Islamic law (Shari'a) permeates every aspect of a devout Muslim's existence, and a Muslim nation's practices. (1) Islamic attitudes vary toward the legitimacy of international law and international agreements according clerical and secular, official and unofficial, state-actor and non-state actor laws, policies, and practices. In Islam, laws are generally to be obeyed and agreements kept--with few exceptions--the most notable being those aspects that are contrary to Islam. Shari'a law promotes respect for human rights and history is replete with instances where this Islamic doctrine has been demonstrated by the commitment of states with a Shari'a influence in favor of peace: the Pact of the League of Arab States (2); the Arab Charter of Human Rights (3); the Charter of the Organization of the Islamic Conference (4); and the Shari'a-compliant Cairo Declaration of Human Rights in Islam (CDHR) charter, (5) to name just a few conventions.
The challenge of promoting peace and human rights under Shari'a and international law will lie in three main realms. First, there is no single "Islamic attitude" towards the legitimacy of international law and international agreements among the fifty-six nations that have adopted Islam as their official state religion, adopted Shari'a as their legal system, or those that have Muslims as the majority or sizeable minority of their populations. (6) Second, as identified by the many nations who were signatories to the Cairo Declaration on Human Rights in Islam (CDHR), (7) the United Nation's Universal Declaration of Human Rights (UDHR) (8) is perceived by some in Islamic nations as failing to take into account the cultural and religious context of non-Western, Islamic nations. Finally, where there is apparent or perceived differences in approaches to advancing peace and human rights, there is a fundamental requirement to understand what practices and policies in Shari'a are of tribal or ethnic origin and culturally significant but not Islamic, what is Islam and incapable of change, and which practices or policies are theoretical or aspirational but not enforced or enforceable.
This Article will survey the symbiosis of faith and law, clerical and secular, official and unofficial, state-actor and non-state actor in Islamic nations from the perspective of advancing (or impeding) peace and human rights--both from a Western and non-Western perspective. This appreciation is vital to maintaining and advancing peace as well as waging war, and the preservation and promotion of the integrity and dignity of all human beings accounting for and regardless of their race, color, language, belief, sex, religion, political affiliation, social status, or other considerations.
Introduction And Heritage Of Islam: The Path Between War And Peace
The so-called "Global War on Terror(ism)," or GWOT, now restyled as "Overseas Contingency Operations," or OCOs, predominantly focused on the clash between Western democracy and al-Qa'eda terrorist network, without necessarily creating or fostering the conditions for peace, stability, or promotion of human rights.
Dozens of countries have passed new counterterrorism legislation or strengthened pre-existing laws that provide their law enforcement and judicial authorities with new tools to bring terrorists to justice, with the United States expanding coalition efforts with allies and foreign partners around the world. (9) Such coalitional efforts still operate with inherent challenges of understanding the religion of Islam and the cultural expressions and institutions that may be influenced by Islam, but not controlled or even prescribed by that faith. (10) It is important to note that not all individual acts of terrorism can be associated with fanatical political or religious ideologues, (11) nor should terrorism or even Islamic extremism be imputed to the vast majority of those in the world who peaceably practice the religion of Islam.
