Cultural Property Protections in International Criminal Law

Written by: Regina Paulose

“Wars, confrontations and conflicts in general, between two or more opposing factions, have always represented a serious threat to the integrity of the cultural heritage located in their territories. Unfortunately, this threat most often materializes in the form of the destruction of significant amounts of cultural property (movable and immovable): monuments, religious sites, museums, libraries, archives, etc. Humanity is thus deprived of a shared and irreplaceable cultural heritage.”[1]  Continue reading

The Last Resort

Terrorism

Until the dramatic events of September 2001 terrorism was perceived as an exceptional and a rare phenomenon, which didn’t quite bother specialists of any field. Today there is hardly a person who has never though about the roots and the nature of this evil. The growing threat takes multiple forms, including transnational groups targeting means of transport, planning attacks with weapons of mass destruction or through the Internet, or resorting to new channels to finance their acts.[1] And even though we may disapprove of it, terrorists can indeed assemble plausible if not logical arguments in defense of their actions.

However, whatever the ideological motives of terrorist groups are one should, consider the reasons for a choice of this means of warfare in the first place as to develop an effective doctrine to combat it. As Major Robert W. Cerney states, “terrorists exercise their right to fight for what they believe in the only way they can with any hope of survival till the eventual achievement of their goal.”[2] Terrorism as a means of warfare indeed proves to be successful, but the key point in Maj. Cerney’s assertion is that it’s the only feasible option for those waging an asymmetric war.

It is worth mentioning, that none of the conflicts is perfectly symmetrical, but the wider the gap, the dirtier it gets. Today with only one remaining superpower and more generally the considerable and predictably widening technological divide, a huge imbalance in the capacity of warring parties has become a characteristic feature of any contemporary armed conflict.[3] The wide disparity between the parties, primarily in military and economic power, potential and resources, provides for a need for a form of violence that serves as a force multiplier that maximizes the outwardly limited resources in confrontation with an incomparably stronger opponent that a party cannot effectively challenge by conventional means. Given the inability to fight on the enemy’s own ground and to challenge a stronger opponent on equal terms, the weaker, lower status side has to find some other ground and to rely on other resources to establish a two-way asymmetry.[4] This, in turn, conditions the terrorists’ modus operandi: attacking the enemy’s weakest points, namely, its civilians and non-combatants, thus, not conforming to international legal standards. Yet, why would one play by the system rules when those rules are established to support a system fought…

Western societies are becoming more vulnerable due to many factors, including global communications, travel, and the proliferation of weapons technology, as well as the fact that the number of relatively deprived people in failing societies is growing.[5] The threat of terrorism forces them to respond by increasing homeland security measures. The latter have reduced the number of attacks by 34 percent, limiting the number of terrorism victims to an average of 67 a year and having cost the developed countries roughly US$70 billion since 2001.[6] The material cost of a suicide bombing, in turn, is as low as $150(US), and results in an average of 12 deaths, spreading enormous fear throughout the targeted population.[7] Thus, it amounts to an estimated $5.8(US) billion a year protecting 34 innocent lives which might be deprived at a price of $425(US). Apart from this financial asymmetry, one should also bear in mind that terrorism is responding to new security challenges with new approaches having the same bloodshed effect.

To this end, terrorism seems to be the last if not the only resort of the weaker parties trying to shift the balance and restore the warfare symmetry with any means possible. Given that the means are dirty and that terrorism will not conform to international standards, we must adapt to it and consider a more effective, yet legal, strategy of combating it with a view of its asymmetric character.

Written by Jan Guardian


[1]       United Nations Office on Drugs and Crime, The Universal Legal Framework Against Terrorism. New York (2010), p. iii.

[2]       Major Robert W. Cerney, International Terrorism:  The Poor Man’s Warfare. Executive Summary. USMC CSC 1991 [online][accessed 28 March 2013].

[3]       Robin Geiss, Asymmetric Conflict Structures. International Review of the Red Cross, Vol. 88, 864, December 2006, 757-758.

[4]       Ekaterina Stepanova, Terrorism in Asymmetrical Conflicts: Ideological and Structural Aspects. SIPRI Research Report No. 23. OxfordUniversity Press (2008), p. 20.

[5]       Shahram Chubin, Jerrold D. Green, Terrorism and Asymmetric Conflict in Southwest Asia. RAND (2002), p. 7.

[6]       Bjorn Lomborg, Is counterterrorism good value for money? NATO review 4 (2008) [online][accessed 29 March 2013].

[7]       Ibid.

Tracing International Humanitarian Law To Hinduism

Picture by Ben Heine

Picture by Ben Heine

Written by Garima Tiwari

India is party to the four Geneva Conventions of 1949 and has incorporated them into its municipal law, but India is not a signatory to the two Additional Protocols. This post examines how far the concepts of Hinduism have helped in the development of international humanitarian law.

War as an art as well as a science was equally well understood in ancient India.[i] The ancient Indians recognized war as a relation between states, the Agnipurana[ii] defines war “as the direct result of the injuries done to each other by two hostile monarchs.” Professor H. H. Wilson calls the ancient Indian laws of war are very chivalrous and humane, and prohibit the slaying of the unarmed, of women, of the old, and of the conquered.[iii]

In ancient times the first and foremost duty of the king was to protect his people. Protection consisted in countering internal threats as well as external aggression to man‟s liberty.[iv] Hinduism has mentioned wars in its various sources. Francois Bugnion has stated of Hinduism having “law of armed forces on the principle of humanity” in the following words,  “The ancient Hindu law of armed conflict, founded on the principle of humanity, had many rules limiting violence. The Upanishads     taught that all human beings are one and that all are his children…”[v]

The source of the “Hindu law of armed forces” as stated by Francois Bugnion was only Upanishads. But, in real sense, it will not be correct to say so. Hinduism is based on numerous texts. The primary sources of Hinduism are Sruti and Smriti. Sruti literally means what is heard, while Smriti designates what is remembered. In this regard, Sruti is revelation and Smriti tradition. Srutis are the four Vedas, the Rig Veda, Sam Veda Yajur Veda and Atharva Veda. Each Veda consists of four parts: the Samhita (hymn), the Brahmana (rituals), the Aranyakas (interpretations) and the Vedanta (Upanishads). The Bhagavad Gita part of the epic poem Mahabharata, is the most influential Hindu text.[vi] Manu, Yajnavalkya and Prasara are the most celebrated law-givers of ancient India. There are eighteen main Smritis or Dharma Sastras. The Dharma Sastras and epics recognized two kinds of war: Dharma Yuddha (righteous war), and Adharma Yuddha (unrighteous war).

