The cloak, the turban, & slippery slopes : the Cleric as a direct participant in hostilities and right to protected status under International Humanitarian Law

• Record Number: lesotho_v26_n1_a3
• Author: O.B. Adegbite
• Date: 01 September 2018
• Pages: 79-104
• Published date: 01 September 2018
• DOI: 10.10520/EJC-110b127f06

THE CLOAK, THE TURBAN, & SLIPPERY SLOPES: THE

CLERIC AS A DIRECT PARTICIPANT IN HOSTILITIES AND

RIGHT TO PROTECTED STATUS UNDER INTERNATIONAL

HUMANITARIAN LAW

Adegbite O. B. 



Abstract

In recent times, the increasing role played by Religious

Clerics in most armed conflicts and insurgencies has assumed

the front row in International Humanitarian Law discourse.

Allegations continue to mount of how Clerics have come to be

the dominant force motivating many non-state parties in

most hostilities. Given the notoriety that this matter is fast

assuming, and the fragile context in which the law appears to

operate, State actors now take extreme measures against such

Clerics, the type usually reserved for Combatants and which

often ends in cases of direct strikes. This paper examines the

above malaise within the existing jurisprudence regarding

Direct participation in hostilities under International

Human itarian Law, with a view to establis hing whet her such

Clerics can be categorized as Combatants subject to direct

attacks and made accountable under the law of war. This

paper concludes that notwithstanding the well documented

excesses of Clerics in this area, the rule of law demands that

the current conservative position under the Interpretive

Guidelines should not only be retained but must more

importantly be jealously guarded as a more decent path to

transn ational justice.

LL. B (Hons.) (Ife, Nigeria), LL.M (Ife, Nigeria), LL.M, (Cardozo, Yeshiva

University, New York), B.L., Lecturer, Department of Public Law, Faculty of

Law, Obafemi Awolowo University, Ile-Ife, NIGERIA. Tel: +234 (0)

8036734396.E-mail:oadegbite@oauife.edu.ng,adegbite@law.cardozo.yu.edu

80 LL J Vol. 26 NO. 1

INTRODUCTION

It is no fake news when one hears of Clerics, and other fiery

religious scholars labelled as inciting violence through their

teachings and inspiring terrorism and other forms of extremism.

Since the end of the Second World War, when global terrorism

clannishly emerged as the new face of armed conflicts, the

international media space has remained inundated with gory tales

of the role played leading Clerics in fuelling hostilities. From the

Ayatollah Khomeini’s inspired Iranian revolution of 1979 ,1 to the

1 The controversial rhetoric of the feisty former Spiritual Leader of Iran is a

striking case. Ayatollah Khomeini, who though exiled from Iran during

the 1960s for his tirades against the Shah government, is known to have

continued to criticize th e regime and encoura ge Iranian s to rise up in a

Revolution. In his yearlong messages charging the people to rise up in

action, Khomeini’s audio -cassette tapes, which recorded him reciting

speeches to inspire revolution, were smuggled into Iran and distributed

throughout mosques and other public places. For an expansive analysis of

the overthrow of the Shah and th e rise to power a s well as the cleri cal

influence of Khomeini, see generally S.A. Arjoma nd, ‘The Causes and

Significance of the Iranian Revolution’ (1985) 1(3), Springer: State, Culture,

and Society, 41-60; H Firouzbakhch, ‘A Structural-Demographic Approach

to Revolution: The Case of the Iranian Revolution of 1979’ (1988), 38 (2),

Civilizations, 85-104; M.M.J. Fischer, Iran: From Religious Dispute to

Revolution, (Cambridge, Massachusetts: Harvard University Press, 1980); E.

Abrahamian, Islam, Politics, and Social Movements , (University of California

Press, 1988); S.A. Arjomand, Turban for the Cr own: The Islamic Revolution in

Iran, (Oxford: Oxford University Press, 1988); M. Ruthven, Fundamentalism:

The Search for Meaning, (Oxford: Oxford University Press, 2004) 29; A.

Karimi, ‘Iran, Democracy, and International Law’, (2012), 27 (1), Maryland

Journal of International Law, 304 – 322.

Also, that Ayatollah Khomeini epitomiz es the perfect pict ure of a Cleric in

full control of constitutional and political powers that can massively

inspire the People to hostilities is not in d oubt. For instance, not only was

he referred to as ‘Supreme Leader’, he established the principle of

‘Welayat-el Faqih’ which saw the return of full clerical authority over the

Iranian State, and to which the Irania n Constitution institutionaliz ed him