Protection of the Rights of Individuals in Armed Conflict Situation

Protection of the Rights of Individuals in Armed Conflict Situation

Chapter One

OBJECTIVE OF STUDY

The objective of this research is to provide:

A comparison of Islamic and International Humanitarian laws by examining the rights of individuals, both combatants and non-combatants, during armed conflict situations.

To examine the sources of the said two legal systems.
The purpose of war under the said two legal systems.
The definitions and different punishments for war crimes as provided under the two legal systems.

CHAPTER TWO

THE ISLAMIC LAW OF WAR:

THE CONCEPT OF ISLAMIC LAW OF WAR

In the pre-Islamic era, there was no just cause for waging war. In most cases the nature of wars or armed conflict prosecuted was aggressive and not defensive in nature. It is the Islamic law of war that disallowed the Muslims to provoke war of aggression, and yet permit them to take up arms for defence whenever war is forced on them. When conflict becomes inevitable, the Muslims are mandated to engage in armed conflict for self defence and the Allah (SWT) says:

“To those against whom war is made, permission is given to fight, because they are wronged and verily Allah is most powerful for their aid; they are those who have been expelled from their homes in defiance of right for no cause except that they say “Allah is our lord”

War in Islamic law is what is popularly referred to as Jihad. The term Jihad is derived from the verb Jahada (abstract noun, Juhd) which means “exerted” Literally. Its theological meaning is exertion of one’s power in Allah’s path, that is, the spread of the belief in Allah and in making His word supreme over this world.

The individual’s recompense would be the achievement of salvation, since the Jihad is Allah’s direct way to paradise.

This definition is based on a Qur’anic injunction which says: “O ye who believed shall I guide you to a gainful trade which save you from painful punishment? Believe in Allah and His Apostle and carry on warfare in the path of Allah with your possession and your persons. That is better for you, if ye have knowledge. He will forgive your sins and will place you in the Gardens beneath which the streams/low, and in fine houses in the Gardens of Eden: that is the great gain¹⁸.

According to AJIJOLA A.D.¹⁹ The Jihad is a sacred duty of religion incumbent on the Muslim nation at large to launch defensive war against unbelievers to repel their persecution upon the believers or aggression upon the Muslim country.

The Jihad in the broad sense of exertion could be conceived, as an effort in whatever form, be it material, physical or otherwise, directed towards achieving a particular goal, materially or spiritually provided such efforts are intended to seek the pleasure of Allah (SWT). In the early Makhan revelations, the emphasis was in the main on persuasion.

The prophet Muhammad (Peace be upon Him), in the discharge of his prophetic functions, seemed to have been satisfied by warning His people against idolatry and inviting them to worship Allah. This is evidence by such a verse as:

“He who exerts himself (Jahada) exerts only for his own soul²⁰, “rather than struggle for proselytization’’. In the Medinan revelations, the Jihad is often expressed in terms of strife, and there is no doubt that in certain verses the conception of jihad is synonymous with the words war and fighting.

CHAPTER THREE

GENERAL RIGHTS AND OBLIGATION OF COMBATANTS AND NON-COMBATANTS UNDER INTERNATIONAL HUMANATATIAN LAW

GENERAL RIGHT AND OBLIGATION OF COMBATANTS AND NON-COMBATANTS AND ITS PROTECTION

International Humanitarian Law (I.H.L.) means, international rules, established by treaties or custom, which limit the rights of parties or means of warfare of their choose, or which protect states not party to the conflict or persons and objects that are or may be effected by the conflict.

As a branch of public international law applicable in armed conflict situations. International Humanitarian Law is designed to ensure respect for human beings in so far as compatible with Military requirement and public order, and to attenuate the hardship caused by hostilities.

The purpose of armed conflict is to defeat adverse party. The law of armed conflict only permits such action as imperative for this purpose and forbids acts which go beyond this and cause injury to persons or damage to property not essential to achieving this end. The law restricts both the means of waging war and objects against which such means may be employed, and the basic rules of armed conflict apply equally to all theatres, whether on land, sea or in the air, for the main part, the rules which have evolved in relation to warfare on land have been adopted, adapted or developed to the particular situations that arise in connection with maritime or air warfare^.

CHAPTER FOUR

ANALYSIS OF THE RIGHTS OF INDIVIDUALS UNDER ISLAMIC AND INTERNATIONAL HUMANITARIAN LAWS

INTERNATIONAL HUMANITARIAN LAW

The main objective of International Humanitarian law is to prevent unnecessary suffering during warfare. In this sense, it recognizes that human beings, being human, will fight each other.

International Humanitarian law does not seek to prescribe rules for determining whether or not a fight was justly entered into. Rather it prescribes rules to confine the violence which is inevitable when it occurs to only the persons who are involved in the war, and only for the purpose for which the war is fought. It does so by prescribing sets of rules in order to ensure that belligerent actions are only confined to military necessity and targets, i.e. only to what is required in order to achieve the military objectives of the war.

CHAPTER FIVE

SUMMARY, CONCLUSION AND RECOMMENDATION

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.

Defensive war
War against apostasy (RIDDA)
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:

Origin and development of this law.
Permitted and forbidden practices during and after the aimed conflict.
Treatment of prisoners of war, sick, wounded and shipwrecked as well as civilians generally.
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:

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.
Another distinguishing character of Islamic law of war is that, it binds individuals rather than territories.
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).
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:

Rules regulating the conduct of war in the Air and maritime.
Prescribed and articulated penal punishment for war crimes.
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.

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:

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.
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.
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:

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.

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.

United Nations should strive to maintain its integrity by all means, or else to become completely worthless like its predecessor, League of Nations.
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.

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:

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.

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

Allah (SWT) says:

“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.”
“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…
“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,”

“….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).

²³³ QUR’AN: 22:78. ²³⁴ QUR’AN: 4:28.

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:-

“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).
“………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.

REFERENCES

S/N AUTHORS BOOKS

AJILOLA, A. D. INTRODUCTION TO ISLAMIC LAW.
AL-LAIFI, NAZARIYAT KI-AHKAM AL-HARB MUHAMMAD WQAL-AL-SULIM, DIRASAT AL- ‘ MUQARANA.
ABU SULAIMAN, A. A. TOWARDS AN ISLAMIC THEORY OF INTERNATIONAL RELATION.
AL-GHAZALI, ABU AL-MUSTASPHA. FI ILMI AL-USUL HAMID
AL-ASQALANI, AHMAD AL-FATAHU AL-BHARI. BN HAJAR
GAMAQ, RAU MIFTAH NAZARIYAT AL-HARB FIL ISLAM WA ASRUHA FIL QANUN DAULI.
GENEVA FOUR CONVENTIONS AND ITS CONVENTIONS OF TWO ADDITIONAL PROTOCOL. AND ITS TWO ADDITIONAL PROTOCOLS OF 1977.
GIDE AND REST A HISTORY OF ECONOMIC DOCTRINE.
HASHIM, S.H. INTERPRETING THE ISLAMIC EITHICS OF WAR AND PEACE. ‘WWW.ECCA.ORG/IJIIE/ARTICLE S/CONTEMPORARYISSUES/ARTIC LE. HASHIM SOHAIL HS. LTML.
HAMIDULLAH, MUSLIM CONDUCT OF STATE. MUHAMMAD BN UMAR

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