Hinduism does not forbid war but consider it as a last resort for a state. The Manusmriti, provides that a king should first try to conquer his foes by conciliation, by gift and by causing dissension if possible: if all these fail then and then only should he wage war.[vii] The policy of conciliation and making gifts should be tried first before engaging in war.[viii]

The code of Manu advises the king:“when he fights with his foes in battle, let him not strike with weapons concealed (in wood), nor with (such as are) barbed, poisoned, or the points of which are blazing with fire.”[ix] Whether he himself fights or engages others to fight for him, the king must ensure that the battle will be an honest duel.[x]

The Rig Veda also laid down the right conduct of war. Vedic rules maintain that it is unjust to strike someone from behind, cowardly to poison the tip of the arrow and heinous to attack the sick or old, children and women.

The ancient Indian war was a war of righteousness, i.e., Dharmayuddha; hence, any kind of inhumane acts were discouraged and frowned upon. Whose weapons are broken; who finds himself in trouble; the string of whose bow is snapped; whose battle horse is killed – he should never be attacked. Such an enemy falling into one‟s hands, his wounds should be tended, and he should be taken to his home.[xi]

The laws of war in ancient India drew a clear distinction between civilians and belligerent.[xii] The ancient Indian texts like Mahabharata, being the greatest epic ever written in the history of mankind, and Manusmriti, lay down the laws governing war in ancient India, are congruous to the provisions of Geneva Conventions[xiii], as in the Basic Rules of the Geneva Conventions and their Additional Protocols.[xiv]

According to Manu: “persons walking on the road, not participating in the conflict, or mere travellers, or those who are engaged in eating and drinking or pursuing their special avocations or activities or diplomatic errands and of course the Brahmins, unless they are engaged in war, were not to be killed.”[xv]

For example, combat between mounted and unmounted soldiers was strictly forbidden. Furthermore, combat between warriors of officer rank and foot soldiers was not allowed, since the former would generally be much better armed and trained than the latter. Collective attacks against a single soldier and the slaying of a warrior who was temporarily at a disadvantage during battle were strictly prohibited.

The Agni Purana clearly mentions that prisoners of war should not be enslaved. If soldiers  were taken prisoner, they were to be released at the cessation of hostilities. Kautilya advocated the humanitarian treatment of conquered soldiers and citizens. In particular, he maintained that a humanitarian policy toward a defeated people was practical, pointing out that if a king massacres those whom he has defeated, he frightens all the kingdoms that surround him and terrifies even his own ministers,[xvi] whereas more land and loyal subjects can be gained if the defeated are treated magnanimously. Kautilya advised that the conquering king should order the release of all prisoners and give help to the distressed, the helpless and the sick. He thus called for the establishment of a righteous course of conduct for sound military policy.[xvii]

Regarding weapons to be used in war field K.R.R.Sastri quotes Kautilya and written: “Our modern strategists who have killed two or three hundred thousand at Hiroshama and Nagasaki are invited to read the following passage from Kautilya(Book XIII. Ch. IV):”When if fort can be captured by other means, no attempts should be made to set fire to it; for fire cannot be trusted; it not only offends the Gods but also destroys the people, grain, cattle, gold, raw materials and the like. Also, the acquisition of a fort with its property all destroyed is the source of further loss”.[xviii]

In the Shanti Parva of the Mahabharata, it is mentioned: This means to kill someone not in combat; to rape a woman, or misbehave with her; ingratitude; to rob one devoted to learning and knowledge; to deprive another of all he has – these are considered very low acts even among robbers.[xix]

A conquering king should reassure that defeated people that not much has changed except their rulers. He should adopt a character, dress, language and behaviour similar to when the former king was ruling (similar to those of the subjects). Moreover, he should show the same devotion at festivals in honour of deities of that country, festive gatherings and sportive amusements.[xx] He should honour the local deities and make grants of land and money to men distinguished in wisdom and piety. The conquering king should show his goodwill toward the defeated by instituting a righteous custom that had not previously been introduced. Kautilya commented that “one must kill a dangerous person; however, the king must leave his property untouched and shall not appropriate the land, property, sons or wives of the killed one.”[xxi]

Kautilya also held that the fundamental rule about immoveable property was that it did not belong to the victor by right; only such things as chariots, animals, and war material belonged to the conquering forces. The king should personally examine all such captured wealth and should then keep a part for himself and distribute the rest among his armed forces according to rank.[xxii]

According to the Manusmriti, only the warriors who actually fight in the battle can take the spoils of war. Yet they are to be shared with the ruler inasmuch as the kings who have engaged them to settle scores with the enemies demand the best part of the booty.[xxiii] In this connection, the conqueror is advised to grant remissions on taxes instead of looting the conquered territory. He must seek to win over the commoners of conquered territory and not do anything that would increase their bitterness. He should not be vengeful but should instead offer an amnesty to all who have surrendered to him.

Thus, humanitarian law principles found their existence in India long before the Geneva Conventions and Protocols.

