International Humanitarian Law in Islam and Contemporary International Law
Hujjat al-Islam Dr. Sayyid Mustafa Muhaqqiq Damad
War is one of the most catastrophic phenomena human beings face. That is why it is emphasized that the requirements of war should give way to humanitarian imperatives. The most basic rights of human beings have been violated during wars. Therefore, the relationship between the laws of war and human rights should be taken into consideration.
It seems that the violation of human rights during wartime may be minimized if wars are somehow legally regulated. The existence of some internationally sanctioned legal principles can serve this cause.
Although humanitarian considerations have been included in many international legal instruments-dating back to the nineteenth century - no direct link between human rights and law of war was established until the late 1960’s. Their first formally accepted conjunction could be traced back to the international human rights conference in Tehran (1968) where a resolution was adopted in this regard.
According to this resolution, the observance of human rights should be taken into consideration in various types of legal regulation including those governing “armed confrontations.” In the same year, the UN General Assembly confirmed the contents of this resolution.
Of course, armed confrontations are not limited to international relations, “Human rights imperatives” should be followed in civil way and other form of domestic armed confrontations. In other words, human rights should be observed in any kind of armed-and of course non-armed-conflicts.
It is worth mentioning that many centuries before the advent of modern international attempt to formulate the law was in accordance with the observance of minimum standards of human rights, in many divine religions, especially in Islam. The observance of human rights during wartime was taken into consideration.
One of the important discussions in the Islamic law is the prohibition of brutal and inhumane behavior in armed confrontations. The following article analyses humanitarian law from an Islamic point of view. According to Islamic law, the dignity of human beings should not be denied and any arbitrary and immoral treatment of people should be avoided.
1. The evident fact is that the history of war dates as far back as the history of man. In the war among states, only force reigns and each one of the parties seeks to overcome the enemy through, all means and might. In this cause, religions, moral schools, philosophers and lawyers have endeavored throughout history to limit non-humanitarian acts in war by formulating the laws of war.
2. Some people believe that there is no need for formulating the laws of war as the Suppression of the Act of Aggression for limiting or forbidding the acts which are tinged with crime, believing that the setting of such rules implicitly lends legality to war. However, the fact is that the illegality of resorting to war does not at all obviate the need for the laws of war and humanitarian rules, for such laws aim to reduce the ill consequences of the inability of international community in forbidding war.
After fifty years, the United Nations has failed in the total elimination of this bitter truth despite the prohibition of resorting to force in international relations and has been incapable of determining the aggressor and has failed to do its duty in forbidding or stopping aggression although it has achieved great success in organizing the laws of war especially in approving the humanitarian acts. Besides, it played an important role in organizing the Geneva Conference, which led to the 1977 protocols known as the Four Geneva Conventions (1949).
In addition, the Convention of the United Nations in 1981, which banned the use of lethal weapons, was one of the innovative acts of the United Nations. Recently, the Commission on International Law studied the crimes against peace and security perpetrated in some areas such as the former Yugoslavia and had the court and the laws of court approved.
3. Basically, the laws of war seek to enact three limitations for armed operations as follows:
A) Limiting the war zone
B) Limiting the use of weapons
C) Limiting the operations to combatants and immunity of the civilians.
The laws of war seek to fulfill four aims:
• Humanitarian treatment
• Protection of non-military zones
• Protection of civilians
• Keeping the non-belligerent states aloof from the war
4. The study of the group of rules and rights of war from the Paris Declaration dated 16 April 1856 regarding the rules of Marine War to the last rules in this regard, that is the Four Geneva Conventions and the 1977 protocols amended to them and the 1981 United Nations Convention and comparing them to the rules and principles in Islamic rules regarding war and armed strifes well demonstrate that the origins of the rules of war in general and Humanitarian law and the protective rights can be completely found in Islamic teachings. In addition, the idea that such laws are derived from Islamic rights is not exaggerative. This fact shall be proved when the Islamic sources and the way the jurisprudents of early centuries classified international and non-international wars and their systems and the treatment of Muslim combatants towards the enemy are considered one by one.
