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Humanitarian law and Islam

A unique gathering of religious and modern legal experts took place in the Pakistani capital Islamabad at a conference organized by the ICRC and the International Islamic University of Islamabad. The aim was to discuss the protection of war victims in the light of Shari’a (Islamic law) and international humanitarian law. Common values and respect for human dignity were explored from both perspectives.

AMID increasing polarization between civilizations following the 11 September 2001 attacks and several conflicts in the world, the conference was an attempt to help Muslin scholars articulate the Islamic interpretations and explanations on the subject. During this meeting, international humanitarian law (IHL) experts and Muslin scholars, professors and teachers of law and Shari’a could express and listen to the different perceptions and eventually notice certain useful convergences between the two bodies of law.

“The protection of human life, property and dignity... these are universal Islamic doctrines that predate IHL,” said the Syrian Islamic scholar, Dr Wahbeh Al-Zuhili, who is considered an authority on Islamic law. This was also pointed out by Dr Ameur Zemmali, ICRC adviser, pointed out in his presentation on the Geneva Conventions and their additional Protocols, their history, interpretation and application.

Islamic scholar Dr Wahbeh Al-Zuhili chatting with some students during the Islamabad conference. © CICR
 

Conduct of war

With the advent of modern warfare and changing patterns of conflict, IHL was developed to relieve and reduce human suffering in times of conflict. The Shari’a governs the Muslim way of life, covering not only religious, administrative and judicial aspects but also the conduct of war. The sources of Islamic law are the Qura’an and the Tradition of the Prophet Mohammad (Sunnah). Evolution in these laws can be followed through documented consultations and consensus of religious scholars over the last 1,400 years.

It was because of this primacy of the concept of protection of human life, particularly of non-combatants, that Muslim scholars declared the catapult as an un-Islamic weapon for its ability to inflict indiscriminate havoc. However, the development of warfare throughout history led Muslim scholars to formulate new rules.

According to Professor Salah Abdul-Badi Shalaby from Egypt, Islam clearly differentiates between a combatant and a non-combatant. Islamic rules also lay out comprehensive guidelines for the protection of non-combatants, which are similar to the provisions enshrined in IHL. One such shared provision is the importance of a sanctuary within war zone. Similarly, both laws strongly advocate humane treatment of the enemy. Interestingly, Islamic law also provides for the provision of water to enemy camp.

The treatment of prisoners of war also clearly outlined in Islam as it is the IHL, both advocating compassion to the captured enemy. “Treat people the way you want them to treat you,” said a senior Saudi scholar Dr Abdul Rahman bin Zayd al-Zinedi, explaining Islam’s emphasis on forgiveness. There is also coherence between the two systems of law over treatment of medical personnel, women and children, the injured, the missing, the dead and displaced people.

Although Islam suggests reciprocity of action, the Muslim scholars present at the conference were of the view that forgiveness and compassion are preferred acts in Islam. It was perhaps due to this reason that Muslim scholars trained to select the more flexible verses from the Qur’an concerning similar issues. Explaining this practice, the Syrian scholar Dr Wahbeh Al-Zuhili said, “Although the Qur’an may have more than one verse pertaining to a certain issue, the scholars choose the one that is flexible when formulating a law.”

Therefore, Islam prohibits immorality, humiliation, neglect and excesses the dignity of human beings, even when committed against the enemy. Collateral damage, too, is covered by the Shari’a, prescribing compensation for loss of life and property to non-combatants, either Muslims or non-Muslims, in the course of a conflict. Ethnic cleansing is also strictly prohibited by Islam, as all races are the creation of God — another common ground with IHL.

Despite an agreement between IHL and Islamic law on the sanctity human life, property and dignity and their focus on achieving peaceful coexistence, mutual respect and cooperation in all spheres of life, there still remain certain areas where opinion differs. This may be due to interpretations that more political than academic.

Grey areas

Although the objective of the conference was to discuss the relevant provisions of both legal systems from academic point of view, the situation in Palestine, Afghanistan and Iraq, among others, raised some argument over the application of IHL, which led to questions regarding legitimacy of military action particularly in Iraq. ICRC experts explained that IHL deals with limiting conflict’s effects on victims and not with the legitimacy of a conflict. But many participants called this a disparity in the international law, which on the one hand, legitimizes war by the powerful nations and on the other hand, restricts the options of the aggressed to defend themselves. “We need to address asymmetrical distribution of power in the world whereby a weak party is at the mercy of the sophisticated warfare of a more powerful enemy,” commented one student, a concern endorsed by many Muslim scholars at the conference. “Certain military actions by powerful nations are considered legitimate wars, but defence by Muslims is dubbed as terrorism, widely condemned by the West. Similar movements, for example in European countries, do not come under the purview of the global war on terror and are shrugged off as internal matters of those states,” said a professor of Islamic Law at the Islamic University in Islamabad.

 

A Christian and an Arab playing chess. Miniature from a manuscript of a parlour game made for King Alphonse X. © ESCURIAL LIBRARY, MADRID

 

Bridging differences

Despite its many overlaps with the Islamic law, Muslim scholars maintained that IHL is a man-made law and only acceptable to Muslims so long as it does not conflict with the Shari’a. Islamic law has greater primacy for Muslims as it is a matter of their faith that allows no room for deviation. However, the realization that there are more similarities between IHL and Islamic law than differences in both content and spirit remains an important outcome of the conference. There was a consensus about the neutrality of ICRC that gives it the credibility to access victims of conflict in even the most intense war zone, without any distinction. Contact and communications will clear perceptions and construct a reality that is in the interest of humankind. The conference broke new ground and as Dr Mehmood Ghazi, president of the Islamic Universitysaid: “This must continue.”

Hadia Nusrat
Hadia Nusrat is a journalist based in Islamabad.

Echoes from participants

Scholar Salbiah Ahmad, Malaysia: “The first requirement to building bridges and trust between Muslims and the international community is transparency — this sharing between IHL and Shari’a experts is a positive step in that direction.”
Dr Zemmali, ICRC adviser in Cairo: “The participants to this conference were able to establish that there were no major contradictions between secular international humanitarian law and the relevant principles of of Shari’a in times of war.”
Professor Ismail Mohammad Hanafi Al Haj, Sudan: “Apart from the fundamentals of Shari’a that cannot be altered, this conference has answered and raised many questions that will continue to be discussed among scholars over time.”


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