THE CONCEPTION OF HUMANITARIAN LAW AND THE ISLAMIC LEGAL SYSTEM
The history of humanitarian law is as old as the creation of Man. The problem of humanitarian behavior in times of armed conflicts was constantly posed for the leaders and the fighters. This has become a major concern since Man has begun organizing himself, whatever be the civilization of reference (stage of civilization, of hunting and harvesting, handicraft etc., or Christianity, Africanity and Islam). The concern about the behavior of fighting in times of war and the violations committed have always been the interest of philosophers, leaders and lawyers of different thoughts and eras. This short article will focus specially on how humanitarian law and the behavior of fighters have prevailed in Islam.
1. Clarification of the Concept of Islamic Law Applicable in Times of War
Islam gives very great importance to humanitarian law. Its approach to human values is, as written by Mr. Sultan:
“deliberate, well thought out, sovereign and fascinating for it emanates from a strong and convinced thought.”‘
In order to understand the Islamic concept of International humanitarian law, its nature must be determined. At the outset, it is necessary to clarify the confusion surrounding the Islamic legal system in general, and humanitarian law in particular. Two strong views attempt to clarify the confusion:
- That the Islamic legal system is a divine revelation and sacred emanation and, therefore, is not a secular legal order:
- Islamic legal system is based mainly on rules drawn from the Koran, forming a whole set which addresses itself to everybody through space and time, and consequently, does not represent distinct branches of public law, private law etc… However, it gives hierarchy to the legal norms according to their importance: Hadd (or divine Laws), Uqubat-taazir (or punishment left to the discretion of the judge-Cadi) etc…
From these two intrinsic driving ideas in the Islamic legal system, two fundamental rules, among others, emanate concerning humanitarian law:
- The Islamic humanitarian Law has a multiple scope of application and, contrary to the views of some authors, distinguishes between different types of war, conflict (internal, international) etc…
These rules, applicable according to their hierarchy of importance, to different types of conflicts are based mainly on mercy, clemency and compassion. They draw their force from divine authority. Thus, we easily understand that Islamic humanitarian law was far ahead of its time because it always ordered its believers and combatants to comply strictly with the following imperative principles.
General principle: (or what I shall call the “Islamic clause”): “not to transgress and never exceed the limits of justice and equity to fall in the sphere of tyranny and oppression”, (verse 190, Chapter II). Thus, to understand well the approach of the Muslim Humanitarian Law, one should always bear in mind that despite the fighting, the final objective is reconciliation and peace which are never forgotten.
The Koran also provides:
“The one who will have killed a man will be considered as the murderer of humankind, the one who will have given life to a man will be considered as having given life to the whole humankind ” (Koran, Sura V, verse 32).
Finally, it is prescribed “that the blood of women, children and old people must not tarnish the victory of the believers.” (see below 3.d)
In case of a violation of the rules of fighting, a repression is sanctioned. The most serious penal sanctions in Muslim law are “Hadd” (barriers/boarder), that is the barriers of divine laws which should not be transgressed or come close to transgression. For example, the barrier of “Hadd” is crossed by:
- Indulging in banditry or rising against a fair power;
- Slandering or accusing a person of fornication;
- Indulging in intoxicating drinks.
The punishment of “Hadd” is at the pinnacle of the pyramid of laws. It draws its stronger force from the fact that it is expressly mentioned in the Koran and the Sunna (traditions of the Prophet Mohammed), while the other types of punishment are distinct from the fact that they are not provided for in the supreme Law. The punishment is either left to the discretion of the judge (Cadi) or is based on the rules called “Taazir”, that is, “the discretionary punishment of offences and errors ” meted out by the shurta (police). The latter also had the function of exercising the legal authority of the judge. It should be added that the repression of offences, whose punishment is not provided for in the law, varies according to the eras and persons (e.g. during the Umayyad period, the robbers of dead bodies, whether during time of war or peace were thrown into a pit alive).
2. Implementation of the “Hadd” Rules or Divine Legal Punishment in Cases of Insurrection or Unjustified Acts of Aggression: (“non- international conflict”)
- Internal Insurrection:
Within the purview of revolt against the authority of the Emirs, Islam provides for two cases: firstly, if rebels become heretics, tyrannical or unjust, it is legal for the Muslim community to form a block against them and reject their authority. Secondly, if the guilty Emirs return to the right path by correcting their mistakes and if the insurgent persist with their acts, the latter are fought down according to specific rules:
- The rebels are fought by means likely to break them down and compel them to surrender. It is forbidden to exterminate them.
