Thursday 13 December 2018

Islamic International Law (Siyar)


Islamic International Law (Siyar)





Islamic International Law (Siyar)

Introduction

Islamic law provides comprehensive rules regarding relations between an Islamic state and non-islamic states both during war and peace. It has an elaborated set of rules concerning the resort to war (jus ad bellum), treaties, the conduct of war (jus in bello), especially who should not be killed during the course of war, what objects should be protected, rights of prisoners of war (POWs), termination of their captivity, and the effects of war.

Shariah also deals extensively with rebels and apostates with a set of binding rules for guiding the Islamic state; of deal with the non-Muslim citizens of a Muslim state (as this was also the subject matter of Siyar in the early Islam); how to deal with foreigners, especially businessmen from non-Muslim nations who visit the Muslim entity for business or requested asylum or protection from Muslim individuals or State; immunity of envoys; territorial jurisdiction, and a host of other issues that are essential for conducting the affairs of a Muslim state in the international arena.

Meaning

Literally Siyar is the plural of Sira which means conduct, practice, comportment, behavior, way of life, attitude, or acceptable behavior. An alternative meaning in its plural form is campaigns. Sira also means (hala plural halat) condition, state, situation.  

The words sair, are used to denote moving (on), setting out, to start; to move along etc. In Shariah Siyar refers to issues regarding the laws of war. And historians used the term Sira to describe the conduct of the Prophet (PBUH) or his successors in their dealings with international matters.

Definition

Imam Sarkhasi (d. 483/1090) of the Hanafi School gives definition of Siyar as;
“Know that the word Siyar is the plural of sira… it describes the behaviour of the Muslims in dealing with the… belligerents as well as… with who have made a peace treaty (with Muslims) and live either as resident aliens or as non-Muslim citizens [of the Muslim state]…”

And now in 20th century Siyar is defined by other scholars as Nagib Arminazi in words of;

“The set of rules that are binding on Muslims in their relations with non-Muslims, whether they fight [the Muslim state] or have peaceful relations [with them], whether they are individuals or states, and whether they are inside Muslim territory or outside of it. And the set of these rules also include the situation of apostates, rebels and robbers.”

And according to Abdul Karim Zaydan;
“It is that set of norms and rules of Islamic law that are binding for the Muslim state in its relations with other states.”

This definition seems to be much better than the rest of definitions as it seems to be in accord with the present day scenario. So those rules and principles of Islamic law that regulate relations between the Muslim state and other states are designated as Islamic International law.

And the current definition of term international law famous one is, by M. N. Shaw;
“The law that operates outside and between states, international organizations and so on”.

Siyar as a separate legal science

The Muslim jurist who is unanimously credited for treating Siyar as a separate legal science, as an authority on Muslim international law, one who had expertise of all the rules of siyar, and who taught it academically, is Imam Abu Hanifa (Rahimatullah). He was the first faqih who used the term siyar for the set of rules governing relations between a Muslim state and non-Muslim states during war and peace. The earliest book called Kitab al-Siyar was written by Abu Hanifa who in turn dictated it to his disciples especially, Abu Yusuf, M. Ibn Al-Hasan Al-Shaybani etc.

“Al-Siyar al-Sagheer and al-Siyar al-Kabir” by Al-Shaybani are important books which later published in Istanbul in 1825. The Arabic edition was first published in 1917 in Hyderabad, Deccan. In 1827 Joseph Hammer von Purgstall – a German scholar, who reviewed the Turkish translation of the book al-Siyar al-Kabir, called Shaybani the Hugo Grotius of the Muslims. The English translation of these was published by John Hopkins University, USA.

The Sources of Siyar

Since Siyar is an integral part of the Islamic corpus juris, thus the main sources are the same as of Islamic law, i.e. Quran, Sunnah, Ijma, Qiyas and many others.