References

  1. Manoj Kumar Sinha ,Hinduism and International Humanitarian Law, International Review of the Red Cross, Volume 87 Number 858 June 2005
  2. Gaurav Arora, Gunveer Kaur, Supritha Prodaturi, Vinayak Gupta,International Humanitarian Law and Concept of Hinduism, , International Journal of Multidisciplinary Research Vol.2 Issue 2, February 2012, PP.452-458
  3. Modh, Bhumika Mukesh, International Humanitarian Law: An Ancient Indian Perspective (January 12, 2011). Available at SSRN: http://ssrn.com/abstract=1738806 or http://dx.doi.org/1

[i] H. B. Sarda, Hindu Superiority: An Attempt to determine the position of the Hindu race in the scale of nations, Scottish Mission Industries Company, 2nd Ed., Pune, 1917, p 349.

[ii] Agnipurana is one of the 18 Mahapuranas, a genre of Hindu religious texts, contains descriptions and details of various incarnations (avataras) of Lord Vishnu.

[iii] H. H. Wilson, Essays and Lectures on the Religions of the Hindus, Vol. II, Trubner & Co., London, 1861, p. 302.

[iv] Pandurang Varman Kane, History of Dharmasastra, Poona, 1973, Vol. 3, p. 56.

[v] Francois Bugnion,Customary International Humanitarian Law, ISIL Yearbook of International Humanitarian and Refugee Law Vol. 7,2007, p. 1.

[vi] Surya P. Subedi, The concept in Hinduism of just war, Journal of Peace and Conflict Studies, 2003, Vol. 8,p. 339-361.

[vii] Ancient India developed a method in four successive stages for the settlement of disputes between States: the first stage is called peaceful negotiation (sama); the second stage consists of offering gifts (dana) to appease the enemy; the third is a veiled threat (bheda); and the last stage allows the use of force (danda).

[viii] K. R. R. Sastry, “Hinduism and International Law”, Recueil des Cours, 1966 (I), Vol. 117, pp. 507-614

[ix] V. Nagarajan, “Manusmriti as Socio-political Constitution”, available at <http://www.geocities.com/vnagarajana402/manusmrti1.htm&gt;

[x] Ibid

[xi] Bhagshastro vipinnashch krittajyo hatvahanaha| Chikitsyaha syaat svavaishaye prapyo svagrahe bhavet|| shanti 15.13||

[xii] Lakshmikanth Penna, “Traditional Asian approaches: An Indian view” Australian Yearbook of International Law, 1985, Vol. 9,p. 108-191

[xiii] The modern laws of war were developed mainly by The Hague Peace Conferences of 1899 and 1907, and in the four Geneva Conventions of 1949 and the two 1977 Additional Protocols thereto

[xiv] Basic Rules of the Geneva Conventions and their Additional Protocols, ICRC publication 1988, ref. 0365

[xv] Supra xii

[xvi] Roger Boesche, Kautilya’s Arthasastra on War and Diplomacy in Ancient India, available at <http://muse.jhu.edu/demo/journal-of-military-history&gt;

[xvii] C. H. Alexandrowich, “Kautilyan principles and the law of nations”, British Yearbook of International Law,1965-66, Vol. 41,p.301-320

[xviii] K.R.R. Sastri, Hinduism and International Law, Recueil Des Cours Vol. 117, 1966 p. 507.

[xix] Chaturvedi Badrinath, The Mahabharata: An inquiry in the human condition, Orient Longman Pvt. Ltd., New Delhi, 2006, p. 152

[xx] Supra xvii

[xxi] Supra xvii

[xxii] Supra xvii

[xxiii] Supra xii

Initiatives for Peace in Northern Mali in the 1990’s – Lessons Learned

WRITTEN BY: RICK GOLD[i]

Mali has emerged out of obscurity since March 2012. Journalists worldwide have reported on the coup d’état and transitional government, capture of the northern half of the country by secular Touaregs, displacement of the Touareg movement by Al Qaeda-affiliated groups, destruction of historic treasures such as Sufi tombs and ancient documents, capture by French troops of the three major cities of the North, and introduction of soldiers from other African countries.  These events parallel those of the early-mid 1990’s, when the Malian army was unable to put down a revolt of Touaregs returning from Libya’s war with Chad or enforce a peace treaty with Touareg and Arab movements. It then fomented a coup d’état.  Consequently, the transitional government negotiated a national pact that guided a wide range of peace-making efforts with the rebel movements, working with civil society, the United Nations and bilateral donors. The mixed results of these initiatives and those implemented over many years by subsequent democratically elected governments provide some lessons for addressing Mali’s problems today.  This post addresses the lack of historical analysis of today’s crisis in Mali.

From 1993-1997, I lived in Mali, working as the Program Officer for the US Agency for International Development (USAID).  Northern Mali was an important geographic focus of USAID.  I oversaw USAID’s $2 million contribution to the United Nations Trust Fund that supported a program of Disarmament, Demobilization, and Reintegration (DDR) Program for ex-combatants in northern Mali. I also defined and led the implementation of a strategy to help civil society increase economic opportunities and improve livelihoods as well as health and education services in areas affected by the fighting. My work enabled me to visit Timbuktu and Gao, the two major urban areas, as well as many villages along the Niger River. My on-the-ground involvement in the peace efforts over four years allows me to bring a different perspective from journalists reporting on today’s events.

Geography

Mali is a land-locked country about twice the size of France with seven neighboring West African countries.  Its economic lifeline is the Niger River, which runs through the southern half of the country and enables 80% of the population to engage in farming and fishing. About 65% of the geographic area is within the Sahara desert, which has infrequent and minimal rainfall, allowing herding to sustain 10% of the population.  Mali’s economy is based on agriculture, earning foreign exchange from gold, cotton and other agricultural exports. It is among the 25 poorest countries, with severe educational and health problems, and is highly dependent upon foreign aid.[ii]

Demography

About 10% of Mali’s 15.5 million ethnically diverse people are Touareg, a light-skinned Berber people. More than 90% of the population is Muslim, including Touareg. In the North, several clans of Touareg live in a symbiotic but uneasy relationship with other ethnic groups, such as Songhai agriculturists. The Touareg have a caste system, which is reflected in their long dominance over dark-skinned Bella servants.  Touareg are mainly herders, but also engage in agriculture. While they are a peaceful people, the Touareg have a long history of robbing travelers and caravans passing through the desert areas they know so well.

