1. Islamic Law and International Law
Abdullahi Ahmed An-Na'im
Emory School of Law
The premise of this presentation is that the relationship between Islamic law and international law should be seen in terms of a more inclusive approach to the latter, rather than conflict or competition between the two. In my view, there can only be one international law, but it has to be truly international by incorporating relevant principles from different legal traditions, instead of the exclusive Euro-centric concept, principles and institutions of international law as commonly known today. When the essential nature and purpose of international law are clarified in the present global context, I will argue, one will find that Islamic law can be fully supportive of the possibility of international law.
But this view of the relationship between these two legal systems need to be founded on a clear understanding of differences in the nature and development of these two legal systems, as well as appreciation of the political and sociological context in which they operate. In view of those differences, I will suggest, it is not surprising to find some normative and institutional tensions on both sides, which are probably true of the legal traditions of other societies in relation to international law, rather than being peculiar to Islamic law or Islamic states as such.
Accordingly, I will argue that there are serious concerns with the legitimacy and practical efficacy of international law, which face all human societies with the need to re-examine their own assumptions and practices in the field. That is, the normative and institutional and/or practical difficulties facing international law today are neither due to its inherent inconsistency with Islamic law as such, nor attributable to Islamic societies alone. However, the willingness and ability of Islamic societies to positively confront the theoretical and practical challenges facing their own traditions will depend on a similar corresponding engagement by other societies.
To clarify and develop these themes, I will first attempt to clarify and elaborate on might be called the normative and institutional limitations of traditional international law, especially in the face of the challenges of intensified globalization that are diminishing the territorial sovereignty of the state. This is clearly illustrated, I will suggest, by a critical examination of challenges from a variety of non-state actors, including those engaged in international terrorism, as well as the present “colonization” of Iraq by the United States and its allies. The underlying question in this part of the presentation is about the legitimacy and credibility of the idea of international law itself. I conclude this part of the presentation by affirming the imperative need for a credible and effective international law, despite its present limitations and practical risks.
The second part of the presentation will examine possibilities of cooperation and confrontation with the Islamic tradition at large, whether called Shari'a (the religious law of Islam), or fiqh (Islamic jurisprudence). In this part I will try to clarify the normative and epistemological differences between Islamic law and international law, including the nature and sources of legal authority for each of the two legal systems, and consequent tensions in their institutional framework and normative content.
Against that background, the last section of the presentation will explore ways of promoting a positive and mutually respectful interaction between Islamic law and international law. Given the premise and objectives of the presentation as a whole, I will raise in this section questions about the terms and mechanisms of interaction between the two legal systems, while emphasizing the primary of international law as the sole legal framework for international peace and security, trade and economic relations, diplomatic relations, inter-governmental organizations and other aspects of international relations in the present global context.
2. “'As-Salamu ‘Alaykum?': Humanitarian Law in Islamic Jurisprudence”
Rutgers School of Law, Newark
This talk will examine Islamic legal doctrine in the field of humanitarian law and consider the historical contributions made by Islamic law to contemporary international humanitarian law (such as the Geneva Conventions of 1949). Humanitarian law has been defined by the International Committee of the Red Cross, its modern guardian, as the “international rules… specifically intended to solve humanitarian problems arising from international or non-international armed conflicts and which… limit the methods and means of warfare.” The goal of this talk is neither to unfairly attack nor to apologize for Islamic law in this area, but to attempt a fair overview of Islamic humanitarian precepts vis-à-vis armed conflict. The perspective offered will be that of a specialist in contemporary public international law, rather than of a specialist in Islamic law.
The following central questions will be considered: What is the nature of the Islamic law of nations (as-siyar), of which its version of humanitarian law is a component? What protections does Islamic legal doctrine offer to those we today would call civilians or prisoners of war and to others in time of conflict? Does it otherwise limit the conduct of hostilities in significant ways? Some general comparisons will be made between Islamic humanitarian law and its contemporary international counterpart (with an awareness of the historical problems such a comparison inevitably raises). The talk will argue that the history of contemporary international humanitarian law must be revised to include the contributions made by Islamic civilization.
As commonly written, the history of contemporary international humanitarian law is a relatively short one, and drawn solely from the European tradition. A leading expert in Islamic international law, Majid Khadduri, noted that “[T]ext writers on the modern law of nations, although appreciating the value of comparative method, have drawn almost exclusively on Western experience.” (Majid Khadduri, The Islamic Law of Nations: Shaybani's Siyar xii (1966)). The approach he describes neglects the historical reality that Islamic law constitutes one of the earliest attempts to institutionalize humanitarian limitations on the conduct of conflict.
Specific prohibitions on the methods of warfare were first elaborated in detailed instructions given by the Prophet Muhammad, and later by the first Caliphs, to Muslim warriors being sent into battle. Women, children, and other noncombatants were recognized as a separate category of persons entitled to various degrees of immunity from attack, a development that may be seen as the birth of the “civilian.” Prisoners of war were not to be executed and elaborate instructions for their care were developed. Fighters who breached these rules were supposed to be punished. Even the environment was not to be subjected to unlimited onslaught. There were also more negative aspects of the rules, starkly visible in light of contemporary norms, which cannot be overlooked either. For example, prisoners of war could be enslaved in certain circumstances, the definition of combatants was less generous than the modern definition, and not all jurists accepted that noncombatants were to be spared.
Still, the Islamic rules of war were far ahead of their time. Shaybani, a foundational writer in the area, wrote in the 8th century A.D., while Grotius, whom the Europeans consider “the father of international law” did not attempt to codify the law of war until the early seventeenth century.
Ultimately, claiming sole authorship of contemporary humanitarian law is absurd for any legal or cultural tradition. What is crucial is the recognition of the multicultural roots of this body of law, including its important roots in the Islamic legal tradition.
siyar: the Islamic version of public international law
Abdullahi An' Naim, Toward an Islamic Reformation (1990).
Cherif Bassiouni, “The Protection of Diplomats Under Islamic Law,” 74 American Journal of International Law 609 (1980).
Karima Bennoune, “'As-Salamu ‘Alaykum?': Humanitarian Law in Islamic Jurisprudence,” 15 Michigan Journal of International Law 605-643 (Winter 1994).
Mohammed Draz, “Le Droit Internationale Public et L'Islam,” 1 Revue Internationale de la Croix Rouge 194 (1952).
Maryam Elahi, “The Rights of the Child Under Islamic Law: The Prohibition of the Child Soldier,” 19 Columbia Human Rights Law Review 259 (1988).
Majid Khadduri, War and Peace in the Law of Islam (1955).
-------------------, The Islamic Law of Nations: Shaybani's Siyar (1966).
Hans Kruse, The Foundation of Islamic International Law (1956).
Ibrahim Shihata, “Islamic Law and the World Community,” 4 Harvard International Law Journal 101 (1962).