THE CONCEPTION OF HUMANITARIAN LAW AND
THE ISLAMIC LEGAL SYSTEM
BY Dr. ZIDANE MERIBOUTE
The history of humanitarian law is as old as the creation of Man. The problem of humanitarian behavior in times of armed conflicts was constantly posed for the leaders and the fighters. This has become a major concern since Man has begun organizing himself, whatever be the civilization of reference (stage of civilization, of hunting and harvesting, handicraft etc., or Christianity, Africanity and Islam). The concern about the behavior of fighting in times of war and the violations committed have always been the interest of philosophers, leaders and lawyers of different thoughts and eras. This short article will focus specially on how humanitarian law and the behavior of fighters have prevailed in Islam.
1. Clarification of the Concept of Islamic Law Applicable in Times of War
Islam gives very great importance to humanitarian law. Its approach to human values is, as written by Mr. Sultan:
"deliberate, well thought out, sovereign and fascinating for it emanates from a strong and convinced thought."'
In order to understand the Islamic concept of International humanitarian law, its nature must be determined. At the outset, it is necessary to clarify the confusion surrounding the Islamic legal system in general, and humanitarian law in particular. Two strong views attempt to clarify the confusion:
a) That the Islamic legal system is a divine revelation and sacred emanation and, therefore, is not a secular legal order:
b) Islamic legal system is based mainly on rules drawn from the Koran, forming a whole set which addresses itself to everybody through space and time, and consequently, does not represent distinct branches of public law, private law etc... However, it gives hierarchy to the legal norms according to their importance: Hadd (or divine Laws), Uqubat-taazir (or punishment left to the discretion of the judge-Cadi) etc...
From these two intrinsic driving ideas in the Islamic legal system, two fundamental rules, among others, emanate concerning humanitarian law:
i) The Islamic humanitarian Law has a multiple scope of application and, contrary to the views of some authors, distinguishes between different types of war, conflict (internal, international) etc...
ii) These rules, applicable according to their hierarchy of importance, to different types of conflicts are based mainly on mercy, clemency and compassion. They draw their force from divine authority. Thus, we easily understand that Islamic humanitarian law was far ahead of its time because it always ordered its believers and combatants to comply strictly with the following imperative principles.
General principle: (or what I shall call the "Islamic clause"): "not to transgress and never exceed the limits of justice and equity to fall in the sphere of tyranny and oppression", (verse 190, Chapter II). Thus, to understand well the approach of the Muslim Humanitarian Law, one should always bear in mind that despite the fighting, the final objective
is reconciliation and peace which are never forgotten.
The Koran also provides:
"The one who will have killed a man will be considered as the murderer of humankind, the one who will have given life to a man will be considered as having given life to the whole humankind " (Koran, Sura V, verse 32).
Finally, it is prescribed "that the blood of women, children and old people must not tarnish the victory of the believers." (see below 3.d)
In case of a violation of the rules of fighting, a repression is sanctioned. The most serious penal sanctions in Muslim law are "Hadd" (barriers/boarder), that is the barriers of divine laws which should not be transgressed or come close to transgression. For example, the barrier of "Hadd" is crossed by:
i) Indulging in banditry or rising against a fair power;
ii) Slandering or accusing a person of fornication;
v) Indulging in intoxicating drinks.
The punishment of "Hadd" is at the pinnacle of the pyramid of laws. It draws its stronger force from the fact that it is expressly mentioned in the Koran and the Sunna (traditions of the Prophet Mohammed), while the other types of punishment are distinct from the fact that they are not provided for in the supreme Law. The punishment is either left to the discretion of the judge (Cadi) or is based on the rules called "Taazir", that is, "the discretionary punishment of offences and errors " meted out by the shurta (police). The latter also had the function of exercising the legal authority of the judge. It should be added that the repression of offences, whose punishment is not provided for in the law, varies according to the eras and persons (e.g. during the Umayyad period, the robbers of dead bodies, whether during time of war or peace were thrown into a pit alive).
H. Sultan, « La conception islamique », in: Dimensions internationales du droit humanitaire", Pedone, Paris 1986, p.47