Punishment for the violations of soldiers in Islamic law directs our attention to another fact and that is the aforementioned instructions are not merely moral recommendations but laws to be exercised. In addition, the violators are responsible for the punishment thus incurred.
5. Assuredly, the Muslims have performed such mighty system for instituting the war and peace rules since the seventh century that they have remained within international rights and relations even before the West gained such recognition about one thousand years ago.
Imam Muhammad Ibn Hasan Shaybani, the Hanafite jurisprudent, was the pioneer of this body of laws and principles. He founded this knowledge in the eighth century through his books Al-Sayr al-Saghir (The Small Conduct) and Al-Sayr al-Kabir (The Great Conduct). During the recent years, the Shaybani Society of International Rights was founded in Gottingen as a way of commemorating this great jurisprudent. In addition, the strivers for human rights from various countries joined it. The aim of this society was to introduce Shaybani and his works in this field.1
The mindful orientalists and the researchers in this field well know that the West has been influenced by the Muslim products in this regard.2
It is a fact that Grocius, the Dutch Statesman, the pioneer of international rights in the West who lived in the seventeenth century was in a state of exile3 in Astanah (a name given to Turkey or Constantinople). It is not farfetched that he might have had access to the Arab and Islamic world and a link between east and west. Apparently, he was the missing link between east and west in this regard. It is also certain that Grocius was inspired by the works of Fransco Swazbir4 who was definitely acquainted with the Arab and Islamic writings.
Chapter 1- Generalities
The two expressions Human Rights and the Humanitarian Law have two distinct meanings in contemporary literature of international law. There has been a long controversy on the birth of the latter concept as distinctive from the former. In 1969, when the General Assembly of the United Nations inquired the Secretary General to give a report on the common human rights in armed strifes, many scholars discussed whether the term had been properly used.
At all events, there is no doubt in the minds of the scholars on this score.
The Humanitarian law include the set of laws and provisions which seek to determine human rights in the time of war or during armed operations whereas human rights include the rights which determine people’s rights in time of peace. In other words, Humanitarian Law have two fundamental elements:
1. The Protection of the Wounded, the Afflicted, the Prisoners of War and the Civilians
2. The peak of armed strife
However, human rights pertain to everyone at all times.
From the perspective of a philosophical analysis, one can say that Human rights observe the humanitarian rules and humanitarian Rights are derived from benevolence towards man. The humanitarian rules refer to human nature without any distinction as to race, nationality or so on, or in other words, to human nature.
Probably, some scholars oppose the notion of international humanitarian law in Islam. In their eyes, how can one separate part of Islamic humanitarian law, labeling it as humanitarian whereas by consensus we believe that all Islamic laws are humanitarian and Islam means peace and amity.
At the outset, I had such a feeling but I realized that it was but a superficial feeling. Therefore, I overcame it. In fact, I propose to analyze the everyday use of the term, which is of special significance. It is a truth that peace is the spirit of Islam. However, peace is not the only dominant truth in human societies. Likewise, man’s murder by man is an undeniable fact in human societies.
In order to understand the Islamic meaning of humanitarian law we should put it in its true context and analyze it in a historical vista because the Islamic manner which is universal and transcends time and place is not dependent on armed strifes but on the Muslim beliefs, the nature of Islamic rights system and its interpretation of the relation between the Muslim world and the external world. Hence, in order to clarify and make comprehensible the concept, we should study its varying elements and consider the necessary factors for any systematic and mature thoughts.
The Features Of The System Of Islamic Law
The system of Islamic law has two characteristic features, which are not identical to other contemporary systems of rights.
