INTERNATIONAL LAW.

Batoota — Thu, 22 May 2014 16:08:55 +0000

INTERNATIONAL LAW. The expansion of Islam, territorial conquests, and the progressive formation of a Muslim empire that had its apogee between the eighth and ninth centuries led Muslim jurists to formulate a certain number of rules and standards that can be described as principles in the domain of international law. The primary sources of this law, and indeed of all shari’ah (the divine law), are the Qur’an and the sunnah (words and acts attributed to the Prophet). Secondary sources are essentially of two kinds: the consensus of the majority of the jurists (ijma`) and analogy (qiyas). The oldest Muslim code of law which refers to the siyar, or rules governing war and peace with non-Muslims, is probably the Kitab al-majmu` of Zayd ibn ‘Ali (d. 738). Other jurists, such as Abu Yusuf, al-Awza`i, Malik ibn Anas, al-Waqidi, and particularly al-Shafi’i, followed his example, devoting a portion of their works to questions relating to the law which today would be called international law. The great jurist Sarakhs! (d. 1090) wrote a lengthy commentary on those writings of al-Shafi`i that dealt with siyar.
At first, Muslim conquerors progressed very rapidly and undoubtedly believed that Islam would spread quickly throughout the entire world. Given this vision, the nature and form of eventual relationships with foreign powers were of little importance. However, from the ninth century onward, the conquerors’ aim seemed increasingly unrealizable, and Islamic rulers were forced to accept the division of the world into two distinct realms: Islam and non-Islam. The acknowledgment of this division produced one of the founding principles of Islamic law. According to this vision, the world is divided into two territories: dar al-Islam (“realm of Islam”), where divine law governs, and dar al-barb (“realm of war”), which temporarily evades the law of God, but which should be made to submit when the appropriate time comes.
Dar al-Islam is the ultimate Muslim realm, where the precepts of the true faith reign. In theory, dar al-Islam constitutes a group of unified territories, forming a single state, ruled by a single power and subject to the law of the one God. The substantial unity of dar al-Islam partakes as well of the universal and messianic character of the Islamic state. In fact, the legal concept of Islamic power rests on the direct continuation of religious belief and seeks the reunification of all men under the aegis of Islam. Thus, unlike modern international law, which recognizes the existence of a multitude of sovereign states, traditional Islamic law, like Roman law or the legal system of medieval Christendom, is based on the theory of the universal state.
The concept of dar al-Islam is linked to another notion fundamental to the Islamic vision, that of ummah, or the community of the faithful. According to Islam, it is religion that determines citizenship and not parentage or birthplace. According to this view, a Muslim who is in Islamic territory, even if far from his birthplace, can, if he is capable, fill any post, including political office. However, the idea of the ummah goes beyond the territory of Islam, in that there might be Muslim minorities who live outside of the dar al-Islam. Furthermore, nonMuslim religious communities can live in the heart of the Muslim world as protected minorities (dhimmis) if they belong to the “people of the book” (ahl al-kitdb), Jews, Christians, or members of other scriptural religions. Dhimmis must pay a special tax (jizyah) and do not enjoy full civil rights. However, the government gives them protection and recognizes their right to govern themselves according to the conventions of their own community.
According to Muslim jurists, dar al-Islam and the rest of the world are in a state of war which will endure until Islam’s eventual triumph over unbelief. This situation is justified by the existence in the Qur’an of the notion of jihad, often incorrectly translated as “holy war.” Literally, jihad means “effort,” “endeavor,” or “struggle,” but in effect it implies the execution of an order from God enjoining Muslims to fight against the infidels in order to effect their conversion or their submission. However, jihdd is not one of the five pillars of Islam. It is not a strict individual obligation, but a communal duty necessary to the defense and spread of Islamhence the importance of the community’s political/religious leaders in the call to jihad.
The Qur’an repeatedly alludes to the duty to fight infidels, while also referring to the necessity for the war to be legally sanctioned and for its conduct to be lawful. Furthermore, many verses of the Qur’an seem to characterize jihdd as a defensive endeavor. However, there is a greater number of verses that urge armed struggle and make no distinction between offensive and defensive war. Be that as it may, the complex nature of the concept of jihad authorizes diverse interpretations. Thus, Muslim authors have offered varying and sometimes contradictory explications of it. Certain modernist and reformist nineteenth- and twentieth-century jurists have maintained that jihad should be understood in a spiritual rather than a military sense. Although this type of argument cannot be summarily dismissed, it must however be acknowledged that throughout history jihad has often signified the making of war. It must not be automatically concluded from this that Islam is a warlike religion. The concept of a just war is not unique to Islam, and in addition, Islamic law has elaborated rules helping to bring together Muslim countries with the non-Islamic world.
