THE ORGANIZATION OF THE ISLAMIC CONFERENCE (OIC) AND ITS SIGNIFICANCE FOR WAR AGAINST TERRORISM

Transcription

1 Asian Journal of International Law Vol. 1 Issue 2 December 2006 THE ORGANIZATION OF THE ISLAMIC CONFERENCE (OIC) AND ITS SIGNIFICANCE FOR WAR AGAINST TERRORISM Alfitri * This article aims at analysing the international legal personality of the Organization of the Islamic Conference (OIC) and its significance for nowadays war against terrorism. As an international organization, the OIC lacks of a body enforcing recommendation and resolution adopted by the organization. As a consequence, the OIC is deemed to be a marginal player in international politics which are not able to influence international affairs. Likewise, some even doubt its capability to bear an idealistic objective, namely to defend the interest of all Muslims around the world (the ummah). Considering the complex nature of nowadays terrorisms, i.e., difficulties in defining terrorism and determining terrorist, however, the OIC may play an important role in combating terrorism. This is done, this article argues, through optimizing cooperation on education and information about the true concept of jihad and image of Islam among state parties as well as international community. I. INTRODUCTION There is one major issue of war against terrorism that is it is facing difficulties in determining what terrorism is and who the terrorist is. Failure to determine the enemies in the war against terrorism will have an impact on the effectiveness of this effort. This is because there might be resistances from groups which perceive that the biased definition of terrorism such as linking terrorism to one particular religion, race or group will scapegoat * Junior lecturer at the State Institute for Islamic Studies (STAIN), Samarinda, Indonesia and research assistant to Professor Tim Lindsey at the Asian Law Center, the University of Melbourne, Australia; Master of Laws from the University of Melbourne, Australia in 2006, Master of Arts (Islamic Law) in 2004 and Bachelor of Arts (Islamic Law) in 1999 from State Islamic University (UIN) Sunan Kalijaga, Yogyakarta, Indonesia.

2 308 / Alfitri them. Further consequences, instead of fighting against people who plan to attack civilians, the war against terrorism might diminishes individual freedom and rights and terrorizes the great number of one particular religious adherents or group members who become the subject of such a biased definition. One example of this is discrimination experienced by many Muslims in the aftermath of September 11, 2001 war against terrorism campaign. The construction of Islam and Muslims as the dangerous other after 11 September attacks has disadvantaged Muslims socially and led to their stigmatization and discrimination. 1 Further, in some western countries, surveillance has been intensified to monitor Muslims because they are deemed as the potential enemy. 2 Therefore, Mahathir Mohamad, former Malaysian Prime Minister, argues that a definition of terrorism which is universally accepted by all nations should be properly formulated. Linking terrorism to any particular religion, race or group, he insists, should be avoided; otherwise it will be counter productive to the war against terrorism. 3 For example linking Islam to terrorism, for Mahathir Mohamad such an idea is completely unjustified because Islam has nothing to do with terrorism. Islam is a religion of peace which can live side-by-side with any faith in most part of the world. 4 However, latest terrorist acts were perpetrated by some people or groups in the name of Islam. This fact has made Muslims around the world face uneasy situation. On the one hand, Muslims resist any effort which tries to connect terrorist acts to Islamic tenets, in particular the doctrine of jihad. On the other hand, there are some Muslim groups who are willing to commit merciless attacks against innocent civilians just because they believe that such a deed is justified in Islam by employing the doctrine of jihad. It is true that most of the latest terrorist acts were allegedly committed by some people or groups in the name of Islam. Yet, the reasons underlying such acts must be considered carefully. It is unimaginable that there are people who willfully martyr

3 The Organization of the Islamic Conference (OIC)... / 309 themselves and cause death to other fellow human beings without motives and aims. There must be a strong context which prompts some people committing dreadful things such as suicide bombings. Many have argued that the nowadays terrorism is as a result, inter alia, of the prolonged oppression and humiliation experienced by a particular segment of the world s population which, then, urge some people or groups from this population to retaliate against the perpetrators. 5 These people or groups distrust International organizations and international communities that they will take this matter seriously. Instead, they think that there is a conspiracy between the International organizations and the perpetrators to adopt policies and regulations which will perpetuate oppression and humiliation felt by this population. Feeling being treated unjustly by the West, which nowadays is deemed to rule the world economically and politically, has prompted some elements of Muslims to overreact. One perennial issue which seems to prompt Muslims resentment against some Western countries is their partial action in dealing with the conflict of Palestine. This is because, for instance, the prolonged conflict of Palestine has portrayed Palestinians as terrorist in western community when they struggle for regaining their rights. 6 However, western media has only portrayed the situation partially and ignored the facts of persistence breach against international law and human rights violations perpetrated by Israel. 7 Given the complex issue of terrorism, this paper will study the significance of the Organization of the Islamic Conference (OIC) in combating terrorism. This paper argues that the OIC can play a significant role in the war against terrorism considering its nature as a religious-based organization which can provide and promote true information about Islam and defend Muslims at large from such a stigmatization, i.e., the dangerous others or the potential enemy. Moreover, the OIC has adopted a convention to combat international terrorism. Yet, for the convention to be effective, a firm organizational structure and well-defined international legal personality of the OIC enabling

