& çâÌæÚUæð´ ·¤è ¥ôÚU Îð¹Ùæ ÁæÚUè ÚU¹ð´ ¥ÍæüÌ ¥ÂÙð ÜÿØ ÂÚU ŠØæÙ ÚU¹ð´Ð ãæÚU Ù ×æÙð´, €UØô´ç·¤ ·¤æ× ·¤ÚUÙð âð ¥æÂ·¤ô ©gðàØ ·¤è Âýæç# ãôÌè ãñ ¥õÚU ÁèßÙ ·¤æ ¹æÜèÂÙ ÎêÚU ãôÌæ ãñÐ ÖÜð ãè ÁèßÙ ×ð´ ç·¤ÌÙè Öè ·¤çÆÙæ§ü €UØô´ Ù ¥æ°, çÁ™ææâæ ¥õÚU ©ˆâæã ÕÙæ° ÚU¹ð´Ð ŠØæÙ ÚU¹ð´, ÜÿØ ã×ðàææ ¥æÂ·Ô¤ Âæâ ãôÌð ãñ´ çÁ‹ãð´ ÂæÙð ·Ô¤ çÜ° ÂýØæâ ¥æÂ ·¤Öè Öè àæéM¤ ·¤ÚU â·¤Ìð ãñ´Ð

Which Law will be Used for Gulf War Claims?

George N. Sfeir writes from San Francisco
***Tlu iwiw of war crime, trial, and reparation, following the Gulf war will bring to the fore a terioue divergence of view, within the US-led coalition. While the US it intent on ueing Weetern international law a, the legal baeie for adjudicating there ieeuee. Itlamic nation, may prune fbr applying principle, of I,lamic law.
WELL before the Gulf Miting ended dipt mats and experts were already wrangling over how to resolve allied claims against Iraq for reparations and retribution. A dispute almost certain to arise within the coalition Is whether those claims should be adjudicated by International or Islamic Law.
The assumption In the West Is that existing international law plus the legal framework of the Nuremberg and Tokyo tribunals. held after World War Two. will be applied. Both are based on principles derived from European customary and Cristian rules of law and morality
The Arab members of the US led coalition — Saudi Arabia. Egypt. Syria. Kuwait and the other Gulf Sheikhdoms — on the other hand, adhere in varying degrees to Islamic law. as does Iraq.
Islam is a personal law. grounded in the key concept of the unity of all Muslims, irrespective of their national origin or territorial affiliation. Western law. by contrast, is territorial — all who live within a certain territory are subject to the law of the land.
To underscore this difference in legal culture last year the Conference of Islamic States, a Riyadh-based organisation of 46 nations professing Islam, began negotiating a draft treaty to set up an Islamic International Court of Justice aimed at resolving disputes among its member states on the basis of Islamic
■Model after the Interna-
tional Court at the Hague. Article One of the treaty desig nates the proposed court to become the "principal judicial organ' of the Conference, dedicated to upholding Islamic principles of law and morality
Whether the Arab members of the coalition will demand that this new body become the arbiter of Gulf War claims remains to be seen. The United States would clearly prefer a claims tribunal made up of Arab Judges applying conven tional International law.
But the prospect of a forum composed of Islamic Judges trying fellow Muslims on the basts of anything other than Islamic law would be offensive in the Middle East, especially in the wake of another Arab humiliation by the West.
Even more problematic for Islamic scholars Is the fact that
International Western law is full of Inconsistencies and contradictions when it comes to distinguishing between Just and unjust war. or determining what constitutes the appropriate conduct of war. Islamic law Is far more consistent
Under Western international law. war has long been viewed as an Instrument of national policy which Is morally reprehensible but legally legitimate. (Only a year ago. Wash ington Justified its invasion of Panama to bring down the Noriega regime in precisely these terms).
Yet at the Nuremberg and Tokyo war crimes trials, the US sought to distinguish between aggressive and defensive war. and to brand aggressive war as a crime against world peace.
International legal concepts on the conduct of war are also
vague when It comes to de termining where "military ne cessity ends and aggressive warfare begins. As Telford Taylor. chief prosecutor at the Nuremberg trials . noted, the extent of force needed to achieve a War s states alms is subject to "infinite circumstantial variations".
Critics of US policy in the Gulf conflict have questioned the coalition's conduct of the war on the grounds that it exceeded the mandate give by Security Council resolutions for the liberation of Kuwait.
From the point of view of Islamic law. there is only one just war and that is the "Jihad" Its purpose is to expand or to safeguard the Islamic commonwealth. not to annihilate the enemy.
Since It is viewed as a means to a divine end. "unnecessary damage" in pros-
ecuting it is unacceptable according to Shaybani. the father of the laws of war and peace in Islam Shaybani also advised Muslims commanders to consider negotiating with the en-
alternatlve to fighting
When it comes to defining and penalising " war crimes" and violations of "human rights'. International law becomes even murkier. For one thing, these violations have to be directly related to hostilities. For another, the concept of fundamental hun-n rights is of such recent origin that It has yet to find its way uniformly into ail legal systems.
Islamic law. by contrast, has worked out over the centuries a far more consistent view of the relations between the indl vldual and the community. In a society where communal welfare must guide all human
dividual. who la viewed more as the bearer of duties than the •uMecfMrl^Ns
What puts Islamic legal eul ture at such variance with Western culture is the greater
3poslng claims tn the Interest
social solidarity and bar mony over and above the mer Its of the case alone or the innocenoe of .he indl
The emphasis on the rule of law and fundamental Individual rights that is Mandated with Western legal culture ghe way promoting and^safeguard)ng ^community aa a
Throughout the OuM crista the Bush administration has stressed the role of the UN Security Council and the in ternattonal support this has given It for the use of force US"ThUd* WorkT^u m’rie™ however, the legalistic order
provided by the UN ignores the diverse political. lefhl *nd cultural systems tn the world
If these were given the acknowledgement they deserve at the international body, we might well have seen a more peaceful an equitable resolution of regional conflicts than has been the case so far
— GEMINI NEWS
GEORGE N. SFEIR is a Cafe /ornia-based international legal consultant specialising tn the legal systems o/ the Middle East.