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THE CONCEPT OF WAR AND PEACE IN ISLAMIC LAW

Title Page   —————————————————————-

 

Declaration —————————————————————-

 

Certification —————————————————————-

 

Dedication   —————————————————————-

 

Acknowledgement ——————————————————–

 

Abstract ———————————————————————-

 

Table of Contents ———————————————————

 

List of Statutes / Treaties ————————————————

List of Cases —————————————————————-

 

Abbreviations —————————————————————-

 

 

CHAPTER 1

 

1.0   GENERAL INTRODUCTION

 

1.0   Introduction ———————————————————

 

1.1   Statement of Research problem —————————–

 

1.2   Objectives ———————————————————-

 

1.3   Scope of the Research —————————————–

 

1.4   Methodology ——————————————————-

 

1.5   Literature Review ————————————————-

 

1.6   Organizational layout ——————————————–

 

1.7   Justification of Research work ——————————–

 

CHAPTER 2

 

CONCEPT OF ISLAMIC LAW

 

2.0   Introduction ——————————————————–

 

2.1   Definition and Scope———————————————

 

2.2   Sources and Characteristic————————————–

 

2.3   Nature and Origin—————————————————

 

 

 

 

  CHAPTER 3  
ISLAMIC LAW CONCEPT OF WAR  
3.0 Introduction ———————————————————-
3.1 ‘War’ in islamic law ———————————————–
3.1.1Jihad ——————————————————————-
3.1.2 Typology of War —————————————————-
3.1.3 History War ———————————————————-
3.1.4 Functions and Nature of War ————————————
3.1.5 Reasons for War —————————————————–
3.2 Role of Ijma’a——————————————————

 

 

      CHAPTER 4  
  ISLAMIC LAW CONCEPT OF PEACE  
4.0 Introduction ———————————————————-  
4.1Peace in Islam ———————————————————-
4.1.1 Nature of Peace in Islamic Law ——————————- 91
4.1.2 94
4.2 Means of Peace in Islamic Law ————————————
4.2.1 Love and Clemency ————————————————-
4.2.2 Social Behavior——————————————————
4.2.3 Solidarity————————————————————-   117
4.2.4 Achieving Life Ambition ——————————————- 119
4.2.5 Act of Governance ————————————————– 120
4.2.6 Legal Justice Assurance —————————————— 122
4.2.7 Social Equilibrium ————————————————– 129
4.3. Legal Constraints ————————————————— 146
4.3.1 Source of Problems/Challenges in   War —–  
  148      
4.3.2 The Constraints     ——————————————————  
  152      
         

 

4.3.3 The Conquered Territory —————————————– 156
4.3.4 The Belligerent and Neutral States. ————————— 157
4.4 Contributions of Qur’an, Sunnah,Qiyas and Fatwa———- 163
4.4.1 The Holy Quran —————————————————— 164
4.4.2 Sunnah——————————————————————- 175
4.4.3 Qiyas ( Analogy) ——————————————————- 184
4.4.4 Fat’wa ——————————————————————– 190

 

    CHAPTER 5  
IMPACT OF WAR ON GLOBAL PEACE AND SECURITY  
5.0   Introduction ——————————————————— 198
5.1   Conflicts in Africa ———————————————– 199
5.1.1 Rwanda ————————————————————– 200
5.1.2 Sierra Leone ——————————————————- 203
5.2   Iran-Iraq War ——————————————————- 204
5.2.1 Background ——————————————————– 205
5.2.2 Diplomacy and International Involvement —————– 210
5.2.3 America’s role in the Iran-Iraq war ————————— 212
5.2.4 Consequences —————————————————- 218
5.3   Kosovo Genocide ———————————————— 220
5.4 The Israeli-Palestinian Armed Conflict ———————- 233
5.5   Intra-national conflicts —————————————— 247
5.5.1 Tunisia ———————————————————————- 248
5.5.2 Egypt ————————————————————— 250

CHAPTER 6

 

  • INTERNATIONAL TREATIES AND RULES OF CONDUCT OF HOSTILITIES

 

6.0 Introduction——————————————————— 253
6.1 Treaties and the Effect of Treaties —————————- 253
6.2 Restrictions ——————————————————– 257
6.2.1(a) Geneva——————————————————- 262
6.2.1(b) The Hague————————————————– 269
6.2.2 Precaution———————————————————— 275
6.2.3 Proportionality —————————————————— 278
6.2.4 Prohibitions of indiscriminate attacks————————- 279
6.2.4.1 Terrorism——————————————————— 280
6.2.4.2 Means of warfare ———————————————- 281
6.2.4.3 Methods of Warfare——————————————- 288
6.3   Globalization —————————————————- 290

 