4 310 / Alfitri it to enforce all adopted resolutions to the state parties is instrumental. To this end, this paper first will analyze the scope and limitation to the OIC legal personality and explain the base for its personality. Then, legal instrument employed by the OIC in combating terrorism and its significance will be analyzed. This is done by considering its international legal personality status and viable measures might be taken by the OIC. II. LEGAL PERSONALITY OF THE ORGANIZATION OF THE ISLAMIC CONFERENCE A. The Base of Legal Personality It is not easy to define international organizations because there are many criteria suggested by experts in this field. However, to determine whether an organization can be categorized as an international organization is important owing to its status as a quasi-government which is granted international legal personality as well as rights and benefits under national laws, such as International Organizations Immunities Act of the United States, 22 USCA Many have suggested that relevant criteria associated to an international organization must cover: its international aims and membership, voting system, headquarters, officers, non profitmaking activities, and scheme of financial contribution to the budget; while the size, politics, ideology, fields of activity, geographical location of headquarters, nomenclature of an organization are irrelevant. 9 For example the criteria of international aims and membership, an international organization must have genuinely international aims intended to cover at least three state parties. 10 Its state parties must get full voting rights and its membership is open to eligible states which can fulfill the qualification of its area of operations. 11 Notwithstanding the overwhelming and diverse criteria proposed by the experts of international law, there is a definition commonly accepted in the field of international law about international organizations, that is:

5 The Organization of the Islamic Conference (OIC)... / 311 typically collections of sovereign states that have banded together as states to create, under a constitutive international agreement governed by international law usually known as a charter or a constitution, an apparatus, more or less permanent, charged with the pursuit of certain defined common ends. 12 From the above definition, there are at least three distinguishing legal attributes of an international organization compared to other organizations which also work internationally such as international NGOs. First, the establishment of an international organization is by an international agreement between states; second, it has at least one organ separate from state parties and this organ is capable to act; third, its establishment is governed by international law. 13 Having discussed the above, it is important to examine closely the international agreement governed the establishment of the Organization of the Islamic Conference. This is because, to quote Schermers and Blokker, the international agreement for an international organization helps show publicly its existence as well as distinguishes it from other international actors, such as organs of states and NGOs, in a way that the international agreement states the mutual commitment of cooperation among participating states. 14 Further, it will secure an international organization s legitimacy at the national level. 15 The Organization of the Islamic Conference Charter was approved and adopted in the third Islamic Conference of Foreign Ministers held in Jeddah in March Nevertheless, the Charter came into force on 28 February 1973 as this is recorded in the United Nation Treaty Series (UNTS). 16 This is because the Article 1 of Regulations to Give Effect to Article 102 of the Charter of the United Nations stipulates [r]egistration shall not take place until the treaty or international agreement has come into force between two or more of the parties thereto. 17 Meanwhile, the charter was registered in conformity with Article 102 of the United Nations Charter on 1 February Article 102 reads: [e]very treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. 19

6 312 / Alfitri The OIC Charter consist of Preamble and fourteen articles which detail the objectives and principles of its establishment, the organizational structure and General Secretariat of the OIC as well as other provisions which elaborate its characteristics as an international organization. In the Preamble, the Charter reaffirms the commitment of its members to the United Nations Charter and fundamental Human Rights, the purposes and principles of which provide the basis for fruitful cooperation among all people. 20 This formal commitment to the UN Charter might be simply considered as a reiteration of the OIC Member States commitment bound by the UN Charter because they are also parties to it. Yet, it also means that these Muslim countries are committed to international legal principles enshrined in the UN Charter. 21 Such a commitment is important especially when it comes from States claiming to be Islamic. This is because, theoretically, many have assumed that for Muslim countries Shariah (simply defined as Islamic law) is sovereign than any other man-made laws (secular law). As a consequence, both laws are deemed to be always in conflict since in Islam God is the source of all law, while in secular law, laws are formularized by human beings. 22 This assumption might be not true considering how both laws have been reconciled in the legal system of some Muslim countries. 23 B. The Objectives of the OIC With regard to the objectives of the Organization of the Islamic Conference, Article II (A) of the Charter states that they are: to promote Islamic solidarity among Member States; to consolidate cooperation among Member States in the economic, social, cultural, scientific and other vital fields of activities, and to carry out consultations among Member States in international organizations; to endeavor to eliminate racial segregation, discrimination and to eradicate colonialism in all its forms;

