Protection Of The Rights Of Individuals In Armed Conflict Situation: A Comparative Analysis Of Islamic And International Humanitarian Laws

Protection Of The Rights Of Individuals In Armed Conflict Situation: A Comparative Analysis Of Islamic And International Humanitarian Laws

Abstract

The fundamental target of both Islamic law of war and international Humanitarian law is to protect the Rights and Persons of both combatants and non-combatants during and after the hostilities thus, the amount and extent of violence applied in war must be limited to achieving military objective, that is to subdue the enemy, such an action/violence should be proportionate, in other words, there should be a clear distinction between combatants and non-combatants, meaning, the law restricts both the means and method of waging war and object against which such means may be employed.

Thus, civilians and civilian objectives must not be made the object of direct attack, they should be accorded necessary protection against the dangerts arising from military operation, such as indiscriminate attack that is expected to cause incidental less of civilian life, injury to civilians, damage to civilian objects or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated. In the same vein, a combatant who can no longer take part in hostility due to sickness or surrender should not be attacked or killed, but should be accorded all necessary protection as provided under protocol, and by extension all other prisoners of war, as contain under the third Geneva convention of 1949 as well articles 14 and 75 (2) of protocol 1 of 1977 additional to Geneva convention.

So in essence, both Islamic law of war and International Humanitarian law granted protection to all civilian population, i.e. women, children, religious personnel aged persons and all other categories of persons who did not take part in hostility through any other means as well as their objects. They also extended such protection to combatants who are incapable to continue with hostility as a result of injury or surrender. Violation of any forbidden act or non-performance of any required act under both Islamic law of war and International Humanitarian law is considered as war crime. The main objective of this research work is therefore to provide:

1. A comparison of Islamic law and International Humanitarian Laws by examining the rights of individuals both combatants and noncombatants, during and after armed conflict situations.
2. To examine the sources of the said two legal systems.
3. To examine the purpose of war under the said two legal systems.
4. To determine war crimes under the two legal systems as well as their punishment. To examine the differences between the two legal systems.
5. To fill in the vacuum left by learned jurists in the two legal systems, and to offer some suggestions on how to fill the said vacuum as well as to further develop same.

Chapter One

Introduction

1.1 Background of Study

The history of human kind right from antiquity testified that, conflict or rather armed conflict between individuals, families, tribes and nations has been part of the nature of human persons.

Policy of force was encouraged by disinclination of state of Europe during the dark ages through the Middle Ages, to consider any community other than one which was loosely related to them as Barbarian who did not deserve to be treated on equal footing. An example is the case of Romans who treated none but their Latin cousins as equals, while they treated the rest of the world as Barbarians who deserved to live only under Roman Dominance.

During the period referred to above, the rights of combatants as well as non-combatants, e.g. civilians, women, children, aged persons, religious persons and injured combatants were not properly and adequately respected and protected during armed conflict situations. However, even at that period, certain individuals as well as some religious leaders tried with some greater or lesser success to limit the suffering of war among combatants and non-combatants.

For instance, two thousand years before Christ, King Hammurabi of Babylonia (now in Iraq) codified rules of conduct in war.

In India, the text of Maharabati and Manu Codes provided that, mercy be shown to the disarmed and wounded enemy.

Over fourteen hundred years ago (7th Century, A. D.), the religion of Islam laid down comprehensive rules of war, in order to alleviate the suffering of war to both combatants and noncombatants.

In the 17th Century, the Dutch legal scholar and diplomat, Grotius, wrote his book entitled De juri Belli – Acpacis, which was considered to be the first attempt to draw up rules of international law, protecting the victim of armed conflict.

However, the first modern attempt to draw up a binding code for the conduct of armed forces in the field was that prepared by Professor Francis Libber of the United States of America, promulgated as law, by President Lincon in 1868, during American Civil War. This code though only binding upon United States of American forces was based on what Libber regarded as the generally accepted law of his day.

Islam was the first religion to provide Arabian peninsular with comprehensive rules and regulations governing the conduct of war, as well as protection of rights of combatants and noncombatants during armed conflict situations.

