Legal systems are not created in a vacuum. All legal systems originate in a particular time and context and aim to create and/or regulate specific conduct in order to achieve specific objectives. Classical Muslims jurists focused on issues concerning war because they wanted to regulate the conduct of Muslims during a period of history when war was the normal state of international relations unless a peace treaty was concluded between its members. In the Arabian Peninsula in the eighth and ninth century A.D. Muslims faced major threats and were surrounded by many enemies. They therefore had to develop laws and regulations to communicate with other states. B 14 As a result, a highly complex legal structure evolved out of a very localized effort at dealing ethically with the enemies of the nascent Islamic state B62. Some have argued that this legal structure constituted an Islamic international law. This working draft is intended to introduce you to an Islamic notion of international law, referred to here as al-siyar.

Is there an Islamic International Law?

The position taken here is, yes, there is an Islamic international law. In matters of international law and peace Muslim jurists as early as the eighth century had created an elaborate system of public and private international law which emphasized human rights regardless of religious affiliation. This system of law was known to some as al-siyar. The Islamic international law developed in response to the issues posed to the early Islamic community as it began to rise in influence and power. That is, the rise of Islam with its universal appeal to all people, inevitably raised for the Islamic state the problems as to how it would conduct its relations with the non-Islamic states and with the tolerated religious communities within its territory. The jurist theologians developed a special branch of the Shariah (Islamic law) known as the siyar which was the Law of Nations for Muslims. [i] In theory the siyar was designed to be only a temporary institution, until the Islamic State would correspond to the then known world, but failure to achieve this end inevitably rendered the siyar an elaborate and permanent part of Islamic law. KH 350

What makes the rulings of siyar different from modern concepts of international law is the fact that siyar, like any branch of Islamic law, has always carried with it the added weight of religious sanction B31. As such siyar is a binding force and not merely a convention existing by the consent of the state, nor was it obeyed because it was an alternative to anarchy. It was part of the Islamic religion and based on divine law; thus violation of siyar was considered to invoke divine punishment. Hence it implied, by necessity, honoring principles was a religious duty. Bsoul 13.

In the west, observers of Islamic law, culture and politics operate in a terminological fog. Western pundits and the media further complicate matters by assigning biased and obtuse terminologies to a system of law of which they know little. Confusion results from how scholars use the term. As Besoul points out the term siyar did not refer as much to the concept of international, interstate relations in the early classical period as it came to do from the medieval period onwards. Nor was necessarily this term used in this sense by Muslim jurists of the classical period. It is a modern term, but this does not mean that simply because Muslim jurists did not use it as a technical term that it did not exist as a concept within the sphere of Islamic jurisprudence. Muslim jurists simply identified it under different categories. Thus, in early works scholars discuss the relations of the Muslim state with other states under the subjects of jihad, siyar, maghazi (conducts), while other jurists treat similar issues under the categories of kharaj (land tax) and siyasa shariyya (administrative state organizations and public institutions). The ahkam (rulings) that arose from those cases later became known as siyar. B 13-14

Critics who doubt the existence of an Islamic international law further point out that early and medieval Muslim jurists never used the term “al qanun al dawli,” or international law. In theory siyar, is not a body of law separate from the rest of Islamic Jurisprudence. Thus, strictly speaking there is no Muslim law of nations in the sense of the distinction between modern municipal (national) law and international law based upon different sources and maintained by different sanctions. Ford 501 Siyar is not a source of Islamic law but is rather a compilation of the traditional sources of Shariah. Tepas 693 The word siyat, meaning “motion” or “travel” is found in several Koran verses. The plural form, however, siyar, which has come to mean “conduct of the ruler,” is not explicitly set out in the Quran. Therefore, it can be argued that the primary source of Islamic law does not give impetus to a theory of Islamic international law. Additionally, the Koran does not explicitly call for, nor deﬁne, any speciﬁc set of legal rules regarding relations between states, contributing to the difficulty in resolving the theoretical problems that arise when a state attempts to harmonize traditional Shariah law with modern geopolitics. Tepas 696.

Others would point out that siyar was never fully developed into a code, but nevertheless laid down principles and some specific rules of conduct which were sometime followed and sometimes not. Sal14. Today, changing world conditions and the division of the world into many independent sovereign states has, rendered many concepts of siyar in its classical formation inoperative or even irrelevant. Sal 76

Still it is well to remember that Muhammad had set two important precedents: (1) the peaceful resolution of disputes, and (2) pragmatism in international relations. Since his day Muslims have attempted to follow these two precepts. During their long struggle with the West, Muslims sometimes allied with Christians to fight other Muslims when they needed help. Sal 14.

