Title Page
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Declaration ----------------------------------------------------------------
Certification
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Dedication
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Acknowledgement --------------------------------------------------------
Abstract
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Table of Contents
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List of Statutes /
Treaties ------------------------------------------------
List of Cases
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Abbreviations
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CHAPTER 1
1.0 GENERAL INTRODUCTION
1.0 Introduction
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1.1 Statement of Research problem
-----------------------------
1.2 Objectives
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1.3 Scope of the Research
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1.4 Methodology
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1.5 Literature Review
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1.6 Organizational layout --------------------------------------------
1.7 Justification of Research work
--------------------------------
CHAPTER 2
CONCEPT OF ISLAMIC LAW
2.0 Introduction
--------------------------------------------------------
2.1 Definition and
Scope---------------------------------------------
2.2 Sources and
Characteristic--------------------------------------
2.3 Nature and
Origin---------------------------------------------------
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CHAPTER
4
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ISLAMIC LAW CONCEPT
OF PEACE
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4.0
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Introduction ----------------------------------------------------------
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4.1Peace
in Islam ----------------------------------------------------------
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4.1.1 Nature of Peace in Islamic Law
-------------------------------
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91
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4.1.2
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94
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4.2 Means of Peace in Islamic Law
------------------------------------
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4.2.1
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Love and Clemency
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4.2.2
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Social Behavior------------------------------------------------------
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4.2.3
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Solidarity-------------------------------------------------------------
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117
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4.2.4
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Achieving Life Ambition
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119
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4.2.5
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Act of Governance --------------------------------------------------
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120
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4.2.6
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Legal Justice Assurance
------------------------------------------
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122
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4.2.7
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Social Equilibrium
--------------------------------------------------
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129
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4.3.
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Legal Constraints ---------------------------------------------------
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146
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4.3.1
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Source
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of Problems/Challenges in
War -----
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148
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4.3.2
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The
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Constraints
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152
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The Conquered Territory
-----------------------------------------
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156
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4.3.4
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The Belligerent and Neutral States.
---------------------------
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157
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4.4 Contributions of Qur’an, Sunnah,Qiyas and
Fatwa----------
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163
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4.4.1
The Holy Quran ------------------------------------------------------
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164
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4.4.2
Sunnah-------------------------------------------------------------------
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175
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4.4.3
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Qiyas ( Analogy)
-------------------------------------------------------
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184
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4.4.4
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Fat’wa --------------------------------------------------------------------
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190
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CHAPTER 5
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IMPACT
OF WAR ON GLOBAL PEACE AND SECURITY
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5.0
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Introduction
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198
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5.1
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Conflicts
in Africa -----------------------------------------------
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199
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5.1.1
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Rwanda
--------------------------------------------------------------
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200
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5.1.2
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Sierra Leone
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203
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5.2
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Iran-Iraq War -------------------------------------------------------
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204
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5.2.1
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Background
--------------------------------------------------------
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205
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5.2.2
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Diplomacy and International Involvement -----------------
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210
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5.2.3
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America’s role in the Iran-Iraq war ---------------------------
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212
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5.2.4
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Consequences
----------------------------------------------------
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218
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5.3
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Kosovo Genocide
------------------------------------------------
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220
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5.4
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The Israeli-Palestinian Armed Conflict
----------------------
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233
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5.5
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Intra-national conflicts
------------------------------------------
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247
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5.5.1
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Tunisia
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248
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5.5.2
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Egypt
---------------------------------------------------------------
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250
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6.0
INTERNATIONAL TREATIES AND RULES OF
CONDUCT OF HOSTILITIES
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6.0
|
Introduction---------------------------------------------------------
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253
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6.1
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Treaties and the Effect of Treaties
----------------------------
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253
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6.2
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Restrictions
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257
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6.2.1(a)
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Geneva-------------------------------------------------------
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262
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6.2.1(b)
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The
Hague--------------------------------------------------
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269
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6.2.2
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Precaution------------------------------------------------------------
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275
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6.2.3
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Proportionality
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278
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6.2.4
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Prohibitions of indiscriminate
attacks-------------------------
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279
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6.2.4.1 Terrorism---------------------------------------------------------
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280
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6.2.4.2
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Means of warfare
----------------------------------------------
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281
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6.2.4.3
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Methods of
Warfare-------------------------------------------
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288
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6.3
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Globalization ----------------------------------------------------
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290
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CHAPTER 7
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CONCLUSION
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7.0
|
Introduction
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297
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7.1
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Summary
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297
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7.2.
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Observations
--------------------------------------------------------
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299
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7.3
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Recommendations
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304
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BIBLIOGRAPHY
---------------------------------------------------
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316
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LIST
OF STATUTES / TREATIES
1.
Statute
of the International Criminal Court (ICC)Statute, 2002
2.