7 The Organization of the Islamic Conference (OIC)... / 313 to take necessary measures to support international peace and security founded on justice; to coordinate efforts for the safeguarding of the Holy Places and support of the struggle of the people of Palestine, to help them regain their rights and liberate their land; to back the struggle of all Muslim people with a view to preserving their dignity, independence and national rights; to create a suitable atmosphere for the promotion of cooperation and understanding among Member States and other countries. 24 The above stipulation covers three different types of objectives exemplifying the scope of the Organization of the Islamic Conference as an international organization. These types of objectives are: internal objectives, external objectives and specific objectives for target States. 25 It also appears from the above objectives the centrality of concept ummah (transnational Muslims) as Article II (A) devotes at least four sub-paragraphs to enshrine the purposes of the OIC concerning the interest, progress and well-being of Muslims in the world, either for Member States or not. 1. The Internal Objectives The first objective is internal objectives since it is purported to the relationships among Member States. 26 Thus, through the establishment of the OIC, it is expected that Islamic solidarity among Member States attained in a sense that economic, social cultural, scientific and other beneficial cooperation among them flourishes. 27 In order to achieve this internal objectives (and also other objectives of the OIC stipulated in Article II (A)), a number different types of subsidiary organs, specialized institutions, affiliated institutions and standing committees working collaboratively have been established. These organs/institutions/ committees are categorized as secondary organs of the Organization of the Islamic Conference. 28 They steadily increase in number and cover various specialization ranging from cultural,

8 314 / Alfitri scientific, economic, legal, financial, sports, technological, educational and media expertises, to vocational, social and humanitarian areas. 29 Subsidiary Organs are set up in accordance with a resolution adopted by the Islamic Conference of Kings and Heads of State and Government or the Islamic Conference of Foreign Ministers (ICFM). 30 All the OIC s members automatically become members of these organs and their budgets shall be approved by the ICFM. 31 Unlike the Subsidiary Organs, the Affiliated Institutions of the OIC comprise international governmental, professional and societal institutions of Member States formed under the auspices of the OIC and its membership is optional. 32 Budgets of the Affiliated Institutions are independent of that of the Secretariat General and those of subsidiary and specialized organs of the OIC. The establishment of the Affiliated Institution were set up by the Islamic Conference of Kings and Heads of State and Government or the ICFM. 33 Slightly similar to the Affiliated Institutions, Specialised Institutions and Organs were set up through a resolution adopted by the Islamic Conference of Kings and Heads of State and Government or the IFCM. However, the membership is for the OIC Member States, not the professional institutions of Member States, and it is optional. Budgets of the Specialised Institutions and Organs are independent of the budget of the Secretariat General and those of the subsidiary organs and are approved by their respective legislative bodies as stipulated in their Statutes. 34 There are four specialized institutions under the auspices of the OIC: the Islamic Development Bank (IDB), in Jeddah; the Islamic Educational, Scientific and Cultural Organization (ISESCO), in Rabat, Morocco; The Islamic States Broadcasting Organization (ISBO), in Jeddah; International Islamic News Agency (IINA), in Jeddah. 35 These four specialised institutions work to promote cooperation amongst the OIC Member States in specified areas, and aim to enhance the quality and professionalism of their radio and

9 The Organization of the Islamic Conference (OIC)... / 315 television, news agency, and schools. Yet, their services are not exclusive for Member States; they also serve Muslim communities all over the world, such as the Islamic Development Bank which has established special funds to assist Muslim communities in non-member States through equity capital and granting loans for productive projects and enterprises. 36 The last secondary organs under the auspices of the OIC are Standing Committees. The establishment of the Standing Committees is purported to coordinate and increase the OIC s actions and to declare its points of view and stands on particular matter so as to gain concrete results in the various fields of cooperation among Member States. 37 Most of the standing committees are at the ministerial level chaired by Heads of State. One of these is The Al-Quds Committee. 38 The Al-Quds Committee was founded pursuant to Resolution No 1/6-P adopted at the Sixth Islamic Conference of Foreign Ministers held in Jeddah, Saudi Arabia from July The background of the establishment of the Al-Quds Committee is prolonged conflicts in Jerusalem caused by Zionist occupation. The Committee, then, is responsible for following-up the implementation of resolutions adopted by the OIC and by other international organizations supporting the OIC s position in this regard. 40 An example of resolution adopted by the OIC is Resolution No 14/5-P which decided to [r]e-construct[ing] Arab quarters and implement[ing] development and housing projects for the Arab inhabitants of Al-Quds (Jerusalem) on Muslim Waqf land and considering these projects as Muslim Waqf. 41 The Al-Quds Committee also becomes a liaison between the OIC and other international organizations regarding Jerusalem conflicts. This Committee conducts study relating to the current situation in Jerusalem, and proposes necessary measures to be taken to ensure the implementation of Jerusalem-related resolutions to the Member States and the OIC s organs/bodies. 42 Besides the conflict of Jerusalem, there are also many important issues involving the situation of Muslims around the

