Comparison Article

  • View
    13

  • Download
    0

Embed Size (px)

Text of Comparison Article

  • Customs as a Source of Siyar and International Law: A Comparison of the

    Qualifying Criteria

    By Dr Anowar Zahid and Dr Rohimi Shapiee*

    Abstract

    In the present world all States, both Islamic and non-Islamic, practice (traditional) international

    law, which was originally European Christian law of nations. Muslim States and individuals

    have expressed, on various occasions, their aspirations to practice Islamic values in their national

    and international lives. This has motivated the present paper to look into the convergence and

    divergence of Islamic international law (Siyar) and (traditional) international law with respect to

    custom, which is a major source of international law. The paper has found that customary

    practices, under both laws, mature into customary law through almost the same kind of

    qualifying process with, of course, one major difference that unlike the (traditional) international

    law the Siyar requires that the customary practices must not conflict with Shariah or the spirit of

    Shariah. As such it has concluded that the customary international law is Islamically acceptable

    subject to the satisfaction of this requirement.

    1. Introduction:

    Siyar (plural of Sirat), meaning the behaviours and conducts of Prophet

    Muhammad (Peace be upon him- PBUH) at the time of war and peace, has been

    technically used by Islamic jurists for Islamic International Law.1 Classical Islamic

    *Senior Lecturer and Associate Professor respectively, Faculty of Law, Universiti Kebangsaan Malaysia

    (National University of Malaysia).

    1 Imam Abu Hanifa (d. 150 H.) is known to have first titled Siyar for his lectures on Muslim Laws of War and

    Peace. After him, his students like Imam Abu-Yusuf, and Imam Muhammad As-Shaybani (d. 189 H.), and also

    Imam Ash-Shafiiy used the term in the same sense and for the same purpose. In this way over time Siyar has

    assumed the technical sense of Islamic International Law. Dr Hamidullah quotes As-Sharkhsiy (d. 483 H.) to

    evidence such an use of the term as follows:

    Know that the word siyar is the plural form of Sirat. We have designated this

    chapter by it since it describes the behaviour of the Muslims in dealing with the

    Associators (non-Muslims) from among the belligerents as well as those of them

    who have made a pact (with Muslims) [and live as Resident Aliens or non-

    Muslim subjects]; in dealing with Apostates who are the worst of the infidels

    since, they abjure after acknowledgement (of Islam), and in dealing with Rebels

    whose position is less (reprehensible) than that of the Associators, although they

    be ignorant and in their contention on false ground. M. Hamidullah, Islamic

    Worlds: Inter-state Relations (New Delhi: Anmol Publications 2001), at p. 17.

  • jurists, especially jurists of Abbasyd period, developed this subject basically as the

    external relations law of Islamic State. Probably because the Islamic State was ever

    expanding with the spread of Islam like irresistible sea waves and wars were a regular

    affair of the State as a result of confrontation by non-Muslim territories the classical

    (Hanafi) jurists looked at the world as divided into Dar al-Islam (land of peace) and Dar

    al-Harb (land of war). They did not recognize any other State except the Islamic State

    and vowed to spread Islamic faith in the dr al-harb and establish permanent peace on the

    earth thereby. To attain that goal they considered Jihad as the basic instrument, which

    means efforts of all sorts, peaceful or, if needed, violent, to establish Gods sovereignty.

    To quote Professor Majid Khadduri in this regard:

    The jihad, in the broad sense of the term, did not necessarily call

    for violence or fighting, even though a state of war existed between

    Islamic and non-Islamic territories, since Islam might achieve its

    ultimate goal (recognition and establishment of Gods sovereignty) by peaceful as well as violent means. This participation might be fulfilled by the heart, the tongue, or the hands, as well as by the

    sword. The jihad was accordingly a form of religious propaganda

    carried out by spiritual as well as by material means.2

    As such for the classical Islamic jurists unilateralism was the basic approach to the

    foreign relation and Jihad, meaning war in the strict sense, was the principal instrument

    to maintain that relation. Accordingly they developed Siyar basically as a law of war

    (Jihad), which included rules of war, cessation of war, distribution of booties, treatment

    of prisoners, law of revenue, etc. Of course, Siyar also included the law of peace, such as

    peace treaty, diplomatic rights and privileges, and safe-conduct (aman) toward non-

    Muslim visitors or traders for a temporary period of time.3 In this respect foreign

    relations of the Islamic State were reciprocal, for example, Caliph Harun al-Rashid (786-

    809 AD) had mutual and friendly relations with Charlemagne.4 The reciprocity

    increasingly assumed the typical feature of the Islamic State foreign relations, which will

    be more evident from the following paragraphs.