The first Islamic state was established in Medinah in the 7th Century (Rabee al-Awwal, first year of Hijra) by the Prophet Muhammad (Peace be upon Him). Since then, some basic rules and regulations governing the conduct of war were laid down by the prophet (peace be upon him). It was reported that, whenever the prophet was sending troops to battle, he instructed them to comply with the following regulations:

Be just, do not act treacherously, and do not act disloyally or negligently. Do not mutilate, do not kill little children, old men or women. Do not cut off palm tree or burn it. Do not fell any fruits bearing tree. Do not slaughter – sheep, cow or camel, except for food, perchance, you will come across men who retired to monasteries (Priest or clergymen) leave them and their devotion in peace.

This is the brief historical account of the position of the two legal systems (International Humanitarian law and Islamic law of war) during their infancy.

1.2 Statement of the Problem

The 1949 Geneva Conventions are said to apply in any armed conflict whether international or non-international by virtue of Article 3, Common to all Geneva conventions. The conventions are said to bind all parties in armed conflict, whether signatory to it or otherwise. The necessary implication of this statement is that, any other legal system that goes contrary to any provision of the said conventions will not be tolerated or accommodated. In other words, the conventions attained a supremacy status, so that, if any other law is in clear conflict with their provisions, the latter will be declared null and void to the extent of its inconsistency.

In other words, permission to commit an act which is regarded by the conventions as war crimes will not exonerate a person from liability. An example is the provision of Islamic law of war which permits the killing or enslaving the prisoners of war. How can this be practicable nowadays, if for instance, a new government in any of the Islamic state emerges and decides to apply this Islamic provision?

(b) There is also provision under Islamic law of war similar to the above (which also violated the provision of the convention– i.e. 3rd Geneva convention Article 14 and Article 34) that permits imposing of poll tax (JIZYA) on the inhabitants of a conquered territory who decide to remain non-Muslims (Christians and Jews). How will this be practiced now-a-days, in the event of the emergence of a new Islamic government that decides to be governed strictly by the provisions of Islamic law of war instead of Geneva conventions provisions, in this and similar respects?

(c) Another problem worth addressing by this research work is that, Geneva Conventions recognize war correspondents (an issue/problem which was not discussed by writers on Islamic law of war). Can such recognition be extended by Islamic law of armed conflict?

(d) Similar problem to the above is the issue of using certain kinds of weaponry which were not in existence during the life time of the Prophet Muhammad (Peace be upon Him) as well as his companions and other classical jurists, such as weapons of mass destruction, biological and chemical weapons. What will be the ruling of Islamic law of war on using these weapons?

(e) Similarly, the issue of rules that will regulate Air warfare was not addressed by the writers on Islamic law of armed conflict despite the significant roles they are playing in the modern warfare, whereas, literature on maritime warfare rules are very minimal and scars.

These and other problems/issues necessitate the writer to embark on this project with a view to address them.

1.3 Objective of Study

The objective of this research is to provide:

1. A comparison of Islamic and International Humanitarian laws by examining the rights of individuals, both combatants and non-combatants, during armed conflict situations.
2. To examine the sources of the said two legal systems.
3. The purpose of war under the said two legal systems.
4. The definitions and different punishments for war crimes as provided under the two legal systems.

1.4 Significance of Study

In the opinion of this writer, there is a serious need to embark on this research at this moment, considering the fact that, there are some new development in the present armed conflict which the Islamic view point has not been discussed by learned writers on this field, such as, Rules and Regulations governing air warfare, maritime warfare, the use of certain kind of weaponry e.g. Weapons of Mass Destruction (Chemical and Biological Weapons), suicide bombing etc. The writer also appreciates the need to address differences between Islamic law of war and International Humanitarian law in respect of some fundamental issues, such as permission to kill or enslave the prisoners of war in certain situations, enforcing a tax (Jizya) on the conquered people etc, by Islamic law of war, which permission still stand valid according Imam Malik, Imam Shafi’I, Imam Abu Hanifa and Imam Hambali.

Beside the above, there is also need to embark on this project, due to the fact that, it happened to be among the neglected areas in Islamic literature; with a view to develop it.