10 316 / Alfitri world, such as in the Sahel, Afghanistan, Kashmir, Southern Philippines, Bosnia Herzegovina, Sierra Leone, Somalia and Iraq. Fourteen Committees under the auspices of Specialized Bodies of the OIC have been thus established to deal with particular area, such as Contact Group on Jammu and Kashmir. 43 Contact Group on Jammu and Kashmir was established on 3 October 1994 as a consequence of Resolution No 3/EX7 adopted by the Seventh Extraordinary Islamic Conference of Foreign Ministers held at Islamabad, Pakistan in September The Group coordinates efforts of Member States (Pakistan, Turkey, Saudi Arabia, and Niger) to support the rights of the Jammu and Kashmir people to self determination pursuant to the United Nations Security Council Resolution No 39/1948 and No 47/1948 concerning the withdrawal of troops, demilitarisation of the region, and the future territory of Jammu and Kashmir to be decided through a free and impartial plebiscite 44 and to safeguard the basic human rights of this people The External Objectives The second objective of the establishment of the OIC is external objectives because they describe general commitment of this organization to uphold the principles of international law in its relation to other states through taking necessary measures to support international peace and security founded on justice. 46 In Article II (A) sub-paragraph 3 of the OIC Charter, the OIC attempts to eliminate racial segregation, discrimination and to eradicate colonialism in all its forms. 47 This provision is concerned with the very basic of human right, namely the principle of racial non-discrimination which has been unanimously considered as erga omnes by the Judges in the Barcelona Traction case. 48 Thus, violations against this legal principle are violations of obligations to all other states and any [Member States of the OIC] may invoke the ordinary remedies available to a state when its rights under customary law are violated. 49

11 The Organization of the Islamic Conference (OIC)... / 317 This objective also mirrors the purpose of the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) in which racial discrimination is defined as: [a]ny distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. 50 Article II (A) sub-paragraph 3 also concerns with eradicating colonialism in all of its forms pursuant to the principle of self determination to colonial situations and peoples enshrined in a number of international law documents such as: Article 1 and 73 of the UN Charter; 51 common Article 1 of the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) 52 and the International Covenant on Civil and Political Rights 1966 (ICPPR); 53 and the UN General Assembly Resolution 1514 (XV) which grant independence to colonial countries and peoples pursuant to the purposes and principles of the UN Charter, 54 as well as the UN General Assembly Resolution 2625 (XXV) which stipulate the duty of every State to bring a speedy end to colonialism. 55 Nowadays development of international law has included the right of self-determination to the rules of customary international law; even, it is deemed to be a jus cogens as it has been endorsed by many jurists and State authorities. 56 Given its importance, the Member States of the OIC have long supported efforts to eradicate colonialism through the right of selfdetermination prior to the establishment of the OIC. This was manifested through support to Palestine which faced gross injustice with regard to measures taken by the international community against Zionist occupation in Palestine land. 57 Muslims around the world rejected the Balfour Declaration, the League of Nations Mandate over Palestine and the UN General Assembly Resolution recommending partition. 58 When the OIC was set up, this solidarity, then, was enshrined in the third

12 318 / Alfitri objectives of the OIC Charter, that is specific objectives for target States. 3. The Specific Objectives for Target States It is called the specific objectives for target states since the OIC also aims to coordinate efforts for the safeguarding of the Holy Places and support of the struggle of the people of Palestine, to help them regain their rights and liberate their land. 59 Recalling its background, the unprecedented unity of all Muslim countries under the auspices of the OIC was incited, inter alia, by the 1967 burning of Al-Aqsa mosque in Jerusalem perpetrated by Zionist. For Muslims, Jerusalem is the Holy City and Al-Aqsa mosque is one of the Holy Places. Therefore, the religiously motivated call for safeguarding of Al-Aqsa mosque and other Islamic Holy Places is documented in the Charter. 60 Supports to Palestinians for the restitution of their rights on the ground that theirs were usurped 61 when the OIC established at the 1969 First Islamic Summit in Rabat, then, is endorsed by the Charter ( support of the struggle of the people of Palestine, to help them regain their rights and liberate their land ). 62 The OIC Charter bases its argument on the premise that the legal sovereignty of Palestine should be in the original inhabitants of the country as they existed at the time of the detachment of Palestine from Turkey at the end of the First World War. 63 This is because Turkey did not explicitly transfer sovereignty and title to the British forces occupying Palestine when it gave up claims of sovereignty over Arab territories previously governed by the Ottoman Empires under the auspices of the Treaty Lausanne. 64 As a consequence, sovereignty of Palestine returned to Palestinians as the original inhabitants of its territory because [s]overeignty in the case of a mandated territory is clearly vested in the inhabitants of the mandated territory 65 per contra Article 22 of the Covenant of the League of Nations endorsing the Balfour Declaration in which the British government, as the Mandatory of Palestine, denied selfdetermination to the Palestinians and favored the establishment of a national home for the Jewish people. 66

