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The Western International Counternarcotics Regime in North Africa and the Sahel: Imagining Islamic Law as Part of the Solution

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The Western International Counternarcotics Regime in North Africa and the Sahel: Imagining Islamic Law as Part of the Solution

 

George C. Kraehe

 

Introduction

 

Sayyid Qutb, considered by many the father of modern jihadist ideology, wrote that “obedience to man-made laws and judgments constitutes worship that takes people out of Islam. . . .  This is the very situation Islam aims to eradicate in order to ensure man’s liberation,”  (Euben and Zaman, “In the Shade of the Qur’an,” 148).  More recently, Osama Bin Laden, in his “Declaration of War Against America,” equated “suspension of Islamic law” “and its replacement with man-made law,” with “sharing sovereignty” with God’s exclusive right to make law.  (Euben and Zaman, 441).

 

“Sharing sovereignty” is arguably what in recent years the region’s governments have done as member states of international organizations such as the UN and the Organisation of African Unity (the OAU, now the African Union) by signing onto treaties and conventions that introduce western models for criminalizing drug trafficking, organized crime, and terrorist activity.  This legal regime, which is altogether new to the region, is viewed as a project of western states and institutions that seek to integrate the region into the western, international legal framework, in this instance, by imposing a western-style counternarcotics regime.

 

The imposition of a western legal regime in place of Islamic law plays directly into the hands of the region’s extremist movements.  Both state and non-state actors view the western international response to the region’s drug trafficking as contrary to Islamic law and therefore an appropriate focus of resistance.  As argued below, this resistance can be overcome by devolving counternarcotics policymaking onto regional and local governments on the basis of traditional Islamic legal principles.

 

The Western International Legal Regime

 

The twin pillars of the international legal framework are the OAU Convention on the Prevention and Combating of Terrorism Convention of 1999 (the so-called “Algiers Convention”) and the UN Convention against Transnational Organized Crime (the “Palermo Convention”), made effective in 2004.  The political context in which these treaties were adopted is the same political context that saw the advent of extremist terrorism as an issue of foremost concern to western powers and the consequent targeting of extremist groups, as well as the increase in cocaine trafficking and the collapse or weakening of authoritarian regimes across the region.  Accordingly, the international legal counternarcotics framework, like narcotics trafficking itself, must be considered in the context of regional and national political, social, and cultural divisions and as part-and-parcel of the broader ongoing contestation between the secular west and the so-called “developing world” and its agents provocateurs, to include extremist groups.

 

The Algiers Convention

 

In 1999, the OAU adopted the Convention on the Prevention and Combating of Terrorism, the so-called Algiers Convention.  In 2004, the OAU adopted a protocol to the Algiers Convention specifically linking terrorism, drug trafficking, and organized crime, even though scant evidence exists supporting this linkage.  All of these measures were strongly supported by, if not instituted at the behest of, the International Monetary Fund (IMF), a fact not lost on African veterans of the IMF’s Structural Adjustment Programs who rightly or wrongly have taken issue with what is perceived to be the IMF’s pro-western capitalist, some might say neo-colonialist, agenda, (Dalyan, 140-44).  As with the international counternarcotics regime in general, the Algiers Convention acknowledges primarily western priorities, not regional ones, revealing itself to be a construct of the western international system that fails adequately to account for many of the important realities of the region.

 

By linking narcotics trafficking with terrorism and with organized crime and corruption, the international legal regime has imposed a set of norms which fails to account for political, social, and cultural realities on the ground, realities which have moved beyond the Manichean formulation of the so-called “War on Terror.”  First of all, “terrorism” is a western word that has meaning only when seen through a western lens, incorporated into the international legal regime to establish relational connections to a host of other international legal and political stratagems, from IMF-directed counter-money laundering initiatives, to extra-jurisdictional prosecutions, to international humanitarian legal justifications for drone strikes.  The Algiers Convention, as a perceived tool of a western agenda, is pre-ordained to arouse suspicion and distrust among both state and non-state actors across the region.