From the time when Muslims had to resign themselves to accepting the impossibility of the rapid realization of their ideal, that is, the foundation of a universal Islamic state, even if the state of war was maintained from a theoretical point of view, a new conceptual framework was necessary. With this aim in mind, some jurists recognized the existence of a third category of territories between dar al-Islam and dar al-barb: dar al`ahd (“land of the covenant”) or dar al-sulh (“land of truce”). In order not to clash with the fundamental principles of Islamic law, it was necessary to resort to a legal subterfuge (transformation of the non-Muslim state into a state that recognized Muslim suzerainty), while emphasizing the temporary aspect of the concept of dar al-`ahd. From that point onward, various standards of peaceful relations were introduced, such as the principle of exchanging diplomatic missions. Until the end of the eighteenth century, Muslim sovereigns had not established permanent foreign embassies, but they often sent envoys on missions into neighboring countries and also received ambassadors from non-Muslim countries. In principle these delegations enjoyed diplomatic immunity, but there were occasions when one side or the other did not carefully respect this immunity.
The contacts between the Muslim world and the exterior world were also favored by the institution of aman, which is a safe-conduct guarantee granted to a nonMuslim by the government or even by an individual, authorizing travel in Muslim territory and yet exempting the traveler from restrictions imposed on dhimmis. Amdn can be extended to a group of people, and even to all citizens of a foreign country. In addition, Muslim sovereigns accepted rather quickly the signing of treaties with ddr al-barb countries, as well as the use of arbitration to resolve certain conflicts. The duration of treaties, however, was in principle limited. With arbitration, the cases submitted to this peaceful method of resolving disputes were more often technical than political.
The dualistic worldview, favored by Islam, and the hazards of history, were the bases for a certain number of rules of international law that until the mid nineteenth century governed relations with the nonMuslim world. But this conceptualization assumes the unity of the Muslim world, whereas that world was divided into several parts. At the very time when the boundaries between Islam and non-Islam were established, differences in administrative and even legal practices between the various provinces were becoming more marked. Parallel to this development, and especially after the disappearance of the first Arab empire of the Umayyads (661-750), there were revolts and uprisings in surrounding regions. With the weakening of the ‘Abbasid Empire (749-1258) and its progressive disintegration, autonomous principalities appeared. It was thus that independent dynasties trying to strengthen their authority and extend their territorial base emerged in all corners of the Muslim world. In the Mashriq (Arab East), the dismantling of the empire was followed by Turko-Mongolian invasions. Once islamized, the Turko-Mongolians in their turn founded new states. The end of the fifteenth century and the beginning of the sixteenth were marked by the formation of the Ottoman Empire, the Safavid Empire in Persia, and the Mughal Empire in India. The founding of these new states, and above all the rivalries that grew up between them, introduced new elements of division in the heart of the Muslim world.
When all of these historical events are considered, it seems irrefutable that Islam was more distinguished by territorial pluralism over the course of centuries than by territorial unity, even if juridical fiction masked the reality of power relationships and of antagonisms between various political polities that shared the space of dar alIsldm. In reality, although only one single border was supposed to separate the Islamic world from the rest of the world, other demarcations developed which divided Muslim countries from one another. In practice, these administrative divisions, which were not meant to separate the faithful, effectively became boundaries between states. Thus, in the seventeenth century, Persians and Ottomans introduced the practice of drawing up treaties of precise delimitation of the borders between Muslim states. It was in this manner that the rules of Islamic international law, which originally had been applied to relations with non-Muslim states, were progressively extended, with some modifications, to the relations between Muslim states. However, official recognition of this extension was avoided by referring to the intrinsic unity of Islam and the Islamic world. With this aim in mind, each Muslim sovereign made a point to present himself more as a defender of Islam than as a prince holding sway over a clearly demarcated Muslim territory.
In the nineteenth century, siyar underwent internal transformations because of the fragmentation of the Muslim world, and changes in the practice of international law by Muslim states were added. These changes were the result of the intensification of relations with Europeans and the preeminence that Europe would henceforth take in international life. Two phenomena helped to introduce European notions of law into the Muslim milieu: colonial expansion, which either directly or indirectly affected most Muslim countries; and the increased involvement of some Muslim states, such as the Ottoman Empire, and to a lesser extent Persia, in the cooperative interplay of European nations. Concepts such as the state, national territory, sovereignty, borders, and the organization of international relations were from this time on seen in a new light. Later, decolonization and the recognition of the states’ rights to their own natural resources contributed to the emergence in the Muslim world of fully independent states. These states wanted to be equal and thus similar to the other states of an international system born of the historical experience of the West and of the European tradition of international law.