13 The Organization of the Islamic Conference (OIC)... / 319 The issue of Palestine is not the only problem which becomes the concern of the OIC. The situation of Muslims around the world that are still under colonial rule or military occupation or minorities permanently resident in non-muslim States are also observed. 67 Therefore, the Charter also aims to back the struggle of all Muslim people with a view to preserving their dignity, independence and national rights. 68 The nature of support may be political, moral, material or otherwise. 69 However, this is done with respect to the sovereignty, independence and territorial integrity of each Member States as this principle is enshrined in the Charter. 70 According to Moinuddin, even though the Charter only make reference to the OIC Member States, the principle has also stopped the OIC from supporting secessionists movements in non-muslim States because this would constitute an interference in the domestic affairs of a particular State. 71 Instead of doing such interference, the OIC, through its Specialized Bodies, has cooperated with governments where secessionist movements involving Muslim groups happen. An example of this cooperation is Ministerial Committee of Eight on Philippines Muslims. The Ministerial Committee consists of Indonesia, Bangladesh, Saudi Arabia, Somalia, Libya, Senegal, Brunei and Malaysia. It is responsible for following up the question Muslims in Southern Philippines pursuant to resolution 4/4 adopted by the 4 th Islamic Conference of Foreign Ministers, held in Benghazi, Libya, March This Ministerial Committee together with the Government of Philippines functions to examine the situation of Muslims in southern Philippines. 73 Having discussed the above objectives, it is necessary to examine the principles of the OIC since they guide the walk of organization. C. The Principles of the OIC The Charter of the Organization of the Islamic Conference lists principles which Member States undertake to inspire themselves

14 320 / Alfitri from, in order to achieve the objectives of the organization as well as to govern its activities, 74 namely: total equality between Member States; respect of the right of self-determination, and noninterference in the domestic affairs of Member States; respect of the sovereignty, independence and territorial integrity of each Member States; settlement of any conflict that may arise by peaceful means such as negotiation, mediation, reconciliation or arbitration; abstention from the threat or use of force against the territorial integrity, national unity or political independence of any Member States. 75 The above principles have found expressions in a great number of international law instruments and rules of customary international law, for example principle of peaceful settlement of disputes as per Article II (B) sub-paragraph 4 and principle of abstention from the use of force as per Article II (B) subparagraph 5. These both Articles, in fact, mirror the substance of Article 2 (3) and (4) of the UN Charter which stipulates: [a]ll Members shall settle their international disputes by peaceful means ; 76 [a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State. 77 In addition, they are instrumental to attain the pre-eminence objective of the UN Charter [t]o maintain international peace and security. 78 Since Member States of the OIC are also the UN Members, thus, these reiterations enshrined in a constitutive instrument may be considered to have a declaratory effect. 79 The principle of peaceful settlement of disputes is a positive obligation in order to promote Islamic solidarity among Member States of the OIC. This principle is a direct consequence of the prohibition of resorting to force. 80 Nowadays development of international law deems the legal obligation to settle disputes peacefully to have the character of jus cogen as per Military and Paramilitary Activities in and against Nicaragua. 81

15 The Organization of the Islamic Conference (OIC)... / 321 Unfortunately, the OIC Charter fails to indicate legal machinery or an organ/institution within the framework of the OIC to facilitate arbitration among Member States. 82 According to Moinuddin, nevertheless, the OIC might still employ other means of dispute settlement such as negotiation, mediation, and reconciliation through diplomatic channels and the good offices of third parties. 83 In addition, disputes involving Member States may be taken up for consideration by the Islamic Conference of Foreign Minister (ICFM) pursuant to Article V (2) subparagraph g which sanctions the ICFM to consider any issue affecting one or more of the Member States whenever a request to that effect is made with a view to taking appropriate measures in that respect. 84 Given the above role of the ICFM which is one of three main bodies under the auspices of the OIC, it is necessary to examine the organizational structure of the OIC so as to conclude the scope and limitation of its legal personality. Is the OIC a viable organization considering mandates given by the Charter to its bodies and organ? Then, what is the significance of its international legal personality in combating terrorism? III. SCOPE AND LIMITATION OF THE OIC S LEGAL PERSONALITY A. The Loose Nature of the OIC s Main Bodies In order to achieve its objectives, the Organization of the Islamic Conference has main bodies and secondary organs and institutions (explained above). According to Article III of the OIC Charter, The OIC is composed of three main bodies: the Conference of Kings and Heads of State and Government; the Islamic Conference of Foreign Ministers; and the General Secretariat and subsidiary organs (explained above). 85 The Conference of Kings and Heads of State and Government (CKHSG) is the supreme authority of the Organization. It is held once every three years which is called the Islamic Summit Conference (ISC). The conference will also be organized when urgent situation involving the interest of Muslim countries arise, and this is called the Extraordinary