Countries in the Middle East and North Africa have experienced protests against political repression and economic hardship--unprecedented in scope and duration since their independence from imperial domination--which have resulted in rulers in Tunisia, Libya, Egypt, and Yemen being ousted, while those of Bahrain, Jordan, Oman, Tunisia, and Iran are being challenged. (12) Harkening back some fifteen years ago, to a different time which nonetheless created the circumstances of past being prologue, the American political scientist Samuel Huntington warned of an upcoming international "clash of civilizations." (13)
The Essence Of Islamic Law And Binding Obligations: Words And Deeds Matter
Islamic law is ordinarily understood as a collection of scholarly law handed down from medieval times and assembled in written form around the thirteenth century (or later amongst Shi'a scholars). (14) It originated in the seventh century divine revelations of the Qur'an (variously also Koran ha English, but meaning the word of God) and the Sunnah (the record of the Prophet's life). (15) Islamic law is not found in the Qur'an or Sunnah, literally, but rather through interpretation of those sources by fallible human means. (16)
International law--based upon treaties concluded between and among sovereign states and customary law through legal norms of exchanges between states--has been founded essentially in the exercise of free will and conclusively in the elements of contract or covenant (offer, acceptance, and consideration). In Islam, humankind has the freedom to make contracts and covenants with others and--as a collective representation of Muslims--states may observe and conclude agreements in accord with the law and custom of the land and treaty obligations. Islamic law encourages Muslims to honor such obligations, consistent with this charge: "O ye who believe, fulfil your compacts." (17) In other words, there is exhortation to be true to your contracts, covenants, and commitments. For Muslims, an oath must be expressed only in one specific manner, that is, in the name of Allah alone. So we read: "There shall be no compulsion in religion, for guidance and error have been clearly distinguished. ... "18
Please note that a number of ahadith (traditions of sayings of the Prophet Muhammad) suggest that swearing by anything but God is not allowed, especially with regards to contract and covenant. (19) For instance, we find in Bukhari:
[The Prophet] said, "What do you think of men who impose stipulations [shurut] which are not in the Writ [or Book] of God Most High? Any stipulation not in the Writ of God is void [batil]. Were it one hundred conditions, the judgment of God is more just, and the stipulation of God more reliable. ..." (20)
The consequences of infidelity to one's word--beyond the human consequences of conflict, strife, or legal action--will be much more severe for Islam. (21)
Despite these consequences, obligations concluded by Muhammad with infidels and pagans were subject to expiation. (22) Muhammad dissolved one of his first "international law" obligations when breaking the formal treaty with the pagans at Mecca: "Allah is free of all obligation to the idolaters, and so is His Messenger. So now, having witnessed this Sign, if you will repent and make peace, it will be the better for you; but if you turn away, then know that you cannot frustrate Allah s design." (23) Some might claim that Islam recognizes that oaths may be disregarded, but the Surah, sometimes quoted towards that end, must be taken in the context in which it is offered: "Allah has sanctioned the dissolution of your vows; and He is your Patron." (24) Oaths are limited to the intentions of the heart, to that end: "Allah will not call you to account for such of your oaths as are vain, but will call you to account for the evil you have deliberately assented to. Allah is Most Forgiving, Forbearing." (25)
Islam recognizes that impossibility and impracticability may prevent one from keeping oaths and therefore establishes the means by which one may be absolved of the consequences of breaking an oath. To atone for breaking one's oath, Muslims are told to do acts of charity:
Allah will not call you to account for your meaningless oaths but will call you to account for breaking your oaths by which you bind yourselves; the expiation of such breach is the feeding of ten poor persons with such average food as you eat yourselves, or providing clothing for them, or procuring the freedom of one held in bondage. ... Do observe your oaths. Thus does Allah expound to you His commandments that you may be grateful. (26) Specific to an understanding of international law and international agreements, we must consider that pre-Islamic Arabian tribes concluded various alliances and treaties as a means to regulate their economic, social, and public life. (27) The Islamic scholar Hilmi M. Zawati has noted that "Islamic law imposes the respect of treaties [among and between nations,] even above the respect of religious solidarity." (28) The Qur'an states, to this end:
Allah enjoins equity and benevolence and graciousness as between kindred, and forbids evil designs, ill-behaviour and transgression. He admonishes you that you may take heed. Fulfil the covenant of Allah when you have made one; and break not your pledges after making them firm, having made Allah your surety; Allah knows that which you do. (29) Further it dictates: "Nevertheless, if they [who have believed and have not migrated] seek your help in the matter of religion it is incumbent on you to help them except against a people between whom and yourselves there is a pact. Allah sees what you do." (30) It is both a sacred and human obligation, then, in which one must live the hadith that requires Muslims to "[f]ulfill the trust towards the one who trusted you, and do not betray the one who betrayed you." (31)
The Present-Day Pronouncements On, And Challenges To, Adhering To International Law And International...