- It is forbidden to massacre their children, women and to confiscate their properties.
- It is forbidden to kill their wounded, their prisoners or those among them running away.
Once the uprising has been put down, nothing is demanded from those who provoked it. In that regard, the Koran says: “Once the rebel group gives up, you will restore harmony between them in all justice. You will ensure to be impartial. God loves those who are impartial”. (Sura 49:9, “The Apartments”).
However, in case of flagrant violation of the rules of fighting by the agents of the Emirs, legal punishment based on the “Hadd” is applied by the judge against them.
- Aggression (Internal, between tribes)
Since the advent of Islam, acts of aggression between tribes have been condemned; The Koran says: “fight the aggressor until he returns to the Law of God …” (Sura 49:9, “The Apartments”). If the aggressor is defeated and captured, the judge will apply the Law of “Hadd” to him, either death penalty or exile, etc…. The punishment will vary according to the seriousness of the crime of aggression.
In conclusion one can affirm that in the Islam, first, when there are revolts, conduct of hostilities, like the repression of breach of combat rules that may ensue, are regulated by supreme divine laws of “Hadd”. Second, the act of aggression is considered as a serious crime involving the severest punishment in Muslim Law, particularly the “Hadd”. Now, under present modern positive law, during internal conflicts, comprising insurrections, some of the rules of the conduct of hostilities are distinct, today, by their normative weakness (Diplomatic Conference on the Reaffirmation and development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974-1977).
3. Application of Criminal Law (AL-Uqubat or non-Divine Laws) in Times of Conquest War, “Jihad” etc… (“International Conflict”)
The conduct of hostilities and repression of breaches in international wars of conquest or “Jihad”, are not provided for in the “Hadd” Law or “Crime against Allah”. In this type of armed conflicts, there are nevertheless, very clear combat rules. The violation of these rules entails the application of criminal law (Al- Uqubat). These norms are more precisely called “Taazir” and based on the Islamic Sharia which the Judge (Cadi) is supposed to apply. It should be recalled that in the hierarchy of norms, “Taazil” comes in second position after “Hadd”.
In the international wars of conquest, several types of breach of combat rules may be considered as falling within the category of war crimes which the Judge (Cadi) must repress. Without being exhaustive, the breaches in question may be summed up as follows:
- Inhuman Treatment
The Muslim doctrine stipulates that it is forbidden to mete inhuman or degrading treatment to the enemy prisoner combatant. That same doctrine based on Sura 16: 126 and 128 (Koran, Chapter “Bees”) condemns mutilation, torture and the drowning of soldiers who participated in the fighting. Indeed, verse 126 authorizes proportional retaliations in times of war. However, it mitigates it with express reservations and rather recommends forgiveness. More precisely it provides, “And if you punish, then punish them with the like of that with which you were afflicted. But if you endure patiently, verily … this is surely best for who endures”.
- Prisoners of War
If there are prisoners of war, it is forbidden to take their life. It must be added that the Islamic Sharia goes further because it recommends that prisoners be treated well. The words of Allah in the koran are to be recalled: “… They feed the poor, the orphans and prisoners for God’s sake” ( Sura 76: 6-9).
In Addition when distributing prisoners of prisoners among his companions, the Prophet Mohammed states: “Always take care of the prisoners”.
- Respect for Monasteries and Priests
It is also forbidden to kill priests according to the recommendations of the 1st Caliph Abu Bakr Essedik (632-634 A.D.). Abu Bakr, first companion and father in-law of Prophet Mohammed stated to his soldiers during the conquest of Syria and Iraq, “…. As you move forward, you will meet monks who live in monasteries and who serve God in retreat. Leave them alone, do not kill them and do not destroy their monasteries”.
- Absolute Respect for Vulnerable Persons
Under Muslim Law, it is forbidden to kill old people, women and children. Prophet Mohammed had repeated: “Do not kill children. Do not kill them….” The second Caliph Omar (634 – 644 A.D.) reiterated those instructions in these terms: “Do not kill either old people or women or children and fear killing them in squadron clashes or in cavalry incursions.”