History

Mali was the center of empires from the 9th through the 16th century, based on its control of caravan trade in gold, salt, slaves and luxury items. During this time, Timbuktu became one of the world’s major centers of Islamic learning. Morocco took control of Timbuktu in the 17th century and sent its Islamic scholars into exile.  By the 19th century, Malian kingdoms gained power over large areas of the Niger River.  In the late 19th century, France eventually gained control of both the Niger River and towns in northern Mali, but never was able to fully pacify the North.  It held Mali until the country became independent in 1960.

Mali’s first President, Modibo Keita, reached out to the Soviet Union for support and broke relations with France.  In 1968, he was overthrown in a coup d’état by Moussa Traoré, who led an authoritarian, corrupt government until he was overthrown by another coup d’état in 1991.  Lieutenant-Colonel Amadou Toumani Touré led a transitional government, which gave up power to an elected government under President Alfa Oumar Konaré in 1992.  Mali remained democratic until the coup d’état of March 2012.

The Touareg

The Touareg have never accepted central authority. They resisted French control for more than 70 years. In 1963, a small Touareg independence movement was quickly put down by the Malian military under President Modibo Keita and the region was placed under military authority. Regional leaders appointed by the Central Government were unresponsive to the needs of the population. They were accused of diverting international food assistance provided in response to the severe droughts of the 1970’s, which displaced many inhabitants. The Keita and Traore governments allocated minimal infrastructure or development funding to the North, which remained isolated due to lack of roads and communications until the paved road to Gao was built in 1985.  Due to their isolation, inhabitants of the North, particularly the Touareg, have had little attachment to the state of Mali. Touareg clan chiefs, interested in asserting their independence, resisted sending children to the few government schools that were built.  Poorly thought-out government initiatives to reform land ownership and modify the relationship between Touaregs and their former Bella slaves increased frustration with the government.

The Rebellion

The beginning of the 1990-95 rebellion began when Malian Touaregs launched an armed attack to liberate Nigerian Touareg fighters who had fled Niger, only to be arrested by the Malian military in the town of Menaka, east of Gao. As the Touaregs and Arabs established a number of armed movements, they used weapons brought from the 1980’s Libyan conflict with Chad, where a number of Touareg served in the Libyan army. President Moussa Traoré sent a large part of his poorly trained army to the North, where they used repressive tactics to control the region.[iii]

The Tamanrasset Accord

By 1990, Traoré’s authoritarian rule fueled a democratic resistance movement in the capital, Bamako, that threatened his regime.  Recognizing that his military could neither eliminate the Touareg insurgency quickly nor protect him in Bamako from the democratic resistance movement, he sought the assistance of Algeria in negotiating a peace treaty with two major Touareg and Arab movements, the Azaouad Popular Movement (MPA), and the Arabic Islamic Front (FIAA). [iv] The Tamanrasset Accord, named after the southern Algeria town where it was negotiated, was signed in January 1991.  In the Accord, the Malian military agreed to “disengage from the running of the civil administration and … suppress… certain military posts,” “avoid zones of pasture land and densely populated zones,” and to be “confined to their role of defense of the integrity of the territory at the frontiers.” The Accord also affirmed that “combatants may integrate the Malian Armed Forces under conditions defined by the two parties” and called for a ceasefire between the two main Touareg/Arab factions and the government.

The Accord, however, was stillborn, as both sides lacked confidence that it would be implemented. The MPA then split into three movements committed to independence and/or autonomy. Members of the Songhai ethnic group felt that too much control was being offered by the government to the Touareg. Violence escalated.

The National Pact

The failure of the Tamanrasset Accord and expanding unrest by the urban democracy movement gave  Lieutenant-Colonel Amadou Toumani Touré (ATT) the justification for leading a coup d’état to remove the Traoré regime in March 1991. ATT committed himself to establishing a transition government and putting in place the conditions for a stable, democratically elected government by July 1992. In August 1991, he organized a national conference on the future of Mali, but organized it in a way that marginalized the voices of northern peoples. Subsequently, however, ATT invested enormous political capital in moving toward a National Pact that would ensure peace and address holistically the needs of the North.  In December 1991, he called on Algeria to facilitate a meeting that unified all the rebel movements into the Coordinating Body for the Unified Movements and Fronts of Azawad (MFUA).  In several negotiating sessions, again with the facilitation of Algeria, the transitional government and MFUA created the National Pact[v], which was signed in April 1992.

The MFUA acknowledged in the Pact that independence was no longer an option for the North, but that its future must lie within the Malian state. The goal was to restore confidence and eliminate insecurity.  The most urgent objective was to create a permanent cease-fire. Key aspects of the Pact included: 1) the establishment of commissions to investigate abuses, guarantee ceasefire and assure Pact implementation (through the Commissioner of the North and Commission of Supervision). 2) an exchange of prisoners; 3) disarmament and demobilization of combatants; 4) integration of ex-combatants into the Malian armed and civilian forces; 5) the reduction of military presence in the North: 6) the return of refugees; 7) the construction of infrastructure in the North to increase investment and catalyze development; 8) new administrative structures and local, regional and inter-regional assemblies. The Government recognized the “special status of the North” by creating the post of Commissioner for northern Mali in the Office of the President. The Central Government would fund implementation of the Pact, with support from international donors.

President Alpha Oumar Konaré was elected in July 1992. He viewed the National Pact as an essential instrument for putting in place the conditions that would prevent another military coup.  After the Pact’s signature, violence decreased enough for President Konaré to visit Timbuktu, Gao and Kidal regions in December 1992.  However, the new Government had a difficult time implementing the Pact quickly and effectively.