1.5 Scope and Limitation of Research

This research will examine the provisions dealing with protection of individuals’ rights, both combatants and non-combatants during and after armed conflict, under Islamic law of war as well as International Humanitarian law, although the emphasis will be on Islamic law of war.

The scope of research will be limited to the followings:

1. Historical development of the two legal systems.
2. Rights of individuals both combatants and non-combatants during and after the armed conflict under the two legal systems.
3. Extent of protection of such rights under the two legal systems.
4. Punishment for violation of such rights as remedies under the two legal systems.

1.6 Methodology of Study

This research will be doctrinal in nature, thus, it will be carried out through the use of library materials, such as textbooks, journals, article and other available literature, including relevant materials in the internet.

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Summary, Conclusion and Recommendation

5.1 Summary

To recapitulate the main points discussed in this research work, a brief overview of the work, “PROTECTION OF THE RIGHTS OF INDIVIDUALS IN ARMED CONFLICT SITUATION: A COMPARATIVE ANALYSIS OF ISLAMIC AND INTERNATIONAL HUMANITARIAN LAW” hereby given.

The present work is opened with the general introduction to this research work, thus, chapter one, which comprises brief introduction to the Islamic law of war and International Humanitarian law, statement of the problem, objective of study, scope and limitation of research, justification for embarking on a research of this nature, and lastly, literature review.

Chapter Two, traces the origin and development of Islamic law of war, wherein the concept of Jihad was defined. The chapter also discussed types of Jihad under Islamic law of war i.e.
(1) Defensive war
(2) War against apostasy (RIDDA)
(3) War against oppression or humanitarian intervention
227 Ahmad, Al-Dardiri, Abu al-Badakat, Al-Sharh al-Aqrab Ala Aqrab Al-Masaliki, Dhar Ma’aruf, Cairo – Egypt, Vol. 2, Page 275.

The chapter also examine the general rights and obligation of both combatants and non-combatants which include the rights of wounded, sick and dead combatants, as well as the different treatment of prisoners of war as provided by the Holy Qur’an and practices of the prophet Muhammad (peace be upon Him), and lastly the chapter end discussion with what amount to war crimes and their punishment under Islamic law of war.

Chapter three, deals with the International Humanitarina Law, wherein the followings are examined:

1. Origin and development of this law.
2. Permitted and forbidden practices during and after the aimed conflict.
3. Treatment of prisoners of war, sick, wounded and shipwrecked as well as civilians generally.
4. And lastly, the chapter examines war crime, defences as well as punishment for the crimes. It also gives a brief account on the establishment of International criminal court.

Chapter Four, is on the analysis of the rights of individuals under Islamic and International Humanitarian laws by way of comparism.

Chapter five summarized the entire research work and makes some concluding remarks which include conclusion and recommendation. From the foregoing, certain findings in terms of lessons learnt can be said to be as follows:

1. Islamic law of war like other branches of Islamic law generally based primarily on the two fundamental sources, thus, the Qur’an and the sunnah. It also recognized other traditional sources such as consensus (Ijma’a), analogical deduction/reasoning (Qiyas) the practice of the companions as well as other sources, such as treaties.
2. Another distinguishing character of Islamic law of war is that, it binds individuals rather than territories.
3. Another important finding of this research work is the different treatment of prisoners of war obtained under Islamic law of war, which differs radically with what is provided under International Humanitarian law (i.e. Geneva Conventions of 1949 and its two additional protocols of 1977).
4. It is also the finding of the research that, there is interrelation between International Humanitarian law and International Human Rights law, in the sense that, if a right of a captured person during hostility is not protected under International Humanitarian, International Human Rights law fill the vacuum.