UN
Charter on Human Rights
3.
Vienna
Convention, 1961 on Diplomatic Relations
4.
Law
of the Sea Convention, 1982
5.
Geneva
Convention, 1949
6.
The
Hague Convention, 1954
7.
Additional
Protocol I to the Geneva Conventions,1977
8.
Additional
Protocol II to the Geneva Conventions, 1977
9.
UN
Resolution 1441, 2002
10.
Security
Council Resolution, 25 June, 1950
11.
A.
U. Charter on Human and People’s Rights, May, 1963
12.
Security
Council Resolution 696; 46 UNSCOR, Resolutions 1991
1.
Re-Wimbledon,
1923, PCIJ, Series A, No. 1
2.
Re-North
Sea Continental Shelf, 1969, ICJ, rep. 3, P.44
3.
Nicaragua
Vs U.S.A, 1986 ICJ Rep 14
4.
Re-the
Asylum Case, 1950 ICJ Rep. 266 at pp. 266-7
5.
Portugal
Vs India, 1960, ICJ Rep. 6
6.
Re-Paquete
Habana, 1899
7.
See
Lan Service Incorporation Vs Iran, 1928, OCIJ Swries A, No. 17
8.
Re-Chorzow
Factory (Indemnity), 1937 PCIJ Series A/B No. 70
9.
Re-Diversion
of water from the Meuse, 1949, ICJ Rep 18
10.
Re-Corfu
Channel, 1950 ICJ Rep. At 148
11.
Re-Russian
Indemnity, 1903
12.
Re-South,
West Africa Case, 1950, ICJ 148
13.
Re-Serbian
Loan Case, 1929 PCIJ, Series A, No. 20-21 at pp. 38-39
14.
South
West Africa (2nd Phase), 1966 ICJ Rep
at 6
15.
Texaco
Vs Libya (1977) 531. L.r.389. Also reported in (1978) 17 ILM 1t1
16.
Re-Reparation
Case, 1949 ICJ 174
17.
Re-Genocide
Case, 1951, ICI 15
18.
U.K.
Vs Norway, ICJ Rep (1951) 116
19.
France
VsTurdsey, 1927, PCIJ Rep. Series A, No 10
20.
Burkina
Faso Vs Mail, 1994 ICJ Rep. 6
21.
Libya
Vs Chad, 1992, ICJ Rep. 315 at 563
22.
Re-Naulila,
1934, AC, pp. 586-9 at 589
23.
Re-Aleoboectoe
Case, (1994), 1-2 I.H.R.R. 208
24.
Re-Western
Sahara Case, 1975, ICJ Rep. P. 12
25.
SocieteCommercialeD’orientVs
Turkey (1929) 9 M>A.T. p. 612 at 613
26.
Re-Armstrong
Cork Company, 14 R. I. A. A. p. 613
CHAPTER
1
GENERAL INTRODUCTION
1.0 INTRODUCTION
Although this work is not
the first of its kind. There were various works on Islamic Law of War and peace
dated back to over 700 years ago by reknown scholars
such as Ibn Taymiyyah1,
Khadduri Majid,2 and Abu Sulaiman Abdul
Hamid3 and a host of others. Perhaps the only
mark of difference in the present work is its contemporary nature. Since arabic
language is relevant to Islamic Law just as latin is to the English law,it is
therefore pertinent to state the arabic version of the subject matter of the
study as:Mafhuum ul-Harb Was-Salaam Fish-shariy’atil Islamiyyah
meaning ‘Concept of war and peace under Islamic Law’
As the global community is
increasingly characterised by a “clash
of
civilizations” particularly between Western
civilization and Islam4.The universality of
the application of Laws relating to war and peace becomes seriously threatened.
With this threat on the increase, certain legal concepts particularly under
Islamic Law became misunderstood.
The
present work attempts to explore the principles of war and peace under the
ambit of Islamic Law for further and better understanding of the contemporary
laws of war and peace. Any study on Islamic International Law must essentially
entail the two opposing concepts of war and peace, hence the legal principles
of war and peace under Islamic law will attract prominent attention in this
work.
The
need for this study is further underscored by the varieties of the rules of warfare
as prescribed by International Treaties and Conventions which have been
discovered
1
Ibn Taymiyyah ,’Al-siyasa
al shar’iyyah’ ,Dar al katib al Arabi,.n.d
Ibn Taymiyyah ,’Al-siyasa
al shar’iyyah’ ,Dar al katib al Arabi,.n.d
2
Khadduri. M, War and Peace in the Law
of Islam, 2nd Ed., ‘ New York press (1399)
AH/(1979) AC.
3Abu
Sulayman. A.H, The Islamic Theory of International Relations: Directions for
Islamic Methodologyand Thought’, Hemdon, V.A: The International
Institute of Islamic Thought, (1408) AH (1987) AC.
