FIL EUR BRED SS 8 8 OP © Ol eK nr 4 The islamic Concept of Humanitarian Law AFTAB ALAM Gln ‘origin of modecn international humaniiarian law is generally traced to June 1859 and the ~ battle of Solfering, In xeality, however, laws of war are as old as war itself and war is as, old as J Hie om earth\{{WEidea of protecting men against the evils of wat and a, Tee ot _a new-oné \Springing up long before the dawn ‘of history, it has grown steadily more ‘powerful, and today has become a tidal ware/The birth and development of humanitarian law jent civilisations of Asia and Europe and by religions ike fhe dawn of Islam gave further impetus to the process of ciples of humanization and regulation of warfare. its moral and humanitarian contents. Most of the principles of modern humanitarian lw can easly be found inthe Islamic conception of war, The Quran prohibits Muslims from transgressing the divine mits during the conduct of var It also forbids them from following the sevage and inhuman ways and methods of warfare. Before we dwell upon the Islamic concept of humanitarian law it must be pointed out that the Islamie system by its very nature isnot a secular legal order but one of divine and sacred emanation, The precepts of Islam constitute a solid chain of principles which encompass all | the affairs of the believer in his relationship with God, with himself, and with his fellow men. “Thus, besides being a religion and moral code, Islam is also a system of law. Under Istam, faith and legal order form an inseparable whole. It should also be noted that unlike modern practice Islamic legal system does not divide law into public and private, or positive and natural, or ‘municipal and international, rather it comes uuder the single fabric of law and is universal in ‘The Islamic notion of war is immensely rich its application. SOURCES OF ISLAMIC HUMANITARIAN LAW ‘The Islamic concept of humanitarian law is primarily based on the Quran and the Sunna. The Guran is the bedrock of Islamic jurisprudence. It is admitted by thé Muslims as the word of God and therefore the basis of al their laws. It isin fact a collection of divine revelations reaching Prophet Muhammad through the agency of the angel Gabriel. The Quran was not revealed as a whole, but came down in fragments, as necessity arose, during the prophetic, career of Muhammad, which lasted for about twenty-three years. The Quran is the basic foundation on which the whole superstructure of the Islamic legal theory rests. If ona given matter the Quran is silent then we rely upon the teaching and example of the Prophet himself; which is collectively known as the Sunna or the Hadith in Islamic law. The ‘word Sunna literally means a way or rule, or manner of acting or mode of life. Applied to the40 International Humanitarian Law in South Asia life of the Prophet this meant, therefore a rule deduced from the sayi Prophet. Such saying or conduct could take the form ofa specific utterance ofthe Prophet, a 5 action or practice of the Prophet, or tHe approval by the Prorhet of the action or practice of The ge ie: ln brief the Sina vemprises wl the Propiu said did, spproved,o, tolerated, The Sunna is cousidered complemen‘ary tothe Quran as it simply realineos o¢ interprets the latter or specities how it should be applied. In the absence ofa specific Quranic verse or @ Hadith bearing onthe matter in hand, one change inte and Qiyes. The Ima technically meins the general consensus among Islamic Scholars of a particular age in relation i the legal ule correct applicable tothe ctuaton And Qiyas means deriving rule by logical inferences and unalogy. The Qiyas i an extension of a rule of law to a new case on the assumption that the original context ofthe two incidents is Similar, Qiyas is essentially the expression of an assimilative tendency of reason to bring together situations, which despite thei exterior dissimilarity, are concordant because of the icenity ofthe juridical reasoning, Owing to the ever-increasing needs of society, Qiyas plays OF Fran (ole in Islamic egal activity. However, an obvious limitation upon the authority Of Ijma and Qiyas is that it must not be in conflict with the Quran and the Sanne Thus, the Jslamic concept of humanitarian law is founded above all onthe verses ofthe Quran, on the words and deeds ofthe Prophet during the hostilities imposed upon him and, lastly on the rules deduced by lima and Qiyas. THE CONCEPT OF WAR IN ISLAM eq Like modern humanitarian lay Islam too thinks of war only as unavoidable, not as desired, or wget No be sought afer, It is ahistorical fact that from the dawn of history until now, humanity has suffered from local, civil, and global wars. In fact, wars are a necessity of existence, a fact of a life. Humanity lives under the constant fear of war in many hot spots of the world\ The (2) | Ralsticapproach of Islam therefore, recognizes war a awful anda justifiable couse forthe toration of justice, freedom, and peac a Gahan obicvein Islam itis resorted to), underlextraordinary cireumstang allother ieans fai: The Quran says: Fightin the cause of