What is Islamic dispute resolution and why is it controversial in Australia?

Australian Muslims are divided on whether women will get a fair deal under Islamic dispute resolution if it is implemented here.
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Dr Maria Bhatti, Western Sydney University

Islamic dispute resolution involves resolving disputes without going to court and is similar to alternative dispute resolution, or ADR.

But Islamic dispute resolution has been controversial. Australia’s Muslim community is divided on whether it should be used here, its potential risks and benefits, and how it would sit with Australian law.

Why would an established form of mediation be so controversial? And what are the issues with implementing it in Australia?

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Read more:
Explainer: what is ‘sharia law’? And does it fit with Western law?

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Remind me again, what is dispute resolution?

The form of dispute resolution typically used in Australia, ADR, usually involves an independent third party helping parties to resolve matters without involving courts. Alternatively, it may involve negotiation between parties and their lawyers without a third party.

It’s encouraged because it is an efficient method of resolving disputes. Parties can save money and time and reduce the stress involved with court proceedings. It’s often referred to as appropriate dispute resolution.

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Do you need your day in court? The evolution of dispute resolution

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ADR traditionally consists of negotiation, mediation, conciliation and arbitration. In both domestic and international arbitration, the final decision is binding. Negotiation, conciliation and mediation result in non-binding decisions.

In the field of international commercial arbitration, only commercial matters between international parties can be the subject of arbitration, as opposed to family, criminal or civil matters.

What about Islamic law?

Similarly, Islamic law encourages disputes to be resolved outside court through tahkim (arbitration) or sulh (mediation). The dispute resolution processes in Islam are part of a larger Islamic legal framework, known as Islamic law or Shariah.

There are two main primary sources of Islamic law. The first is the Quran, which is the holy book for Muslims. The second is the hadith, which are written collections recording the actions and sayings of the Prophet Muhammad (Sunna). Islamic law is also divided into different schools of jurisprudence and varying interpretations.

International commercial arbitration can also be subject to Islamic law. The Asian International Arbitration Centre has developed i-Arbitration rules (“i” signifies compliance with Islamic law). This caters for international parties who are interested in resolving their disputes through Islamic procedures.

For example, an arbitrator may choose not to include interest (riba) when determining a penalty in international commercial arbitration subject to Islamic principles. Although Islamic law encourages trade and profit, it prohibits riba. This prohibition is mentioned both in the Quran and the hadith and is considered an unethical and excessive gain.

The i-Arbitration rules are also consistent with the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules.

What are the objections?

In 2009, Australia’s Muslim community was divided on the issue of establishing Islamic dispute resolution tribunals. One board member of the Islamic Council of Victoria supported and advocated the idea. But the Islamic Council of Victoria, as an organisation, opposed it.

The council was afraid that misconceptions about the term “Shariah” would trigger an unhealthy debate. Another concern raised by a representative of the Islamic Women’s Welfare Council of Victoria was that certain patriarchal interpretations of Islamic principles could place women at a disadvantage.

For example, reports from the UK suggest that there have been cases where male mediators have made it more difficult for women to obtain a divorce because they believe it should be the last resort. Also, some mediators were unaware of issues such as domestic violence and other structural injustices impacting women.

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Explainer: what Islam actually says about domestic violence

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This issue was again highlighted in the media in 2011 when the Australia Federation of Islamic Councils made a submission to the federal parliament’s Committee on Multicultural Affairs calling for a recognition of certain aspects of Islamic law.

In response, the then federal attorney-general, Robert McClelland, very clearly responded that there was no place for Islamic law in Australia.

How might it work with Australian law?

However, the proposal for implementing Islamic dispute resolution and the criticisms in relation to women being at a disadvantage were not thoroughly investigated.

There was no clear empirical research about whether women’s rights would be infringed in Australia if it was implemented.

It was also unclear how Islamic dispute resolution would operate. Would it function separately from or with Australian law? And would it be part of traditional ADR or separate from it? If it did form part of traditional ADR, would mediators and arbitrators be required to go through professional training and accreditation?

What can we learn from the UK?

Muslim Arbitral Tribunals operate in the UK and are subject to the law of England and Wales; they do not operate as a parallel legal system. They determine commercial, civil, family and personal law matters.

Although the tribunal may arbitrate on commercial matters, the decision can only be enforced in court if it meets legal requirements under the law of England and Wales. The tribunal can also mediate family law disputes about children and domestic violence, but such decisions are not binding.

In 2018, an independent review of these tribunals was presented to parliament. It recommended Muslim tribunals could provide women with more agency by addressing their concerns and involving them in dispute resolution procedures. Other recommendations included involving professional mediators who are aware of matters such as the rights of women to divorce, and ensuring mediators are professionals who are trained, accredited and educated about women’s rights.

