The Theory of Conflict in Islam and International Law
I was keen to develop an understanding of the theory of conflict in Islam so that the international community can finally realize that Islam was never uncivilized; on the contrary, Muslims spread civilization, development and progress in Europe, a thing our nemeses emphasized. However, Allah’s praise of this nation is more than sufficient, where he says in the Quran: “You are the best community that has been raised up for mankind. You enjoin right and forbid indecency; and you believe in Allah.” Islamic scholars developed the theory of conflict and humanitarian law as a perfect intact theory. The scholar Mohammed Abu al-Hasan Shaibani was the first to develop rules, principles and provisions of this science in his books “As-Sair al-Kabeer and As-Sair as-Sageer”. An association that bears his name was established in Germany in his honour.
In this study we will address the theory of conflict in regards to Islamic Sharia and contemporary positivist international law, wherein we will demonstrate that this law is an Islamic principle, initiated by Islam and practiced without fail by all Muslims, starting with the Messenger, peace be upon him, and extending to commoners since this Islamic principle is considered an act of worship to Allah. Due to its tolerance, Islam has made mercy and compassion towards all people a type of worship that draws a Muslim closer to God, no matter how much others might attempt to violate or contradict its doctrine.
We will also demonstrate, in the second part of the study, the most important provisions, rules, and principles that contemporary international law contains, in order to demonstrate and indicate differences, gaps and precedence of Islamic law in human rights both during armed international conflicts, or non-international conflicts. This research focuses on two aspects:
First: Islamic Conflict Theory.
Second: Conflict Theory in Contemporary Positivist International Law.
I. Islamic Conflict theory
Western law scholars denoted Islamic Sharia’s brilliance and awareness of communities’ exact needs since long ago, and praised islamically derived laws. Thus, Islamic law has been recognized as a global source of legislation in a number of international scientific conferences since 1932, including:
1 – International Comparative Law, in Lahay, in 1932.
2 – Lahay Conference, in 1937.
3 – Comparative Law Conference, held in Lahay, in 1938.
4 – International Conference, held in Washington, in 1945.
5 – Rights’ Division of International Complex Comparative Law, held in Paris, in 1951.
These conferences have issued some important decisions, such as:
A – Regarding Islamic legislation as a fourth source of comparative law.
B – Islamic Sharia is a unique law, and has nothing to do with Roman law, or any other law.
C – Islamic law is valid in all times and places.
D – Islamic law representation in international judgment and International Court of Justice.
Moreover, in Lahay Comparative Law Conference, in 1932, French jurist ‘Lampeer’ referred to the high regard phenomenon, that spread among European and American scholars in the present time, he said: “However, I don’t refer to this law (referring to Islamic law) to affirm my statement’s accuracy, for there are elements in this law that legislators can use to drive and formulate from numerous laws, theories and principles that are by far as sophisticated and comprehensive as most current western jurisprudence theories, such as: Abuse Theory, Emergency Theory, Responsibility Theory, and Non-Discrimination Theory. For all these theories are Islamic law principles that don’t need any reformulation or restructuring” (1). Also, Gustav Bonn has approved in his book “Arabs’ Civilization” of Islamic civilization’s impact on Western civilization; he noted: “Arabs’ impact (i.e. Muslims” in the west was indeed great, for the European Renaissance was the result of the scope of its impact.”
There are other Western scholars that recognized Islam’s impact on general international laws, rules, and provisions. One of them is, Vito Rhea Sue Lars, and another is the Baron Michel de Top, International Law Professor at the International Studies’ Institute, in Lahay, Netherlands, where he stated a lot of rules and provisions by which Islam preceded the international law, and specifically concerning the laws of conflict. He mentioned Abu Bakr’s commands to his soldiers in the first part of the 1926 Study Group in International Law Academy, and referred to orders issued in Cordoba by Caliph al-Hakim ibn Abd al-Rahman in the same regard in 963 AD, which was even before Papal peace Church establishment. Also, historian “Mr. Yu” mentions in his book “Arabs’ History” the impact Islam had on Western civilization, especially on international law.
Baron de Top added, “These are various Islamic laws that were used to alleviate wars from the seventh century to the thirteenth century AD. These Islamic laws preceded similar legal concepts and principles in later Europe, which only began to emerge after a barbarism that overwhelmed international European life during the thirteenth century. This is a clear indication of the impact that Islamic law had on later European international law.” (2). Another indicator of Islam’s legal primacy and superiority over international law in general and international humanitarian law in particular, is that the Muslim jurist, Mohammad ibn Hasan al-Shaibani, was considered the first founder of this science, so-called “conflict law”; the international humanitarian law (3) and the association bearing his name was established in Germany in his honour.
Scholars of Islamic law authored numerous books on jihad, explaining international humanitarian rules and provisions that are contained in the Quran, Hadith, biography of the Prophet, the Caliphs and their followers. The first of these rules is the protection of human life, or the right of living, as Islam is the only Sharia that emphasized the significance of this right, a thing that no sect, creeds or law ever emphasized. Allah said in the Holy Quran in Sura al-Maeda verse (32): “For that cause We decreed for the Children of Israel that whosoever kills a human being for other than manslaughter or corruption in the earth, it shall be as if he had killed all mankind, and whoso saves the life of one, it shall be as if he had saved the life of all mankind. Our messengers came to them of old with clear proofs of God’s Sovereignty, but afterwards many of them became prodigals upon the earth.”