The First Feature: Divinity
The system of Islamic law is not substantially mundane but divine and holy, including the exercise of Islamic faith in a definite way as to human relations. Islam consists of a set of laws dominating the believers’ conduct, which molds their relations within the matrix of society. In Islam, the religious faith and the legal discipline constitute an inseparable whole in which faith is the origin giving rise to legal discipline.
The Second Feature: Inseparability
Unlike most contemporary systems of law, the Islamic system of law, which includes private and public law, is not branched out. Its rules are derived from the Holy Qur’an, addressed to everyone everywhere at all times. They originate from a divine source and they are particular to individuals and groups from all occupations.
The Almighty God addresses man through his apostle and enacts certain laws for guiding him and checking his behavior. Hence, there is one God and one law in Islam. This law is addressed to everyone without any distinction or discrimination and includes rules dominating the entire human relations. Whatever the nature of the law is, the basis is the same.
It must be noted here that lawyers might try to scientifically classify the previously mentioned rules and introduce one law as national or international, private or public.5 This refers to the science of law and legal researches. What is impossible is that we try to include utterly alien concepts such as monotheism or dualism within Islamic rights or alter its sacred concepts such as oneness and the principle of equality.
The Historical Conditions For The Formulation Of The Islamic Law System
The other salient point is that we should take into account the concept of humanitarian law in Islam within a historical context and consider the two necessary aspects, environmental and temporal, in a fair comparison. Islam emerged in the seventh century whereas the international humanitarian law had not taken shape until the second half of the twentieth century. So there is a period of thirteen centuries between these two concepts.
If we study these thirteen centuries with our present knowledge and compare the then society to the present one, we shall inevitably come to the conclusion that the changes have been so diverse that they could have taken place as a true revolution. In the present study, we do not tend to give a dark picture of society in the seventh century and then compare it to the modern society. Our sole intention is to draw the readers’ attention to these factors, for we should avoid complicating the issues and the times and we should make our comparison within a proper framework.
Islam emerged in the seventh century when war, domination, slavery and ignorance reigned, force was dominant in all aspects of life. The societies did not have any economic or social structure or at least were very poorly structured. The concept of state, border, nationality, and organized relations did not exist or were unknown. Islam sought to fill this dark gap.
The basic mission of Islam was to bestow faith and civilization on man with a view to establishing a modern society, which was bound to be the master of its own destiny. To this modern society, Islam granted a religion based on monotheism and a system of rights derived from the Qur’an, the tradition and the Ijtehad (the use of reason to arrive at truth in Islam).
The Sources Of Islamic Law
The Qur’an is the Word of Allah, the Master of the worlds who sent it down to his chosen Apostle for the guidance of mankind. The Qur’an descended upon the holy Prophet at different stages in the span of 23 years. The Qur’an was sent for the guidance of mankind in the course of his worldly and spiritual life to all classes of people at all times at all places. The nuclear theme of the Qur’an is monotheism, the belief that there is only one God. At all events, it deals with all aspects of human life.
The Qur’an is divided into 114 Suras (chapters) covering a pervasive scope. The laws expressed in the Qur’an are imperative and thus should be applied to certain relations. It is noteworthy that the existential cause of the laws included in 200 verses refers to five fundamental principles, which are the fundamentals of the whole system of Islamic law. These principles include:
3. Counsel based on respect for people’s opinions
4. Fulfillment of promises
In general, these five principles constitute the pivotal values of the system of Islamic law. With the death of the holy Prophet, the inspiration came to an end and nothing can be definitely added to the Holy Qur’an.
This is the point where the social role of Ijtehad emerges, namely that, all laws and new solutions for organizing the human behavior should be comprehended on the basis of the aforementioned general principles. It must be noted that any principle or solution, which does not accord with the previously mentioned fundamental principles, cannot be viewed to be Islamic.
The prophet’s tradition is the second source. The prophet’s manners in fulfilling his mission and his conduct towards others are the source of the laws, which enjoy legal power in Islamic law. These laws complete the Qur’anic laws because they tend to approve the recent laws or determine how those laws should be put into effect.