16 322 / Alfitri Session of the Islamic Summit Conference (ESISC). The CKHSG functions to consider matters of vital importance to the Muslims and coordinate the policy of the Organization accordingly. 86 Up till now, there are ten Islamic Summit Conferences from 1969 to 2003 and three Extraordinary Session of the Islamic Summit Conference (the last one held in Mecca, Saudi Arabia on December, 7-8, 2005). 87 The Charter does not mention, however, legal character of decisions and resolutions adopted by the Islamic Summit Conference. Thus, the status of resolutions is unclear, whether they are binding upon Member States or not. 88 In spite of lacking normative provisions, the Charter can not be construed as lacks of legal characters. As mentioned above, the Charter has a declaratory effect for reiterating universally accepted principles of international law and customary international law in a constitutive instrument. 89 In addition, by applying the provision of Article II (B) subparagraph 1 of the Charter ( total equality between Member States ), decisions and resolutions of the Islamic Summit Conference can have binding force on all Member States. 90 This is because the principle of total equality, which may include juridical as well as voting equality, 91 gives importance to the rule of unanimity in voting procedures. 92 Consequently, decisions and resolutions of the ISC reached by majority decisions are binding to Member States, and obligation arises for a Member State from such decisions and resolutions must be performed in good faith. 93 This argument has found expression in the principle pacta sund servanda pursuant to Article 26 of Vienna Convention on the Law of Treaties Pacta sunt servanda is deemed to be the primary reason why State parties to a treaty have to comply with obligation derived from it because State parties have given their consent to be bound by its stipulation. Besides, pacta sunt servanda is a principle of customary international law. 95 The Islamic Conference of Foreign Ministers (ICFM) is held once a year or whenever the need arises at the level Foreign Affairs Ministers (Article V (1) sub-paragraph a). Considering its function, the ICFM by far is the most important body of the

17 The Organization of the Islamic Conference (OIC)... / 323 OIC after the ISC. 96 This is because the ICFM functions, inter alia, to: consider the means of implementing the general policy of the [OIC] ; 97 to review progress in the implementation of resolutions adopted at previous sessions ; 98 to adopt resolutions on matter of common interest in accordance with the aims and objectives of the [OIC] set forth in this Charter. 99 Given its importance to examine the implementation of resolutions, however, the Charter does not say any provision on the imposition of sanctions. Measures to be taken for Member States that have voted for the resolution but failed to comply with the resolution are also not certain. 100 The Charter only mentions procedures on how to adopt resolutions or recommendation in the ICFM, namely they shall be adopted by a two-third majority 101 of at least two-thirds of Member States (quorum) attending each ICFM session. 102 In implementing the general policy of the OIC, likewise, the ICFM is only empowered to set up commission, committees, and expert groups to study matters affecting Member States or to create specialized agencies pursuant to Article V (2) sub-paragraph a. 103 The third main body of the OIC is the General Secretariat. It is the executive organ of the OIC mandated to the implementation of the resolutions and recommendation adopted by The Conference of Kings and Heads of State and Government and The Islamic Conference of Foreign Ministers. 104 This becomes the main task of the General Secretariat besides supplying Member States with working papers and memoranda of resolutions and recommendations produced by the above two conferences. 105 In doing so, the General Secretariat is divided into six departments, namely: legal affairs; protocol, administration and financial affairs; conference; Islamic solidarity fund; and computer and communication. 106 Each department is chaired by a director and aided by an assistant; both officers are appointed by the Secretary General. 107 Given the wide array tasks assigned to the General Secretariat, it also coordinates its works with subsidiary organs, specialized institutions, affiliated institutions and standing committees as well as independent expert groups set up by resolutions of the ICFM. 108

18 324 / Alfitri The General Secretariat is presided by a Secretary General appointed by the Islamic Conference of Foreign Minister for a period of four years. 109 It sits in Jeddah, Saudi Arabia, as the headquarters of the OIC pending the liberation of Jerusalem. 110 As an executive organ which runs the day-to-day activities of the OIC, the General Secretariat keeps communication among Member States maintained through offering facilities for consultation and exchange of views and disseminating information having common significance for Member States. 111 It is also responsible for preparing the administrative and organizational matters needed by the forthcoming meetings of The Conference of Kings and Heads of State and Government and the Islamic Conference of Foreign Ministers. In so doing, the General Secretariat work closely with the host states of the forthcoming meetings. 112 Having discussed the above, it appears that the OIC lacks of a body enforcing recommendations and resolutions adopted by the organization as well as imposing sanctions against Member States which failed to comply with them. B. The Need to an UN-like Security Council Model? As a consequence of lacking a body enforcing recommendation and resolution, the OIC has been incompetent to assert a unified position over and above the lowest common denominator that can be accepted by all its Member States. 113 This is true when it comes to territorial conflicts resorting to the use of force among its Member States. The OIC has failed, as a matter of fact, to resolve the war between Iran and Iraq so that it had lasted for eight years, from 1980 to It also lacked of action in response to the Iraq invasion of Kuwait and the subsequent war to expel Iraqi forces from Kuwait in Compared to other international organizations with nationstates minded platform, the OIC, which maintains the centrality of the concept ummah (transnational Muslims) in its Charter, has not acted differently. As a result, the OIC is not able to utter distinctly an Islamic agenda or to affect policies adopted by Western countries towards the Muslim World. 115