In view of these findings, this research work observe that, even though Islamic law of war is part of the Islamic law generally, based on the same sources and maintained by the same sanctions, it is expected to develop in order to meet the challenges of the changing circumstances, time and place. But unfortunately this branch of Islamic law is one of the branches of Islamic law that suffered serious set back and stagnation. Thus, it did not receive the attention it deserved from the scholars of Islamic law of the periods that followed the periods of four prominent scholars (i.e. Imam Abu Hanifa, Imam Malik, Imam Shafi’I and Imam Ahmad bn Hanbal), partly due to colonialism which policies halted the progress of any other branch of Islamic law beside those dealing with spirituality, by replacing them with secular legal systems, which as a result discouraged those scholars to pay due attention to this aspect of Islamic law, due to lower demands. For instance, if one cares to investigate he would find out that, there are some areas in the activity of war which either received minimal attention or no attention at all, such as:

1. Rules regulating the conduct of war in the Air and maritime.
2. Prescribed and articulated penal punishment for war crimes.
3. The position of Islamic law of war on the present phenomenon of suicide bombing.

These and other areas suffered neglect, hence, insufficient and un-articulated literature/rulings on them.

5.2 Recommendation

Based on the foregoing findings and observations, the following recommendations in the humble opinion of the writer will enhance further development of both Islamic law of war and International Humanitarian law:

1. Islamic International law in general and Islamic law of war in particular should be included in the syllabus of the Nigerian universities as an independent course unit for those who are offering, sharia, civil law, international relation, diplomacy and political science.
2. Islamic law lectures, law lecturers, and other lecturers in other discipline, such as political science, history and international relation with sufficient Arabic language background in the Nigerian Universities and other research centers, should embark on mass translation of the Arabic literature on Islamic law of war into English language with a view to develop and provide easy access to this important branch of Islamic law.
3. Ahmadu Bello University Zaria, center for Islamic Legal Studies should encourage the development of this aspect of Islamic law, through mass translation, conferences, seminars etc, both locally and internationally; and it should involve all the stake holders in the project, such as International Committee of Red Cross, Red Crescent, etc.

These are some of the recommendations a writer is able to offer in respect of Islamic law of war. While on the part of International Humanitarian law, it is respectably recommends as follows:

1. More effective and efficient enforcement mechanism need to be evolved to bock up Geneva conventions of 1949 and its two additional protocols of 1977, which are now seriously threatened by some powerful nations, such as United States of America, Israel, Great Britain etc. Unless such is done, breaches will continue, a situation that is likely to drag the world further into unfortunate situations like the one we are witnessing currently in Iraq, Afghanistan, Palestine, Lebanon, etc, where war of aggression, suicide bombings, abductions, hostage taking and indiscriminate attack on civilians as well as the abuse of the rights of prisoners of war.
2. Some moral and ethical values should be inculcated in the minds of all the armed forces globally with a view to minimize rampant breach and violation of the rights of both combatants and non-combatants during and after the war.
3. United Nations should strive to maintain its integrity by all means, or else to become completely worthless like its predecessor, League of Nations.
4. The Geneva Convention accord on the Treatment of prisoners of war be amended to ensure that those engaged in military action on behalf of stateless organization, recognized as prisoner of war and to receive the same protection as those who fight for established states or militia.

5.3 Conclusion

From what has been discussed so far by this research work, it is now apparent that, the two legal systems (Islamic law of war and International Humanitarian law) are substantially in agreement in regard to the protection accorded to both combatants and non-combatants, even though they differ radically in respect of the treatment of prisoners of war. Likewise, under Islamic law of war, there is no well defined and articulated punishment for war criminals, as has been highlighted herein.

Now the fundamental question is can these two different positions of these two legal systems be reconciled?
It is humbly and respectably submitted that, these two contradictory positions can be reconciled for the following reasons:

1) Allah (SWT) did not make legislation in respect of killing prisoners of war, enslaving them, or enforcing Jizya on the conquered territory that refuse to accept Islam fixed, but rather discretionary, in the sense that, the Imam (head of Islamic government) is given a discretionary power by Allah (SWT) to either apply any of them, or not to apply any at all for instance, Imam, can release any of the prisoner of war or all of them, free of any charge and unconditionally, he can also impose Jizya, etc. Imam can exercise these discretionary powers unilaterally or on the bases of treaty with enemy, base on the instruction of Allah (SWT) as well as the practices of the prophet Muhammad (Peace be upon Him). Allah (SWT) says:

So, when you meet (in the fight-Jihad in Allah’s cause) those who disbelieve, smite (their) neck till when you have killed and wounded many of them, then bind a bond firmly (on them, i.e. take them as captive(s), thereafter either for generosity (i.e. free them without ransom) or ransom until war lays down its burden….