Allah, those who fight you. But do not transgress limits; for Allah loveth not transgressors’ (2: 190). ses D) (The above passage shows that under Islam, ‘vari permissible ony in|defence-Lespecially \ defence of religion, It is not permissible for personal glory, or power, or extension ok territory.) Cae aggressive war is contrary to the teachings of Blas Numero lumerous verses in the Qufan ‘condemn aggression in all its forms. Before we further proceed to elaborate and compare islaiuic humanitarian law ‘with modern humanitarian las, we must tke inte account two necessary dimensions, namely, the erin of time, and envionment. slam emerged inthe seventh century amidst widespread ignorance | posto7] amd barbarism, whereas the modern concept of international humanitarian law did nor vr crystallize until the second half ofthe twentieth century. There are, therefore, thirteen centuries between the births ofthese two concepts:In a world like that ofthe Arabs we could not expect He eee across an elaborate framework of humanitarian law in the same way in which we ene interpret the term today, Yet most of the principles of modern international humanitarian law “ie? can easily be found in Islam, tn factin several respects, Islamic law is much ahead the ‘modern doctrine of humanitarian law. To| | i LEELLEGCEGEL GE GE BGO DO GB 4% The blame Concept of Humanitarian taw 44 RESPECT FOR DIGNITY OF THE PERSON centeai to the tslamic “The idea of respect for the dignity and int-zrity of the concep’ vi huuranitarian law. The Quran repeatedly warns agaist violation of humen dignity and reminds believers of the need to observe justice in all their dealings. It also calls or them to give just and equal treatment tv all those over whom they may exercise de facto jurisdiction without regard to sex. race, oF religious conviction. According to Islamic teachings, God gave preference to mian over all his other creatures—this gives man his special responsiblties, On a nuiber of occasions the Quran recognizes the special position enjoyed bby man, In Chapter XCY, we find the statement: ‘Surely we ceated man of the best stature ‘And in Chapter XVIi, verse 70 runs: ‘And surely we have honoured Adam—and made him excel highly over all those whom we have created’ ) (The Isiamic humanitarian lavsforbidé Muslim combatants to-torture their enemies or to subject them to treatment contrary to human dignity. Islan formally pyohibi ts mutilation, torture, and anyother degrading treatment of enemies in armed contflic iy act of violence /=> which is(militarily necessary is) however, permissible under Isla jumanitarian law. But even in such cases where there is no exemption and killing is allowed, Islamic law enjoTH8 the soldiers with t + for the dignity and integrity of enemy persons, There is a saying by the Prophet:‘Do not commit treachery and do not mutilate’ The Prophet gave the express order—‘Never mutilate even a dog. That order has always been mentioned among the instructions given io Muslim soldiers by their commanding officer. It is important to note that this kind of order was issued at a time when it was common practice to inflict phallotomy and other savage forms of mutilation on enemies killed in battle. All these show the concern of Islam for the dignity and integrity of the human person in the heat of hostility. MEANS AND METHODS OF WARFARE @CPaeaeaph 1 of Ante 35 of 1972 Gevevs Protocol I msntans a fundamental rule under SGhich: ‘In any armed conflict, the right of the parties to the conflict to choose methods or means of-warfare is not unlimited)’The very essence of this fundamental rule of modern humanitarian law, which was not adopted until 10 June 1977, explicitly falls within the Islamic concept of humanitarian lay, which was laid down shisteen centuries eanlief)The fundamental rule of Islam in this respect is lid down in the Quran which says, Fight in the cause of Allah those who fight you, but do not transgress limit: Islamic concepts contain a specific and positive ban and lay down precisely defined limits in stating that one must never transgress the limits of justice and equity and fall into the ways of tyranny and oppression. inka rpc, the bet of ri uth achiwengat af iar. the @uisition of the enemy's property itis rather the fulfilment of a duty—the Jihad in Allah’ ‘path—by universalizing the Islarnc faith. Islam, therefore, adviges to Tefrain from the sheddiny a % @ of blood, ruction of property not necessary for the achievement of that objective. This Islamic notion js in clear conformity with paragraph 2 of Article 35 of Protocol Twhich— states that:‘Itis prohibited to employ weapons, projectiles and methods of warfa ture to cause si necessary suffering. Environmental damage in wartime is inevitable, Throughout history, war has always left its @ mark sometimes extremely long lating, on the natural environment. The destructive potentialORO bDULED 42 lnternational Humanitarian Law in South Asia of the method and means of warfare already in use or availabe in the world's arsenals today prbresents a threat to the environment of @ magnitude