The point is that the Qur’an and the Sunna had deep roots in the life of the holy Prophet and after him, no one was capable of enacting laws. Since life is constantly changing and Islam has a stable nature, there was a need for another living legislator, a source for creating new rules corresponding with new phenomena within dynamic societies.
The third source is the system of Islamic law, Ijtihad explicitly expressed in the Holy Qur’an. By virtue of Ijtehad, we can understand the necessary rules in the mutable life of societies. However, we should emphasize that this understanding can take place within the five main tenets of Islam.
What inspired consolidation in the spiritual and worldly aspects of Islam in the first three centuries was this third source. However, unfortunately at the time of the Abbassid dynasty the rulers who wished for boundless domination saw fit to stop Ijtehad and bar the inductive method. From then on, Islam and its system of rights remained static in a dynamic world.
The consequences of the decisions made by Abbassid dynasty marred Islam and its mission to spread civilization. Only over the recent decades, the new generation of the jurisprudents and Islamic lawyers had recourse back to Ijtehad due to their encounter with the problems of the world today. However, their attempts were mingled with doubts and fears, for the new state with the power of legislation limited their role.
Therefore, within this framework briefly elucidated, we should look at the Islamic concept of international humanitarian law. At first, this concept is dependent on those Qur’anic verses6 which are relevant to the practice of the prophet in time of enmities imposed on him and ultimately, on the rules perceived from the five fundamental principles of Islamic law derived from the prophet’s commands given to the armies of Islam.
1. The late Dr ‘Abd al-Majid Badavi was the head of this institute and Salah al-din al-Munjad was the vice-president. See: 1389 A.H. , The introduction of al-Sayr al-Kabir, written by Dr. Badawi, p. 12. It is worth mentioning that University of Paris had a ceremony honoring the 1200th year of Shaybai’s death (804 A. D.)
2. Baron Michel De Tube, Lessons on the Historical Changes of International Law in Eastern Europe, Hague, 1926, Vol. 1 , pp. 341-554 especially puges 380-397.
3. Dr Kamil ‘Ayad, Safahat Min Tarikh al-Istishraq, Damascus: Majma’ al-‘Aribiyah, 1986, p.574.
4. He was born in Gharnateh (Granada) in 1548 and died in Shinboneh in 1617.
5. The author has divided jurisprudential rules into civil, judicial and political rules. In each part he has presented some discussions which constitute four volumes: the two volumes concerning civil laws have been published and the other two parts on penal and judicial laws are under publication.
6. Sura al-Baqarah 2:190-194: “And fight in the cause of Allah with those who fight with you, and do not exceed the limits, surely Allah does not love those who exceed the limits; And kill them wherever you find them, and drive them out from whence they drove you out, and persecution is severer than slaughter, and do not fight with them at the Sacred Mosque until they fight with you in it, but if they do fight with you, then slay them; such is the recompense of the unbelievers; But if they desist, then surely Allah is Forgiving, Merciful; And fight with them until there is no persecution and religion should be only for Allah, but if They desist, then there should be no hostility except against the oppressors; The Sacred Month for the sacred month and all sacred things are under the law of retaliation; Whoso then acts aggressively against you, inflict injury on him according to the injury he has inflicted on you and be careful of your duty to Allah and know that Allah is with those who guard against Evil.” Surah Aale Imran 3:102, 105, 107, 110 respectively: “ O believers! Be careful of your duty to Allah with the care which is due to Him, and do not die unless you are Muslims; And be not like those who became divided and disagreed after clear arguments had come to them, and these it is that shall have a grievous chastisement; And as to those whose faces turn white, they shall be in Allah’s mercy, in it they shall abide; You are the best of the nations raised up for the benefit of men, you ennjoin what is right and forbid the evil and believe in Allah, and if the followers of the Book had believed it would have been better for them; of them some are believers and most of them are transgressors.”