It was also among the practice of the prophet Muhammad (Peace be upon Him) towards the prisoners of war. For instance, when He captured the city of Meccah, He released all the prisoners of war free of any charge.

2) It is permissible for Islamic state or individual to enter into treaty with non Islamic state/s or individuals.

Allah (SWT) says:

(a) “Except those of the unbelievers with whom you have a treaty and who have not subsequently failed you in aught, nor have supported anyone against you. So fulfill their treaty to them to the end of their term. Surely Allah loves the pious.”

(b) “And if any one of the unbelievers (polytheist, idolaters, pagan) seek your protection then grant him protection, so that he may hear the word of Allah and then escort him to where he can be secure…

(c) “How can there be a covenant with Allah and with His messenger for the mushrikun
(polytheist, idolaters, pagan) except those with whom you made a covenant (treaty) near the sacred mosque? So long as they are true to you, stand true to them verily Allah loves the pious,”

(d) “….And fulfill every covenant (treaty/agreement), verily, the covenant will be questioned about”.(10) These Qur’anic injunctions were put into practice by the prophet Muhammad (Peace be upon Him) in a number of His treaties, such- among others – His treaty with AWS and KHAZRAJ (major Arab tribes in Medinah) a treaty (or constitution of Medinah as its popularly known) which was acceded to by the Medinan Jews (Banu Nadhir and Banu Qainuqa’a), His treaty with the Meccans (Hudaibiyya treaty), as well as other treaties He concluded with other tribes surrendering Medinah and outside. His treaties were regarded as model which was followed by His successors to the latter.

Examples of their treaties are:

• A treaty concluded between patriarchs of Jerusalem with the Khalifa Umar bn Al-Khattab 17, A. H. (A.D. 635).
• Treaty concluded between Byzantines Empire and Mu’awiyya among others.

In view of the above, its clear that, Muslim government is given liberty by Allah (SWT) to enter into an agreement/treaty with non-Muslim government, provided the agreement will not lead to fundamental compromise to the basic tenants of Islamic law. The moment an islamic government ratify or accede to a treaty, it become bound by it.

The classical example of this, is, when the treaty of Hudaibiyya was concluded and signed between the contracting parties, prophet Muhammad (Peace be upon Him) taught the entire Muslim nation how binding a treaty is according to Islamic teaching, in the sense that, among the provision of the said treaty, —— “if any person among the Muslim converted into paganism and join the Meccan pagans, meccans are not oblige to return him/her back to Medinah, and if anyone among the pagans converted to Islam and join Muslims in Medinah prophet should return him/her back.”

Prophet Muhammad (Peace be upon Him) accepted the condition in spite of the objection by some of His companions.

Immediately after signing the said treaty and before living the place of signing, one of the Meccans (Abu Jandal) converted to Islam and joined the Muslims therein, the representative of Meccans (who happens to be the father of Abu Jandal), there and then requested the prophet to hand him back to them base on the said provision, the prophet complied (despite the serious objection raised by Abu Jandal and some of his companions), but the prophet told them, that, he had no any other option than to respect His commitment under the said treaty, (which action showed the extent of the binding nature of treaty according to Islamic teaching). Allah (SWT) says:

• “Obey Allah and obey His Messenger…..”
• “Whoever obey messenger, certainly he obeys Allah.”
• “You have a good example in the prophet (His teachings) for whomever desire to prosper in the day of judgment”.

(3) Islamic law is not meant to be burden, creating difficulties for human kind. It is design to facilitate mankind’s individual and societal needs, as such, among the pillars on which Islamic law is based is removal of unnecessary difficulties wherever possible Allah (SWT) says:

• “Allah does not burden a soul with more than it can bear”.
• “Allah wishes for you ease and He does not wish difficulty for you”.
• “Allah did not make difficulty for you in your religion”233.
• “Allah wishes to lighten the burden for you, for man was created weak”234 .