Commissions

Lack of funding and perhaps commitment prevented the new Government from establishing functional commissions to guarantee the ceasefire and investigate abuses. On the other hand, the Commissioner of the North and Commission of Supervision played important roles in assuring other important components of the Pact.

Disarmament and Demobilization

The Malian Government was financially responsible for disarmament and demobilization. Violence continued through 1994, when it was most intense.  The first round of integration of 640 ex-combatants into the military and civilian services took place in 1993 and was not executed effectively.  The Malian Government could not afford to integrate all ex-combatants at one time, especially when it was being pressured by the International Monetary Fund to cut expenditures and reduce the number of civil servants.[vi] Malian soldiers refused to accept poorly educated rebel soldiers into their units and isolated them. Training was inadequate to create integrated units. In the face of increasing violence and lawlessness, the Malian military lacked discipline, fueling further violence.

In 1994, members of the Songhai ethnic group, frustrated by the slow implementation of the Pact, created their own self-defense organization, Ganda Koy, which the Government was forced to include in the disarmament and demobilization process.  MFUA movements wildly exaggerated the number of combatants to be demobilized and met with the Government at a series of meetings in Tamanrasset in spring 1994. Lack of agreement on numbers of soldiers to integrate in civilian and military services or reinsert into society provoked violence among the movements.

Recognizing the precarious of National Pact implementation, from July to September 1994, the Government organized and facilitated 17 regional meetings that gained nationwide citizen support for national initiatives such as the Pact and allowed women and disadvantaged groups to be heard. Based on this experience, President Konaré decided that Malian civil society should be given time to build support for the Pact.  With funding from the UN, donors and NGOs, civil society organizations in the North led 37 discussions of all stakeholders in the Pact in 1995 and 1996. The results of these meetings were localized peace agreements among inter-dependent communities, the resolution of local disputes, and social reconciliation.[vii]

The UN, in cooperation with the Commissioner of the North, provided strong leadership in the next stages of the peace process and established a UN Trust Fund, to be financed by multiple donors. Disarmament and demobilization of the remaining movement combatants began in November 1995, first through cantonment of armed combatants, then closure of movement bases and finally integration of the most capable ex-combatants into the military and civil service. While the Malian Government financed the cantonment process, the UN funded through its Trust Fund a demobilization premium of $200 for each of the 2,681 combatants who turned over one weapon.  By February 2006, about 1,500 ex-combatants were integrated into military service, while 150 were integrated into the civil service.[viii]

To commemorate this historic step forward in disarmament, demobilization and reconciliation, the Malian Government organized the Flame of Peace Ceremony in Timbuktu, in which it burned the weapons received from the ex-combatants. The movements formally announced their dissolution. Ten thousand people participated in the event. The UN facilitated the ceremony, and many high-level UN officials attended. The guest-of-honor was J.J. Rawlings, President of Ghana and the Economic Community of West African States (ECOWAS). Today, the Flame of Peace statue is one of the highlights of any visit to Timbuktu.

Reintegration of Ex-Combatants

The National Pact committed the Government to reintegration of ex-combatants into society.  Beyond integrating some of them into the military and civilian services, the Government recognized the need to assist others to restart their lives as civilians.  From 1996-1997, the UN Trust Fund, with support from multiple donors, financed the $10 million Support Program for the Socio-Economic Reintegration of Ex-Combatants in Northern Mali (PAREM), which provided small grants to 9,500 ex-combatants.  Based on a model from Mozambique, PAREM provided $600-$700 per person for 866 projects focusing on livestock, agriculture, commerce, services and other livelihoods. Many of the projects were undertaken by groups of ex-combatants who pooled their money for large initiatives such as creating a rice field or launching a livestock project. NGOs complemented the funds with training on skills such as micro-enterprise management, sorghum production, livestock management, mechanical repairs and handicraft production.  PAREM did a good job of channeling money into the northern economy, easing the transition for ex-combatants and facilitating peace. It was not an easy program for the UN to manage, however.  The movements negotiated hard to gain the maximum number of program participants. The Songhai Ganda Koy movement complained that the Touareg movements were authorized too many participants. The movements also resisted the UN’s requirement to plan projects and submit written proposals. Once PAREM began, some ex-combatants who were frustrated with the waiting time for receiving their money attacked Program Offices. The UN therefore forced donors to expedite transfers to the UN Trust Fund. To assure that the projects were implemented, the UN paid out the grants in multiple sums, which frustrated some of the participants.[ix]

Resettlement of Refugees

The National Pact also called for resettling refugees.  Given that violence continued in the North through 1995, refugee resettlement began in 1996 and continued through 1999. Over that period, the UN High Commission for Refugees worked with Malian authorities to resettle 130,000 refugees from Mauritania, Algeria, Burkina Faso and Niger as well as 175,000 displaced persons. UNHCR made a special effort to assist both refugees and all local people who were equally suffering from the lack of infrastructure in terms of water, health and education [x]

Decentralization

The 1992 National Pact identified a “special status” for the North and promised the establishments of new administrative structures and local, regional and inter-regional assemblies. However, input from the 1994-1996 regional and civil society meetings convinced President Konaré that decentralization of the national government throughout Mali would be a more promising approach to building consensus and delivering appropriate government services at local levels.  Through 2013, the Malian Government has created 761 local collectivities (703 communes, 49 circles, 08 regions and the district of Bamako). The Commission of the North has guided the decentralization process in northern Mali, where the first communal elections did not take place until June 1999.  The delay in establishment of communal assemblies and their lack of funding frustrated many people in the North, but gave new Touareg and Songhai political actors the opportunity to represent all members of their communities. Mahmoud-Alpha Maiga, the former Ganda Koy representative in France stated, “It is thanks to the Touareg rebellion that the central government has accepted decentralization. This represents an important step because now it will be a local person, who knows the people and local customs, who will run the local affairs and no longer a civil servant sent from the South.”[xi]

