Western and Islamic laws are not so different

Abigail Watson

The rise of the Islamic State of Iraq and Syria (ISIS) and the attack on the French publishing house Charlie Hebdo a few weeks ago have added “credence” to the already present belief that Islam is an inherently violent religion. In light of this, I will compare Western laws of war, also known as international humanitarian law (IHL), and Islamic laws of war to show those who claim to use violence in the name of Islam are breaking Islamic laws as much as they are breaking laws of the West. While this article cannot speak for all the interpretations of Islam it reflects the values of the vast majority of Muslims in the world – including prominent Muslim leaders – who have spoken out against these groups.

Queen Rania of Jordan denounced ISIS as an "irreligious minority" at the Abu Dhabi Media Summit (Flickr Creative Commons)

Queen Rania of Jordan denounced ISIS as an “irreligious minority” at the Abu Dhabi Media Summit (Flickr Creative Commons)

IHL is a body of international law that began to be developed by treaties and agreements – mostly between European powers – in the 19th Century then, after World War Two, its rules were formalised in the Geneva Conventions 1949 (which were added to in 1977 with the two Additional Protocols). Its rules have also been developed by judicial decisions, including those immediately after the Second World War as well as more recent trials set up by the international community such as the International Tribunal of the Former Yugoslavia[1]. International customary law, documented extensively by the International Committee of the Red Cross, has also elaborated some areas of IHL and “filled in the gaps”.

The drawing up of the 1949 Geneva Convention (Flickr Creative Commons)

The drawing up of the 1949 Geneva Convention (Flickr Creative Commons)

Islamic law’s primary sources are the Qu’ran and the Tradition of the Prophet Mohammad (Sunnah) – these are both widely agreed upon. The secondary sources – scholarly interpretation and the historical precedent set by statements and actions of the Caliphs who came after the Prophet[2] – are less agreed upon.

IHL and Islamic laws of war have a lot in common and, in fact, Islamic may have informed IHL. Some have claimed the codification of Islamic law began 1 AH/ 622 AD – with the Constitution of Madinah providing equality before the law[3]. Many account the earliest scholarly work on international law to Islamic scholar Muhammad Al-Shaybani in the 8th Century[4]. Thus, 800 years before Hugo Grotius – who is considered the father of IHL – Islamic laws of war had been developed[5]. Christopher Werameantry provides evidence that Grotius was influenced by Islamic thinkers[6].

The essential values of IHL are, arguably, its “four core principles”: proportionality, distinction, unnecessary suffering and military necessity. Proportionality requires civilian casualties not excessive in relation to the concrete military advantage. This principle accepts there will be civilian deaths but aims to minimize them[7]. Distinction requires that civilians (and civilian objects) are distinguished from combatants (and military objects); and that only combatants and combatant objects can be targeted. In IHL the term civilian applies to a wide range of “noncombatant” targets including religious and medical personnel, medical and religious sites[8]. Further, if combatants are placed hors de combat “through surrender, capture or injury” they cannot be targeted[9]. Unnecessary suffering prohibits the use of weapons, materials and methods which cause suffering disproportionate to the military advantage. Finally, military necessity allows all actions, not prohibited by IHL, to be used for security but requires no more violence or force is exerted than is necessary[10].

The four core principles of IHL are prominent in Islamic laws of war. As Syrian Islamic scholar, Dr Wahbeh Al-Zuhili notes “[t]he protection of human life, property and dignity… are universal Islamic doctrines that predate IHL”. Proportionality is fulfilled because reconciliation is so important in the Muslim faith that it obligates no excessive force to allow for peace after war[11]. In fact, Islamic laws show more consideration for excessive deaths than IHL, which focuses only on civilian casualties. The Qur’an says “Fight in the cause of Allah those who fight you, but do not transgress limits; for Allah loveth not transgressors”[12].  In terms of distinction, Islamic laws of war “lay out comprehensive guidelines for the protection of noncombatants”. The Prophet saw the corpse of a woman lying on the ground and said “she was not fighting. How then she came to be killed?”. Similarly, Caliph Abu Bakr said to his commander “kill not little children, nor old people, nor women”. Sacred places are protected under Islamic laws of war. The Qur’an says “Do not kill monks in monasteries” and “Do not kill the people who are sitting in places of worship”. Similarly, the Prophet said “[d]o not attack a wounded person”.

Unnecessary suffering has been dealt with by Islamic jurists long before the creation of IHL. It was because of this concept that Muslim scholars declared the catapult as un-Islamic. Of military necessity, “Islamic norms stress the importance of not doing more harm than is necessary to accomplish the goal at hand”.

This article seeks to highlight the many in ways in which Islam encourages peace and shares many values with the West. Those who commit acts of atrocities in the name of Islam do not speak for all those who practice the religion and should not be allowed to add “credence” to the idea that Islamic is inherently violence – which it is not.

Protesters denouncing the acts of the Charlie Hebdo attackers (Flickr Creative Commons)

Protesters denouncing the acts of the Charlie Hebdo attackers (Flickr Creative Commons)

[1] Solis, G (2010) “The Law of Armed Conflict: International Humanitarian Law in War”. Cambridge University Press

[2] Tabassum, S (2011) “Combatants, not bandits: the status of rebels in Islamic law” in International Review of the Red Cross Vol 93 No 831 March pp121-139

[3] Bassiouni, C (2014) “The Shari’a and Islamic Criminal Justice in Time of War and Peace” Cambridge University Press

[4] Hamid, A and Khin Maung Sein (2009) “Islamic International Law and the Right of Self Defense of States” J.E. Asia and International Law 67

[5] Hamid, A and Khin Maung Sein (2009) “Islamic International Law and the Right of Self Defense of States” J.E. Asia and International Law 67

[6] Cockayne, J (2002) “Islam and international humanitarian law: From clash to a conversion between civilizations” in RICR Vol 84 No. 847

[7] Dinstein, Y (2002) “Discussion: Reasonable Commanders and Reasonable Civilians” in International Law Studies volume 78: Legal and Ethical Lessons of NATO’s Kosovo Campaign  pp 212-222

[8] Wyngaert, C and Steven Dewulf (2011) “International Criminal Law: A Collection of International and Regional Instruments. Fourth Revised Edition” Martinus Nijhoff Publishers

[9] Frowe, H (2013) “The Ethics of War and Peace: An Introduction” Routledge

 

[11] Bassiouni, C (2014) “The Shari’a and Islamic Criminal Justice in Time of War and Peace” Cambridge University Press

[12] Hamid, A and Khin Maung Sein (2009) “Islamic International Law and the Right of Self-Defense of States” J.E. Asia and International Law 67

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