 

Second, there is no empirical evidence to establish that the term “terrorism”, based on the meaning ascribed to that term in the convention, has anything other than marginal application to the facts on the ground. [i]   For example, it was widely assumed that “Al Qaeda in the Islamic Maghreb” (AQIM) is a terrorist organization. However, though AQIM engaged in some actions that arguably met the Algiers Convention’s definition of “terrorist act” (the most notorious of which was its 2007 bombing of the UN headquarters in Algiers), more recently AQIM’s main line of effort has been smuggling operations and kidnappings strictly for profit, (Thornberry and Levy at 4).  AQIM “no longer relies on crime to finance terrorism[,]” but rather engages in acts of terrorism “as a cover-up for crime, the sole purpose of which is to make a fortune,” (Thornberry and Levy, 6).  Consequently, “the line between what AQIM does to fund jihadist activity and what it does purely for profit has become blurred,” (Thornberry and Levy, 6).  Notwithstanding a name universally associated with the grievance side of the greed or grievance equation, AQIM now stands willing, at least at the present interval, to focus on more parochial political concerns, not the least of which is raising money to keep its operatives fed and supplied, (Ballentine, 273).  These ambiguities further muddy and undermine integration of the Algiers Convention into local counternarcotics measures.

 

 The Palermo Convention

 

The second pillar of the international counterdrug regime is the United Nations Convention Against Transnational Organized Crime (the “Palermo Convention”), made effective in 2004 to counter criminal organizations and the drug trade and to shore up the authority and legitimacy of state institutions.  All the countries of the region have signed and ratified the Palermo Convention, under which they are obligated to “take measures to ensure effective action by its authorities in the prevention, detection and punishment of the corruption of public officials.” [ii]

 

However, since the Palermo Convention’s ratification, “[a]s was the case with anti-terror conventions, issues of organised crime (and terrorism) were not prioritized by most African legislators at the turn of the millennium,” (Hübschle, 83).  The governments of the region thus far have done little to translate these frameworks into action, (Hübschle, 83).  Thus, like the Algiers Convention, the Palermo Convention has proved itself inadequate to the task, (Lacher, “Organized Crime,” 65-67).  Non-state organizations have been emboldened to expand their operations in North Africa and the Sahel, sometimes often with either the active or passive cooperation of the government.  The Palermo Convention has been ineffective when one of the activities it is intended to counter, e.g., drug trafficking, may not be unlawful or when the state is too weak to punish it, if it is—a crime that goes unpunished ceases to be a crime.  The lack of willingness and ability of states to combat narcotics trafficking demonstrates one of the challenges facing western efforts to integrate the region into the international legal system.

 

The crime-terror assumption at the heart of the Algiers and Palermo conventions also fosters antagonisms between state actors charged with enforcement of its western-prioritized regime and non-state actors who may not consider themselves either terrorists or criminals.  This western regime essentially makes state actors agents of the West.  Enlisting the region’s state actors to enforce western priorities is further likely to damage the state’s credibility and authority among traditionally conservative elements of the population who may not view western priorities, in general, as consistent with Islam and who incidentally may be profiting from a trade it does not consider inconsistent with its cultural norms.  Erosion of state authority inures to the benefit of non-state actors in a downward spiral that is very difficult to reverse.   The western counternarcotics regime thus furthers the divide between state and non-state actors, fueling rather than subduing regional divisions and instability.

 

Islamic Counternarcotics Regimes

 

The region’s cultural and legal traditions are not without their own answer to narcotics trafficking apart from the Algiers and Palermo conventions.  To be sure, drug use and drug trafficking are crimes not only under western law, but under Islamic law as well.  The criminalization of narcotics use and trafficking has particular legal, social, and cultural origins in the Islamic countries of North Africa and the Sahel.  However, the international drug trafficking regime in North Africa and the Sahel does not view drug trafficking in the moral context of the Muslims on which the regime is imposed; rather, it views drug trafficking in the moral context of the West.[iii]  It is not surprising, then, that personal and institutional attitudes with respect to drug use and drug trafficking differ as well and that such differing attitudes have the potential to significantly impact the prioritization of, and the manner and means of addressing, drug trafficking in the region.