    CHAPTER 7
    CONCLUSION
7.0 Introduction ——————————————————— 297
7.1 Summary ———————————————————– 297
7.2. Observations ——————————————————– 299
7.3 Recommendations ———————————————— 304
BIBLIOGRAPHY ————————————————— 316

 

 

 

 

LIST OF STATUTES / TREATIES

 

  1. Statute of the International Criminal Court (ICC)Statute, 2002

 

  1. UN Charter on Human Rights

 

  1. Vienna Convention, 1961 on Diplomatic Relations

 

  1. Law of the Sea Convention, 1982

 

  1. Geneva Convention, 1949

 

  1. The Hague Convention, 1954

 

  1. Additional Protocol I to the Geneva Conventions,1977

 

  1. Additional Protocol II to the Geneva Conventions, 1977

 

  1. UN Resolution 1441, 2002

 

  1. Security Council Resolution, 25 June, 1950

 

  1. U. Charter on Human and People’s Rights, May, 1963

 

  1. Security Council Resolution 696; 46 UNSCOR, Resolutions 1991

 

 

 

LIST OF CASES

 

  1. Re-Wimbledon, 1923, PCIJ, Series A, No. 1

 

  1. Re-North Sea Continental Shelf, 1969, ICJ, rep. 3, P.44

 

  1. Nicaragua Vs U.S.A, 1986 ICJ Rep 14

 

  1. Re-the Asylum Case, 1950 ICJ Rep. 266 at pp. 266-7

 

  1. Portugal Vs India, 1960, ICJ Rep. 6

 

  1. Re-Paquete Habana, 1899

 

  1. See Lan Service Incorporation Vs Iran, 1928, OCIJ Swries A, No. 17

 

  1. Re-Chorzow Factory (Indemnity), 1937 PCIJ Series A/B No. 70

 

  1. Re-Diversion of water from the Meuse, 1949, ICJ Rep 18

 

  1. Re-Corfu Channel, 1950 ICJ Rep. At 148

 

  1. Re-Russian Indemnity, 1903

 

  1. Re-South, West Africa Case, 1950, ICJ 148

 

  1. Re-Serbian Loan Case, 1929 PCIJ, Series A, No. 20-21 at pp. 38-39

 

  1. South West Africa (2nd Phase), 1966 ICJ Rep at 6

 

  1. Texaco Vs Libya (1977) 531. L.r.389. Also reported in (1978) 17 ILM 1t1

 

  1. Re-Reparation Case, 1949 ICJ 174

 

  1. Re-Genocide Case, 1951, ICI 15

 

  1. K. Vs Norway, ICJ Rep (1951) 116

 

  1. France VsTurdsey, 1927, PCIJ Rep. Series A, No 10

 

  1. Burkina Faso Vs Mail, 1994 ICJ Rep. 6

 

  1. Libya Vs Chad, 1992, ICJ Rep. 315 at 563

 

  1. Re-Naulila, 1934, AC, pp. 586-9 at 589

 

  1. Re-Aleoboectoe Case, (1994), 1-2 I.H.R.R. 208

 

  1. Re-Western Sahara Case, 1975, ICJ Rep. P. 12

 

  1. SocieteCommercialeD’orientVs Turkey (1929) 9 M>A.T. p. 612 at 613

 

  1. Re-Armstrong Cork Company, 14 R. I. A. A. p. 613

 

 

 

CHAPTER 1

 

GENERAL INTRODUCTION

 

1.0                                        INTRODUCTION

 

Although this work is not the first of its kind. There were various works on Islamic Law of War and peace dated back to over 700 years ago by reknown scholars

 

such as Ibn Taymiyyah1, Khadduri Majid,2 and Abu Sulaiman Abdul Hamid3 and a host of others. Perhaps the only mark of difference in the present work is its contemporary nature. Since arabic language is relevant to Islamic Law just as latin is to the English law,it is therefore pertinent to state the arabic version of the subject matter of the study as:Mafhuum ul-Harb Was-Salaam Fish-shariy’atil Islamiyyah meaning ‘Concept of war and peace under Islamic Law’

 

As the global community is increasingly characterised by a “clash of

 

civilizations” particularly between Western civilization and Islam4.The universality of the application of Laws relating to war and peace becomes seriously threatened. With this threat on the increase, certain legal concepts particularly under Islamic Law became misunderstood.

 

The present work attempts to explore the principles of war and peace under the ambit of Islamic Law for further and better understanding of the contemporary laws of war and peace. Any study on Islamic International Law must essentially entail the two opposing concepts of war and peace, hence the legal principles of war and peace under Islamic law will attract prominent attention in this work.

 

The need for this study is further underscored by the varieties of the rules of warfare as prescribed by International Treaties and Conventions which have been discovered

  • Ibn Taymiyyah ,’Al-siyasa al shar’iyyah’ ,Dar al katib al Arabi,.n.d

 

  • M, War and Peace in the Law of Islam, 2nd Ed., ‘ New York press (1399) AH/(1979) AC.