19 The Organization of the Islamic Conference (OIC)... / 325 Many International politic experts have argued about this thought by referring their arguments to, inter alia, measures taken by the OIC to precarious situation in Bosnia Herzegovina. As a result of genocide perpetrated by Serbia and slow responses from international community against this gross human rights crime, the OIC asked the United Nations to defend Muslims in Bosnia. The OIC warned that it would take collective measures to deal with the crisis should the UN did not act. 116 The OIC even gave ultimatum to the UN that January 1993 was the deadline for the Security Council to take action. Having seen that the Security Council behaved indifferently on the crisis, however, the OIC chose to quiet and forgot its ultimatum during the Islamic Conference of Foreign Ministers in May 1993 in Karachi. 117 The ICFM, then, just came with a resolution to establish Contact Group on Bosnia Herzegovina on 24 May 1993 pursuant to the declaration of Member States of the Organisation of the Islamic Conference adopted at the United Nations on the position on Bosnia Herzegovina. The Group comprising Iran, Pakistan, Turkey, Saudi Arabia, Senegal, Malaysia, Egypt, Morocco and Bosnia Herzegovina coordinates the activities of Member States on Bosnia Herzegovina through a number of meetings and creates a fund headquartered in Sarajevo to accelerate the return of refugees and displaced persons to Bosnia. 118 Given the above, many have doubted the viability of international legal personality enjoyed by the OIC. It has been criticized for being a marginal player in international politics which can not bear such an idealistic objective, namely to defend the interest of all Muslims around the world (the ummah). Perhaps, this is because the Charter only found an inter-regional organization of Islamic states whose principal policy-making bodies are appointed to conferences. 119 The Charter, then, institutionalizes a series of conference on different level: Kings and Heads of State and Government and Foreign Ministers of Muslim countries joined the organization. The word conference might give the loose character of the OIC. Thus, it is likely that the conference is only purported to

20 326 / Alfitri indulge in fancy talk, especially on political affairs, at transnational level with less action except to blame and to shame given the helplessness of the OIC to act. 120 Some even come with ruder critic by saying that: [t]he involvement of political leaders in the OIC has more to do with domestic considerations of pacifying their Islamist critics and vying for prestige and authority within the Muslim world than with promoting an Islamic agenda on the international scene. 121 This very loose structure, as a matter of fact, has impeded some effective implementation at national level. The limited legal personality of the OIC is further exacerbated by the fact that the principles of non-interference in the domestic affairs 122 and the sovereignty, independence and territorial integrity of each Member States 123 are paramount. These principles have precluded any effective move towards the consolidation of the transnationals Muslims community. 124 As a result, the eminence of the concept of ummah is just rhetoric, if it is not utopia. It seems from this uneasy situation faced by the OIC that the member states of the OIC not intend the organization to act independently of them, even though they have covenanted to make the organization as a place to promote solidarity and to consolidate cooperation among Islamic states. An example of consolidation is the possibility of oil-producing Muslim countries to deter Western countries from resorting force against Iraq by means of their leverage. 125 This issue was raised by Mahathir Mohamad, former Prime Minister of Malaysia, at the informal meeting of the Conference of Kings and Heads of State and Government (CKHSG) held in Kuala Lumpur, 26 February Other Muslim leaders, at the conference, however, ignored this suggestion. The objections of using oil production as leverage in international relation were clearly asserted by Gulf States. 127 In the meeting of the Gulf Co-operation Council following the CKHSG, Sheikh Hamad of Qatar said that: [oil] is an international material being used by the whole world. As we are civilised countries, we should not think about oil as a weapon. We should use it to improve the relationship between us and the others. 128

21 The Organization of the Islamic Conference (OIC)... / 327 Despite the above fact, the OIC still plays an important role to defend the interest of Muslims especially in the conflict of Palestine. Since its establishment, the Palestine issue has become a central concern of the OIC, given the prolonged conflicts and the persistent breach of international resolutions by Israel, 129 not to mention double standard measures taken by some Western countries when it comes to rights to self-determination and the enforcement of human rights involving Muslim countries. The OIC has adopted consistent policy through it recommendations and resolutions endorsed by all Member States. 130 For example, all Member States of the OIC unanimously agreed to suspend the membership of Egypt during the Third Islamic Summit in at Mecca in 1981 due to its participation in the Camp David Agreement which inflict great loss on the part of Palestine. 131 This suspension depicted the political solidarity of Member States to Palestine. 132 It seems from such a policy adopted by the OIC that the organization is committed to the eradication of Israel. The question is, then, whether the eradication of Israel may become a viable solution to solve the prolonged conflict of Palestine. Given the constellation of international politics, the answer might be not. Any effort trying to eradicate Israel will be denied by the US and its allies. Win-win solution for Israel and Palestine may be more workable in order to bring the conflict to an end, instead. For this approach being effective, the impartiality of concerned parties to the conflict is instrumental. What happens now in the problem solving process of the conflict, however, the US and its allies adopts measures tending to favour the interests of Israel in the region. The partial action of the USA and its allies in the conflict of Palestine has become, inter alia, a catalytic event of nowadays international terrorism. IV. CONVENTION OF THE OIC ON COMBATING INTERNATIONAL TERRORISM A. Catalytic Events: Not a Reason to Commit Injustice against Humanity Considering the campaign of war against terrorism in the aftermath of September eleventh attacks, the prolonged conflict