However, when one studies the books of Shaybani, Abu Yusuf etc the other sources used by them are;
1)      The practice of the early Caliphs
2)      Arbitral awards
3)      Treaties
4)      Customs

The expansion of Muslim Rule in eighth and ninth century led the Muslim jurists to formulate certain rules of international law. Among others the oldest Code which could be referred for a source of Siyar is; “Kitab al majmu of Zayd ibn Ali” on rules of war and peace with non-muslim states.

Imam Sarakhsi complied 30 volumes which later published by UNESCO in 1935. Imam Abu Hanifa’s work, as mentioned above, also pertinent to mention here. “Al-Siyar al-Sagheer and al-Siyar al-Kabir” by Al-Shaybani are important books on Siyar.

Fatawa Alamgiri compiled by order of Emperor Aurangzeb also contain sufficient material on Islamic International Law.  

Development of Siyar

The basic principle of Islamic law, “Muslims and Non-Muslims are equal in respect of sufferings of this world”, is admirable as opposed to the Greek and Hindus. Greeks considers non-Greeks to be the salves of Greeks and Hindus also have similar division of humanity. Romans recognize few rights of foreigners. Jews thought that the whole world may live on payment and as servant of Jews. Christians also have division between civilized and non-civilized. Throughout the history Muslims were the first, to recognize the rights of foreigners without any discrimination.  
In days of antiquity when international law was not law, Muslims were the first who recognized it as a code of rights and obligations. Muslims considered Siyar as an independent branch of science, which can be found even before the middle of the second century of Hijrah.

a)      City State of Madinah

The first state governed by Prophet PBUH himself, was a beautiful example of tolerance, recognized under a constitution and inhabited by Muslims, Jews, Pagan, Arabs of different villages. The first treaty of defensive alliance were concluded with non-Muslims was always scrupulously observed under development of International Law.

b)     Modern development

Oppenheim known as father of international law in 1856. League of Nations then United Nations is modern development of international law. But the Islamic International Law originated 1500 years ago when Prophet PBUH established City State of Madinah, under first written constitution “charter of Madinah”. Conquest of Makkah and pardoning of enemies by Prophet PBUH is also glorious example of amnesty under Islamic International Law. The Geneva Conventions gave certain rights to prisoners of war today, but Islam gave such rights 1500 years ago.     

Subjects of Siyar

·         Jurisdiction

The Islamic international law divides the world into two jurisdictions, (dar). The territory controlled by and the residents whereof subject to the Muslims Courts jurisdiction is called dar al Islam. And the rest of the world is dar al harb. 
The powers of court under Muslim state can be discussed under the following heads;

1)      Muslim subjects

On the basis of analogy of Holy Quran, a foreign Muslim becomes regular a citizen if he stays for more than a fortnight.

2)      Non-Muslim subjects

The non-Muslims differ in many respects with Muslims. In some areas they have privileges e.g. Zakat, not an obligation on them. The term used for Non-Muslims are Dhimmis. And Islamic state is bound to provide them basic necessities of life. Even Caliph Umar fixed an allowance for poor and old age Jew. They are considered to be beneficiaries of zakat in Islamic State.

3)      Muslims in Foreign territories

Such territory also known as dar al kufr. A Muslim is bound to regulate his conduct according to the laws of Islam wheresoever he may be. But if he is not under Islamic territory dar al Islam, he is morally bound to observe Islam not legally, because Muslim state is not bound to protect the rights and properties which is not under its control. The reference can be given in this regard;

Sura Al Anfal (8-72)
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“And as to those who believed but did not emigrate (to you O Muhammad SAW), you owe no duty of protection to them until they emigrate”.

4)      Citizen of Muslim State in another

Every Muslim is a part of Muslim territory i.e dar al Islam. As Muslim is born he becomes citizen and acquires all rights and liabilities of citizenship. But he will have to forfeit this privilege if he has got the citizenship of another state.

5)      Muslim citizens of a Non-Muslim state

The Muslim citizen of a Non-Muslim state have the right to enter into Muslim state and surrender the former citizenship, provided that there must not be any treaty between Muslim state and Non-Muslim state contrary. E.g. treaty of Hudaibiyah.