 

3Abu Sulayman. A.H, The Islamic Theory of International Relations: Directions for Islamic Methodologyand Thought’, Hemdon, V.A: The International Institute of Islamic Thought, (1408) AH (1987) AC.

4 Huntington, S. P., The Clash of Civilizations, Foreign Affairs,Vol.72,No 3,Summer (1983), P.22

 

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to be grossly inadequate and subject to manipulative skills of the big powers in favour of their interests inspite of the fact that the rule is placing emphasis on the material of

 

the “highest persuasive character”5

 

The various arbitral tribunals or judicial bodies have had cause to make pronouncements on the diverse conflicts in various parts of the world. The question is how far have these decisions been? There is thus, the need to critically analyse some of these decisions in order to fully appreciate the position in the new world order. The available international judicial organs need be critically assessed so as to come to a relative yardstick of high objectivity and steer clear of the perceived greater subjectivity that we presently go through.

 

In the final analysis, the study of this area of Islamic law is informed by the limited knowledge as it presently exists and this has fundmentally put in place the difficulty to maintain the integrity of the doctrine of international law in this field of study,this need not be so. It is against this background that one deems it fit and most relevant to embark on a thorough research work on the concept of war and peace under Islamic law.

 

  • STATEMENT OF THE RESEARCH PROBLEM

 

The problem relating to the concept of war and peace under the Islamic law is

 

the manner the non-Muslims want to solve the problem of war in Muslims states, according to their understanding of war. For example the united state of America’s intervention in Afghanistan, Iraq and Iran. The difference between the Muslims’ conception and non-Muslims’ conception of war makes it difficult to profer solution to the problem of war in the Muslim nations. Precisely, the statement of the research problem of this thesis can be stated as follow:- ‘The problems of war in the

  • G, International Law as Applied by International Courts and Tribunals,Vol.2, 1968, Sweet & Sons, London, P.6

 

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International Community and Search for means of making peace among the conflicting Nations of the world is the statement of the research problems of the present dissertation.

 

The global community is experiencing wars among various nations in the world. There exists the problem of identifying the respective causes of these wars. The age-long armed conflict between Israel and Palestine needs to be probed into and it calls for an effective solution.There is need to consider the war between Iraq and Iran as well as the role played by the United States of America.Similarly,the statement of the research problem covers the different kinds of hostilities being witnessed in various African nations like Liberia, Sierraleone,Kosovo,e.t.c. Another significant problem that accounts for the present study is the fact that due to the absence of genuine motive in war,the International community is in total chaos, while imperialistic and bureaucratic tendencies are being introduced into it. The global armed conflicts have cropped up to an amazing extent.In this regard,the Afghanistan war is a relevant instance.Due to the imperialistic and bureaucratic intervention of the Soviet and the USA respectively,the Afghanistan war which commenced in 1978 is yet to end. Pakistan that supported Afghanistan against the Soviet in 1979 is today at war with Afghanistan. The aftermath of the Afghanistan war is full of severe political,economical and ecological problems.

 

Presidents or Heads of governments of various conflicting nations and war Lords are being brought for trial before the international war tribunals established by the United Nations. A question which agitates one’s mind is: What has the United Nations Organisation done as a body established to serve as a temperate measure in an era of international crisis? There remains another problem of permanent settlement of international disputes. The research problem becomes more complicated as it seems to

 

 

be transparently clear that the Public International Law which is expected to serve as a moral suasion is rather helpless in matters of international conflicts.

 

All efforts in that regard has not succeeded in exterminating armed conflicts from the face of the world inspite of the fact that one of the cardinal principles of Public International Law is to ensure peaceful co-existence among the nations of the world.

 

The present work is expected to provide alternative and more possible solution to problem of global conflicts. The Islamic law principles in respect of international relations do not differentiate the maxim of lex lata(The Law in force) from lex ferenda (The law as it ought to be).

 

As far as the law of Islam is concerned in affairs among nations of the world, law is law, there is no question of presumed law. The Islamic legal system is not the type to be subjected to changes and reforms because the system has sufficient room to accommodate any new developments in all generations. The Islamic legal system maintains consistency with modification in application of it’s principles and procedure to meet the exigencies of international relationship. Such modifications are to be directed towards the general interest and peaceful co-existence among all nations of the world.

 

Finally, the last of the research problem is what options does the international community have in such critical circumstances.This study presents provissions of the Islamic law of war and peace as the available solution in such critical circumstances.

 

1.2 OBJECTIVES

 

The basic aim and objective of this study is to reasonably contribute to the development of knowledge. With better understanding of the concept of war and peace within the frame work of Islamic law, it is anticipated that the world will improve on its methods of conflict resolution. This will no doubt reduce the incidents

 

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of war or armed conflict to the barest minimum. To a large extent, this work will be a contribution to the development of knowledge in the area of Islamic International Law.

