Islamic Law and the Law of Armed Conflict

The Conflict in Pakistan

Niaz A Shah

• Publisher: Routledge
• Year: 2011
• Print ISBN: 9780415859639
• eBook ISBN: 9781136824678
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Islamic Law and the Law of Armed Conflict: The Conflict in Pakistan demonstrates how international law can be applied in Muslim states in a way that is compatible with Islamic law. Within this broader framework of compatible application, Niaz A. Shah argues that the Islamic law of qital (i.e. armed conflict) and the law of armed conflict are compatible with each other and that the former can complement the latter at national and regional levels. Shah identifies grey areas in the Islamic law of qital and argues for their expansion and clarification. Shah also calls for new rules to be developed to cover what he calls the blind spots in the Islamic law of qital. He shows how Islamic law and the law of armed conflict could contribute to each other in certain areas, such as, the law of occupation; air and naval warfare; and the use of modern weaponry. Such a contribution is neither prohibited by Islamic law nor by international law.

Shah applies the Islamic law of qital and the law of armed conflict to a live armed conflict in Pakistan and argues that all parties, the Taliban, the security forces of Pakistan and the American CIA, have violated one or more of the applicable laws. He maintains that whilst militancy is a genuine problem, fighting militants does not allow or condone violation of the law.

Islamic Law and the Law of Armed Conflict will be of interest to students and scholars of international law, Islamic law, international relations, security studies and south-east Asian studies.

1 Introduction

The purpose of our research for the past few years has been the application of Islamic law and international law in Muslim states. We have observed two phenomena: a scholarly debate on the relationship of Islamic law and international law and the reality of Islamic law in Muslim states and international law as they exist and operate today.

The scholarly debate is polarised: Islamic law is criticised for its incompatibility with international law, especially human rights law, and international law is criticised for its secular and Western origin. This criticism of both legal systems has led to the creation of exclusionary and triumphalistic theories. The followers of exclusionary theory can be put into two categories: Muslim religious scholars and secular scholars. Muslim religious scholars are opposed to the application of international law in Muslim states. They want the application of laws based or derived from divine wisdom contained in the two primary sources of Islamic law, i.e. the Koran and the Sunnah (the model behaviour of the Prophet Muhammad). For them, divine wisdom is the ultimate measure for everything, and any nonconforming rule must give in to Islamic law. The secular scholars, who are mainly Western, are against religious law and want to enact and apply laws based on and derived from human intellect through debate and agreement. They are opposed to any rule that is not derived from this source through this process. For them man is the measure of everything. Both categories of scholar want to exclude the application of the other. This religious and secular dichotomy has led to the creation of triumphalistic theory. The thrust of the triumphalistic theory is which legal principle, Islamic or international, should prevail in case of a conflict. The secularists want international law to prevail whereas Muslim religious scholars want Islamic law to prevail over international law. In some cases, both groups of scholars stick to their arguments without any clear logic and in a fashion which could be rightly described as arrogant. Hence we face two fundamentalist camps: Muslim fundamentalists and secular fundamentalists.

The legal reality in Muslim states today is that most Muslim states want the application of Islamic law in Muslim states. The constitutions of most Muslim states have given Islam the status of official religion and require that laws shall be enacted according to Islamic standards and that those laws conflicting with Islamic standards must be harmonised with Islamic standards. Examples of such constitutions are discussed later in the chapter. Many Muslim states have laws in force which they inherited from the colonial era. These laws are, however, allowed to remain in force because they are considered compatible with Islamic standards. The reality of international law today is that it is secular and is of Western origin (see Chinkin and Charlesworth 2004).