The term siyar is the plural of the word sirat, meaning “ways.” Since sirat was later used to refer to the life or biography of the Prophet, siayr had, as an early meaning, the ways the Prophet dealt with War and peace. Sal 65. Use of the term can be traced back to Abu Hanifa, founder of one of the Sunni school of jurisprudence named after him. This may explain some of the hostility to the existence of the concept. Abu Hanifa had a limited number of hadiths (prophetic reports) at his disposal, and whatever he used was by and large considered suspicious by the later hadith critics.[ii] In any event, it is Abu Hanifa who is believed to be the first Muslim jurist to use the term siyar. Al Shafii, founder of another of the four Sunni madhabs, also referred to it in connection to the work of others. A contemporary of Abu Hanifa, Abd al Rahman al Awzai, the founder of a madhab which flourished in Syria until the 11^th century, and whose vies still retain potential as a source of law and a basis for alternative legal approaches and solutions, likewise used the term in some of his criticisms of Abu Hanifa’s views. However, it was Muhammad ibn Hasns al Shaybani, one of Hanifa’s students, who was the first to write extensively and systematically on the subject. Shaybani’s Siyar has long been thought to hold considerable authority largely because of his proximity to the Prophet. Tepas 694

In succeeding centuries, there would be many commentaries written on Shaybani’s works on siyar. Most noteworthy of the commentators was Shams Din Muhammad ibn Ahmadd Sarakhsi. (sal 66).

One of the main characteristics of siyar is the most Islamic rules are interpreted, deduced or made by individual, independent jurist-scholars. The various interpretations of the intentions of the Islamic sources, and their different ways of relating their respective interpretations to changing situations, result in the majority of Islamic law developing contradictory laws. It is worth adding here that part of the Islamic law is hypothetical, in the sense that some jurists, mainly of the Hanifi school, imagined specific situations and advocated Islamic rulings for them. I and J 264

Definitions of Islamic International Law

Shams Din Muhammad ibn Ahmadd Sarakhsi defined siyar as follows:

It described the conduct of the believers in their relations with the unbelievers of enemy territory as well as with people with whom the believers had made treaties, who may have been temporarily (musta’mins) or permanently (Dhimmis) in Muslim lands; with apostates who were the worst of the unbelievers, since they abjured after they accepted Islam, and with rebels (baghis) who were not counted as unbelievers; though they were ignorant and their understand of Islam was false (Sal 66).

In modern times scholars such as Muhammad Hamidullah who was recognized as one of the most authoritative scholars in the research of Islamic International Law and Islamic Constitutional Law and who helped draft the constitution of Pakistan, and Islamic legal scholar and U.N. legal advisor Mohammad Talaat Al Ghun-aimi offer other definitions. Hamidullah contends that Muslim jurists and scholars were responsible for the origin of international law as a whole

For Hamidullah, “Muslim international law is that part of the law and custom of the land and treaty obligations which a Muslim de facto or de jure state observes in its dealings with other de factor de jure states. Its ultimate sanction or authority is no different from any other branch of Muslim Law.” Whereas for Al Ghunaimi defines Muslim International law as “the sum total of rules and practices which Islam ordains or tolerates in international relations.”

Sources

In theory the sole source of Islamic law is Allah, the head of the Islamic states, who alone is the fountain of right and justice. In Islamic law the term used for source is dalil. The word dalil means guide. The person leading a caravan is called dalil, and so is a telephone directory, because it leads to a number. Islamic law contains several dalils. Baderin 36. The jurists state that some dalils are agreed upon unanimously. These are the Quran and the Sunnah. Both are the only sources of law from the prophet’s lifetime. The Quran is the principle source and is believed by Muslims to be the exact words of God revealed to the Prophet Muhammad over a period of approximately twenty-three years for the guidance of humanity. Out of its approximately 6,666 verses, which cover both the spiritual and temporal aspects of life, Muslim jurists estimate between 350 to 500 verses contain legal elements. Berain 33-35.Muslims believe that the Quran is a book revealed piecemeal to the Prophet Muhammad. The Quran contained the divine law. After the Prophet’s death, this divine legislation ceased since the caliphs were not entitled to communicate with the divine legislature.