 

The particular discernible research questions which provide the objective of this work are what are the principles of war and peace under the ambit of Islamic Law that can create a more peaceful international community with minimum cases of war or armed conflict? By this poser further and better understanding of Islamic law of war and peace will be achieved. Below are the objectives of the presnt research work.

 

  • To identify the factors that promote war among the warring nations.

 

  • To objectively juxtapose Islamic Law of war and peace with the current international regime of armed conflict.
  • To expound on the concept of war and peace in accordance with Islamic Law.

 

  • To make a good case for consideration of the rules of Islamic Law on war and peace as a panacea to the current dangerous trends in the contemporary policies of warfare.

 

  • To analytically evaluate the impact of war on the peace and security of the

 

international community.

 

  • To explore the principle, nature and function of peace under the law of Islam.

 

  • It is the objective of this research work to explain certain constraints imposed on nations engaged in war or armed-conflict.

 

  • SCOPE OF THE RESEARCH

 

Scope of any research work in modern terms implies geopgraphical or

 

territorial coverage of the research. On the other hand, scope may imply the kind of law that is applicable. The scope of the present dissertation is not geopraphically limited because of the universality of the concept of war and peace which is the very

 

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core of this work.It is for this singular reason, it is difficult to effectively discusIslamic Law of War and Peace without juxtaposing it with the current international regime which is globally in force.

 

The scope will accommodate a law of modern application which principles and procedure satisfythe exigencies of global life of the modern world at any given time. It is no other law than the Law of Islam. To be precise, the work will mainly concentrate on the Islamic Law of war and peace. Thus, since the core subject -matter of this research is ‘concept of war and peace under the law of Islam’, the applicable law is Islamic law.

 

  • METHODOLOGY

 

Doctrinal method was absolutely adopted in this dissertation. This is considered to be the best way to achieve the objective of this study. Doctrinal research approach otherwise known as library based research was adopted. This method involves reading relevant materials on the subject matter of the study, such as text books, journals, treatises, periodicals, case law and statutory provisions..

 

In addtion to the foregoing, authorities written in Arabic Language on the past research works similar to the present one were also consulted.Relevant materials were collected from war college in Abuja and from the office of the international committee of the Red Cross. For the purpose of this study,I went to the Institute of International Affairs in Victoria Island at Lagos as well as the Institute of advanced legal studies at the Univasity of Lagos,Akoka-Lagos to consult relevant materials on the subject matter of the research work.

 

Conclusively, the doctrinal research approach entails law as a normative science and humanity . This outlines norms with conventional standards for human

 

 

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behaviour in certain conditions particularly in war situation. Thus, this method combined with the imperical method is found to be effective in the present work.

  • LITERATURE REVIEW

 

Prominent scholars of various generations have written several works similar to the

 

present one. Notable among such early works include Khadduri Majeed`s work,6

 

Abu-Sulayman Abdul Hamid`s work, and Louay M.Safi`s contribution to the American Journal of Islamic Social Science and a host of other classical works of some great scholars of note.

 

Khadduri Majeed, in his work upheld the view that “ the classical law of Islam recognizes no other nation than it’s own” According to him, the entry of Muslim nations into the United Nations is a significant phenomenon that constitutes a

 

departure from the classical religious ideology of Islam.7 There are also some Shariah advocates who hold a hard-line view that the institution of nation-state and modern internationalism are complete aberrations to Islamic world-order. Those who hold this view take a position that there should be perpetual hostility between the nations of Islam and the non-Muslim nations.

 

This position in my own view is not progressive. If Khadduri and other members of his school of thought are correct in their view, there can never be peace in the international community. Whereas, the cardinal symbol of Islam is peace. It is on this premise that there should not be a perpetual hostility between the nations of Islam and the non Muslim nations of the world. This is the only way; the conflicts of different kind all over the world can be brought under control.

 

Abu-Sulayman Abdul-Hamid takes side with the non-hostility school of thought. Relying on the opinions of other classical jurists. Many contemporary

6Khadduri, M. War and peace in the law of IslamBaltimore; John Hopkinspress,(1955) p.45

 

7 See Khadduri. M. “The Islamic System: Its Competition and Co-existence with Western Systems” proceedings of the American society of International law. N.D

 

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scholars like Abu sulayman disagree that Islamic law specifically prescribes a

 

permanent state of animosity between the Islamic and non-Islamic realms.8

 

The view of a non-muslim scholar called Mayer9 is that the contemporary nation states system is contrary to the Islamic legal theory whereby the only nation recognised in the world is the nation of the muslims. He further expressed the view that in spite of the fact that there is established nation-states system in the modern world, some Muslim nations which strictly adhere to the traditonal Islamic legal opinion by which any political sub-divisson of the muslim nations is inimical to Islam. This Mayer’s view can not be taken as absolutely correct because there are some muslim states that embrace the nation-states systemand tolerate it on the assumption that the modern nation-states system is a temporary phenomenon.