We argue for the compatible application of Islamic law and international law in Muslim states. Compatible application is possible for three reasons. First, neither Islamic law nor international law is exclusionary and triumphalistic in nature. Second, the most fundamental principles of Islamic law (i.e. nusus, explained later in the chapter) and international law (jus cogens, explained later in the chapter) are compatible. Third, Islamic fiqh rules, which are explained later in the chapter, and some statutory Islamic laws of Muslim states are incompatible with international law, but conflict among different rules could be dealt with through conflict-resolution mechanisms available in both international law and in Islamic law. First, international law also allows reservations and interpretive declarations which Muslim states could rely on. Second, Islamic fiqh rules are not infallible and could be reinterpreted through ijtihad which is discussed later in the chapter. The statutory Islamic laws of Muslim states are open to amendment and reinterpretation. Third, both Islamic law and international law allow following ‘the most favourable interpretation’ principle. When Muslim states become parties to an international legal treaty, it is binding on them and is a law which Muslim states want to follow. Islamic law allows following a rule that goes in favour of the public under the concept of maslahah, the rough translation of which is ‘public good or interest’. International law especially human rights law also allows following an interpretation which goes in favour of individuals. Therefore, international law can be applied in Muslim states in a fashion that is compatible with Islamic law.

Let us see whether international law or Islamic law are exclusionary and triumphalistic in nature. The application of international law is based on the free consent and good faith of state parties to various treaties. Any state can choose not to become a party to a specific treaty. Article 38 of the 1945 Statute of the International Court of Justice (ICJ) allows the contribution of Islamic law and Muslim states to international law in two ways. Article 38 recognises treaties, customs and laws of the ‘civilised nations’ as the primary sources of international law. Islamic law, in this sense, is a part of the primary sources of international law. Article 38 also recognises the judicial decisions of national superior courts and writings of the eminent publicists as secondary sources. The decisions of the superior courts of Muslim states and writings of the Muslim jurists, in this sense, are secondary sources of international law. International law does not seem to be exclusionary in nature. It is rather accommodative of Islamic law and other legal systems.

International law is also not triumphalistic in nature. Article 103 of the 1945 Charter of the United Nations provides a conflict mechanism for resolving a conflict between a Charter rule and any other agreement in which the Charter rule prevails (cf. Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, 2008). This mechanism, however, does not apply to a conflict between a Charter rule and a principle of municipal law. Customary international law binds all states except those who object to a particular custom, but no derogation is allowed from jus cogens, a class of customary international law. Article 53 of the 1969 Vienna Convention on the Law of Treaties (the Vienna Convention) defines jus cogens as ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. Article 53 also states that ‘a treaty is void’ if it conflicts with a jus cogens principle of international law. In this case too international law prevails but only in a conflict between a jus cogens and a principle of another treaty. The mechanism, again, does not apply to a conflict between a principle of international law and municipal law. Once a state has consented to abide by an international treaty, it cannot, later on, rely on its internal law for its failure to perform a treaty. International law is also not triumphalistic in nature.

Islamic law, especially in the scheme of the Koran (2:29), allows everything unless something is clearly prohibited or an obligation is imposed. Islamic law, generally speaking, is accommodative of rules from other legal systems that are not against the basic principles and objectives of Sharia. The Koran by its very nature is not exclusionary in nature. The Prophet Muhammad had also made covenants with non-Muslims. It means that the second source of Islamic law is also not exclusionary in nature. Muslim states can become parties to treaties with non-Muslim states. In general, Islamic law requires all legal principles to conform to the objectives of Sharia especially the nusus, but as we argue that there is no conflict between jus cogens and nusus, the question of triumphalism does not arise.

Our second argument is that jus cogens and nusus are compatible. Jus cogens are very limited in number. The commonly accepted jus cogens rules are: prohibition of genocide, torture, the use of force in self-defence only, self-determination and racial discrimination (United Nations High Commissioner for Refugees [UNHCR] 2006a). A nass (sing. nusus) is a clear and fixed rule of the Koran or the Sunnah which does not allow amendment or different interpretation than what is clearly stated (see Kamali 2003; Nyazee 2006). According to Lane’s Arabic–English Lexicon (1968), the nass in terms of the Koran and ahadith (pl. hadith, i.e. saying of the Prophet Muhammad) is an expression that makes specific reference to a statute or ordinance in the actual words of the Koran and the Sunnah without having to resort to interpretation. Nusus like jus cogens are very limited in number. The detailed comparative study of jus cogens and nusus could be the subject of an independent study but here it is sufficient to mention two examples in passing. International law prohibits genocide. Similarly, as we shall see in Chapter 2, Islamic law also prohibits genocide. Torture is prohibited both by international law and Islamic law.