Development

Long-term development of the North was the unstated goal of the National Pact.  The return to calm and settlement of refugees allowed infrastructure and development programs to begin again.  Donor funding for NGO agriculture, employment, health and education programs increased significantly, but were not large enough to meet the most urgent needs of many communities. In addition, some of the ex-combatants turned to vehicle hijacking and kidnapping, which
slowed down the implementation of development programs.  The reduction in military presence associated with the Pact enabled the ex-combatants to link up with narco-traffickers operating out of Guinea-Bissau.[xii]  Corruption associated with narco-trafficking had a major impact on the Malian Government, which reduced its capacity to provide security and support democratization and decentralization, contributing to the 2012 coup d’état.[xiii]

Small Arms Moratorium

An important outgrowth of the Malian Government’s efforts to seek peace in the North was the 1998 ECOWAS Declaration of a Moratorium on the Importation, Exportation and Manufacture of Small Arms and Light Weapons in West Africa, the related 1999 Code of Conduct[xiv] and the 2006 ECOWAS Convention on Small Arms and Light Weapons, Their Ammunition and other Related Materials.[xv] In 1996, the Malian Government, with support from UN, invited West African countries to participate in a conference on conflict prevention, disarmament and development. Mali called upon its neighbors to move toward a moratorium on small arms trade. The preparatory document explained: “The proposed moratorium is one element of a policy on arms control. It is an act of faith, and a manifestation of the political desire to observe for a definite period, an official ban on the transfer and manufacture of light weapons within the geographic space of interested countries.”[xvi]

Lessons Learned

The peace initiatives in Mali in the 1990’s provide some important lessons for dealing with today’s crisis.  First, security is an essential requirement for long-term development. Second, peace and stability require multiple tracks: 1) promoting national and international mediation; 2) encouraging armed movements to unify to facilitate negotiations; 3) empowering civil society to reconcile all parties; 4) improving civilian-military relations; 5) undertaking disarmament and demobilization; 6) reintegrating ex-combatants into the military and civil service; 7) reintegrating ex-combatants into society through funding of economic projects; 8) facilitating return of refugees and displaced persons by investing in infrastructure and services for all those living in the areas of return; 9) facilitating decentralization of governance; 10) investing in long-term, sustainable development; 11) maintaining development assistance even while addressing security and building peace.

The main difference between the 1990s and today, other than the involvement of Al Qaeda-affiliated groups and the intervention of French and African soldiers, is that the Malian Government requires even more assistance to improve its capacity to govern.  International actors must focus not only on promoting peace and reconciliation, but also on how they can help the Malian Government gain the capacity and legitimacy to lead these efforts.


[i] Rick Gold is an international development and rule of law consultant. He served 29 years in the foreign service of the U.S. Agency for International Development, including 4 years in Mali.

[ii] Central Intelligence Agency, The World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/ml.html

[iii] See Lieutenant Colonel Kalifa Keita. Conflict and Conflict Resolution in the Sahel: The Tuareg Insurgency in Mali, US Army War College Strategic Studies Institute 1998, http://www.strategicstudiesinstitute.army.mil/pdffiles/pub200.pdf

[iv] Tamanrasset Accord Agreement on Ceasing of Hostilities, 1991, www.ucdp.uu.se/gpdatabase/peace/mal19910106.pdf

[v] National Pact Concluded between the Government of Mali and the

Unified Movements and Fronts of Azawad Giving Expression to the

Special Status of Northern Mali, April 1992, https://peaceaccords.nd.edu/site_media/media/accords/Mali_Peace_Accord-proof.pdf

[vi] Carolyin Norris, Mali – Niger: Fragile Stability, UNHCR Centre for Documentation and Research, May 2001, WRITENET Paper No. 14/2000, http://www.unhcr.org/refworld/pdfid/3bc5aaa66.pdf

[vii] Kare Lode, Mali’s Peace Process: Context, Analysis and Evaluation, Accord: An International Review of Peace Initiatives, 2002, http://www.c-r.org/sites/c-r.org/files/Accord%2013_11Mali%27s%20peace%20process_2002_ENG.pdf

[viii] R. Poulton & I. Ag Youssouf, A Peace of Timbuktu: Democratic Governance, Development and African Peacemaking, United Nations, March 1998, pp. 115-119, http://unidir.org/bdd/fiche-ouvrage.php?ref_ouvrage=92-9045-125-4-en

[ix] Poulton & Ag Youssouf, pp. 123-131

[x] UNHCR Wraps Up Its Mali Repatriation Program, http://www.unhcr.org/3ae6b82240.html

[xi] Norris, p. 16

[xii] Luís Filipe Madeira, Stéphane Laurent, Sílvia Roque, The international cocaine trade in Guinea-Bissau: current trends and risks, March 2011, http://peacebuilding.no/var/ezflow_site/storage/original/application/7563aa361160ef275ddd4f0812c6f41e.pdf

[xiii] Ousmane Sy, La Crise Politico-Institutionnelle au Mali, Comment en Sortir Plus Fort et Plus Uni, October 2012, http://ousmanesy.net/index.php?option=com_docman&task=doc_download&gid=8&Itemid=82

[xiv] Economic Community of West African States, Declaration of a Moratorium on the Importation, Exportation and Manufacture of Small Arms and Light Weapons in West Africa, October 1998, http://www.poa-iss.org/RegionalOrganizations/ECOWAS/Moratorium and Code of Conduct.pdf

[xv] Economic Community of West African States, Convention On Small Arms And Light Weapons, Their Ammunition And Other Related Materials, June 2006,  http://www.poa-iss.org/RegionalOrganizations/ECOWAS/ECOWAS Convention 2006.pdf

[xvi] Poulton, pp. 227-230

The convenient truth behind Suicide Attacks in Islamic legal texts – Restrictions on Asymmetric Warfare

Jihadists and like-minded Salafi ideologues regularly advocate the legitimacy of suicide murder as a legitimate offense tactic, and certain sectors of Muslim society today appear to accept its authenticity with little reservation. Based on a principle popularized by the 13th century Muslim theologian Ibn Taymiyya, suicidal missions have become a staple tactic in the Jihadi playbook.  In response, a counter-argument must be carefully constructed by engaging the same sources in order to afford policy makers, law enforcement agencies and media outlets a viable means of debunking the myth of the principle’s legitimacy and a way to eradicate what has become a persuasive argument in the terrorist recruitment process at the ground level.