unprecedented in the history of hhusuanity. Modern hurnanitazian la establishes a general. obligation to sfaring the conduct of hostilities tie 35(2) uf Protocol | stipulates t ‘ts ‘employ methods or means of warfare which are intended, or may be expected, to cause ‘widespread, Tong-term and severe damage to the natural environm: ent: Long before the adoption "Provided guidlines Torts preecion, The Gazan fel condemns the man Who “when he holds authority makes efforts in ihe land to cause mischicf in itand destroy crap : fore 0, the instruction of Caliph Abu Bakr 9 Uthman expressly states: ‘Do not hew date palm nor burn it: €o not cut down fruit tree; do not slaughter goat or cow or ‘camel except for food: A learned commentator of the Quran, Abdullah Yasuf Ali, writes: The unnecessary cutting dovn of fruit trees and destruction of crops or any wanton destruction of whatever in war is forbidden by the law and practice of Islam? These precepts are also-in © perfect harmony with Article 54(2) of Protocol I which provides that‘it is prohibited to attack, destroy, remove or render useless the objects indispensable to the survival of civilian population such as foodstuffs, agricultural areas for the production of foodstuffs, crops...) | The genera! principle enunciated by Article 37 of Protocol is probibtion of perfidy pand admissibility of ruses of war. Under islamic humanitarian law, perfidy and treason re strictly Prohibited. The general principle of Islamic law relating to perfidy i enshrined in the Quran itself: If you fear treachery from any group; throw back (their coven: It) to them, (so as t be) ‘on equal terms: for Allah loves not the treacherous (8:58), aa ‘The Prophet often used to say: ‘Give back trust to him who has reposed trust in you and betray not he who betrays you: And ‘Good faith in exchange for perfidy is better than perfidy for perfidy: The historic precedents constituted by the wars of Islam provide eloquent testimony to the practice against resorting to perfidy. Islam also forbids the killing of anyone who deserts the enemy army. Nor does it allow an adversary tobe outwited by a promise of sparing his life, only to be killed zfterwards. Islamic law enjoins upon all Muslims that they must undertake, if necessary. to guarantee the safety of those who have surrendered and, consequently to eschew resort to perfidy for the purpose of killing of war, however, are not forbidden in Islamic law. “War is a ruse’ is a famous dictum: in Muslim military literature which is also attributed to the Prophet. In his war expeditions, the Prophet is eported 2 have given currency. apparently misleading things using amabiguos expressions and the like to consternate the enemy. Yet ruse cannot simply mean lying. Ste use matiof-are-permitted forms of ruse.) of camo a PROHIBITED WEAPONS Modern international humanitarian law prohibits a number of weapons and types of ammunition, or restricts their use. Article 35(2) of Protocol I forbids employment of weapons, Of projectiles of a nature that causes superfluous injury, or unnecessary suffering. And amder 6bULbDLUOUBODVYVVO Ow 7 ~~ ‘The Islamic Concept of Humanitarian Law 43 Article 51(3) itis forbidden to attack with weapons or ammunitions which have indiscrimin. te ceffecrs-attirotigh most of such weapons were nat in use at the time of the emergerice of Isl> o, But the ‘dea was aot unknown iw Islamic rurists, There is @ svong juristic writing on point. ‘The Maliki jurist, Khalil, says that under islam a combatant is prohibited from using = ‘weapons capable of causing his opponent injuries that exceed the possible military advantage achieved by combatant. He, therefore, advises against the use of poisoned arrows because such aivows could cause tnjustified suffering to the victim. Hilli, another Islamic scholar, thinks ‘hat the use of poison in any form during warfaze is prohibited. These jeristic writings acknowledge the Islamic principle of restricting the use of weapons which may cause ‘unnecessary suffering or which have indiscriminate effects. ENEMY PERSONS AND PROPERTY One of the fundamental principles of modern humanitarian law is that: ‘parties to a conflict shall ata times distinguish between the civilian population and combatants in order to spare the civilian population and property. The civilian population shall not be the object of attack Islam had already acknowledged this basic rule of hostilities much earlier, The Quran clearly says: Fight those who fight you. A Muslim combatant is always under an obligation to distinguish the combatant from 2 non-combatant and direct his weapon only at the forme This obligation of a Muslim is supported by various Prophetic traditions. ‘Do natkill any old person, any child, or any woman’ runs one tradition. ‘Do not kill monks in monasteries’ runs another, and ‘Do not kill people who are sitting in"places of worship’ states a third. The proclamation of the Caliph Abu Bakr, warned his soldiers to spare women, children, and old men. The great Islamic scholar, Al-Awzai, recommends the protection of labourers, peasants, and