The Sunnah as a source of law consists of the Prophet’s lifetime sayings, deeds and tactic approvals on different issues, both spiritual and temporal. It is a compilation of Mohammad’s sayings and doings and is intended to serve as an example to future generations of pious Muslims. As the human representative of God, the Prophet provided divine instruction to the Muslim community. Muslim traditions and commentary are validated by their proximity to the Prophet, most often through a chain of transmission analyzing and authenticating each subsequent narrator. Tepas 694

While Muslims believe that generally the Sunnah also has elements of divine inspiration, they appreciate that not every reported tradition is authentic. In applying a Sunnah, two main questions need to be answered. One, is the Sunnah authentic? Two, is it obligatory? The first question is basically a question of fact that is usually considered on the basis of the evidence adduced to support it in accordance with laid down criteria for the verification of Prophetic Traditions. The second question is a question of law, depending inter alia, on the context and language of the particular tradition. Bad 36-37.

The Quran and Sunnah are the primary sources of both formal and material sources of international law. Many scholars maintain that the first source to be approached is the Quran and the second is the Sunnah.[iii] Therefore, in the case of any irresolvable conflict between a verse of the Quran and a reported Sunnah, the formal prevails, because of its indubitable authenticity in Islamic Law Baderin p36

The Quran contains some general provisions on the initiation of hostilities, the conduct of war, the termination of war and the general nature of treaties. Sal 65.

In addition to these primary sources there are secondary sources. These secondary sources include practices of the early khalifs, the practices of latter khalifs provided they did not contravene the Quran and the Sunnah the opinions of learned and respected jurists, arbitral awards, treaties or similar agreements, official instructions to military commanders, ambassadors and other state officials, and customs accepted as beneficial. Like other branches of the Shariah, juristic techniques served to expand its rules. Sal 66

Today, analyzed in terms of the modern laws of nations, the sources of the Islamic law of nations conform to the categories defined by modern jurists and the stature of the International Court of Justice, namely agreement, custom, reason and authority. The Quran (continuers to) represent the authoritative source of law; the sunnah is equivalent to custom; rules expressed in treaties with non-Muslims fall in the category of agreement; and the opinions of the caliphs and jurists, based on legal deduction and analogy, may be regarded as reason. Such opinions, fatwas, or decisions had great influence in the development of law (kh 353).

Treaties

Treaties have long been among the most important instruments of international relations both in ancient and modern times. In dar al Islam proper, a set of contractual agreements (or in a sense a treaty) grew out of the need to regulate relations between former combatants in a newly conquered territory. International treaties were of particular interest to classical Muslim jurists, chief among them Muhammad Shaybani. These jurists constructed a system of drawing up such instruments that covered all aspects of the process, such as establishment, conclusion, effects and termination of international treaties. Classical Muslim scholars focused on specific aspects of these treaties, in particular the fulfillment of the contract and the ramifications of acts of treachery and violation. BSoul 56.

In the ﬁfth chapter of Shaybani’s compilation, he discusses the ability of Muslims to enter into treaties when Islamic territory has been invaded by a non-Muslim enemy. According to the siyar, if the Imam determines that the nonbelievers are stronger than the Muslims, it would be better to make peace with them than to risk destruction. The Imam continued to specify that the peace should be for a limited duration. Tepas 694

The model treaty which later the caliphs and the jurist often cited from the Prophet’s tradition is the so-called Habaybiya treaty which, in its form procedure of negotiation, and duration supplied a precedent (if not indeed a source for the law of treaty-making) which was followed by the Muslims.Kh365. The Hudaybiya Treaty, negotiated between Mohammad and the Meccans in the year 628 CE, was the first treaty in Islam and has been touted as an exemplary authoritative source and precedent for international agreements between Muslims and non-Muslims tepas 698. This treaty, which stipulated that the duration of peace was to last for ten years, supplied a precedent for the jurists that no peace treaty with the enemies should last longer than that (kh 365). Other treaties which the prophet Muhammad concluded with the non-Muslims were models which the caliphs followed after his death Kh 366. With the exception of the treaties which the caliphs or their representatives had concluded with the peoples of the occupied territories, all Muslim treaties were concluded for a limited period to fulfill certain specific functions. KH 366