4 Huntington, S. P., The Clash of
Civilizations, Foreign Affairs,Vol.72,No 3,Summer (1983), P.22
16
to
be grossly inadequate and subject to manipulative skills of the big powers in
favour of their interests inspite of the fact that the rule is placing emphasis
on the material of
the “highest persuasive character”5
The
various arbitral tribunals or judicial bodies have had cause to make
pronouncements on the diverse conflicts in various parts of the world. The
question is how far have these decisions been? There is thus, the need to
critically analyse some of these decisions in order to fully appreciate the
position in the new world order. The available international judicial organs
need be critically assessed so as to come to a relative yardstick of high
objectivity and steer clear of the perceived greater subjectivity that we
presently go through.
In the final analysis, the
study of this area of Islamic law is informed by the limited knowledge as it
presently exists and this has fundmentally put in place the difficulty to
maintain the integrity of the doctrine of international law in this field of
study,this need not be so. It is against this background that one deems it fit
and most relevant to embark on a thorough research work on the concept of war
and peace under Islamic law.
1.1
STATEMENT OF THE RESEARCH PROBLEM
The
problem relating to the concept of war and peace under the Islamic law is
the manner the non-Muslims want to solve the
problem of war in Muslims states, according to their understanding of war. For
example the united state of America’s intervention in Afghanistan, Iraq and
Iran. The difference between the Muslims’ conception and non-Muslims’
conception of war makes it difficult to profer solution to the problem of war
in the Muslim nations. Precisely, the statement of the research problem of this
thesis can be stated as follow:- ‘The problems of war in the
5
Schwarzenberger.G, International Law
as Applied by International Courts and Tribunals,Vol.2, 1968, Sweet &
Sons, London, P.6
17
International Community and Search for means of making
peace among the conflicting Nations of the world is the statement of the
research problems of the present dissertation.
The global community is experiencing wars among various
nations in the world. There exists the problem of identifying the respective
causes of these wars. The age-long armed conflict between Israel and Palestine
needs to be probed into and it calls for an effective solution.There is need to
consider the war between Iraq and Iran as well as the role played by the United
States of America.Similarly,the statement of the research problem covers the
different kinds of hostilities being witnessed in various African nations like
Liberia, Sierraleone,Kosovo,e.t.c. Another significant problem that accounts for
the present study is the fact that due to the absence of genuine motive in
war,the International community is in total chaos, while imperialistic and
bureaucratic tendencies are being introduced into it. The global armed
conflicts have cropped up to an amazing extent.In this regard,the Afghanistan
war is a relevant instance.Due to the imperialistic and bureaucratic
intervention of the Soviet and the USA respectively,the Afghanistan war which
commenced in 1978 is yet to end. Pakistan that supported Afghanistan against
the Soviet in 1979 is today at war with Afghanistan. The aftermath of the
Afghanistan war is full of severe political,economical and ecological problems.
Presidents or Heads of governments of various conflicting
nations and war Lords are being brought for trial before the international war
tribunals established by the United Nations. A question which agitates one’s
mind is: What has the United Nations Organisation done as a body established to
serve as a temperate measure in an era of international crisis? There remains
another problem of permanent settlement of international disputes. The research
problem becomes more complicated as it seems to
be transparently
clear that the Public International Law which is expected to serve as a moral
suasion is rather helpless in matters of international conflicts.
All
efforts in that regard has not succeeded in exterminating armed conflicts from
the face of the world inspite of the fact that one of the cardinal principles
of Public International Law is to ensure peaceful co-existence among the
nations of the world.
The
present work is expected to provide alternative and more possible solution to
problem of global conflicts. The Islamic law principles in respect of
international relations do not differentiate the maxim of lex lata(The
Law in force) from lex ferenda (The law as it ought
to be).
As far as the law of Islam is
concerned in affairs among nations of the world, law is law, there is no
question of presumed law. The Islamic legal system is not the type to be
subjected to changes and reforms because the system has sufficient room to
accommodate any new developments in all generations. The Islamic legal system
maintains consistency with modification in application of it’s principles and
procedure to meet the exigencies of international relationship. Such
modifications are to be directed towards the general interest and peaceful
co-existence among all nations of the world.
Finally,
the last of the research problem is what options does the international
community have in such critical circumstances.This study presents provissions
of the Islamic law of war and peace as the available solution in such critical
circumstances.
1.2 OBJECTIVES
The basic aim and objective of this study is to
reasonably contribute to the development of knowledge. With better
understanding of the concept of war and peace within the frame work of Islamic
law, it is anticipated that the world will improve on its methods of conflict
resolution. This will no doubt reduce the incidents
19
of war or armed conflict to the barest minimum. To a
large extent, this work will be a contribution to the development of knowledge
in the area of Islamic International Law.
