardianship laws which require women to gain permission from their male guardians to marry and still allow men to file cases against their female relatives for ‘disobedience’. ‘Mohammed bin Salman is desperate to improve the world’s view of the country,’ said Saudi anthropologist Madawi Al-Rasheed. While MBS seems determined to push through the reforms that his predecessors couldn’t achieve, he has also reacted ruthlessly to any dissent.
Two prominent women’s rights activists, Nassima al-Sadah and Samar Badawi, remain behind bars after being arrested in 2018 in protests that led up to the change in guardianship laws. Activist Loujain al-Hathloul, recently released after 1,001 days in jail, said she was subjected to torture and sexually abused while imprisoned. The kingdom is seeking to attract investors as it diversifies its economy and transitions away from oil. MBS’s Vision 2030 project aims to make it one of the world’s largest investors in public and private equity. These legal reforms are ‘[..] an important step on the path towards global best practices that give businesses the confidence to invest,’ said Tarek Fadlallah, Middle East CEO at Nomura Asset Management. Several business leaders declined to attend the Future Investment Initiative conference, dubbed ‘Davos in the Desert’, in Riyadh in 2018 after the killing of journalist Jamal Khashoggi inside the Saudi consulate in Istanbul. All returned for the event in January 2021, despite the release a month later of the long awaited report into Khashoggi’s death by US intelligence agencies concluding that MBS had personally ordered the killing.
Karim Khan: The controversial choice for Chief prosecutor Nour Abu-Ismail, BA Korean Studies and Development On 16 June 2021, Karim Ahmad Khan will begin his nine-year term as the newly elected Chief Prosecutor at the International Criminal Court (ICC). Electing the third Chief Prosecutor of the ICC was both lengthy and discordant as member-states could not agree on a candidate. The deciding factor came down to a secret ballot, held for the first time since the court's establishment, between four candidates. According to the Guardian, Khan beat candidates after obtaining votes from 72 nations, ten more than needed to win. The ICC functions as the only permanent international court to investigate and prosecute individuals accused of committing crimes against humanity that are of global concern. Unlike the International Court of Justice (ICJ), which seeks to reconcile disputes amongst UN member states and provide legal advice, the ICC exists to convict those who have not been held accountable for violating international law. Although the court is supposed to supersede national jurisdictions, its conviction rate is astonishingly low. Throughout its existence as an autonomous body, the ICC has only convicted four significant people,
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one of whom was later acquitted. Khan, who will succeed Fatou Bensouda, will take on the task of increasing the ICC's number of convictions during his tenure. His experience in international law has strengthened his candidacy. Notable politicians, such as British foreign secretary Dominic Raab, posted a tweet stating his support. Raab described Khan as 'pivotal in ensuring we hold those responsible for the most heinous crimes to account.' According to the Economist and Africa Report, over 22 African-led human rights groups opposed Khan's candidacy. The controversy surrounding the newly elected prosecutor is primarily due to leading the defense council of William Ruto and Uhuru Kenyatta. Both men were accused of coordinating political violence, likely to be ethnically motivated, over the 2007 Kenyan post-election brutality, resulting in the deaths of at least 1000 people. However, the court absolved their charges because of 'intolerable political meddling,' claimed by an unnamed ICC judge. That same judge further asserted that there was definitive evidence of 'witness meddling' following the murder of a key witness in 2014. This issue has remained one of the criminal court's most contentious cases to this day. Although Khan is entitled to defend any client, the fashion in which the
trial unfolded left an unfavourable impression on the public. There are many controversies, especially those suggesting impartiality, surrounding Khan's win. He did not initially appear as a nominee on the selection committee's shortlist. Nonetheless, the Kenyan government was successful in insisting on re-assessing the selection process and Khan's name subsequently appeared on the revised shortlist. Moreover, Mauritius prevented Khan from being chosen by a consensus vote. The objection was based on his British nationality, as the UK has refused to acknowledge ICC rulings deciding the Chagos islands belonging to Mauritius. Jagdish Koonjul, the Mauritian ambassador, criticised the country 'to claim a right to run international bodies like the ICC' due to their lack of compliance with international law. Despite these controversies, Khan has consequential decisions to make which will determine whether he will continue pursuing investigations regarding the Israeli-Palestinian Gaza conflict and Afghanistan's United States war crime allegations. There are questions concerning his policies and whether he will be as bold as Bensouda, who continuously improved and revised the court's practices and strategies to pursue investigations regardless of politics.
Karim Khan, pictured in 2017, is the newly elected Chief Prosecutor of the International Criminal Court (Credit: icty photos)
For many, the ICC's appointment of a non-white Muslim could represent a necessary change. However, this begs the question as to whether this change is coming at the expense of justice. The institution requires someone with impeccable credibility to enable and power its working body. Khan's credibility is dependent on the convictions he could secure whether he will be able to garner greater international recognition and gather more member states. Should Khan be successful in doing so, it may improve the ICC's credibility and jurisdiction.
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