 

According to Abu-Walid Muhammad bin Ahmad; in his work entitled

 

Bidayat Al-Mujtahid”10Jihad is a type of war which is a religious obligation on the generality of the muslims which if performed by a section of the Muslim Ummah,the rest of the muslims are absolved of the obligation. That is what is technically called

 

Fardu-al-kifayah. Relying on the Quranic provision(Q.47 : 4) ,the muslim nations must always be at war with the non-muslim nations and thoroughly subdue them when and where ever they meet them. In other words, he is an advocate of perpeual hostility between Daru al-harb and Daru al-Islam He supported his position with the prophetic tradition where the Prophet (SAW) is reported to have said :

 

“I have been commanded to fight people untill they say:There is no

 

diety but ALLAH…………”11

8Abu Salayman. A.A,’’Op.cit. p.19

  • Mayer, A, War and Peace in Islamic Tradition of International Law, Ends Johnson, cited in ‘Just War and Jihad’

 

  • Ahmad A.M., (Ibn Rushd) Bidayat al-Mujtahid wa Nihayat al-Muqtasid, Jadidat Munqahat wa

 

Musohihat, 1990/1410 A.H, pp. 305-338. 11 Ahmad A. M, Ibid

 

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He has also attempted to explain the motive of war by making reference to Surat al-

 

Anfal (8:67). He stated that the cause of revelation of the verse was the Prisoners of

 

war in battle of Badar. The law in the verse is that; unlike ordinary war which may

 

be fought for political or economic,and other military purposes. Jihad is fought under

 

strict conditons stipulated by Islamic Law of war and peace. War is fought in Islam

 

solely for the cause of Allah and not for any temporal worldly goods or any baser

 

motives. Abu-Walid Muhammad bin Ahmad went further to consider prisoners of

 

war as Al-Amaana (Trust) in the hand of the muslims.

 

Muhammad Subhi bin Hassan Hallaq, in his classical work on fiqh,12 opined that

 

jihad is not truly jihad if the mujahid does not seek thereby Allah’s countenance and

 

does not intend to glorify Allah’s word, raise the banner of truth, repel falsehood and

 

sacrifice himself in order to attain the pleasure of Allah. Therefore, anyone who fights

 

only to obtain spoils or rank, or to display valour, to aquire prisoners of war for

 

enslavement or to attain fame is definitely not fighting jihad.

 

Muhammad Subhi premised his opinion on the tradition of the holy Prophet

 

(S.A.W) reported on the authority of Abu Mousa Al-Ashari (R.A) who said :

 

“A man came to the Prophet(S.A.W) and said: A man fights for war booty; another fights for fame and a third fights for showing off; who among them fights in the cause of Allah?The Prophet (S.A.W) said : “He who fights in order that Allah’s Word ( i.e.Islam ) should be superior,for he fightsIn Allah’s cause.”13

He further stated in the book that Jihad is Fard Kifaya14 but if the Imam calls upon the

 

Muslims to march forth in jihad, it becomes Fard Ayn (Global Obligation).

 

 

  • Muhammad Subhi bin Hassan H, Fiqh According to the Qur’an & Sunnah, Vol.2, Translated by Sameh Strauch, Maktaba Dar-us-Salam, 2008. pp.522-536

 

  • Narrated by Al-Bukhari (no.2810) and Muslim (no.1904)

 

14Obligatory duty which if performed by a section of the community absolve the rest members of the community.

 

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Imam Malik, in his classical work15 extensively discussed jihad with a number of authentic Ahaddith ( Prophetic traditions ).He narrated that Umar bin Abdil-Azeez wrote to one of his administrators : We have learnt that whenever the Apostle of Allah( S.A.W ) sent out a squad, he used to command them : “Fight taking the name of the Lord with people who have disbelieved and rejected the Lord; do not commit theft, do not break vows; do not cut ears and noses, do not kill women and children. Communicate this to your armies. If Allah wills! Peace be on you”. Most probably, What the great scholar wanted to transmit to readers with this prophetic tradition are the rules binding on the muslim soldiers when fighting jihad.

 

Imam Malik said : The unbelievers located near the port in Muslim territory, and they say that they are merchants and have been thrown out by the river,and the Muslims have no means to find the truth about them, but they guess that the unbelievers have been shipwrecked or have disembarked on account of thirst without permission, the leader of the Muslims has full authority over them.The Muslims who capture them are

 

not entitled to the 5th share in the booty taken.

 

When the Imam was asked : If someone finds food in the territory of the non-believers, and eats out of it , is it right to take the remainder home or to sell it on his way? The response was that : If he sells it during jihad , he should deposit the proceeds with other articles of booty. However, if he returns to his home town, it is alright for him if he eats it or sells it with a proviso that the edible item is very insignificant such as bread, meat, and something similar; not if the article in question is valuable.