The classical siyar, although holding treaty obligations in enormous esteem , expressly denied treaty-making with non-Muslims anything more than a temporary character subject to dissolution the moment Islam’s conquest could be profitably resumed Ford 520. There is some debate on this subject. Some jurists argue that the duration must be no longer than ten years, while the Hanaﬁ and Maliki schools of Sunni jurisprudence maintain that three years is the accurate period of a treaty’s validity. While there is disagreement over the precise length, clearly the principle of non-recognition, as represented by some form of durational limitation, remains.smith 150-151

Traditionally, the Muslims duty to implement treaties, external or internal was derived from Quranic verses as well as Prophetic words and deeds. The written treaties of the Prophet and the Rashidun, (or four Rightly Guided caliphs, that is the first four leaders of the Islamic community) became models for other treaties in later Islamic practices. Bsoul

Treaties in Islam are viewed as an obligation that falls under muamalat (mutual relations of Muslims with other nations) Bsoul 9. As such, once a treaty had been signed by the Muslims, though the Muslims were reluctant to come to terms with the non-Muslims, the terms of the treaty were strictly observed. This was urged not only by Quarnic injunctions, but also by the hadiths and supported by practice. The Quran urges Muslims “not to break oaths after making them,” and if the non-Muslims did not break them, then “fulfill their agreement to the end of the term.” KH 366.

The Treaty making power in Islam rested in the hands of the head of the state who, as the person charged with the duties of prosecuting the jihad, was ipso facto the ultimate authority who would decide when the jihad was to be relaxed and a peace treaty signed. kh 364

Many jurists claim that permanent treaties with non-Muslims could never be permanent in character. Abu Hanifa did not agree with the above jurists for he clearly maintains that permanent treaties with non-Muslims could be made since a treaty had the character of a contract and a contract can assume a permanent character. Sal 131Yet another interpretation of the classical doctrine is that treaties are of two kinds: temporary treaties which are valid up to specified time, and absolute treaties which did not specify a time limit. The absolute versions do not, however, imply perpetuity since they are contingent on circumstances. They can be annulled by aggression of one party. On this detail he Quran is clear: “So long as they are true to you, be true to them.” Salmi 131

Muslim jurists had pointed out the necessity of putting treaties in writing based on Quaranic verse 2:282 as well as the Sunnah. They also required that the dates and time of the duration be recorded. Subjects of treaties included cessation of hostilities, exchange of prisoners, and settlement on the causes which caused the hostilities. There were no limits on the subject matter of treaties. Sal 131. Further, an enemy’s breach of a treaty could invite punitive action on the part of Muslim. In such a case, it is not necessary to inform the enemy of the impending military action Sal 131.

Division of the World

Four basic and interrelated concepts of Islamic international law determine the relations of the Islamic state with the external. These principles are: Jihad, dar al Islam, dar al ahd; and dar al Harb.

Islam established the foundation of relations between people on the basis of whether they are believers or non-believers. (100) Ibn Qayyim, in his Zad al Maad, indicated that relations between the Prophet and the unbelievers remained ill-defined until a portion of surat “al_Twba”, (Q. 9 1-4) in the Quran was reveled, dividing unbelievers into three groups: muharibun (those in a state of war with Muslims), ahl al ahd (people in a treaty relationship with Islam), and ahl al dhimma (non-Muslims who are protected by a treaty of surrender) B 35. These relationships and distinctions lay at the heart of the system of relationships that the Prophet was developing, and that emerged as the bipartite division of the world into additional classifications.

Interestingly there is no little to support this division. The division has no textual support for it either in the Quran or in the Hadith. It is instead a transient description of what happens when war flares up between Muslims and others. It is a narration of facts, similar to those confirmed by scholars of international law, namely that war splits the international community into two parties: belligerents, in particular the States involved in war; and non-belligerents and neutral, which comprise the remaining members of the international community. irc 278

Those classifications were based on the world being bifurcated into two worlds. On known as dar al Islam, encompassed all of the bilad al Islam (Muslim world), where the rulings of the Shariah apply, and the other made up of all the nations where law is based on rulings other than Shariah, called dar al Harb (territory of war). Again the scholars do not agree on how to define these terms. There are differences between those of the various madhabs and between classical and Medieval thinkers with modern thinkers. However, there appears to be a general agreement that dar al Islam is the territory that is under the full control of Muslims and where all submit to Islamic rulings. B42. Dar al harb can become dar al Islam when the Muslims conquer it and impose Islamic law. There is a consensus among scholars that a dar al harb becomes a dar al Islam whenever Islamic rulings are applied and enforced.