 

In Islamic countries the prohibition on the use of intoxicating drugs has deep cultural and religious roots.  The Qur’an makes the personal use of narcotics a specified offense with punishment fixed at eighty lashes, (Sura 5:90, 5:91).[iv]   Under Islamic law, use of narcotics is a hadud offense which, once found, leaves the qadi no discretion in sentencing, (Peiffer, 515-19, 522-23).  The Qur’an, however, does not specify drug trafficking as an offense.  Islamic law makes it a ta’zir offense, a potentially less serious offense with punishment left as a matter of discretion for the qadi, (Peiffer, 515-19, 522-23).  In some of the region’s countries, neither drug consumption nor drug trafficking are made crimes outside of the Islamic legal context.  For example, while the government of Mali employs a brigade de stupéfiants (Narcotics Brigade) to investigate drug trafficking and make drug seizures, the Mali Penal Code includes no provision that expressly criminalizes consumption, possession, or trafficking of narcotics. [v]  Other countries—Libya, for example, even before the fall of Qadhafi—expressly criminalize drug trafficking but employ the state apparatus to interdict drug traffickers only marginally, particularly in parts of the country literally and figuratively far from central government control.[vi]

 

Of course, Islamic law also prohibits drug trafficking, even though it is not a crime specifically addressed by the Qur’an.  Indeed, the penalty for drug trafficking in many countries governed under Islamic legal principles is more severe than eighty lashes and often is death.  For example, in 1981 an Islamic scholar acting within his authority as a qadi in the Islamic government of Saudi Arabia issued Fatwa Number Eighty Five, establishing death as the ta’zir penalty for a second drug trafficking offense, (Peiffer, 522-23).  “The fatwa found [drug smuggling and distribution] offenses as so terrible as to fall under the prohibition against the ‘spreading of corruption on the earth,’” (Peiffer, 523).  In a subsequent fatwa, Saudi Arabia made the death penalty for a second offense mandatory, (Peiffer, 523).  Of countries that look to shari’a as the guiding source in their law, sixteen permit imposition of the death penalty for drug trafficking.  These countries include Bahrain, Egypt, Gaza (Occupied Palestinian Territories), Indonesia, Iran, Iraq, Kuwait, Libya, Oman, Pakistan, Qatar, Saudi Arabia, Sudan, Syria, the United Arab Emirates, and Yemen, (Gallahue and Lines, 7). [vii]  Some of these states demonstrate a “high commitment” to enforcement of the death penalty in drug trafficking offenses, (Gallahue and Lines, 22-24).  For example, Iran put to death 172 drug trafficking offenders in 2009, and Saudi Arabia executed 40 in 2007, (Gallahue and Lines, 22-24).  Other Muslim-majority states in recent years have imposed the death penalty for drug trafficking offenses, including Kuwait, Pakistan, Egypt, Syria, and Yemen, (Gallahue and Lines, 32-37).

 

Conclusion

 

This article argues that Islamic law should be enlisted in the fight against narcotics trafficking in the Sahel, rather than being displaced by the western counter-narcotics regime.  An understanding of Islamic law’s distinction, however nuanced it may be, between drug use and trafficking is crucial to assessing, developing, and implementing, at both the macro and micro level, a counterdrug regime in a majority-Muslim region.  Although criminal penalties for trafficking and use may be equal in a given majority-Muslim country, it has been suggested that the Qur’an places greater stigma on use than on trafficking.  It also has been argued that, within a religious moral framework that trumps any secular legal one, a Muslim suffers less opprobrium for trafficking in narcotics than in consuming them, especially if a non-Muslim is the intended consumer of the drug, (Foreign and Commonwealth Office at 4-5).  This distinction is important for a number of reasons.  First, as one commentator has observed, “[d]espite the highly negative Muslim attitude toward the use of drugs and on drug consumption that Islamist organizations of this type strictly observe, the use of drug-generated money for financing jihad is justified by the need to weaken the main enemy,” (Stepanova, 167).[viii]  Second, an international counterdrug regime that incorporates the West’s ambivalence towards personal drug use is bound to run counter to, if not offend, a Muslim’s sense of moral propriety.  Finally, the state’s enforcement of western man-made law in lieu of God-made Islamic law contradicts the political and cultural framework in which many non-state actors operate, further dividing western-style state institutions and the local culture from which non-state actors often draw their support, (Euben and Zaman, 148, 440-41).