 

According to the universally renown Jurist, camel,oxen and goats are also articles of food that are right to be eaten before distribution in case of necessity.

15Muwata’ Imam Malik,1st Ed.,Muasasat Al-tobaat wa Tasweer Al-katruniyat,(1406)A.H /( 1980 )

 

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Hurewitz J.C, in his work entitled ‘The Middle East and North Africa in

 

World Politics : a Documentary Record16’, commented that the long time relationship of the Muslim nations with the non-Muslim nations for over four hundred years strongly supports the preference for permanent peace between the nations of Islam and those of non-Muslims.

 

Along the same line of thought, he asserted that the practice of international relashionship is covered by the Islamic politico-legal principle of As-Siyasa Ashari’iyyah which confers on the government of the Muslim nationthe authority to exercise discretion in matters of Public International Law with respect to the welfare of the citizens. His position is that there should be perpetual, invaluable and constant peace between the muslim and non-muslim nations of the world.Hurewitz is of the view that all forms of hostility in the global community shall cease henceforth. Is it possible? We do not think this proposition is practicable. The reason being that as long as there is economic or political relationship among the nations of the world, there will always be war or armed conflict.

 

Louay M.Safi in his contribution to the American journal of Islamic social science, rebuts the positions of the classical doctrine of Jihad .He argued that these propositions were predicated on a set of Islamic legal rulings (Ahkam al shar’iyy ah) pertaining to specific questions which arose under particlar historical conditions, namely, the armed struggle between the Islamic state during the Abbasid era and various European dynasties.

 

The erudite scholar also attempted to defend the classical jurists who opined that there should be permanent hostility between Muslim nations and the non-Muslim nations. He demonstrated that classical Jurists did not have the mind of developing a holistic

  • Hurewitz, J.C, The Middle East and North Africa in World Politics : A Documentary Record ( New Haven : Yale University Press,1975 ) Vol.1 & 2.

 

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theory with universal claims. Precisely, the position taken by Louay M.S is that the

 

concept of “war and peace” is built on three essential Propositions17 which are:

 

i )        Division of the world into two territorial components (i.e. Dar-al-Islam

 

and Dar al Harb).

 

ii )   That the Muslim nation is under permanent hostility until the non-

 

Muslim nations are reduced to non-existence.

 

iii )   Peaceful co-existence between the Daru-al Islam and Dar-al Harb is

 

possible only when the latter renders an annual tribute of jizyah (tax) to

 

the former.

 

The summary of the three above-stated propositions is that the tenents of the classical doctrine of war and peace provide for permanent war between the nations of Islam and the non-Islamic nations. Unlike other members of the hostility school of thought Louay M.S takes a middle course by holding that: “It is the normal state of things while peace between the Islamic and non-Islamic nations is contigent on acceptance of Islam by the non-Islamic states or their payment of annual tributes (Jizya) to the Islamic state.

 

According to Anwar Ahmad Qadri,18 “In consonance with conventions and agreements on laws of war, the Islamic law provides proper safeguards against unnecessary damage to life and property”. This opinion is correct as far as legal constraints on the conflicting parties are concerned,but the erudite author did not highlight what these conventions and agreements were and how effective they were. If Anwar Ahmad had addressed the issues raised, it would have been easy for one to determine the validity of his positon.It is difficult to accept a proposition that suggests

  • Muhammed Talaat AL-Ghunaimi,`The Muslim Conception of International Law and the Western Approach (Netherlands: martinusNi; hoff/The Hague,1399/1978) p.156

 

  • Qadri A.A, Islamic Jurisprudence in the modern world, SH. Muhammad Ashraf, Pakistan,2nd1981, p. 278

 

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that the Islamic law provisions are dependant on certain conventions or on any pacts whatsoever.Moreover,convention is foreign to the law of Islam.Convention, rather follows the Law and does not stand independent of it. The Islamic law takes its validity mainly from the Qur’an,the Sunnah, Ijma’a and Qiyas. Going by the law of Islam, the essence ofjihad is to repel the unbearable aggression and persecution of the unbelievers. In Anwar Qadri’s opinion,the Quranic injunction upon the Muslims to fight is Allah’s directive to fight to end persecution and injustice as well as to establish justice, freedom of religion, and to protect the places of worship from being

 

ruined. This noble object is better explained by the glorious Qur’an.19

 

Schwazenberger George, arenownedProfessor of International law, in his

 

work,20presented war as a condition of those contending by force. His reason for taking this position is that any attempt to define the legal phenomenon of war in objective terms would amount to an effort in futility. He stated that, the primary position of the relativity of Peace and War is that of a negative state of affairs characterized by the predominance of political and economical power over military power and subsequent relegation of the military power to the background role of potential instead of an actual pressure. In his opinion, the effects of war is much more reflected in the state of war rather than in the war itself. The erudite Scholar sees the consequential impact of war on global peace as legal effects which are specially categorized into effects in reaction to the inter-states affairs relations between the Belligerent States and the enemy nationals and impact of war on private relations between individual members of the conflicting nations.

