Islamic Human Rights
Islamic HR Part 2
Islamic HR Part 3
Humanitarian Islam
Léon Roches
Plan du Commentaire
Extrait
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Islamic HR Part 2

2. Implementation of the "Hadd" Rules or Divine Legal Punishment in Cases of Insurrection or Unjustified Acts of Aggression: ("non- international conflict")

a) Internal Insurrection:

Within the purview of revolt against the authority of the Emirs, Islam provides for two cases: firstly, if rebels become heretics, tyrannical or unjust, it is legal for the Muslim community to form a block against them and reject their authority. Secondly, if the guilty Emirs return to the right path by correcting their mistakes and if the insurgent persist with their acts, the latter are fought down according to specific rules:[1]

i)                   The rebels are fought by means likely to break them down and compel them to surrender. It is forbidden to exterminate them.

ii)                  ii) It is forbidden to massacre their children, women and to confiscate their properties.

iii)               iii) It is forbidden to kill their wounded, their prisoners or those among them running away.

Once the uprising has been put down, nothing is demanded from those who provoked it. In that regard, the Koran says: "Once the rebel group gives up, you will restore harmony between them in all justice. You will ensure to be impartial. God loves those who are impartial". (Sura 49:9, "The Apartments").

However, in case of flagrant violation of the rules of fighting by the agents of the Emirs, legal punishment based on the "Hadd" is applied by the judge against them.

b) Aggression (Internal, between tribes)

Since the advent of Islam, acts of aggression between tribes have been condemned; The Koran says: "fight the aggressor until he returns to the Law of God ..." (Sura 49:9, "The Apartments"). If the aggressor is defeated and captured, the judge will apply the Law of "Hadd" to him, either death penalty or exile, etc....[2] The punishment will vary according to the seriousness of the crime of aggression.

 

In conclusion one can affirm that in the Islam, first, when there are revolts, conduct of hostilities, like the repression of breach of combat rules that may ensue, are regulated by supreme divine laws of "Hadd". Second, the act of aggression is considered as a serious crime involving the severest punishment in Muslim Law, particularly the "Hadd". Now, under present modern positive law, during internal conflicts, comprising insurrections, some of the rules of the conduct of hostilities are distinct, today, by their normative weakness (Diplomatic Conference on the Reaffirmation and development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974-1977).

 

 

3. Application of Criminal Law (AL-Uqubat or non-Divine Laws) in Times of Conquest War, "Jihad" etc... ("International Conflict")

The conduct of hostilities and repression of breaches in international wars of conquest or "Jihad", are not provided for in the "Hadd" Law or "Crime against Allah". In this type of armed conflicts, there are nevertheless, very clear combat rules. The violation of these rules entails the application of criminal law (Al- Uqubat). These norms are more precisely called "Taazir" and based on the Islamic Sharia which the Judge (Cadi) is supposed to apply. It should be recalled that in the hierarchy of norms, "Taazil" comes in second position after "Hadd".

In the international wars of conquest, several types of breach of combat rules may be considered as falling within the category of war crimes which the Judge (Cadi) must repress. Without being exhaustive, the breaches in question may be summed up as follows:

a) Inhuman Treatment

The Muslim doctrine stipulates that it is forbidden to mete inhuman or degrading treatment to the enemy prisoner combatant. That same doctrine based on Sura 16: 126 and 128 (Koran, Chapter "Bees") condemns mutilation, torture and the drowning of soldiers who participated in the fighting. Indeed, verse 126 authorizes proportional retaliations in times of war. However, it mitigates it with express reservations and rather recommends forgiveness. More precisely it provides, "And if you punish, then punish them with the like of that with which you were afflicted. But if you endure patiently, verily ... this is surely best for who endures".[3]

b) Prisoners of War

If there are prisoners of war, it is forbidden to take their life. It must be added that the Islamic Sharia goes further because it recommends that prisoners be treated well. The words of Allah in the koran are to be recalled :

"... They feed the poor, the orphans and prisoners for God’s sake" ( Sura 76: 6-9).

In Addition when distributing prisoners of prisoners among his companions, the Prophet Mohammed states:

"Always take care of the prisoners".[4]

[1] A.D. ELDJAZAIRI, op.cit., p.544

[2]  Ibid., p.543

[3] "Le Saint Coran et la traduction française du sens de ses versets", édité par <personnamew:stonproductidla Pr←sidence>la Présidence générale des directions des recherches scientifiques et islamiques. <personnamew:stonproductidLa Mecque>La Mecque, 1410 (de L' HEGIRE), p. 281

[4] A.ZEMMALI, "Combattants et prisonniers de guerre en droit islamique et en droit international humanitaire", Editions Pedone, Paris, 1997, p. 428 et s.