22 328 / Alfitri of Palestine, inter alia, become instrumental to contemplate nowadays terrorist acts. This is because the conflict of Palestine, together with the situation of Muslims in Chechnya, Kashmir, Afghanistan, Sudan, Bosnia, Iraq, Southern Thailand and Philippines, has become catalytic events to nowadays terrorisms, combined with false and arbitrary understanding of the concept of jihad in Islam. Osama bin Laden, in fact, justified his terrorist act in the aftermath of September eleventh attacks by saying that: [i]f an enemy occupies a Muslim territory and uses common people as human shield, then it is permitted to attack that enemy. For instance, if bandits barge into a home and hold a child hostage, then the child s father can attack the bandits and in that attack even the child may get hurt. America and its allies are massacring us [Muslims] in Palestine, Chechnya, Kashmir and Iraq. The Muslims have the right to attack America in reprisal. The Islamic Shariat [law] says Muslims should not live in the land of the infidel for long. The 11 September attacks were not targeted at women and children. The real targets were America s icons of military and economic power. 133 This justification does not make the attacks against civilian a lesser crime. This is because any crime against humanity is a violation against not only International laws, but also religious norms. Following the September eleventh attack, in fact, Ulama, Muslim leaders and Muslims condemn such an attack as transgressing the Shariah. A case in point is a statement from the Grand Mufti of the Kingdom of Saudi Arabia who says that such acts run counter to teachings of Islam. 134 This is because, the Grand Mufti adds, Almighty God has ordered people to adhere the principle of justice because the skies and earth are based on justice. 135 It is not based on a just decision, therefore, if people have to be responsible for crimes perpetrated by others. 136 Considering the catalytic events of nowadays terrorisms and the impacts of terrorism justified in the name of Islam on Muslims, it can be argued that the OIC may play a significant role in combating international terrorism as it will be discussed below.

23 The Organization of the Islamic Conference (OIC)... / 329 A. Optimizing Cooperation on Education and Information Field: A Significant Role of the OIC Convention of the Organization of the Islamic Conference on Combating International Terrorism was adopted at Ouagadougou, Burkina Faso during the 26 th Islamic Conference of Foreign Ministers (Annex to Resolution No 59/26-P), on 28 June 1 July There are 42 Articles of the Convention covering wide-array issues from the background of the Convention to measures to be taken to combat terrorism. The Convention repeatedly affirms the position of the OIC which condemns terrorism as a violation of Syariah (Islamic way of life and law) and fundamental human rights, as well as establishes essential relationship between the Syariah and human rights. 138 This is important to counter accusation against the Syariah of being incompatible to universal values of human rights. Through the adoption of the Convention, the OIC reiterates its commitment to the internal and external objectives (and specific objectives to some extent) of organization. In addition, it also exemplify the OIC commitment to uphold the principles of International Law and the United Nations Charter as well as all relevant UN resolutions on procedures aimed at eliminating international terrorism, such as: Convention on Offences and Other Acts Committed on Board of Aircrafts (Tokyo, 14 September 1963) and International Convention for the Suppression of Terrorist Bombings (New York, 1997). 139 The Convention, then, goes on to define what constitute terrorism, namely: any act of violence or threat thereof notwithstanding its motives or intentions perpetrated to carry out an individual or collective criminal plan with the aim of terrorizing people or threatening to harm them or imperiling their lives, honor, freedoms, security or rights or exposing the environment or any facility or public or private property to hazards or occupying or seizing them, or endangering a national resource, or international facilities, or threatening the stability, territorial integrity, political unity or sovereignty of independent States. 140

24 330 / Alfitri The above definition gives a broad meaning of terrorism. However, in Article 2 (a) the Convention disqualifies below acts as terrorism; it reads: [p]eoples struggle including armed struggle against foreign occupation, aggression, colonialism, and hegemony, aimed at liberation and self-determination in accordance with the principles of international law shall not be considered a terrorist crime. 141 It is immediately apparent from the stipulation that the OIC affirms the right of self-determination for people under occupied territory or colonialism with special reference, inter alia, to Palestine. 142 This is because the prolonged conflict of Palestine has portrayed Palestinians as terrorist in western community when they struggle for regaining their rights. In Palestine, civilians including children are being shot and killed by Israel military. In retaliation, the Palestinians kill Israelis with human bombs. However, western media has only portrayed the situation partially and ignored the facts of persistence breach against international law and human rights violations perpetrated by Israel. 143 The OIC consistently take such a stance relating to the conflict of Palestine, given the centrality of the concept of ummah in the Charter. For example, following the tragic September eleventh attacks, an extraordinary session of the Islamic Conference of Foreign Ministers held in Kuala Lumpur on 1-3 April The conference came with Kuala Lumpur Declaration on International Terrorism 2002 which stipulates, inter alia that the organization unequivocally condemn the September eleventh attack and any international terrorism in all its forms and manifestations regardless its motives, perpetrators and victims as terrorism and a grave violation of human rights. 144 When it comes to the struggle of the Palestinian people in exercising their inalienable right to establish their independent state or any resistance perpetrated by Islamic states to colonialism and foreign occupation, however, the organization strongly reject any attempt to link these struggle and resistance with the notion terrorism. 145 The problem is what if such a struggle and resistance is addressed to innocent civilians, such