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Read more:
Islam and feminism are not mutually exclusive, and faith can be an important liberator

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Researchers from the universities of Sydney and Melbourne are exploring the experiences of women, men and mediators who have used informal community processes to resolve family disputes. The Australian Research Council is funding the project. It will shed light on whether Islamic dispute resolution processes will cater for issues such as domestic violence and the rights of women to divorce.

If the research suggests Islamic dispute resolution can operate in harmony with Australian law and provide women with agency, there is no reason why ADR should not cater for Muslims. If the operation of Muslim tribunals proves to conflict with Australian law and harm women, Muslim tribunals should not be established.

Regardless of the outcomes and recommendations, it is important that such discussions do not form part of a racist and Islamophobic narrative. Rather, Islamic dispute resolution should be further explored with the aim of empowering women and accommodating religious diversity.

Dr Maria Bhatti, Lecturer in Law, Western Sydney University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Striking in al-Ándalus: why Islamic State attacked Spain

Spain plays a relatively inconsequential role in the fight against Islamic State.
Reuters/Sergio Perez

Ben Rich, Curtin University

Despite its (relatively) low body count and primitive execution, Thursday’s terrorist attack in Barcelona shocked many local and international onlookers. The Islamic State (IS) group was quick to claim responsibility for the attack, in which a van was deliberately driven into pedestrians on Barcelona’s famed Las Ramblas strip. At least 13 people are dead, and around 100 have been left injured.

The location and targeting of the attack deviates from IS’s previous efforts. These have typically focused on punishing countries directly involved in military operations against it in Syria and Iraq.

But how reliable are its claims of responsibility? And why was Spain chosen, given its relatively inconsequential role in the fight against IS?

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Further reading: Barcelona attack: a long war against Islamic terrorism is our reality

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The validity of IS’s claims

Verifying the culpability of terror attacks can traditionally be a tricky affair. Given that organisations that engage in terrorism are doing so from a position of weakness, there is always an incentive to lie in order to bolster mystique and inflate the image of threat.

But in this regard, IS seems to differ from previous groups. It has typically been reliably truthful in what it claims to have been its actions.

One Australian example of this can be found in the 2014 Lindt Cafe siege. The perpetrator, Man Haron Monis, proclaimed he was acting under IS auspices. But despite this declaration, and the potential propaganda victory it could bring, IS resisted such advances and distanced itself from the incident.

While IS would go on to posthumously praise Monis’ actions, it never made any explicit claims to having organised or directed them. No pre-existing relationship was found in the subsequent inquest.

This incident, along with many others, seems to indicate that while IS claims a butcher’s bill of heinous activities, it doesn’t tend to overtly lie about them.

Such a policy, while initially appearing counter-intuitive, maintains IS’s perception as a trustworthy source of information. This is particularly important in recruitment efforts, and makes it difficult for governments to challenge the IS’s claims in counter-propaganda.

For IS, maintaining a twisted sense of chivalrous virtue remains paramount.

Spain and the clash of civilisations

The Barcelona attack also reflects IS’s view of the world as a civilisational clash.

Described as a “reluctant partner” in the anti-IS coalition, Spain has resisted entreaties to join military efforts. Instead, it has opted for what it sees as a less risky role – providing logistical aid and training to local Iraqi forces, as well as preventing homegrown attempts to support IS abroad.

Spain’s limited role in the fight, particularly in contrast to other terror victims such as France and the US, might lead one to expect it to be relatively low on IS’s hit list.

But in terms of IS’s conflict narrative, Spain represents just another manifestation of a hostile Western civilisation in a state of war against the Islamic community. This leaves it more than open for reprisals.

At a spiritual level, Spain also holds a special place in IS’s mythology. Once a part of the Islamic empire, al-Ándalus, as it is known in Arabic, is seen by many IS ideologues as a natural territorial part of the end-state caliphate and currently under direct occupation by infidels.

Shock and bore

Terrorist reprisals like this attack are likely to intensify temporarily against Western targets throughout Europe and further abroad over the coming months and years, as the IS is systematically deconstructed on its home turf in Iraq and Syria.

IS remains heavily dependant on an image of defiant dynamism and a commitment to challenge the international status quo, which it claims subjugates the chosen community. As its ability to function as a “state” continues to decline, it will increasingly seek to maintain such a mystique through acts of spite against those that have prevented it from achieving its goal of a “caliphate”.

Despite a likely future increase in terrorist attacks, IS also risks a growing public disinterest and apathy toward its activities.