In another verse, Allah gives the characteristics of His righteous slaves: “Those who do not cry to any other god along with Allah, nor take the life which Allah has forbidden save in the course of justice, nor commit adultery – and whoso does this shall pay the penalty.” Al-Furqan: 68.
Likewise, there are multiple Hadiths that order Muslims to respect and protect the human soul. The Prophet, peace be upon him, described suicide as a major sin and he also said, “A Muslim is still in the space of his religion (i.e. can be forgiven) as long as he does not shed forbidden blood.” Conflict was initially legislated in Islam merely to counter attacks, as Allah said in Sura al-Baqara, verse 190-191: “Fight in the way of Allah against those who fight against you, but do not begin hostilities. Allah does not love the aggressors. / But slay them (those who fight you) where you find them, and drive them out of the places from which they drove you out, for persecution is worse than slaughter.”
At the same time, the Quran forbade fighting non-aggressors, yet approved of Muslims’ right to legitimate defense, a thing that human rights law did not give privilege to until recently. Allah said in Sura al-Baqara verses 190-194: “”Fight in the way of Allah against those who fight against you, but do not begin hostilities. Allah does not love the aggressors. / But slay them (those who fight you) where you find them, and drive them out of the places from which they drove you out, for persecution is worse than slaughter. And fight not with them at the Inviolable Place of Worship until they first attack you there, but if they attack you there then slay them. Such is the reward of disbelievers. / But if they desist, then Allah is Forgiving, Merciful. / And fight them until persecution is no more, and religion is for Allah. But if they desist, then let there be no hostility except against wrong-doers. / The forbidden month for the forbidden month, and forbidden things in retaliation. And one who attacks you, attack him in like manner as he attacked you. Observe your duty to Allah, and know that Allah is with those who ward off evil.”
Furthermore, Islam allows war in response to injustice, Allah said in al-Hajj 39-40: “Sanction to fight is given to those who fight because they have been wronged; and Allah is indeed Able to give them victory; / Those who have been driven from their homes unjustly only because they said, ‘Our Lord is Allah’; For had it not been for Allah’s repelling some men by means of others, cloisters and churches and oratories and mosques, wherein the name of Allah is oft mentioned would assuredly have been torn down. Verily Allah helps the one who aids Him. And Allah is Strong, Almighty.” He also said in al-Nahl: 126: “If you punish, then punish with the like of that wherewith you were afflicted. But if you endure patiently, verily it is better for the patient.” Islam also permits war as punishment for treason and breaking Islamic treaties, Allah said: “The worst of things in Allah’s sight are the ungrateful who will not believe. / Those of them with whom you made a treaty, and then at every opportunity they break their treaty, and they do not keep their duty to Allah. / If you come to them in the war, deal with them so as to strike fear in those who are behind them, that haply they may remember.” al-Anfal: 55- 58. And He says in al-Tawbah: 10-14: “They observe neither pact nor honor toward a believer. These are the transgressors. / But if they repent and establish worship and pay the poor-due, then are they your brethren in religion. We detail our revelations for a people who have knowledge. / And if they break their pledges after their treaty (has been made with you) and assail your religion, then fight the disbelief. They have no binding oaths – in order that they may desist. / Will you not fight a folk who broke their solemn pledges, and purposed to drive out the messenger and attacked you first? Do you fear them? Allah has more right that you should fear Him, if you are believers / Fight them! Allah will chastise them at your hands, and He will lay them low and give you victory over them, and He will heal the breasts of folk who are believers.”
Likewise, Islam has permitted war to defend the oppressed, Allah said in an-Nisa’: 75: “How should you not fight for the cause of Allah and of the feeble among men and of the women and the children who are crying: Our Lord! Bring us forth from out of this town of which the people are oppressors! Give us from Your presence some protecting friend! Give us from Your presence some defender!”And He says: in al-Anf’al: 72 -73: “Behold! Those who believed and left their homes and strove with their wealth and their lives for the cause of Allah, and those who took them in and helped them: these are the protecting friends one of another. And those who believed but did not leave their homes, you have no duty to protect them till they leave their homes; but if they seek help from you in the matter of religion then it is your duty to help them except against a folk between whom and you there is a treaty. Allah is Seer of what ye do. / And those who disbelieve are protectors one of another – If you do not so, there will be confusion in the land, and great corruption.”
Furthermore, Islam ordered its followers to establish a powerful armed army, but never initiate assault, as Allah said in al-‘Anfal: 60: “Make ready for them all you can of your power and of horses, that thereby you might dismay the enemy of Allah and your enemy, and others beside them whom you know not. Allah knows them. Whatsoever you spend in the way of Allah it will be repaid to you in full, and you will not be wronged.” And the Prophet, peace be upon him, said to ‘Ali bin Abi Talib and Muadh bin Jabal, in two different conquests “Never fight them until you call them to Islam; and if they refuse, don’t fight them until they fight you and kill one of you, then show them the dead man and say to them, ‘Do you know what