The movement toward an international community founded on the concept of the plurality of states forced the Islamic theory of international law to undergo important transformations. Among these modifications the most significant are: the acceptance of the principle of peaceful relations and the renunciation of the principle of the state of war advocated by jihad; the acceptance of the idea of separation between religious doctrine and foreign affairs; and the explicit recognition of territorial sovereignty. Thus changes that began in the ninth century developed in the sixteenth within the Muslim world and intensified following the expansion of contacts with Europe, radically altered the very foundations of the Islamic concept of international law.
Although it can be said that at the end of the twentieth century the Islamic legal system and Western international law have moved closer together in an unprecedented fashion, one must not conclude that the classical concept of Islam has been totally lost in these matters. It is true that the idea of Islamic solidarity is largely a myth, yet it still endures in the minds of many Muslims. In fact, the traditional vision underlies certain actions of Muslim states and is at the root of certain contemporaneous doctrines. With regard to the desire for unity, for example, the creation of the Organization of the Islamic Conference in 1972, which brings together almost fifty Muslim countries, is obvious proof of a desire among Muslims for convergence. Admittedly, this entirely conventional intergovernmental structure has nothing in common with the creation of a great Islamic state, but it is, however, the only modern international organization created by specific reference to a religion.
Contemporary doctrines involve the fundamentalist discourse on international relations. The fundamentalists follow classical theory, on the fine hand rejecting all modifications which that theory has undergone over time, and on the other hand infusing it with modern, anti-imperialist, Third World revolutionary jargon. They demand simultaneously the strengthening of the faith within the community, unity in that community, and the expansion of the boundaries of dar al-Islam. From their point of view, Islam has today, more than ever, a moral mission in the universal scheme, and not to accomplish that mission would constitute a renunciation of the very foundations of Islam.
Since the institution in 1979 of an Islamic republic in Iran, the revolutionary Islamists have for the first time had the opportunity to put into practice their ideas about international law. They have consistently challenged the standards which govern modern international relations, not hesitating to resort to unanimously condemned acts, such as taking hostage American diplomatic personnel, condemning a British novelist to death for blasphemy, and rejecting human rights as a secular concept of the Judeo-Christian tradition. However, they have rarely hesitated to use all of the resources of that same international law when it suited their interests. With time, noticing the counterproductivity of some of their decisions, the Islamists in power in Iran have tried to conform to the habits and customs of present-day international relations. Nevertheless, their ideological position remains fundamentally unchanged, and they still do not recognize any legal tradition other than the most conservative Islamic one.
[See also Dar al-Harb; Dar al-Islam; Dar al-$ulh; Diplomatic Immunity; Diplomatic Missions; International Relations and Diplomacy; Jihad; and Law, article on Legal Thought and jurisprudence.]
BIBLIOGRAPHY
Artz, Donna E. “The Application of International Human Rights Law in Islamic States.” Human Rights Quarterly 12 (May 1990): 202-230.
Bahar, Sarvenaz. “Khomeinism, the Islamic Republic of Iran, and International Law: The Relevance of Islamic Political Ideology.” Harvard International Law Journal 33.1 (Winter 1992): 145-190. Djalili, Mohammad-Reza. Diplomatie islamique: Strategie internationale du khomeynisme. Paris, 1989.
Khadduri, Majid. War and Peace in the Law of Islam. Baltimore, 1955 A classic work on the subject.
Lewis, Bernard. The Political Language of Islam. Chicago and London, 1988. A systematic study on the relationship of Islam and politics.
Mahmasanl, Subhi. “The Principles of International Law in the Light of Islamic Doctrine.” Recueil de Cours 117 (1966): 201-328. Piscatori, J. P. Islam in a World of Nation-States. Cambridge, 1986. One of the best works on the territorial pluralism of Islam.
Rechid Ahmed. “L’Islam et le droit des gens.” Recueil des Cours 62 (1937) 375-5o6. Although old, a still interesting text.
Reisman, M. H. A. “Islamic Fundamentalism and Its Impact on International Law and Politics.” In The Influence of Religion on the Development of International Law, edited by Mark W. Janis, pp. 107-134. Dordrecht, 1991. A stimulating comparison of the views of several religions.
MOHAMMAD-REZA DJALILI
Translated from French by Elizabeth Keller

INTERNATIONAL LAW. – Hybrid Learning

INTERNATIONAL LAW.