As one commentator has written, the banality and nontheatrical nature of IS’s approach to terrorism – particularly in contrast to al-Qaeda’s keen eye for spectacular symbology – has left many onlookers less than impressed and far from terrified.

Ben Rich, Lecturer in International Relations and Security Studies, Curtin University

This article was originally published on The Conversation. Read the original article.

Barcelona attack: a long war against Islamic terrorism is our reality

At least 16 people have died, and scores more have been injured, in a terror attack on Barcelona’s Las Ramblas strip.
Reuters

Tony Walker, La Trobe University

Barcelona 2017, London 2017, Berlin 2016, Nice 2016.

In all of these cases the weapon of choice was a vehicle, driven at speed, into crowds innocently going about their daily business. Barcelona is just the latest in a series of targets of Islamic terrorism over the past year in which a vehicle has been used to mow down those in its path indiscriminately.

In all of these cases Islamic State (IS) has claimed responsibility.

These sorts of terrorist attacks – like the 2001 al-Qaeda plane attacks on targets in New York and Washington – have elevated threats to the civilian population in urban areas to a new level.

In the latest – on Barcelona’s famous tourist precinct near Plaça de Catalunya and Las Ramblas in the heart of the city – at least 16 people have died and scores more have been injured. The death toll is likely to rise.

IS, in a statement on one of its outlets, claimed responsibility for the attack, telling its supporters in Arabic:

Terror is filling the hearts of the Crusader in the land of Andalusia.

Another outlet warned that Spain was now grouped with the UK and France as terrorist targets.

The use of vehicles in relatively vulnerable locations where crowds gather, to inflict maximum harm on innocent people, will add significantly to unease across Europe. This anxiety will now reach new levels of intensity, with German elections due on September 24, and and a Catalan independence vote on October 1.

This latest attack will cast a shadow over events that will require people to gather in crowds either to participate in political campaigning, or to vote in the election itself.

More broadly, the use of vehicles as weapons against urban populations will add to security concerns in Western capitals – including in Australia.

What’s likely to come as a result are further security measures to combat the risk of vehicular attacks in crowded locations. But we know how difficult it is to prevent such attacks.

In Melbourne, Australia, for example, authorities have installed bollards around the city to guard against these sorts of acts. But ensuring people’s safety in free and open societies represents a huge challenge.

World leaders have condemned the Barcelona attack, but beyond pro-forma statements of support the reality is that the scourge of Islamic-inspired terrorism is here to stay for the time being.

These acts of violence, each one encouraging another, are part of a terrorist landscape. They will remain so especially at a moment when IS is under enormous pressure in its stronghold in Syria.

The expulsion of IS from Raqqa in eastern Syria will not lessen threats of terrorist violence in the West. Instead, it will probably heighten the risk.

What the Barcelona attack reminds us is that the West is embroiled in a long war against Islamic terrorism. Enhanced counter-terrorism strategies, making use of sophisticated technology, will lessen risks, but cannot entirely eliminate the threat in open societies.

This is the reality.

Tony Walker, Adjunct Professor, School of Communications, La Trobe University

This article was originally published on The Conversation. Read the original article.

Al-Qaeda leader says Egypt coup proof that Islamic rule cannot come through democracy

Persecution of Christians in the Modern Islamic World

The link below is to an article that takes a look at the persecution of Christians in the modern Islamic world.

For more visit:
http://www.hoover.org/publications/defining-ideas/article/152651

Egypt: Persecution News Update

The link below is to an article reporting on Islamic jihad against Christians in Egypt.

For more visit:
http://www.israeltoday.co.il/NewsItem/tabid/178/nid/23906/

Sweden: The Islamic Riots

Islamists Forcing Mass Exodus of Christians

The link below is to an article that looks at the rising pressure on Christians across the world in Islamic countries.

For more visit:
http://www.foxnews.com/opinion/2013/05/07/mass-exodus-christians-from-muslim-world/

Tanzania: Terrorism Spreads to Country

The links below are to articles reporting on a terrorist attack in Tanzania, which is becoming a new centre for islamic terrorism.

For more visit:
– http://www.telegraph.co.uk/news/worldnews/africaandindianocean/tanzania/10039692/Saudis-arrested-over-Tanzania-church-bombing.html
– http://www.bbc.co.uk/news/world-africa-22425364
– http://www.persecution.org/2013/05/07/two-killed-and-over-50-wounded-in-tanzanian-church-bombing/

Saudi Arabia: Persecution News Update

The link below is to an article reporting on the punishment that a Lebanese man will receive for his role in a conversion of an Islamic woman to Christianity.

For more visit:
http://www.foxnews.com/world/2013/05/13/saudi-man-gets-300-lashes-6-years-for-helping-woman-convert-to-christianity/