I find it helpful in my studies when researching a specific topic for an extended period of time, as we are with transitional justice, to recede back to the ‘conception’ or beginning of the topic to remind myself of the subject’s basis and, to hopefully, elucidate and bring new perspectives to contemporary debates within the topic.
Fletcher & Weinstein (among others) have stated that, “since the Universal Declaration of Human Rights in 1948, the development of human rights norms, institutions and enforcement mechanisms has been driven by the international legal community”. It is imperative to note that this “international legal community” was constructed from a Western conception, specifically from the philosophical tradition of John Locke and the belief that individuals have moral rights to life, liberty, and autonomy. Therefore after the Second World War, with the conception and expansive growth of the legal community, lawyers comprising this community were operating purely from a Western/Lockean philosophy.
The questioning that prompted this post was wondering the inherent differences between Locke and Islamic philosophy. As we are witnessing what many have called a “revolution of the arab world” evidenced by ongoings in Tunisia, Egypt, and Libya. To start answering this question I returned to Locke-
As we all know Locke was a champion of religious tolerance. In his “Letter of Toleration”, Locke’s key argument rests on the distinction between an individual’s inner religious beliefs and an individual’s outer acts of compliance with sovereign’s or states’ demands. Locke argued, why should the sovereign try to control his subjects’ beliefs when they are out of his control? It would be better to focus on what matters: an individuals’ obedience and loyalty to the state. As important as this Lockean belief, is the caveat Locke provides for it – that religious belief of some sort is required for enforcing laws – for example, to ensure that a subject fears God sufficiently enough that he will tell the truth after taking an oath in court – and religion must not interfere with absolute obedience to the sovereign – for example if one follows the Pope instead of the King.
The question that arises for me is that, can international law be truly secular? If we have a international legal community operating under Western/Lockean beliefs, which includes the notion that a belief in God is necessary to ensure truth telling, can institutions of the international legal community, such as the ICC, intervene in nations, such as Libya, and operate without religious differences interfering with the legal process? Is it possible for the existing international legal community to operate effectively in the Arab world, without establishing a a sort of Islamic ad hoc tribunal?
To me the answers to these questions appear to be ominously no. It is important to understand that international law was not philosophically universally established- it was established by the West in a Lockean tradition, because of this institutions of international law, such as the ICC, will always be seen as another form of Western intervention by the Arab world. Furthermore one could view the revolutions happening in the Arab world as not to establish Western democracies with Western rules of law, of which intervention by the int’l legal community hopes to help to establish in post-conflict settings. But rather one could view these revolutions as rebellions against the West altogether. As the regimes that the public are revolting against have acquiesced to Western/American intervention in the middle east and have continuously been subordinate to Western/American political, and economic diktats.