 

Sources

 

Ballentine, Karen, “Beyond Greed and Grievance: Reconsidering The Economic Dynamics of Armed Conflict” in The Political Economy of Armed Conflicts. Beyond Greed and Grievance. Boulder, Lienne Rienner.

 

Ballentine, Karen and Sherman, Jake. “Introduction” in Ballentine (ed.) The Political Economy of Armed Conflicts. Beyond Greed and Grievance. Boulder, Lienne Rienner, 2003.

 

Dalyan, Sener.  “Combating the Financing of Terrorism: Rethinking Strategies for Success.”  Defence Against Terrorism Review, Vol. 1, No. 1, 137-153, Spring 2008.

http://www.justice.gov.tr/e-journal/pdf/Combating_the_Financing_of_Terrorism.pdf

 

ECOWAS, Regional Action Plan to Address the Growing Problem of Illicit Drug Trafficking, Organised Crimes and Drug Abuse in West Africa 2008-2011.

 

Euben, Roxanne L. and Zaman, Muhammad Qasim. Ed.  “Princeton Readings in Islamist Thought: Texts and Contexts from al-Bana to Bin Laden.”  Princeton: Princeton University Press, 2009.

 

Foreign and Commonwealth Office, United Kingdom.  “Traffickers and Terrorists: drugs and violent jihad in Mali and the wide Sahel.  October 2013.  Located at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/256619/Oct_2013_Traffickers_and_Terrorists.pdf

 

Gallahue, Patrick and Lines, Rick. “The Death Penalty for Drug Offences: Global Overview 2010.”  Report of the International Harm Reduction Association (IHRA) (2010)  http://www.ihra.net/files/2014/08/06/IHRA_DeathPenaltyReport_Web.pdf (accessed April 9, 2015)

 

Hübschle, Annette. “From Theory to Practice: Exploring the Organised Crime-Terror Nexus in Sub-Saharan Africa by,” in Perspectives on Terrorism, Vol. 5, Issues 3-4 (2011).

 

Lacher, Wolfram. “Challenging the Myth of the Drug-Terror Nexus in the Sahel.”  WACD Background Paper No. 4, West Africa Commission on Drugs (2013).

 

Lacher, Wolfram.  “Organized Crime and Conflict in the Sahel-Sahara Region” in, Perilous Desert. Insecurity in the Sahara, edited by Frederick Wehrey and Anouar Boukhars (Washington DC: Carnegie Endowment for International Peace, 2013).

 

Peiffer, Elizabeth.  “The Death Penalty in Traditional Islamic Law and as Interpretered in Saudi Arabia and Nigeria.”  11 Wm. & Mary J. of Women and the L. 3 (2005).

 

Spear, H.B.  “Heroin Addiction care and control: The British System.” 

 

Stepanova, Ekaterina.  “Illicit Drug Trafficking and Islamic Terrorism as Threats to Russian Security: The Limits of Linkage.”  PONARS Policy Memo No. 393, Institute for World Economy and International Relations (Dec. 2005).

 

Thornberry, William and Levy, Jaclyn. “Al Qadea in the Islamic Maghreb,” Center for Strategic and International Studies (2011).

 

United Nation’s International Convention for the Suppression of Financing of Terrorism of 1999 (the “Algiers Convention”) (1999).

 

United Nations Convention against Transnational Organized Crime (the “Palermo Convention”) (2004).