6)      Visa Holders in Muslim territory

Foreigners are entitled to reside temporarily in Muslim state in accordance with the terms of visa and passport. Foreigner is subject to Muslims courts, but some Ulema makes arguments that he can only be punished for crimes against humanity in Muslim Courts, not divine crimes e.g. drinking.     

Provisions of Siyar

Various provisions of Islamic International Law can be discussed as under;

1)      Peaceful relations among States

Quran encourages peaceful relations among states; as provided in Sura Al-Anfal (8-61);
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“And if they incline to peace, incline thou also to it, and trust in Allah. Lo! He is the Hearer and Knower”.
And in Sura Al-Ankabot (60-08);
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“Allah does not forbid you to deal justly and kindly with those who fought not against you on account of religion nor drove you out of your homes. Verily, Allah loves those who deal with equity”.

2)      Diplomatic Relations  

It has always been the part of Islamic International Law to show honour and regard to foreign envoys. The Quran and Sunnah also put emphasis on certain rights of diplomats.

3)      Diplomatic Immunity

In modern world, treaties i.e. Vienna Convention on Diplomatic Relations (1961) and Vienna Convention on Consular Relations (1963) are ratified by many nations. But 1500 years ago Holy Prophet PBUH sent and received envoys called “rasul or safir” to perform variety of funcitons, e.g. negotiations, treaties etc. Envoys sent to Islamic States were entitled for safe conduct “aman” including their persons and properties. The Ummayyads, then Abbasids followed by Fatimids and Mamluks rulers continued this practice.
Then Ottoman Empire kept this practice, which eventually resulted in ratification of Vienna Conventions by Muslims States in modern world.

4)      Jurisdiction

Foreigner residing in Muslims States were subjected to Muslim jurisdiction but not Muslim Laws. However it has been allowed for a non-Muslim to renounce this privilege and go before Islamic Tribunal; as provided under Sura Al-Maida (5-42);
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“…So if they come to you (O Muhammad SAW), either judge between them, or turn away from them. If you turn away from them, they cannot hurt you in the least. And if you judge, judge with justice between them. Verily, Allah loves those who act justly”.
And it is also permissible for a Muslim judge to apply foreign law in case of foreigners, as reported by Sahi Bhukhari that two Jews guilty of adultery were brought before Holy Prophet PBUH who caused to bring the Bible and administered Jewish law to them.  

5)      Diplomatic Missions

Diplomatic mission is an official delegation from one country to another. In practice, Islamic diplomatic missions have existed since the time of Prophet PBUH. The beloved Prophet PBUH used them to propagate the faith. The caliphs in Damascus and later in Baghdad were communicate with neighboring States i.e. Byzantines and Franks. Abbasid Caliph Harun al Rashid developed diplomatic ties with Roman Emperors.
In early days of Islam, diplomatic missions were for negotiations and arbitrations which in modern world for treaties and dispute resolutions.

6)      Pacific settlement of disputes

Siyar promotes peaceful settlement of disputes by means of negotiations, mediation and arbitration. The Treaty of Hudaibiya with non-Muslims in Mecca in 628 AD is a classic example of settlement of disputes.

7)      Law of Treaties

On the basis of principle of honoring contracts in good faith, Siyar put great emphasis on compliance of provisions. This concept further explained in Sura Al-Anfal (8-58);
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“If you (O Muhammad SAW) fear treachery from any people throw back (their covenant) to them (so as to be) on equal terms (that there will be no more covenant between you and them). Certainly Allah likes not the treacherous”.

8)      Laws of War

Islam allows war when all peaceful means of checking tyranny, violence, and injustice have failed, as provided by;
In Sura Al-Baqara (2-190)
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“And fight in the Way of Allah those who fight you, but transgress not the limits. Truly, Allah likes not the transgressors”.
In Sura Al-Nisa (2-190) Almighty Allah said;
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“And what is wrong with you that you fight not in the Cause of Allah, and for those weak, ill-treated and oppressed among men, women, and children, whose cry is: Our Lord! Rescue us from this town whose people are oppressors; and raise for us from You one who will protect, and raise for us from You one who will help”.
The Muslims laws of war is based on humanitarian principles, which prohibits killing of minors, women, old, sick, and monks. It differentiate between belligerents and combatants. Prisoners are well treated in Siyar.