The principle mentioned is that of “plunging into the enemy” (Arabic inghimas), and it was developed, in part, in Ibn Taymiyya’s seven-century-old treatise titled A Principle Regarding Plunging into the Enemy, and is it Permitted?.[1]  Ibn Taymiyya, who is probably the most widely cited medieval scholar by the Salafi-jihadist trend in Islam,[2] understands “plunging into the enemy” very differently from today’s jihadists, although they refer to his writings and use the principle to justify suicide attacks in the explication of their ideology and their legal opinions (fatwas). Furthermore, and maybe even more importantly, their interpretation is not derived in accordance with appropriate Shari`a procedure, and it certainly does not override explicit Qur’anic and other legal texts prohibiting suicide.[3]

So how is this principle presented in the aforementioned treatise?

Right off the bat, Ibn Taymiyya, like other legal scholars, restricted the application of “plunging into the enemy” by stating that it would be “more appropriate” to carry it out in a situation of military asymmetry, when “an individual or group is fighting [an enemy] that outnumbers them, on condition there is some benefit to Islam in fighting, even if the (individuals) are likely to be killed.” Next, the author introduced three scenarios in which the principle specifically applies (translated here from the original text):

1. (Line 23) first scenario:

Like [in the case of] a man who storms the ranks of the infidels and penetrates them. Scholars call this “plunging into the enemy,” since [the man] is swallowed up in them like a thing that gets submersed in something that engulfs it.

2. (Line 24) second scenario:

And like a man who kills an infidel officer among his friends, for instance, by pouncing on him publicly, if he [can] get him by deceit, thinking he can kill him and take him unawares like that.

3. (Lines 25-26) third scenario:

And [like] a man whose comrades have fled and so he is fighting the enemy alone or with a few others, and yet this is inflicting harm on the enemy, despite the fact they know they are likely to be killed.

The Salafi-jihadi argument in support of suicide operations is neutralized through the following restrictions that emerge from the text-

1. Asymmetric warfare

The notion of “plunging into the enemy” is inextricably tied in the text with the undesirable asymmetric situation of confronting a numerically superior army, and lines 23-25 correctly read as cases in which a soldier on the battlefield decides to carry out an attack that will likely result in his death. Jihadist ideologues extended the medieval scholars’ idea of numerical superiority of the enemy to include the current technological superiority of Western militaries as justification for their interpretation of the scope of the “plunging into the enemy” principle. While including technical superiority is not a stretch, the leap to legitimizing suicide-murder is a far cry. In fact, the analogy as a whole becomes invalid, because it ignores the other restrictions (below) that must be considered in order to complete a valid analogy in Islamic law. Ibn Taymiyya was obviously aware of the notion of asymmetry in warfare, and despite that (or perhaps, because of that?) he placed several conditions on the principle’s applicability. Jihadist ideologues did not follow proper Shar`i procedure, because if they did they could not have manipulated the language of “the plunging” principle to suit their case.[4]

2. Suicide

Since suicide is absolutely forbidden in Islam, there would have to be a clear benefit to the outcome of a war, or a “decisive repulsion” (sic.) of the enemy’s damage to Islam, in order to permit a dangerous mission that could surely end with an individual’s death and/or create other Muslim casualties.[5]  In a case where a mission is deemed unquestionably beneficial to a battle, only then, “it is more appropriate” to apply the principle. This is an important restriction. The highly contextualized permission to “self-destruct” is taken out of context by the Salafis and constitutes a pivot point in their attempt to ground suicide bombing in Islamic law. They analogize a suicide bomber with an individual “plunging into the enemy”. However, in the case of plunging into the enemy, a combatant is expected to die at the hands of the enemy, not by his or her own doing. What this means is that the component of self-endangerment in plunging into the enemy does NOT include intentionally killing oneself. Furthermore, when one considers, let’s say, the last thirty years since the tactic gained popularity, it is clear that even the worst wave of suicide bombings (including the events of 9/11/2001) has never been able to demonstrate “a decisive repulsion of the enemy’s damage to Islam”.   Hence endangering oneself with the intention of inflicting harm on the enemy that does NOT decisively repulse the enemy’s damage to Islam is NOT permitted.

3. Non-combatants

According to Muslim scholars like Ibn Taymiyya, Plunging into the enemy clearly pertains to a battlefield-type situation in the course of a conventional war, involving combatants rather than a single event occurring in a concentration of non-combatants. Ibn Taymiyya is neither implying nor legitimizing “suicide mass-murder” of non-combatant men, women and children (Muslim or other Shari`a protected groups, like Jews and Christians). Instead, Ibn Taymiyya offers a highly restricted context within which an almost certainly “suicidal-type attack” on numerically (or by analogy) technologically superior enemy combatants could be rendered “more appropriate.” Ibn Taymiyya repeatedly states in his writings that Muslim and non-Muslim non-combatants must NOT be harmed and collateral damage should be avoided.