Our third argument, as stated above, is that some fiqh rules and statutory Islamic laws of Muslim states might conflict with the principles of international law but such conflicts could be resolved through conflict-resolution mechanisms available in international law and Islamic law. First, international law also allows reservations and interpretive declarations on which Muslim states could rely, but reservation which is against the object and purpose of a treaty is not allowed. Several Western states have entered reservations or interpretive declarations to international treaties. For instance, the United Kingdom entered reservations to Article 25 of the 1951 United Convention Relating to the Status of Refugees specifying how it would provide health services to certain individuals under its National Health Service in accordance with its law (UNHCR 2006b). Second, Islamic fiqh rules are not infallible and could be reinterpreted through ijtihad. Islamic statutory laws can also be reinterpreted and amended. Third, both Islamic law and international law allows following the most favourable interpretation principle. When Muslim states become parties to international legal treaty, it is binding on them and is a law Muslim states wanted to follow. Islamic law allows following a rule that is in the interest of public under the concept of maslahah. International law especially human rights law also allows following an interpretation that is in favour of the public. We believe that the exclusionary and triumphalistic theories are untenable and that the most fundamental rules of international law and Islamic law are compatible. Conflicts among the principles of international law and fiqh rules and the statutory laws of some Muslim states are possible, but such conflicts could be resolved through different mechanisms provided in international law and Islamic law and the flexibility allowed by these.

A comparative study is required in order to find out which rules of Islamic law are compatible with international law and how international law can be applied in Muslim states in a compatible fashion. In the past, we have conducted comparative studies of Islamic law and international human rights law (Shah 2006) and the use of force in Islamic law and international law (Shah 2008). This study is a continuation of the same effort in the same spirit. It compares the Islamic law of qital with the law of armed conflict commonly known as international humanitarian law. The Islamic law on the use of force, i.e. jihad in self-defence (the jus ad bellum) is different to the Islamic law governing the conduct of an armed conflict, the law of qital (actual combat), i.e. the jus in bello. This study does not cover the jus ad bellum and is only focusing on the comparative study of the Islamic law of qital and the law of armed conflict. The correct term to describe that branch of Islamic law which governs the conduct of qital is the Islamic law of qital but in this study Islamic law and the Islamic law of qital are used interchangeably.

Islamic law and the law of armed conflict: a complementary approach

My thesis is that although the origins and histories of Islamic law and the law of armed conflict are different, both legal systems are compatible and can complement each other. Islamic law can complement the law of armed conflict at national and regional levels and contribute to its development at international level. The law of armed conflict can complement and contribute to the development of Islamic law at national and regional levels. We argue that most rules of Islamic law are compatible with the law of armed conflict. There are, however, areas which are less clear, for example, the rules on naval warfare. We call these the grey areas of Islamic law. There are aspects of current armed conflict which Islamic law do not cover at all, for example, air warfare and the use of different kinds of weapon, such as nuclear weapons. We call these the blind spots of Islamic law. We argue that the grey areas could be clarified and expanded and new rules could be developed to cover the blind spots through ijtihad (independent individual reasoning). Ijtihad can be institutional or individual. Institutional ijtihad means that state institutions such as parliaments and ...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• 1. Introduction
• PART I. The Islamic law of qital and the law of armed conflict
• PART II. The armed conflict in Pakistan
• PART III. Concluding remarks
• Select bibliography
• Index