shepherds, besides old people, hermits, children, and women. tes whe deald be protected, were traders, merchants, contractors, and the like who did not take part in actual Shing ‘he underlying idea behind giving special protection to crn calegares Tine is tat enemy non-combatants, who do riot take part in hostilities and who are unable to do 0, should be insulated from the effects of wai (ll objects of civilian character, that is, Civilian installations and places have also been guaranteed protection under the precepts of Islamic humanitarian law) Islam forbids their destruction, and it is certainly in this sense that Abu Bakr’s prohibition on the cutting or burning of fruit trees, and date palms should be interpreted. According to Al-Awaai, ‘It is unlawful for Mslims to perform an act of destruction in enemy territory, for that is corruption and God loves not corruption’ All these prononncements make it abundantly clear that Islamic jaw, like modern humanitarian law, vecognizes the necessity of distinguishing. combatants from non-combatants, and military objects from civilian objects, but strictly confining military operation against combatants and military objects. ond {py adorn PRISONERS OF WAR tortured, and finally killed or crucified. If they were spared they were as a rule made slaves, In ancient times prisoners of war were treated with relentless cruelty; they were blinded, ) and only in exceptional cases liberated. But Islam adopts a generous attitude towards capturedr TAP Ub erreur 44° International Humanitarian Law in South Asia combatants, careful scrutiny of Islamic Iw shows that it contains numerous provisions advocating kindness towards enemy combatants taken captive. The Quirau itself has specified ich prisoners must he treated. che way in wl — comb a been subdued and captured te ityjoe tesioor until the war lays down its burdens...” Islam prescribes fair and humane treatment for prisoners of war. At the battle of Badr, the Prophet ordered his men to ‘take heed of the recommendation to treat prisoners fairly’. On another occasion the Prophet said: ‘Prisoners are your brethren. It is by the grace of God that they are in your hands, Since they are at your mercy, treat them as you would treat yourself regards foud, clothing, and shelter. I's not demand of them labour which exceeds their strength; help them rather in what they have to do’ The Quran also states: ‘and they feed, for the love of Allah, the indigent, the orphan, and the captive™ (768) he prisoners of war, under cs Islamic law are not to be asked to pay for their food, the cost of Which is to be borne by the custodi Discriminatory treatment of prisoners is also not permissible for avy reasons whatsoever, reer a Under Islam, the position and dignity of prisoners are to be respected, A tradition, in this regard, is attributed to the Prophet, ‘Pay respects to the dignity of a nation which is brought law: The caliph Abu Bakr, the Prophet's immediate successor, demanded from his victorious soldiers, in a proclamation to them, that prisoners of war be treated with pity. There has also been an Islamic practice of treatment of prisoners whereby from her child oF anyone from his/her relatuss A prisoner i also ented to correspond with his family. He has the right to draw up hiswill oncerning his property at home, which is to be, obviously, communicated to the enemy authorities through some appropriate channel, ‘The enemy representatives are allowed to visit places Where prisoners are kept. Islam is basically opposed to. lea. in treatment on captive persons. As a matter of rule, in Islanf no prisoners of war can be killed All for and mutilation of prisoners of war are forbi filly weated. This does not, however, pocelude trial an for crimes committed by them, beyond Fights of belligerency. Women and child prisoners are not to be killed even if they are found pulepof acre Bim y of a crime, n jurists clearly recognize that a prisoner cannot be held responsible fax the mere act of belligerency. according to Islamic humanitarian concepts, [prisoners At the termination of hostilities, must be released either{gratuitously of on TanSOm}The Quran is categorical in limiting the fate of prisoners to Iternatives. In fact the Prophet always took one of two options: either he ffeed captives in return for @ ransom, or set them free without asking for in exchange, The ransom may be paid cither by the relatives or friends of the war or by the enemy govecnment. It may consist either in the release of an anythi equivalent numbers of Mustinis held by the énemy (corresponding to the process of exchange of prisoners of war, as practised today), or in the payment of a sum of money, or in the fore, of some service required to be rendered. The ransoms fixed by the Prophet for some of the Prisoners of war afer the hattle of Bade included the obligation to teach Muslim children how to read and write. In the battle of Hunain the ransom for some of the prisoners who were ton hoor to pay it was aid personaly by the Prophet himself. Thre is no verse in the Quran directly permitting enslavement.