    By the middle of the Abbasyds period (750-1258 AD) the Islamic State became

    so vast that it was practically difficult to keep its integrity in face of demands for

    secession raised from different areas. A theoretical debate ensued among the jurists if

    there could be more than one State dividing the State. One group held unity of the State

    2 M. Khadduri, The Islamic Law of Nations: Shaybanis Siyar (trans.) (Baltimore, Maryland: The Johns Hopkins

    Press, 1966), p.15. (footnotes omitted)

    3 See ibid., p. 6.

    4 H. Moinuddin, The Charter of the Islamic Conference and Legal Framework of Economic Co-operation among its

    Member States, (Oxford: Clarendon Press, 1987), p. 38.

  • and other plurality. A middle way solution, chiefly advocated by al- Mawardi, was

    reached to meet the political realities: the Islamic States would decentralize their powers

    to different provinces and the rulers of the provinces would have allegiance to the Caliph

    of the Islamic State.5 This decentralization process was followed by three broad divisions

    of the dar al-Islam by 16th

    century: Ottoman Empire, Persian Shia regime and Mughal

    Empire in Central Asia and India.6 Since 16

    th century dar al-Islam chose the state of

    peace as the permanent basis of its relations with the dar al-harb based on the principles

    of reciprocity and mutual interests.7 In the span of 18

    th and 19

    th centuries the Ottoman

    Empire concluded a number of peace treaty with European States, e.g., the Treaty of

    Carlowitz, the Russian-Ottoman Treaty for the Partition of Persias Northwest Provinces,

    1724; the Treaty of Peace (Belgrade), 1739; the Treaty of Peace, 1774; the Treaty of

    Peace (Jassy), 1792; the Treaty of peace (Bucharest), 1812.8 As well as some other

    Muslim States like Persia, Morrocco, Tunis, Muscat, it (Ottoman Empire) granted

    numerous commercial privileges to European States.9 In 1856 the Ottoman Empire

    signed the Treaty of Paris to participate in the advantages of the public law and system

    (concert) of Europe, which, in fact, divorced the Christian and European character

    of the Concert and Public Law.10

    However, with the opening of the 20th

    century Ottoman

    Empire split into nation-States.11

    Nation-States emerged in other parts of the Muslim

    world as well. All Muslim States, regardless of their internal approach of ruling (e.g.,

    Shariah as in Arab Peninsula or secular law as in Turkey) accepted the secular approach

    in their foreign relations.12

    As such the general international law, which was originally

    European and Christian law of nations, became their law for international intercourse.

    Muslim States participation impacted this law as follows:

    In respect to the mutual intercourse between the Christian and

    Mohamedan Powers, the former have been sometimes content to

    take the law from the Mohammedan, and in others to modify the

    International Law of Christianity in its relation to them. Instances

    5 Supra note 2, p. 21.

    6 M. Khadduri, War and Peace in the Law of Islam, (Baltimore: The Johns Hopkins Press, 1955), p. 270

    7 Khadduri, supra note 2, p. 22.

    8 Moinuddin, supra note 4, pp. 40, 227 and n. 160.

    9 For the long list of the privilege granting agreements, see Moinuddin, supra note 4, pp. 227 and 228 nn. 163-168.

    10 Moinuddin, supra note 4, p. 42.

    11 Khadduri, supra note 6, p. 288.

    12 Khadduri, supra note 6, p. 292.

  • of the first may be found in the ransom of prisoners, the rights of

    ambassadors, 13

    However, a question may arise in this connection that despite Muslim contribution how

    far the modern general international law is Islamic or Siyar-friendly? Mahmassani, a

    modern Islamic jurist, observes that principles of international law are very similar to

    Siyar principles.14

    Based on this observation Hasan Moinuddin argues that general

    international law has become Muslim international law as Muslim States have been

    adhering to them expressly or tacitly or by customary practice in their relations with other

    S