Islam's
contribution to international law
Barrister
Harun ur Rashid
The scope of international
law covers almost every kind of activity of inter-state character. Since
the end of the Second World War (1939-45), there has been a steady development
of international humanitarian laws. When states' own internal protective
system falters or where it fails to protect human rights, international
humanitarian laws come into play.
Western
writers and jurists of international law have routinely overlooked contribution
of Islamic law to modern international law. They either disregard or
ignore the very existence of the subject. For instance, well-known authors,
such as, Oppenheim or O'Connell do not discuss it at all.
Contribution
of Islamic Law to modern international law
Although modern international law is overwhelmingly Euro-Centric and
Christian-based, Islam's contribution to modern international law is
significant. Many Islamic scholars maintain that the interaction between
eastern and western civilisations and the relationship between Islamic
law and modern international law appears to be close. Former Sri Lankan
judge of the International Court of Justice, Christopher Veeramantry,
in his book Islamic Jurisprudence (1988), has recognised Islam's
contribution to the history of modern international law.
For centuries, laws
under Islamic system have held a paramount place in the civilisation
of the World. The religion of Islam has always accorded a pre-eminent
position to rule of law. International law under the Islamic rule had
thrived in some way or other until the collapse of the Ottoman Empire
in 1914.
Islamic international
law falls into monist category because it holds the view that the legal
and moral source on which domestic and international laws originate
is one. Many centuries earlier, international law under Islamic system
worked out many principles of law on various subjects and in doing so
it broke new ground. Many of them are now in existence in modern international
law.
Islamic
scholars maintain that the Sharia (the Arabic word for 'track'
or 'road') includes many excellent provisions about declarations of
war, conduct of war, treatment of prisoners of war and non-combatants,
property in occupied enemy territory, guarantee of safe conduct for
non-combatants and treaty of peace. In 1984 the Deputy Rector of Chulalongkorn
University in Bangkok (a non-Muslim), at a seminar on Islamic international
law, made the following observation: " I have never realised how
truly liberal, progressive, and broad-minded Islamic law is."
Islam
considers peace as the normal state of affairs in international community.
Furthermore states have an obligation to do good work for people. There
is a verse in the Holy Qu'ran (Surah V: Verse 48) that declares
: " But that He may try you by that He has given you. So vie one
another with good work". Many Islamic scholars have interpreted
this verse to mean that competition in good work among states is an
obligation under Islamic international law.
They argue that
the very concept of good work by states found recognition in the UN
Charter in the words such as "to practise tolerance and live together
in peace with one another as good neighbours and… to employ international
machinery for the promotion of the economic and social advancement of
all peoples" (second paragraph of the preamble of the UN Charter).
The promotion of international co-operation for good of the people of
the world, as advocated by Islamic international law, has been codified
in the UN Charter.
Islamic
law underscored the scrupulous compliance of the treaty provisions.
Although the non-Muslims had breached the Treaty of Hudaibiya, Muslims
had strictly complied with it. The compliance of treaty provisions has
now been recognised in the 1969 Vienna Law of Treaties, under the heading
of 'Pacta sunt servanda", Article 26 stated: " Every
treaty in force is binding upon the parties to it and must be performed
by them in good faith."
Another important
contribution of Islamic international law is the dichotomy between universal
and regional international law. A group of law was applicable to only
among Islamic states, while universal law was applied to all states,
such as, Byzantine and Persian Empires. The same division is found in
modern international law. The universal international law applies to
each and every state; for example, crime of genocide is not prohibited
for all states. Regional international law is applicable only to regional
states. For instance, a law agreed under SAARC (South Asian Association
For Regional Co-operation) is only applicable to seven South Asian countries
and not to others.
Finally, strict
diplomatic protocol in the exchange of envoys was observed when the
Prophet (Pbuh) sent his envoys to Roman and Persian Emperors in the
7th century. Almost identical protocol has now been in vogue and rights
(immunities) and privileges of diplomats have been laid down in the
1961 Vienna Convention on Diplomatic Relations.
Islamic
law and Human Rights
Islam opposes imperialism because it suppresses and oppresses people's
rights under the regime. The incident of Pharaoh in Egypt and his oppressive
treatment of the Jews have been condemned by Islamic law. The condemnation
indicates that Islamic law does not approve despots or tyrants. This
implies that not only democracy (people's voice and representation)
must prevail but also human rights must be respected and no dictator
should encroach upon the dignity of a human being.
Islamic law also
disapproves economic exploitation (charging exorbitant rate of interest
-'usury'- by a moneylender) that in turn may develop into a threat to
social peace and stability. Islam insists on peaceful settlement of
disputes, for example, the Prophet (Pbuh) concluded a peace treaty (Treaty
of Hudaibiya) in 628 AD with non-Muslims of Mecca. All these Islamic
principles have found recognition in the UN Charter. The mode of peaceful
settlement of disputes (negotiation, mediation, conciliation, arbitration
and judicial settlement) has been codified in Article 33 of the UN Charter.
Concept
of War under Islamic Law
Under Islamic law, war can only waged as a defence. There is a clear
injunction in the Holy Qu'ran (Surah II, Verse 190) as follows:
" Fight in Allah's cause against those who wage war against you,
but do not commit aggression, for verily Allah does not love aggressors".
This verse makes it clear that wars can only be defensive, not offensive.
This implies that US-led Iraqi war is not permissible under Islamic
international law. So is the case under the UN Charter. Furthermore,
the terms "aggression" and "unjust wars" are now
used in modern international law and Islamic scholars argue that these
concepts were borrowed from Islamic international law.
Conclusion
The above paragraphs provide only a glimpse of contribution of Islamic
law to modern international law. They also show how close the precepts
of modern international law and Islamic law. The similarity is a credit
to Islamic international law that came into being some 1000 years before
the emergence of Western international law, founded by the Dutch jurist
Grotius (1583-1645). Regrettably, Islamic contribution has not been
recognised in books authored by most Western writers.
Barrister
Harun ur Rashid Former Bangladesh Ambassador to the UN, Geneva.
