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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