In the light of the above quoted verses, some prominent scholars of usual al-Fiqh (Jurisprudence), such as SHATIBI, QARAFI and GHAZALI opined that, great part of Islamic law is not necessarily fixed, but are affected by time, place and circumstances. (Thus, it changes with the change of time, place and circumstances). This is because, Islamic law is meant for human benefit, and when circumstances require or necessitate change, Islamic law is ready to change.

It is reported that Caliph Umar bn Khatab, suspended the punishment of amputation of the hand of a thief due to the circumstances that warranted such, Le farming, which he considered as SHUBHA (doubt). It is also reported that, he cancelled the potion of Zakkah assigned for the encouragement of non Muslims to accept Islam, on the ground that, the need for such encouragement is no more there, because the objective of such legislation, was to have more people that will defend Islam then, due to serious threat Islam was facing from all quarters (i.e. whole Arabian peninsular), but now (during his time) Islamic State is firmly established, (for that reason, the money should now be used for much more relevant purpose).

What all the above decisions is teaching is that, Umar went beyond the mere literal meaning of those legislation, to find out the actual objective of the said legislations. Prophet Muhammad (Peace be upon Him) is reported to have said:

“I instruct you to follow my Sunnah (teachings) and the
Sunnah of my rightly successors…..”

And it is unanimously agreed among the jurists that, Prophet (Peace be upon Him) was referring in the above quoted Hadith) to His four (4) rightly successors, i.e ABU BAKR, UMAR, USMAN and ALI.

While Allah (SWT) says, in regard to the obligatory nature of the obedience to the Prophet’s instructions:-

1. “It is not for a believer man and woman whenever Allah and His Messenger Decree (gave an instruction) to have any other choose” (alternative/option, thus, if really he is a true believer, he Just have to obey that instruction).
2. “………whoever disobeys Allah and His Messenger has gone manifest astray”.

Most of the legislations dealing with social activities (which are not purely ritualistic/spirituals, i.e. prayer, fasting, Tauhid, Pilgrimage) are meant to achieve a specific immediate objective, (thus mundane, even though complying with any peace of Shari’a instruction, whether social or spiritual will also earn him reward in hereafter), so if the benefit/objective for which the law is enacted is continues, the law will continue, but if it changed due to a change in circumstances, time or place, the law must also change.
The Islamic jurisprudential maxim says:

“The purpose of any piece of law, depend on the cause (objective which it desires to achieve) the moment such an objective changes, the law will also charges”.

Some of the Acts of the prophet are considered as what is termed SIYASA AL-SHARIYYA, an act which is usually built base on the maslah of a particular moment, [ i.e. to serve particular objective\ public interest], the moment the objective cease to exist, the ruling made for that purpose will also become irrelevant.

In view of the above expositions, it can safely be concluded that, a great measure of Islamic law is not fixed or static, but rather flexible (more specifically, Islamic law of war, because most of its principles are founded on Ijtihad, based on either MASLAHA, SAD’AL-ZARFA or, Siyas al-Shariyya) it changes with change of time, place and circumstance. For this reason, it is humbly and respectably submitted that there is nothing wrong in adopting any of the principle enshrined in Geneva Conventions of 1949, its two (2) additional protocols of 1977, or any other treaty, to be recognized as part of Islamic law, provided they are not in clear conflict with the clear and express provision of either the holy Qur’an or authentic tradition of the Prophet Muhammad (peace be upon Him). More so, some of the Jahili Arab customary laws, governing marriage, contractual dealing, etc, which were not repugnant to Islamic teachings, were either adopted, or modified by Islamic law.

In view of all these submissions and authorities, it is humbly and respectably submitted that, since almost all Muslim states (if not all) are signatories/party to Geneva Conventions of 1949 as well as its two additional protocols of 1977, they are legally bound to observe and apply all its provisions to the extent of their ratification. In other words, it is now the conventions that will regulate their conduct of war, more especially in regard to the treatment of prisoner of war.