4. Chances of Survival

Finally and indubitably, Ibn Taymiyya sees the possibility of coming out alive from such a dangerous mission even when advocating martyrdom in the cause of God.[6] He neither asserts that the lone fighter will, in fact, be killed, nor argues that the success of the mission depends entirely on the fighter’s certain death. This is crucial, since the possibility of surviving is entirely absent when considering the intention and state of mind of a suicide terrorist, up to and during the act of taking his or her own life, especially with a weapon of choice that is explosive.[7]

Take-away

The promotion of suicide murder as a legitimate case of plunging into the enemy (inghimas) is an unfortunately successful name-game and an evasive legal device.[8] With false legal reasoning and a manifold decontextualization of an historical term, jihadist ideologues have managed to apply the term to a staple tactic in their strategy book. They have been spinning the Islamic tradition and law to suit their cause. Today’s jihadists are not faced with similar historical and geopolitical conditions as the medieval scholars they quote. Unlike the medieval scholars who possessed a structural disposition to cooperate with the state, Jihadists and many Salafists rebel against authority and delegitimize Sunni Muslim society in a manner that in certain regions is contributing to a breakdown of governance and social stability (Syria, Libya, Afghanistan, Iraq and Pakistan).[9] In fact, Jihadists’ form of dissent fits Islamic legal definitions of brigands (muharibun)[10] and rebels (bugha) who spread terror and destruction and whose terror-based methods and pursuit of indiscriminate slaughter and lawlessness are difficult to distinguish from those of bandits with all the Shari`a consequences of that. In doing so Jihadists have blurred the lines within Islamic law between a perceived expression of bravery and anti-Shari`a, deviant criminal behavior.

Dr. R. M. holds an M.A. and PhD in Arabic and Middle Eastern studies from NYU. She taught Arabic as an adjunct assistant professor at Queens College (SUNY) and New York University, and continues to privately prepare doctoral candidates for their proficiency exams in Arabic. Research interests and expertise involve medieval Arabic linguistic theory, Islamic legal reasoning, and Qur’anic exegesis. R. has been involved in West Point’s Combating Terrorism Center projects since 2005, including Gaining the Initiative project, the Salafi Ideology Project (Militant Ideology Atlas), and Jihadi ideology. As an FBI fellow at the CTC, she designed the curriculum for the CTC’s Arabic Familiarization course, Arabic Name Analysis and Phraseology. R is involved in CTC’s external education division for FBI/JTTF regional training, is currently a Terrorism Intelligence Analyst for InterPort Police.


[1] Qa`ida fi al-inghimas fi al-`aduww wa-hal yubah fiha?. This treatise has not been published in the West and is currently available only in Arabic, edited and prepared by Abu Muhammad Ashraf b. `Abd al-Maqsud, Qa`ida fi al-inghimas fi al-`aduww wa-hal yubah fiha? (Riyadh: Adwa’ al-Salaf, 2002). The only copy of the manuscript (#444) is said to be located at the Egyptian National Library in Cairo.

[2] For a detailed account on the proliferation of suicide attacks and popularization of martyrdom, see Assaf Moghadam, The Globalization of Martyrdom: Al Qaeda, Salafi Jihad, and the Diffusion of Suicide Attacks (Baltimore: Johns Hopkins University Press, 2008).

[3] Jihadist lexicon does not use the term “suicide attack,” rather one finds phrases like “carrying out jihad.”

[4] Partial statements by Ibn Taymiyya were isolated, stripped of deliberate restrictions, and elaborated on devoid of syntactic, juridical and historical contexts. In fact, Ibn Taymiyya himself criticizes those who use partial statements of Ibn Hanbal (d. 855 C.E.) thereby ignoring the complexity of his juridical opinion, al-Sarim al-maslul (Saudi Arabia: al-Haras al-Watani al-Sa`udi, n.d), vol. 2, pp. 483-484. In this respect, the jihadists’ case for their brand of martyrdom attacks lacks the legal reason (Ar. `illa) identified in the case of inghimas (plunging into the enemy). On the concept of `illa, see Nabil Shehaby, “`Illa and Qiyās in Early Islamic Legal Theory,” Journal of the American Oriental Society 102:1 (1982): pp. 27-46.

[5] A mission that falls under the definition of “plunging into the enemy” is dangerous and self-destructive, and in this sense, perhaps can be termed “suicidal.” This is different from other meanings signified by the word “suicidal” that relate to an explicit intention of ending one’s own life. For example Qur’an 4:29-30 says, “And do not take your own lives for God has mercy on you. And so he who does this in transgression and violation, We shall burn him in Hellfire. This is an easy feat for God.”

[6] Ibn Taymiyya, Qa`ida fi al-inghimas fi al-`aduww wa-hal yubah fiha? (Riyadh: Adwa’ al-Salaf, 2002), p. 36, line 45; refers to the Qur’an, chapter 9, verse 52.

[7] Dr. Boaz Ganor, “The Rationality of the Islamic Radical Suicide Attack Phenomenon,” International Institute for Counter-Terrorism, March 31, 2007.

[8] On prohibition of evasive legal devices, see Dr. Ahmad al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law (Herndon, VA: International Institute of Islamic Thought, 2005), pp.56-57.

[9] Compare with ideological roots of the Sovereign Citizen Movement in the U.S. and the movement’s rejection of U.S. government’s legitimacy.

[10] In a video in 2000, Abu Mus`ab al-Suri called jihadists to commit larceny, murder, arson, against non-Muslims in Muslim countries. And see Emrullah Uslu, “al-Qa`ida robbers target jewelry stores,” Jamestown Foundation: Eurasia Daily Monitor, 6:25 (2009) (accessed online http://www.jamestown.org/single/?no_cache=1&tx_ttnews[tt_news]=34476&tx_ttnews[backPid]=7&cHash=fdae903bb8). It is noteworthy that Ibn Taymiyya and other Muslim jurists have expressed their condemnation of such groups pursuing indiscriminate slaughter and lawlessness. For example, Ibn Taymiyya, Majmu` al-Fatawa, (al-Madina: Majma` al-Malik Fahd li-Taba`at al-Mushaf al-Sharif, 1995), vol. 4, pp. 440-441, 444, 450-452; and Minhaj al-Sunna al-Nabawiyya (Riyad: Ibn Sa`ud University, 1986), vol. 2, pp. 233, 244