The particular discernible research questions which
provide the objective of this work are what are the principles of war and peace
under the ambit of Islamic Law that can create a more peaceful international
community with minimum cases of war or armed conflict? By this poser further
and better understanding of Islamic law of war and peace will be achieved.
Below are the objectives of the presnt research work.
(a)
To
identify the factors that promote war among the warring nations.
(b)
To objectively juxtapose Islamic Law of war
and peace with the current international regime of armed conflict.
(c)
To
expound on the concept of war and peace in accordance with Islamic Law.
(d)
To make a good case for consideration of the
rules of Islamic Law on war and peace as a panacea to the current dangerous
trends in the contemporary policies of warfare.
(e)
To
analytically evaluate the impact of war on the peace and security of the
international community.
(f)
To
explore the principle, nature and function of peace under the law of Islam.
(g)
It is the objective of this research work to
explain certain constraints imposed on nations engaged in war or
armed-conflict.
1.3
SCOPE OF THE RESEARCH
Scope
of any research work in modern terms
implies geopgraphical or
territorial
coverage of the research. On the other hand, scope may imply the kind of law
that is applicable. The scope of the present dissertation is not geopraphically
limited because of the universality of the concept of war and peace which is
the very
20
core of this work.It is for
this singular reason, it is difficult to effectively discusIslamic Law of
War and Peace without juxtaposing it with the current international regime
which is globally in force.
The
scope will accommodate a law of modern application which principles and
procedure satisfythe exigencies of global life of the modern world at any given
time. It is no other law than the Law of Islam. To be precise, the work will
mainly concentrate on the Islamic Law of war and peace. Thus, since the core subject
-matter of this research is ‘concept of war and peace under the law of Islam’,
the applicable law is Islamic law.
1.4
METHODOLOGY
Doctrinal method was
absolutely adopted in this dissertation. This is considered to be the best way
to achieve the objective of this study. Doctrinal research approach otherwise
known as library based research was adopted. This method involves reading
relevant materials on the subject matter of the study, such as text books,
journals, treatises, periodicals, case law and statutory provisions..
In
addtion to the foregoing, authorities written in Arabic Language on the past
research works similar to the present one were also consulted.Relevant
materials were collected from war college in Abuja and from the office of the
international committee of the Red Cross. For the purpose of this study,I went
to the Institute of International Affairs in Victoria Island at Lagos as well
as the Institute of advanced legal studies at the Univasity of
Lagos,Akoka-Lagos to consult relevant materials on the subject matter of the
research work.
Conclusively, the doctrinal
research approach entails law as a normative science and humanity . This
outlines norms with conventional standards for human
21
behaviour in
certain conditions particularly in war situation. Thus, this method combined
with the imperical method is found to be effective in the present work.
1.5
LITERATURE REVIEW
Prominent scholars of various
generations have written several works similar to the
present one. Notable among such early
works include Khadduri Majeed`s work,6
Abu-Sulayman Abdul Hamid`s work, and Louay
M.Safi`s contribution to the American Journal of Islamic Social Science and a
host of other classical works of some great scholars of note.
Khadduri
Majeed, in his work upheld the view that “ the classical law of Islam
recognizes no other nation than it’s own” According to him, the entry of Muslim
nations into the United Nations is a significant phenomenon that constitutes a
departure from the classical religious
ideology of Islam.7 There are also some Shariah
advocates who hold a hard-line view that the institution of nation-state and
modern internationalism are complete aberrations to Islamic world-order. Those
who hold this view take a position that there should be perpetual hostility
between the nations of Islam and the non-Muslim nations.
This
position in my own view is not progressive. If Khadduri and other members of
his school of thought are correct in their view, there can never be peace in
the international community. Whereas, the cardinal symbol of Islam is peace. It
is on this premise that there should not be a perpetual hostility between the
nations of Islam and the non Muslim nations of the world. This is the only way;
the conflicts of different kind all over the world can be brought under
control.
Abu-Sulayman Abdul-Hamid takes side with the
non-hostility school of thought. Relying on the opinions of other classical
jurists. Many contemporary
6Khadduri,
M. War and peace in the law of IslamBaltimore; John Hopkinspress,(1955)
p.45
7 See Khadduri. M. “The
Islamic System: Its Competition and Co-existence with Western Systems”
proceedings of the American society of International law. N.D
22
permanent state of animosity between
the Islamic and non-Islamic realms.8
The view of a non-muslim
scholar called Mayer9 is that the contemporary
nation states system is contrary to the Islamic legal theory whereby the only
nation recognised in the world is the nation of the muslims. He further
expressed the view that in spite of the fact that there is established nation-states
system in the modern world, some Muslim nations which strictly adhere to the
traditonal Islamic legal opinion by which any political sub-divisson of the
muslim nations is inimical to Islam. This Mayer’s view can not be taken as
absolutely correct because there are some muslim states that embrace the
nation-states systemand tolerate it on the assumption that the modern
nation-states system is a temporary phenomenon.