- Treachery and Ruses of War
Treachery or perfidy and treason are strictly forbidden: “God does not like traitors” (Sura 8:58). In Islam, the custom prohibits cheating the
Muslim jurists are unanimous in condemning all forms of treachery/perfidy. For them, “if the artifices of war are always permitted, still treachery deserves to be blamed”. And Prophet Mohammed added, “Good faith in exchange of perfidy is better than perfidy to perfidy “. It can be affirmed that the prohibition of treachery/perfidy is a customary rule in Islamic Law. This rule is in principle respected in both relations between Muslims and non – Muslims. On the other hand, tricks which aim to mislead the enemy or cause him to be careless are not forbidden in Muslim Law. The prophet said, “war is a ruse”, therefore, the fact for example, of using a camouflage, simulated operations or false information in order to mislead the enemy is not forbidden in Islam.
In Islam, the rules of hostilities prohibit the destruction of civil properties (palm trees, wheat fields, houses, fruit trees) and the seizing of civil properties. Indeed, the Sunna of the Prophet prohibits the looting of cattle of the enemy and the consumption of it for pleasure and not under constraint of hunger. During one inspection of his soldiers after a victorious battle, Prophet Mohammed noted that the soldiers were celebrating the end of hostilities by eating the cattle taken from the enemy. He immediately ordered them to stop the feasting then stated:
” Eating of the meat of pillaged livestock is no more lawful than eating the meat of live animals”.
The basic teaching of the prophet is clear about the prohibition of the booty. From the above stated principle, the Muslim Law constantly, prohibited the soldiers from looting or stealing the properties abandoned by the enemy. The looting or “ghulul” is a form of war crime, which is severely punished.
Within the purview of “Taazir” another category of norms may apply against acts called “blameworthy in times of war”, it is the act, for example, of destroying the civil properties (cities, non-military equipment of the enemy, etc…)
Generally, for all these breaches, we can conclude that the judge (Cadi) may .give the following sentences:
- death by hanging in front of the headquarters of the penal jurisdiction;
- banishment from the city or being exposed seated on a donkey
- shaving of the beard (this act was a supreme humiliation for men), etc…
The Islamic Humanitarian Law is well developed concerning the situations regarding internal conflicts, as well as inter-states conflicts. The Islamic Humanitarian Rules follow a strict hierarchy and have to be carefully interpreted, especially with regards to the rules of the “Hadd”. These rules are very accurate, more advanced and detailed than the actual positive law concerning the non-international conflicts. Islamic law forms by its spirit, the common heritage of humanity. It does not contradict the standards of humanitarian law or the main human principles of the great civilisations.
BY Dr. ZIDANE MERIBOUTE
© All Rights Reserved
Africa Legal Aid
Accra / Maastricht
 H. Sultan, « La conception islamique », in: Dimensions internationales du droit humanitaire”, Pedone, Paris 1986, p.47
 A.D. ELDJAZAIRI, <personnamew:stonproductidLA VOIE>LA VOIE du musulman, Aslim Editors, 1986, Part 2, p. 53 and p.544.
 Abdur Rahman I. DOI, Shariah, the Islamic Law, Ta Ha Publication, London, 1984, p. 221
 H.VANDEVELDE, Cours d’histoire du droit musulman et des Institutions musulmanes, Office des Publications Universitaires, Alger, 1983, p.223
 A.D. ELDJAZAIRI, op.cit., p.544
 Ibid., p.543
 “Le Saint Coran et la traduction française du sens de ses versets”, édité par <personnamew:stonproductidla Pr￩sidence>la Présidence générale des directions des recherches scientifiques et islamiques. <personnamew:stonproductidLa Mecque>La Mecque, 1410 (de L’ HEGIRE), p. 281
 A.ZEMMALI, “Combattants et prisonniers de guerre en droit islamique et en droit international humanitaire”, Editions Pedone, Paris, 1997, p. 428 et s.
 H. SULTAN, op.cit.,p.58
 Ibid., p.37
 H. SULTAN, Ibid., p.54
 S.EL DAKKAK, « International humanitarian law lies between the concept and positive law », in International Review of the Red Cross (March-April 1990), p.101; and M.ABUZALMA,” La theorie de la guerre en islam”, Revue égyptienne du droit international (1958) p. 30.
 Y.Ben Achour, « islam et droit humanitaire », in Revue internationale de la croix-rouge (RICR), Mars-Avril 1980, pp. 9 et suiv.