Islamic International Law and the Right of Self-Defense of States
Author | Abdul Ghafur Hamid @ Khin Maung Sein |
Position | LL.B. (Yangon), LL.M. in International Law (Yangon), Ph.D. (IIUM), Professor of Law and Coordinator of the International Law and Maritime Affairs (ILMA) Research Unit of the International Islamic University Malaysia |
Pages | 67-101 |
Page 67
‘Shari’ ah’is an Arabic word meaning the path to be followed. It is the path not only leading to Allah,1 God Almighty, but believed by all Muslims to be the path shown by Allah, the Creator Himself. The Shari’ ah, or Islamic law, is based on unqualified Page 68 submission to the will of Allah and it embraces all aspects of life. Islamic international law is that part of Islamic law which deals with inter-state relations. Although the original idea of Islamic international law is peace, the Classical jurists used the word ‘jihad’in a narrower sense and created the notion of a perpetual war between ‘dar al- Islam’and ‘dar al-harb’. Detractors of Islam have almost exclusively focused on the warlike aspect of ‘jihad.’
The reconsideration of the classical doctrine is imperative as all Muslim countries are now peaceful and active members of the international community and there is no state of war between Muslim and non-Muslim States. This fundamental change of circumstance calls for a new ‘ijma’on the basis of the two primary sources of Islamic law: the Quran and the Sunnah. The relevant ayat from the Quran must be interpreted not in isolation but in their context and in the light of the background of the revelation. According to a number of modern Islamic scholars, such an interpretation clearly paves the way for the revival of the original idea that Islam prohibits aggressive war and that the essence of jihad is self-defense.
The paper categorizes self-defense into four types and elaborates the essential conditions of a lawful self-defense under Islamic international law. It concludes that Islamic international law can contribute much to the present world order by providing moral and ethical values that modern international law is lacking.
Part of the Western misrepresentation of Islam was that Islam had no system of international law, no respect for treaties, no concept of human rights and no regard for the rights of neighbouring States.3
The truth is that the Islamic jurists developed a special branch of the Shari’ ah, known as Al-Siyar,4 to deal with questions of international law. Not many people will know thatPage 69the world’ s earliest treatises on international law as a separate topic were in fact Kitab Al-Siyar Al-Sagir and Kitab Al-Siyar Al-Kabir written by Muhammad Al-Shaybani in the 8th century. Weeramantry acknowledges the fact that the Islamic scholars are pioneers in the early development of international law:
[W]ithin two centuries of the foundation of Islam there were already commentators and lecturers on Islamic international law. Among them were Abu Hanifa, the founder of the Hanafi School (699-767), Al-Shaybani (749-805), commonly regarded as the father of Islamic international law, and Al-Shafi’i (767-820), the celebrated founder of the Shafi’ ite School. Al-Shaybani’ s extensive treatise is perhaps the most detailed early work, while Shafi’i’s Kitab al-Umm contains an exposition of numerous principles of international law.5
It is to be noted that these detailed works on international law were about 800 years earlier than that of Hugo Grotius who is generally regarded as the father of international law. The Dutch jurist published his work De jure belli ac pacis (On the Law of War and Peace) only in 1625, the time of the commencement of the Western international law. One of the main principles of Grotius was the proposition that treaties should be observed. This concept of pacta sunt servanda had long been a foundation stone of Islamic international law. The Messenger of Allah (peace be upon him) himself had set forth this principle and solemnly called upon Muslims to perform their treaties in good faith.
Among the most important contributions of Islamic international law were its definite rules on prisoners of war, protection of civilian populations, limitations of belligerent activities and reprisals, asylum, pardon, safe conduct, diplomatic immunity, negotiations and peace missions.6
As Islamic international law is a component part of the Shari’ ah, its sources are the same as that of the Shari’ ah. The primary sources are the Qur’ an and the Sunnah, and the secondary sources are the Ijma, and the Qiyas, both of which considered by many as methods of interpretation based on ‘ijtihad’ .7 The Qur’ an is more authoritative than any book of statutes, for while statutes are the work of man, every word in the Qur’ an is, for Muslims, the word of Allah, God Almighty. It provides for the Islamic world a single source of that higher law which stands above all other man-made laws. It is also to be noted that the Qur’ an, as the word of God, is unchangeable. For the Muslim world, the Qur’ an is unalterable and everlasting.
Page 70
It is, however, to be admitted that after the collapse of the Ottoman Empire,8 the last empire ruled by Muslim sultans that lasted from 1299–1923,9 there has not been any more practical application of Islamic international law.10 The Muslim empire was replaced by a number of Muslim nation-states. These Muslim states have joined the United Nations and adhered to various international treaties. They are now part and parcel of the international community and do comply with contemporary international law together with their non-Muslim counterparts. As a result, Islamic international law is, like many other areas of the Shari’ ah (Islamic law), largely dormant. Nevertheless, it does not mean that the study of the subject is of academic value only. The values, norms, and principles of Islamic law, in general, and Islamic international law, in particular, are deeply carved into the heart of every Muslim around the world, representing one-fifth of the entire world population.
The Arabic word ‘jihad’does not mean ‘war.’ 11 It is derived from the verb “jahada’ which means “to exert, to strive hard, or to make strenuous effort.”
The jurists have distinguished four different ways in which the believer may fulfill his jihad obligation: by his heart, his tongue, his hands, and by the sword.
Page 71
The believer may fulfill the jihad duty by heart in his efforts to combat the devil and to escape his persuasion to evil. This type of jihad, which may be called the ‘spiritual jihad,’is so significant in the eyes of the Messenger of Allah (Peace be upon him). “The greatest jihad” , says the Messenger of Allah (Peace be upon him), “is the fight against the evil passions of oneself.”
In other words, the doctrine of jihad carries a twofold significance in Islam: the purely missionary activities of a Muslim and his defense of the Faith in a physical sense. The first duty - the duty to invite people to Islam - is a permanent duty laid upon all Muslims of all ages; while the second is a duty which arises upon contingencies.
In the first place, the Qur’ an speaks of a jihad to attain to Allah: “And those who strive in Our (Cause), We will certainly guide them to Our Paths.”
The Qur’ an does not recommend war for propagation of Islam. Compulsion in religion is prohibited. Compulsory methods cannot be the means of...
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