According to Abu-Walid Muhammad bin
Ahmad; in his work entitled
“Bidayat Al-Mujtahid”10Jihad is
a type of war which is a religious obligation on the generality of the muslims
which if performed by a section of the Muslim Ummah,the rest of the
muslims are absolved of the obligation. That is what is technically called
Fardu-al-kifayah. Relying
on the Quranic provision(Q.47 : 4) ,the muslim nations must always be at
war with the non-muslim nations and thoroughly subdue them when and where ever
they meet them. In other words, he is an advocate of perpeual hostility between
Daru al-harb and Daru al-Islam He supported his position with the
prophetic tradition where the Prophet (SAW) is reported to have said :
“I have been commanded to fight people untill
they say:There is no
diety but ALLAH………...”11
8Abu Salayman.
A.A,’’Op.cit. p.19
9 Mayer,
A, War and Peace in Islamic Tradition of International Law, Ends
Johnson, cited in ‘Just War and Jihad’
10
Ahmad A.M., (Ibn Rushd) Bidayat
al-Mujtahid wa Nihayat al-Muqtasid, Jadidat Munqahat wa
Musohihat, 1990/1410 A.H, pp. 305-338. 11 Ahmad
A. M, Ibid
23
Anfal (8:67). He stated that the cause
of revelation of the verse was the Prisoners of
war in battle of Badar. The law in the
verse is that; unlike ordinary war which may
be fought for political or
economic,and other military purposes. Jihad is fought under
strict conditons stipulated by Islamic
Law of war and peace. War is fought in Islam
solely for the cause of Allah and not
for any temporal worldly goods or any baser
motives. Abu-Walid Muhammad bin Ahmad went further to
consider prisoners of
war as Al-Amaana (Trust) in the
hand of the muslims.
Muhammad Subhi bin Hassan Hallaq, in
his classical work on fiqh,12 opined that
jihad is not truly jihad
if the mujahid does not seek thereby Allah’s countenance and
does not intend to glorify Allah’s
word, raise the banner of truth, repel falsehood and
sacrifice himself in order to attain
the pleasure of Allah. Therefore, anyone who fights
only to obtain spoils or rank, or to display valour, to
aquire prisoners of war for
enslavement or to attain fame is
definitely not fighting jihad.
Muhammad Subhi premised his opinion on
the tradition of the holy Prophet
(S.A.W) reported on the authority of
Abu Mousa Al-Ashari (R.A) who said :
“A man came to the
Prophet(S.A.W) and said: A man fights for war booty; another fights for fame
and a third fights for showing off; who among them fights in the cause of
Allah?The Prophet (S.A.W) said : “He who fights in order that Allah’s Word (
i.e.Islam ) should be superior,for he fightsIn Allah’s cause.”13
He further stated in the book that Jihad
is Fard Kifaya14 but if the Imam calls upon the
Muslims to march forth in jihad,
it becomes Fard Ayn (Global Obligation).
12
Muhammad Subhi bin Hassan H, Fiqh
According to the Qur’an & Sunnah, Vol.2, Translated by Sameh Strauch,
Maktaba Dar-us-Salam, 2008. pp.522-536
13
Narrated by Al-Bukhari (no.2810) and
Muslim (no.1904)
14Obligatory duty which if performed
by a section of the community absolve the rest members of the community.
24
Imam Malik, in his classical
work15 extensively discussed jihad with
a number of authentic Ahaddith ( Prophetic traditions ).He narrated that
Umar bin Abdil-Azeez wrote to one of his administrators : We have learnt that
whenever the Apostle of Allah( S.A.W ) sent out a squad, he used to command
them : “Fight taking the name of the Lord with people who have
disbelieved and rejected the Lord; do not commit theft, do not break vows; do
not cut ears and noses, do not kill women and children. Communicate this to
your armies. If Allah wills! Peace be on you”. Most probably, What
the great scholar wanted to transmit to readers with this prophetic tradition
are the rules binding on the muslim soldiers when fighting jihad.
Imam Malik said : The unbelievers located
near the port in Muslim territory, and they say that they are merchants and
have been thrown out by the river,and the Muslims have no means to find the
truth about them, but they guess that the unbelievers have been shipwrecked or
have disembarked on account of thirst without permission, the leader of the
Muslims has full authority over them.The Muslims who capture them are
not entitled to the 5th share in the booty
taken.