 

End Notes

 

[i] The Algiers Convention does not define “terrorist organization.”  At best, it defines  “terrorist act” broadly to include acts or threats of violence against persons, groups, or institutions “to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles . . . or disrupt any public service . . . or . . . to create general insurrection in a State,” (Algiers Convention, Art. I, Sec. 3).  The Algiers Convention also omits from the definition of “terrorism” “state terrorism or acts of terrorism perpetrated by state parties” as well as “struggles for self-determination,” (Hübschle, 82).  With reference to the Algiers Convention, then, a terrorist organization might be defined as an organization that engages in terrorist acts except those perpetrated by state parties and by other groups as part of struggles for self-determination.

 

[ii] A list of all countries that have signed and ratified the Palermo Convention is found at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12&chapter=18&lang=en.

 

[iii] Historically, the regulation and legal proscription of cocaine, cannabis, and opium are relatively modern phenomena in the west.  Generally, drug use became a penal offense in the United Kingdom only in 1920 with enactment of the Dangerous Drugs Act of 1920, (Spear, 33).  Although the United States regulated and taxed the sale of drugs since as early as the 1860s, drug possession and trafficking were not comprehensively criminalized at the federal level until enactment of the Controlled Substances Act of 1970, (Pub. L. 91-513,  84 Stat. 1236, enacted October 27, 1970, codified at 21 U.S.C. § 801 et seq.).  Up until that time, cocaine, cannabis, and opium were regulated by the U.S. Food and Drug Administration. 

 

[iv] “O You who believe! Intoxicants and gambling, (dedication of) stones and (divination by) arrows are an abomination of Satan’s handiwork. Avoid (such abominations) that you may prosper,” (5:90).   “Satan’s plan is to sow hatred and enmity amongst you with intoxicants and gambling, and to hamper you from the remembrance of Allah and from prayer. Will you not give up?” (5:91).

 

[vi](Libya Law No. 7 of 1990, art. 34)  Although both the west and majority-Muslim countries criminalize drugs and drug trafficking, the bases for doing so differ.  The problematizing of drugs has been, and continues to be, relative regionally and historically.  In the west, the consumption of drugs was viewed initially as a matter of personal choice and addressed only by regulation and taxation before it was addressed criminally.  Yet even today, the moral equivalence of personal drug use survives in western criminal law, which places a far greater onus on possession with intent to distribute (i.e., traffic) then on mere possession (i.e., use); the former is invariably a felony carrying severe criminal penalties, while the latter generally is a misdemeanor or less severe felony, (see 21 U.S.C. §§ 841, 844). 

 

[vii] The extent to which shari’a is the basis for these laws varies, as do the conditions under which a death penalty may be imposed.  As noted above, Saudi Arabia permits the death penalty only after the second offense.  Indonesia, on the other hand, conditions imposition of the death penalty on the drug quantity, (Gallahue and Lines, 5).

 

[viii] In his 1998 “Declaration of War Against America,” Osama Bin Laden expressly countenanced the prospect of waging jihad “even if the intentions of some of the fighters are not pure (i.e., they fight for the sake of personal gain) or they do not observe some of the rules and commandments of Islam[,]” on grounds that “[t]o repel the greater of the two dangers [the West] at the expense of the lesser one is an Islamic principle that should be observed,” (Euben and Zaman, 443)

 

About the Author(s)

George C. Kraehe is an Assistant U.S. Attorney and National Security prosecutor for the U.S. Department of Justice.  He is also an Army JAG lieutenant colonel with over twenty years’ experience in the active and reserve components.  As an International Humanitarian/International Human Rights Law instructor for the Defense Institute of International Legal Studies, he has deployed to the Sahel, North Africa, and sub-Saharan Africa. Mr. Kraehe previously served combat deployments to Iraq and Afghanistan where he served on Provincial Reconstruction Teams to build law enforcement and judicial capacity.  He subsequently worked as a researcher for Harvard Law School’s Program on International Law and Armed Conflict.  Mr. Kraehe holds his B.A., cum laude, from Yale University, a J.D. from the University of Texas School of Law, an M.A. in Middle Eastern Studies from Harvard University, and a M.St. in International Human Rights Law from the University of Oxford.  The views expressed in this paper are those of the author and do not reflect the official policy or position of the U.S. government, the Department of Defense, or the U.S. Department of Justice.