With the majority of todays conflicts taking place in Muslim countries or involving Muslim combatants, aid agencies are operating arguably more than ever before in situations where Islamic norms govern the terrain in which they work.
Islamic law contains a rich but complex set of rules on the protection of civilians. But can that centuries-old canon be reconciled with modern international humanitarian norms?
This reports explore the tension (and overlap) between Islamic jurisprudence and international humanitarian law: we report on how jihadists are interpreting Islamic edicts, and how humanitarians are using those same principles to further access.
Do humanitarian norms exist in Islamic law?
As one expert of international humanitarian law (IHL) and Islamic law put it: Islam has always handcuffed its fighters hands.
What are the sources of Islamic law?
The primary sources of Islamic law are the holy book, the Koran; the teachings and practices of Prophet Muhammad, the Sunnah; and the military conduct of the Caliphs and military commanders of the time.
However, at times, these sources can be seen to contradict each other. As such, Islamic law is a jurists law, says Andrew March, associate professor of Islamic law at Yale University. It is determined by scholars.
Scholars have translated these sources into a legal system through two recognized methods – Ijma Ulama, the unanimous consensus of scholars, and qiyas, analogical or deductive reasoning which have themselves become sources of law. Islamic law is also shaped by commentaries and rulings, known as fatwas, by Muslim scholars.
Jurists developed the Islamic law of nations known as the siyar to regulate the conduct with non-Muslim states during the rise of Islam. This is the basis of the rules of war, which were first codified by Muslim jurist Mohammad Ibn al-Hassan al-Shaybani in the eight century AD.
More than a millennium before the codification of the Geneva Conventions, most of the fundamental categories of protection which the Conventions offer could be found, in a basic form, in Islamic teachings.Islamic norms emphasize restraint and stress the importance of not doing more harm than is necessary to accomplish the goal at hand.
While according sanction to fighting in self-defence[the Koran] enjoins concurrently, humanitarian rules of warfare to mitigate the human suffering it inflicts, writes former Pakistani Foreign Minister Agha Shahi in his book The Role of Islam in Contemporary International Relations.
Fight in the way of Allah with those who fight with you, and do not exceed the limits, says the Muslim holy book, the Koran, surely Allah (God) does not love those who exceed the limits.
Much like in IHL, Muslim jurists balanced practical interests against various imperatives, writes Khaled Abou El Fadl, a professor of Islamic jurisprudence at the University of California, Los Angeles (UCLA). Muslim juristic discourses were neither purely functional nor moralistic. Even more, they were far from dogmatic or essentialist in nature.
The actions and statements of the Prophet Muhammad and of the early Caliphs of Islam point to strong humanitarian considerations.
In a famous decree, Abu Bakr al-Siddiq, the first Caliph, told his military commander: Stop, O people, that I may give you ten rules for guidance on the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies; do not kill a woman, a child, or an aged man; do not cut down fruitful trees; do not destroy inhabited areas; do not slaughter any of the enemies sheep, cow or camel except for food; do not burn date palms, nor inundate them; do not embezzle (e.g. no misappropriation of booty or spoils of war) nor be guilty of cowardlinessYou are likely to pass by people who have devoted their lives to monastic services; leave them alone.”
According to Islamic tradition, Muslim rulers have the right and even obligation to suspend the law in the interest of justice. In addition, the evidentiary standards of many Islamic laws are so high that they should, in principle, rarely be implemented.
Still, for Mohammad Fadel, associate professor of law at the University of Toronto, tension sometimes exists between morality and legality; in other words, between religious values – which tend to be on the more humanitarian side and thats reflected in popular Muslim discourse and technical, juridical discourse which tends to be a lot more abstract and a lot more concerned with philosophical problems.
Can civilians be targeted?
Specific prohibitions on the methods of warfare were given by the Prophet and the first Caliphs (rulers of the Muslim community) to Muslim warriors as they went into battle.
Before departing for the conquest of the Levant, Caliph Abu Bakr told his warriors: When you meet your enemies in the fight, behave yourself as befits good Muslims. If Allah gives you victory, do not abuse your advantages and beware not to stain your swords with the blood of one who yields, neither you touch the children, the women, nor the infirm, also men, whom you may find among your enemies.
However, as mentioned above, scholars disagreed over whether disbelievers could be killed simply for their disbelief or only if they posed a danger to Muslims.
Followers of the former school of thought justified the killing even of women and children disbelievers who refused to either convert to Islam or live under Muslim rule and pay a tax, citing a verse from the Koran: When the sacred months have passed, slay the idolaters wherever you find them (9:5). The Prophet is also reported to have said: I have been commanded to fight mankind until they say There is no God but Allah.