When the Imam was asked : If someone finds
food in the territory of the non-believers, and eats out of it , is it right to
take the remainder home or to sell it on his way? The response was that : If he
sells it during jihad , he should deposit the proceeds with other
articles of booty. However, if he returns to his home town, it is alright for
him if he eats it or sells it with a proviso that the edible item is very
insignificant such as bread, meat, and something similar; not if the article in
question is valuable.
According
to the universally renown Jurist, camel,oxen and goats are also articles of
food that are right to be eaten before distribution in case of necessity.
15Muwata’ Imam Malik,1st Ed.,Muasasat
Al-tobaat wa Tasweer Al-katruniyat,(1406)A.H /( 1980 )
25
World Politics : a Documentary Record16’,
commented that the long time relationship of the Muslim nations with the
non-Muslim nations for over four hundred years strongly supports the preference
for permanent peace between the nations of Islam and those of non-Muslims.
Along the same line of thought, he asserted
that the practice of international relashionship is covered by the Islamic
politico-legal principle of As-Siyasa Ashari’iyyah which confers
on the government of the Muslim nationthe authority to exercise
discretion in matters of Public International Law with respect to the welfare
of the citizens. His position is that there should be perpetual, invaluable and
constant peace between the muslim and non-muslim nations of the world.Hurewitz
is of the view that all forms of hostility in the global community shall cease
henceforth. Is it possible? We do not think this proposition is practicable.
The reason being that as long as there is economic or political relationship
among the nations of the world, there will always be war or armed conflict.
Louay M.Safi in his
contribution to the American journal of Islamic social science, rebuts the
positions of the classical doctrine of Jihad .He argued that these
propositions were predicated on a set of Islamic legal rulings (Ahkam al
shar’iyy ah) pertaining to specific questions which arose under particlar
historical conditions, namely, the armed struggle between the Islamic state
during the Abbasid era and various European dynasties.
The erudite scholar also attempted to defend
the classical jurists who opined that there should be permanent hostility
between Muslim nations and the non-Muslim nations. He demonstrated that
classical Jurists did not have the mind of developing a holistic
16 Hurewitz,
J.C, The Middle East and North Africa in World Politics : A Documentary
Record ( New Haven : Yale University Press,1975 ) Vol.1 & 2.
26
concept of “war and peace” is built on three essential
Propositions17 which are:
i ) Division of the world into two territorial
components (i.e. Dar-al-Islam
and Dar al Harb).
ii )
That the Muslim nation is under permanent hostility until the non-
Muslim nations are reduced to
non-existence.
iii ) Peaceful
co-existence between the Daru-al Islam and Dar-al Harb is
possible only when the latter renders
an annual tribute of jizyah (tax) to
the former.
The summary of the three above-stated
propositions is that the tenents of the classical doctrine of war and peace
provide for permanent war between the nations of Islam and the non-Islamic
nations. Unlike other members of the hostility school of thought Louay M.S
takes a middle course by holding that: “It is the normal state of things while
peace between the Islamic and non-Islamic nations is contigent on acceptance of
Islam by the non-Islamic states or their payment of annual tributes (Jizya)
to the Islamic state.
According to Anwar Ahmad
Qadri,18 “In consonance with conventions and
agreements on laws of war, the Islamic law provides proper safeguards against
unnecessary damage to life and property”. This opinion is correct as far as
legal constraints on the conflicting parties are concerned,but the erudite
author did not highlight what these conventions and agreements were and how
effective they were. If Anwar Ahmad had addressed the issues raised, it would
have been easy for one to determine the validity of his positon.It is difficult
to accept a proposition that suggests
17
Muhammed Talaat AL-Ghunaimi,`The
Muslim Conception of International Law and the Western Approach
(Netherlands: martinusNi; hoff/The Hague,1399/1978) p.156
18
Qadri A.A, Islamic Jurisprudence in the
modern world, SH. Muhammad Ashraf, Pakistan,2nd
ed.1981, p. 278
27
that the Islamic law
provisions are dependant on certain conventions or on any pacts
whatsoever.Moreover,convention is foreign to the law of Islam.Convention,
rather follows the Law and does not stand independent of it. The Islamic law
takes its validity mainly from the Qur’an,the Sunnah, Ijma’a and Qiyas.
Going by the law of Islam, the essence ofjihad is to repel the
unbearable aggression and persecution of the unbelievers. In Anwar Qadri’s
opinion,the Quranic injunction upon the Muslims to fight is Allah’s directive
to fight to end persecution and injustice as well as to establish justice,
freedom of religion, and to protect the places of worship from being
ruined. This noble object is better
explained by the glorious Qur’an.19
Schwazenberger George,
arenownedProfessor of International law, in his
work,20presented
war as a condition of those contending by force. His reason for taking this
position is that any attempt to define the legal phenomenon of war in objective
terms would amount to an effort in futility. He stated that, the primary
position of the relativity of Peace and War is that of a negative state of
affairs characterized by the predominance of political and economical power
over military power and subsequent relegation of the military power to the
background role of potential instead of an actual pressure. In his opinion, the
effects of war is much more reflected in the state of war rather than in the
war itself. The erudite Scholar sees the consequential impact of war on global
peace as legal effects which are specially categorized into effects in reaction
to the inter-states affairs relations between the Belligerent States and the
enemy nationals and impact of war on private relations between individual
members of the conflicting nations.