 

According to the seasoned Scholar, the 1864 diplomatic conference convened atGeneva was nothing but Humanitarian Law making. War or armed conflict may be

19 See Q.22 : 40 & Q.9 : 29

20 Schwazenberger. G,(nd.) International Law as applied by ‘International Courts and Tribunals’

 

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terminated under the International Customary Law by unilateral action on a

 

consensual basis.He further opines that once a Peace treaty comes into force, the law

 

of war becomes inapplicable in relations between the Belligerent states.

 

In the view of Abdul-Rahman Doi21,non-Muslims living in predominantly

 

Muslim states have been guaranteed adequate protection of their life and property

 

together with equal honour and respect due to the Muslims in the nation of

 

Islam.According to him, they are called ‘Dhimmis’under Islamic law.It is true that

 

people living in Islamic state are classified into three classes viz-aviz-the Muslims,

 

Dhimmis or Must’amins.What Abdul-Rahman Doi fails to explain is as to whether the

 

classification was intended to be exhaustive for all time.For example, non-Muslims in

 

a westphalian nation-state are not supposed to be dhimmis because the 1648 Peace of

 

Westphalia Treaty enshrines territorial state as the primary sovereign unit for

 

international relations and that happens to be the foundation of the structure and

 

characteristics of the modern nation-state. In the interview granted the Press by the

 

then Grand Khadi of Kwara state of Nigeria,Hon. Justice Ambali ,he agreed wlth the

 

proposition that most Nigerian non-muslims are not dhimmis. The Honourable Grand

 

Khadi said :

 

“Nigerian non-Muslims are not dhimmis; they are Christians. They do not pay jizya,there is no aman (trust or pact) between us.They betray us,maim us,and kill us.They are not dhimmis,they are of less status because. They do not have rights attributable to dhimmis22

 

Two reasons are further advanced by the erudite Grand Kadi for inapplicability of

 

fiqh(Islamic jurisprudential) concept of dhimma (state of being a dhimmi) to non-

 

muslims of the modern time.

 

  • Doi, A.R,(1980)Basis of Shariah, ABU Press, Zaria, p.594.

 

  • The interview he granted to ‘The Daily Trust’ took place on the 14th May,2003.

 

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Firstly, inasmuch as the jurisprudential rulings on dhimmis were then valid, non-muslims of today are not merely exempted but are excludable from the fiqh’s analysis simply because they do not in any way share any of the characteristics of dhimmis within the purview of Islamic law.They were not defeated in any war nor were they placed under any obligation to pay jizya. Thus, if fiqh effectively addressed the issue of historical dhimmis, modern writers like A.Rahman Doi need to elaborate the Muslims’ relationship with peoples who are not known to fiqh, unknown because in the new world order they are not in position to be, and can not be conquered or subjugated; do not pay jizya (tribute or poll tax); and they lead the armed forces which comprises of a Muslim majority.

 

Secondly, fiqh is inapplicable to the contemporary world because its classification of non-Muslims is not and cannot be exhaustive. Islamic jurisprudence cannot accommodate the modern religious groups that have become permanent component parts of muslim state territories.How then can one talk of making rules about relatioship with them. Present day experiences have shown that the two categories of non-Muslims are absolutely not covered by the fiqh concept of dhimmah.

 

 

  • Christians and Jews in a Muslim nation-states or part thereof who have not been

subjugated or defeated in a war.

 

 

 

  • Native Christians and Jews who precede the establishment of a political Islamic nation

 

state structure, and who cannot be subjected to war for any reason whatsoever.

 

 

 

 

 

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What this aspires to add to the previous works reviewed above is to profer solution to the universal problem of war. It is a known fact that war or armed conflict is inevitable just like peace. In human behavior there is bound to be conflicts and peaceful co-existence. Thus, it is intended in this thesis to propose ways and means by which wars will be reduced drastically while peace will be effectively established among the Nations of the world.

 

1.6 ORGANIZATIONAL LAYOUT

 

This research work is covered by seven chapters all-together. The centre piece of the work is an attempt to examine one of the most interesting but inadequately explored areas of Islamic law. It is this aspect of the Islamic law that relates to war and peace. The study focuses on the desire to make significant contribution to knowledge and development of the international legal system. Thus, below is the organizational structure of the research work.

 

Chapter One: General Introduction

 

The opening chapter of the present work generally introduces the theme of the study. The chapter features inter-alia the statement of research problem, basic aims and objectives of the study, scope of the research, literature review with organizational structure as well as justification of the dissertation.