But Abdelhamid Kishek, a prominent Sufi sheikh during the jihadist attacks on nightclubs and bars in Egypt in the late 1980s and 1990s, argued this Kill the infidel mentality had no basis in Islamic logic: Satan, he told Salafists at the time, promised God that if he was kept alive, he would send Adam, the first Prophet, to Hell. Islams purpose was to show people the light. By killing the so-called infidels and sending them to Hell, Salafists were not helping God; they were helping Satan.
By the 10th century, according Abou El Fadl, the predominant view was that only those who fought could be killed.
God does not forbid you to show kindness to unbelievers who do not fight you because of your faith or drive you from your homes, the Koran says (60:8-9). Do not promote disorder in the earth after peace has been established (7:56).
How is Islamic law interpreted?
“Islamic law should be understood as a field of debate and disagreement, says March. There is usually no single Islamic position on a question. Rather, the reasoning provided to justify one answer among the range of answers is what gives it more or less credibility, as judged by the Ummah, or Muslim community. The process of interpretation of these sources is called fiqh, or Islamic jurisprudence.
Still, many Muslim fighters misinterpret the Koran, says one Palestinian aid worker who has trained armed groups across the Muslim world on international humanitarian law (IHL), because they do not understand the context in which a particular verse was revealed or because they adopt only the parts of it that suit them.
Interpretations also differ over time. The way the world was conceived in classical times is very different than the way modern jurists frame it, says Mohammad Fadel of the University of Torontos Faculty of Law. As such, there is debate between those who stick to medieval, literalist interpretations of the jurisprudence, and those who aim to re-interpret it in line with the Islamic scholarly tradition of renewal.
There is much theological debate over whether specific verses of the Koran apply to the Prophets time only or to all Muslims forever; and whether they are meant literally or figuratively.
Still, even when legal norms are fairly undisputed, exceptions exist. For example, an illegal act can be permissible under necessity or if it is in the public benefit. Muslims are permitted to eat pork, for example, if dying of starvation.
Finally, there is also a regional dimension some areas are simply more conservative than others. With states licensing imams, governments are also dabbling in jurisprudence and asserting political control.
In a situation of invasion or occupation, all those associated with the effort, even if not carrying arms, are considered legitimate targets and all Muslim civilians are under obligation to fight to defend the homeland.
Destruction of civilian property
In his address to warriors, Caliph Abu-Bakr added: In your march through the enemy territory, do not cut down the palm, or other fruit-trees, destroy not the products of the earth, ravage no fields, burn no housesLet no destruction be made without necessity.
He reportedly went so far as to say that when Muslim armies ran out of food, they should only take food from civilians in enemy territory enough for one meal.
Interpretations shifted over time, with Abu Hanifa, founder of the Hanafi school of Sunni Islam, concluding in the 8th century that everything which fighters could not conquer should be destroyed, including homes, churches, trees, and livestock.
But the overwhelming majority of scholars argued against destruction of property.
Prisoners of War
Torture and mutilation are strictly forbidden under Islamic law, regardless of the enemy. The Prophet is reported to have said: God will torture those who torture people on earth.
According to Bennoune, except in cases of necessity, the Prophet prohibited killing enemies by burning or drowning, as these methods inflicted unnecessary suffering. But some scholars say that while he opposed treacherous killing and mutilation, he allowed Muslims to retaliate in kind against such practices.
Accountability for war crimes
According to Bennoune, Islamic tradition outlines clear standards of responsibility and accountability.
The following hadith encourages fighters to refuse to commit war crimes on the battlefield: It is obligatory for one to listen to and obey a Muslim rulers orders, unless these orders involve disobedience to God; but if an act of disobedience to God is commanded, it is not listened to or obeyed.
In one example, the Prophets companion, Abdullah bin Umar, refused to comply with an alleged order from his commander Khalid bin Walid, one of Islams greatest generals, to kill all prisoners since bin Umar saw it as unjust. His decision was later vindicated by the Prophet.
In addition, Bennoune says, fighters who committed war crimes during the Prophets time were subject to punishment.
After the conquest of Egypt, the son of governor General Amr ibn al-As beat an Egyptian Copt without legal justification. Caliph Omar, the Muslim ruler at the time, whipped ibn al-Ass son as punishment.
However, according to Fadel, criminal and civil liability only applies if a Muslim power violates the rules of conduct against other Muslims. Islamic law does not provide any remedial regime for violations of those restraints against non-Muslims. There could be moral blame, but there is no legal liability as such.
Source: thenewhumanitarian.org