According to the seasoned Scholar, the 1864
diplomatic conference convened atGeneva was nothing but Humanitarian Law
making. War or armed conflict may be
19 See Q.22 : 40 & Q.9 : 29
20
Schwazenberger. G,(nd.) International Law as applied by ‘International Courts
and Tribunals’
28
consensual basis.He further opines that
once a Peace treaty comes into force, the law
of war becomes inapplicable in
relations between the Belligerent states.
In the view of Abdul-Rahman Doi21,non-Muslims living
in predominantly
Muslim states have been guaranteed
adequate protection of their life and property
together with equal honour and respect
due to the Muslims in the nation of
Islam.According to him, they are called ‘Dhimmis’under
Islamic law.It is true that
people living in Islamic state are
classified into three classes viz-aviz-the Muslims,
Dhimmis or Must’amins.What
Abdul-Rahman Doi fails to explain is as to whether the
classification was intended to be
exhaustive for all time.For example, non-Muslims in
a westphalian nation-state are not
supposed to be dhimmis because the 1648 Peace of
Westphalia Treaty enshrines
territorial state as the primary sovereign unit for
international relations and that happens to be the
foundation of the structure and
characteristics of the modern
nation-state. In the interview granted the Press by the
then Grand Khadi of Kwara state of
Nigeria,Hon. Justice Ambali ,he agreed wlth the
proposition that most Nigerian
non-muslims are not dhimmis. The Honourable Grand
Khadi said :
“Nigerian non-Muslims
are not dhimmis; they are Christians. They do not pay jizya,there is no aman
(trust or pact) between us.They betray us,maim us,and kill us.They are not
dhimmis,they are of less status because. They do not have rights attributable
to dhimmis22”
Two reasons are further advanced by
the erudite Grand Kadi for inapplicability of
fiqh(Islamic
jurisprudential) concept of dhimma (state of being a dhimmi) to
non-
muslims of the modern time.
21
Doi, A.R,(1980)Basis of Shariah, ABU Press, Zaria,
p.594.
22 The
interview he granted to ‘The Daily Trust’ took place on the 14th
May,2003.
29
Firstly, inasmuch as the
jurisprudential rulings on dhimmis were then valid, non-muslims of today are
not merely exempted but are excludable from the fiqh’s analysis simply because
they do not in any way share any of the characteristics of dhimmis within the
purview of Islamic law.They were not defeated in any war nor were they placed
under any obligation to pay jizya. Thus, if fiqh effectively
addressed the issue of historical dhimmis, modern writers like A.Rahman
Doi need to elaborate the Muslims’ relationship with peoples who are not known
to fiqh, unknown because in the new world order they are not in position
to be, and can not be conquered or subjugated; do not pay jizya (tribute
or poll tax); and they lead the armed forces which comprises of a Muslim
majority.
Secondly,
fiqh is inapplicable to the contemporary world because its
classification of non-Muslims is not and cannot be exhaustive. Islamic
jurisprudence cannot accommodate the modern religious groups that have become
permanent component parts of muslim state territories.How then can one talk of
making rules about relatioship with them. Present day experiences have shown
that the two categories of non-Muslims are absolutely not covered by the fiqh
concept of dhimmah.
(a) Christians
and Jews in a Muslim nation-states or part thereof who have not been
subjugated
or defeated in a war.
(b) Native
Christians and Jews who precede the establishment of a political Islamic nation
state structure, and who cannot be
subjected to war for any reason whatsoever.
30
What this aspires to add to
the previous works reviewed above is to profer solution to the universal
problem of war. It is a known fact that war or armed conflict is inevitable
just like peace. In human behavior there is bound to be conflicts and peaceful
co-existence. Thus, it is intended in this thesis to propose ways and means by
which wars will be reduced drastically while peace will be effectively
established among the Nations of the world.
1.6 ORGANIZATIONAL
LAYOUT
This
research work is covered by seven chapters all-together. The centre piece of
the work is an attempt to examine one of the most interesting but inadequately
explored areas of Islamic law. It is this aspect of the Islamic law that relates
to war and peace. The study focuses on the desire to make significant
contribution to knowledge and development of the international legal system.
Thus, below is the organizational structure of the research work.