9)      Humanitarian Law

Islam established sanctity of life, honour and property in times of war. Islam prohibits certain acts of war;
·         Starting war without formal ultimatum
·         Cruel ways of killing
·         Killing of prisoners
·         Massacre in conquered areas
·         Inhumane treatment of prisoners
·         Destructions of crops, trees and properties etc.

10)  Asylum

Islamic international law, instructs Muslims to grant shelters to non-Muslims; as provided in Sura Al-Tuba (9-06);
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“And if anyone of the Mushrikun seeks your protection then grant him protection, so that he may hear the Word of Allah (the Quran), and then escort him to where he can be secure, that is because they are men who know not”.

11)  Dar-al-Islam and Dar-al-Harb

According to this concept, the world is divided into two territories, Dar al islam (realm of islam) where divine law governs and Dar al Harb (realm of war) which temporarily evades the law of God, but which should be made to submit when the appropriate time comes.
The doctrine of jihad divides the world in such manner, but the Shafi’s have added a third category, “the territory of truce” (dar al sulh or dar al ahd).

·         Dar al Islam

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. It links to the notion of Ummah. The factor to understand whether a region belongs to the dar al Islam is Muslim sovereignty and application of Shariah in that territory.
Furthermore as per Hanafi’s it converts into Dar al harb if conquested by unbelievers, and laws of unbelievers are enforced.

·         Dar al Harb

This term denotes that the territories bordering the dar al isalm whose leader are called upon, under the threat of invasion, to convert to the Muslim religion. Jurists trace this concept back in time of messaging by Muslim rulers to the emperors of Persia, Abyssinia, and Byzantium to choose conversion of religion or war.
Thus dar al harb is the enemy territory outside the jurisdiction of Islamic Law that must be converted to Islamic territory. The inhabitants of dar al hard are those who refused to convert religion after being enjoined to do so.
And from the moment the leaders of dar al harb accept Islam, this is considered as part of dar al Islam.

·         Dar al Ahd   

Land of truce or dar al ahd is the third category recognized by some jurists. In order not to clash with the fundamental principles of Islamic law, it was necessary to resort to a legal subterfuge (transformation of non-Muslim state into a state that recognized Muslim suzerainty). From this point onward various standards of peaceful relations were introduced, such as the exchanging diplomatic missions. In the seventeenth century, Persians and Ottomans drawn treaties for bordering their territories, and till nineteenth century Islamic International Law changed because of colonial expansion and increased involvement Muslim states in cooperative interplay of European nations. New concepts i.e. national territory, borders, sovereignty came to light in this era.

12)  Law of Neutrality  

The Quran attaches great sanctity to the given words; as provided in Sura Al Anfal (8-72)
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“…but if they seek your help in religion, it is your duty to help them except against a people with whom you have a treaty of mutual alliance, and Allah is the All-Seer of what you do”.
So to give it preference over the material interest of Muslim community.

13)  Complete Equality

To sum up Islam seeks to establish a world community with complete equality without any little discrimination. It seeks to convert by persuasion, allowing no compulsion in religious beliefs. Government signifies a trust, a service, wherein the functionaries are the servants of people.

Conclusion  

Sir Abdur Rahim, enumerates salient features of Islamic International Law as under;
·         The idea of Jihad is to maintain a balance of power.
·         Life, properties are protected.
·         Muslim is duty bound in case of war for loyalty towards his government.
·         International treaties must be respected and observed strictly.
·         India was dar al Islam but after speration in 1947, now it is dar al harb.
So it is undeniable truth and fact that the Islamic international law came into being 1500 years ago with the light and teachings of Holy Prophet PBUH, as opposed to the western world where it is still under development. 

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