Reflections On The Legality Of War Under Islam And International Law
As a student of law one is constantly applying legal principles, rules and precedents to new and ever-changing sets of facts. But surely, in our moments of contemplation we wonder if there is more to the practice of law than an adversarial argumentation and needless bureaucratic red tape. Does law exist in a social vacuum? This is where it is an entirely different ballgame as we begin to perceive law as part of the cultural reality that encompasses us in time and space.
Today, in the aftermath of yet another gruesome act of terrorism in the French capital the international community becomes more polarized by ideals that are, or at least seem to be, at complete odds with one other. As students of a discipline that hones the skill of identifying similarity and distinction, we unwind the one binary that most frequently recurs in the contemporary pattern of global politics – the binary between Western and Islamic positions on the question of war.
Throughout this article, I employ references from sources as historically apart as the United Nations Charter (1945) and the Divine Code of Muslims – the Koran (622), only to prove that this conflict is not, as a matter of logic, the result of any inherent contradictions between the two. In fact, in surprising ways, the underlying crux of the words in said texts converges more often than it diverges.
It may be claimed with perfect certainty that both, the religious scripture that sits at the heart of Shariah and the Charter, do indeed consciously recognize the inevitability of war as a condition of man. A reality that perpetually exists in a world short of Kantian peace – one that at least the Westphalian system of sovereign states has not only failed to avoid but contributed towards. In that sense, both the Koran and international legal instruments mutually accept this need for a legal framework to address the national and humanitarian aspects of war. What precisely these legal frameworks are and to what extent they diverge on the question of war and peace is an area that deserves to be explored by those keen on getting to the source of violence and conflict in today’s world.
However, before we let our opinions become our judgment it seems reasonable to take a step back into where these ostensibly opposing moralities come from. Under the international legal regime the only legitimate exception to the use of force is ‘self-defence’ as stipulated in Article 51 of the U.N Charter. The foundational text of the only supranational body with a near universal participation of states is clear in its message; only when State A is attacked by State B, is the use of military force a lawful act of retaliation on the part of State B. Likewise one of the most prominent Chapters of the Koran (Surah al-Baqqarah: 2-191) states in vivid terms: ‘Fight against those who fight you but do not transgress limits’.
The treaties and customary rules currently in force predate to the days of jus ad bellum – a journey through time that has taken centuries of experience with conflict. This process of law-making has historically been driven by Christian doctrine. Europe, and the West in general, has had the advantage of aeons to mould its legal principles into their contemporary form and shape. It seems that it is only the Christian terminology as used in Saint Augustine’s theo-philosophical writings on the just war theory that have been dropped, as the underlying monotheistic roots of international law cannot help but correspond to the words in the Koran.
Coming to the latter part of the verse, Muslims are under clear instruction to not transgress limits as prescribed elsewhere in the Islamic legal code. Here we see a striking similarity in the Western and Islamic legal positions as to the right conduct during wartime. Literally interpreted the verse rules out the use of force against those who do not intend to fight (i.e. non-combatant/civilians). There is precedent in Islam to treat prisoners of war in a respectful and humane manner. Moreover, in accordance with Hadith (the second most authoritative source of Shariah) Muslims are inexorably forbidden from harming women and children (Sahih Bukhari V. 4, Book 52, 257 & 258) during times of conflict.
At this point it would be superficial of our minds to not identify a parallel between the Islamic concept of limits and jus ad bellum – the Latin maxim that lays down the rules applicable during wartime. The Geneva Conventions & standards of necessity and proportionality govern the exercise to determine the legality of the use of force in self-defence. The Western legal framework has had ample opportunity in time to grow into an elaborate, articulate and arguably accurate legal conceptualization of war. Nevertheless, it remains an intriguing coincidence that the quintessential principle underlying that schema is only reinforced by Islamic injunctions. The limits as shown in the case of two so-called mutually irreconcilable legal doctrines are based entirely on humanitarian grounds. Perhaps, that per se is an allusion to the possibility that the criteria for right and wrong, moral and immoral, lawful and unlawful is something that tends to stay constant as we move from the Western to Islamic legal systems. The norms established under international law are too often, and then always at the expense of miscalculation, invariably seen as a threat to core Islamic values. Before we indulge ourselves any further in this Huntingtonian discourse that favours clash over harmony among civilisations, wouldn’t it be wiser to rephrase the original question and ask ourselves: is conflict between notions of justice, humanity and peace around the world the inevitable consequence of difference that we are often lead to believe it is?
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.