Chapter One: General
Introduction
The opening
chapter of the present work generally introduces the theme of the study. The
chapter features inter-alia the statement of research problem, basic aims and
objectives of the study, scope of the research, literature review with
organizational structure as well as justification of the dissertation.
Chapter Two: The
Concept of Islamic Law
The second chapter opens with the definition of Islamic
Law. Nature, scope and Characteristicof Islamic Law are discussed in this
chapter.
Historical
background of the law of war under Islamic Legal system is elaborately
analyzed. The core subject-matter of the chapter is the sources of Islamic law
of war and peace.
31
The Holy-Quran, Sunnah, Ijma’a, Qiyas
and other recognized subsidiary sources under the Islamic law are discussed.
Chapter Three: The
Islamic Law concept of war
This chapter of this study is devoted to the concept of
war. It comprehensively analyses the institution of war under the law of Islam.
The intent here is to probe into the circumstances that justify hostilityin
Islamic Law. Furthermore, what does the Islamic legal term Daru-al-Harb
(Nation of hostility) imply. The chapter further distinguishes Jihad
from war. Jihad is presented in a simple way that a novice will
understand. War of extermination and war of reconciliation are treated as the
two major types of armed conflict in Islamic law. As this very chapter and the
succeeding one constitute the main body of the entire work, were tocover
relevant parts ofthe history, nature and functions of war.
Chapter Four : The
Islamic Law concept of peace
The fourth chapter treats‘Peace’
as conceived in Islamic law. It explains what
Daru-
Salam (Nation of Peace) stands for. Different modes of peace
are discussed in this chapter. Other relevant issues given attention in
this medieval chapter are the peculiar nature and scope of peace and the
various ways of realizing peace as prescribed in Islamic law.
In
this chapter, certain constraints in executing war under the law of Islam are
discussed. The constraints imposed by the Islamic law on the conflicting
parties are also discussed with solutions proffered from the Islamic Law
perspective. A relevant fraction of origin and development of the Law of peace
as well as some sources of peace are discussed.Also in this chapter principles
of Distinction, Precaution, Proportionality ,Prohibition of
indiscriminate attack and Protection of Prisoners of war were all
addressed .
32
Concerning the impact of war on the global peace and
security, in the fifth chapter, war is portrayed as ‘Cause’ while its impact on
the global peace and security is presented as ‘Effect’. Few cases of
nations with serious effects of war are considered as case studies in this
context. Extension of general hostility with other common consequences of war
is attended to. Furthermore, restriction of commercial activities, disarmament
as it was in the case of Iraq, socio-economic problems as it was in Iraq-Iran
war, Israeli-Palestine armed conflict as well as the Kosovo genocide with the
current intra-national armed-conflicts are all addressed in this chapter.
Chapter Six:
International Treaties and Rules of Conduct of Hostilities
Under chapter six,treaty that gave birth to what
is now recognized as ‘modern diplomacy’is discussed as another
grave consequence of war. Effect of treaties is equally treated.
Restrictions imposed on the conflicting parties are explained elaborately
discussed under the following sub-headings :- Principles of distinction,
Precaution, Proportionality, Prohibition of indiscriminate attacks and
Protection of Prisoners of war.
Chapter Seven :
Conclusion, Summary and Recommendations
As the conclusive chapter, each of the preceding chapters
is briefly summarized. The chapter suggests recommendations for reforms with a
view to restricting to the barest minimum the rate of armed-conflicts in the
international community. It also suggests ways of promoting peace in the world;
all within the purview of Islamic law.
1.7
JUSTIFICATION OF THE RESEARCH WORK.
The justification of
this study is premised on the factors enumerated below:
33
i)
The
present thesis will be a great asset to students of international law,
international law lawyers, Judges, and Islamic scholars. The reason being that
the subject matter of this work is a branch of International law.
ii )
It is no more ambiguous that the international community is bedeviled
with
war of various degrees. Every nation
of the world have it’s own dose of the
hostile pills. To terminate the
fast-spreading problem of armed conflict, it is
necessary to embark on a research work
of this nature. This will enable one to
discover causes and effects of wars on
the international community and profer
solution to the problem.
iii ) What is even more, when the only
conventional option seems to be failing the
international community, then the need to look elsewhere
for solace and
alternative solution to the problem of
war.
All this put together
serves as justification for this research work.
In conclusion, the dissertation is
intended to consider The concept of war and
peace from Islamic Law
perspective. The study is informed by the negative effects of
the
diverse armed conflicts in almost every part of the world on the global peace
and security. The dual benefit of the research work is that it will serve as
the Author’s contribution to knowledge of Law and it will profer solutions to
the problem of war in the international community.
This
work is justified by the fact that it is going to be of immense benefits to
Judges, Students, legal practitioners, and generality of intellectuals of various
disciplines.