 

Chapter Two: The Concept of Islamic Law

 

The second chapter opens with the definition of Islamic Law. Nature, scope and Characteristicof Islamic Law are discussed in this chapter.

 

Historical background of the law of war under Islamic Legal system is elaborately analyzed. The core subject-matter of the chapter is the sources of Islamic law of war and peace.

 

 

 

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The Holy-Quran, Sunnah, Ijma’a, Qiyas and other recognized subsidiary sources under the Islamic law are discussed.

 

Chapter Three: The Islamic Law concept of war

 

This chapter of this study is devoted to the concept of war. It comprehensively analyses the institution of war under the law of Islam. The intent here is to probe into the circumstances that justify hostilityin Islamic Law. Furthermore, what does the Islamic legal term Daru-al-Harb (Nation of hostility) imply. The chapter further distinguishes Jihad from war. Jihad is presented in a simple way that a novice will understand. War of extermination and war of reconciliation are treated as the two major types of armed conflict in Islamic law. As this very chapter and the succeeding one constitute the main body of the entire work, were tocover relevant parts ofthe history, nature and functions of war.

 

Chapter Four : The Islamic Law concept of peace

 

The fourth chapter treats‘Peace’ as conceived in Islamic law. It explains what

 

Daru- Salam (Nation of Peace) stands for. Different modes of peace are discussed in this chapter. Other relevant issues given attention in this medieval chapter are the peculiar nature and scope of peace and the various ways of realizing peace as prescribed in Islamic law.

 

In this chapter, certain constraints in executing war under the law of Islam are discussed. The constraints imposed by the Islamic law on the conflicting parties are also discussed with solutions proffered from the Islamic Law perspective. A relevant fraction of origin and development of the Law of peace as well as some sources of peace are discussed.Also in this chapter principles of Distinction, Precaution, Proportionality ,Prohibition of indiscriminate attack and Protection of Prisoners of war were all addressed .

 

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Chapter Five : Impact of war on global peace and security

 

Concerning the impact of war on the global peace and security, in the fifth chapter, war is portrayed as ‘Cause’ while its impact on the global peace and security is presented as ‘Effect’. Few cases of nations with serious effects of war are considered as case studies in this context. Extension of general hostility with other common consequences of war is attended to. Furthermore, restriction of commercial activities, disarmament as it was in the case of Iraq, socio-economic problems as it was in Iraq-Iran war, Israeli-Palestine armed conflict as well as the Kosovo genocide with the current intra-national armed-conflicts are all addressed in this chapter.

 

Chapter Six: International Treaties and Rules of Conduct of Hostilities

 

Under chapter six,treaty that gave birth to what is now recognized as ‘modern diplomacy’is discussed as another grave consequence of war. Effect of treaties is equally treated. Restrictions imposed on the conflicting parties are explained elaborately discussed under the following sub-headings :- Principles of distinction, Precaution, Proportionality, Prohibition of indiscriminate attacks and Protection of Prisoners of war.

 

Chapter Seven : Conclusion, Summary and Recommendations

 

As the conclusive chapter, each of the preceding chapters is briefly summarized. The chapter suggests recommendations for reforms with a view to restricting to the barest minimum the rate of armed-conflicts in the international community. It also suggests ways of promoting peace in the world; all within the purview of Islamic law.

 

  • JUSTIFICATION OF THE RESEARCH WORK.

 

The justification of this study is premised on the factors enumerated below:

 

 

 

 

 

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  1. The present thesis will be a great asset to students of international law, international law lawyers, Judges, and Islamic scholars. The reason being that the subject matter of this work is a branch of International law.

 

ii )   It is no more ambiguous that the international community is bedeviled with

 

war of various degrees. Every nation of the world have it’s own dose of the

 

hostile pills. To terminate the fast-spreading problem of armed conflict, it is

 

necessary to embark on a research work of this nature. This will enable one to

 

discover causes and effects of wars on the international community and profer

 

solution to the problem.

 

iii )   What is even more, when the only conventional option seems to be failing the

 

international community, then the need to look elsewhere for solace and

 

alternative solution to the problem of war.

 

All this put together serves as justification for this research work.

 

In conclusion, the dissertation is intended to consider The concept of war and

 

peace from Islamic Law perspective. The study is informed by the negative effects of

 

the diverse armed conflicts in almost every part of the world on the global peace and security. The dual benefit of the research work is that it will serve as the Author’s contribution to knowledge of Law and it will profer solutions to the problem of war in the international community.

 

This work is justified by the fact that it is going to be of immense benefits to Judges, Students, legal practitioners, and generality of intellectuals of various disciplines.

 

 

 

 

 

 

 

 

 

 

 

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CHAPTER 2

 

 

 

 

 

 

 

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