Diplomatic Missions and Immunities

One of the major contributions by siyar to modern day international law is the treatment of diplomats and towards establishing diplomatic immunities for foreign missions (r21) It can be said that within the traditional Shariah, diplomats enjoy immunities not dissimilar to the ones provided for in modern international law R21. Classical Islamic law granted widespread concessions to foreign diplomats and emissaries and their arrival was often a ceremonious occasion R21.

Muslims carefully respected the immunity of envoys and diplomatic missions. Non-Muslims were permitted to enter the dar al Islam unmolested as official messengers, even without securing aman, provided they declared that they were carrying diplomatic messages. The rule of diplomatic immunity goes back to the time of the prophet Muhammad when two envoys were received from Musaylima, the so-called liar Prophet,” who, in spite of their unfavorable declarations to Muhammad, were secured in their lives kh 371.

Ambassadors, including members of their delegation, enjoyed full personal immunity. All that was needed to enter Muslim lands was simply to identify themselves as ambassadors. They were not to be molested or maltreated. There is the famous story of the Prophet who when faced with the arrogance and insolence of two envoys of Musailimah, a tribal chiefs with pretensions to prophecy, exclaimed: “ By God, were it not that heralds are not to be killed I would behead the pair of you! Sal 134

Ambassadors had the full liberty to practice their religion and rites. This is based on the Sunnah of the prophet who allowed the Christian Arabs of Narjan to conduct religious services in his mosque at Median. The personal properties of ambassadors were exempt from import duties. Exemption from other duties, taxes or properties were granted on a reciprocal basis. In the same vein, and only in extraordinary circumstances, could ambassadors be detained or temporarily imprisoned. The latter might occur when a Muslim counter part was detained or imprisoned.

According to Islamic law, If Muslims ambassadors were maltreated or killed by an enemy state, the Muslims were not permitted to retaliate. Just as in the case of hostages, this rule was based on the Quaranic prescriptions that underscored the notion that a soul ought not to bear the load of another. The blame in this case was to fall on the enemy government. Sal 134

Jihad

The very early works on siyar dealt mainly with jihad. This term is derived from the Arabic verb jahaba, which means to exert, to strive or to struggle. In juristic terms it came to connote a struggle for the cause of God by all means including speech, property or wealth and life. It also means the “exertion of one’s effort in repelling the enemy.” As such it can be classified into three forms: striving against a visible enemy, against the devil, and against the ego or selfish interests.

Jihad correctly defined can be interpreted as having both greater and lesser dimensions or qualities Sal 67 In its more popular sense, jihad means the repulsion of aggression, resisting submission to the enemies of Islam, protecting the faith and defending the umma. Based on the above :minor jihad” it becomes no different from fighting or qital sal 68. One of the classical Sunni jurists of the Maliki school, Ibn Arafa, defined Jihad as “warfare waged by a Muslim against a disbeliever, with whom he has no oath, to raise the word of God Almighty, or against his presence in or penetration into the [Muslim] territory IRC 279

Jihad is lawful in Islam as a necessity to suppress aggression. It was prescribed in the second year of the Hegira, after Muslims had patiently borne for fourteen years the harm done to them by the pagans IRC 279

Nevertheless, religion was not the motive for in jihad, nor was its purpose to subordinate others and compel them to convert to Islam. Jihad was intended instead to ward off injustice, champion the cause of the weak and drive back the enemy IRC 280.

Before declaration of either war or jihad, the enemy should be made to choose one of three options: Islam, as a token of peacefulness; reconciliation or a peace treaty with Muslims, or finally war, if the enemy insists on waging war. It is evident that giving the choice between three options excludes the character of compulsion IRC 280

Prisoners of War

Islam recommends that prisoners of war be treated kindly. Classical jurists based their rulings on the Quran and the precedents of the Prophet. On the one hand, the Quranic revelation that directly address the rulings on the prisoners of was commands Muslims to: “Set them free either graciously or by ransom.” Thus, this Quranic command states that Muslims are obliged, after the cessation of hostilities, to free their prisoners of war either freely, or in exchange for Muslim prisoners of war or for ransom Islam and Jihad 251. God the Almighty says: “ And they feed, for the love of God, the indigent, the orphan and the captive.: The Prophet says “ I command you to treat captives well.” IRC 858 The sick and wounded should be given medical treatment, and the dead should be buried to preserve their dignity IRC 858

On the other hand, a few jurists based their ruling on the prisoners of was upon another Quranic revelation: “kill the polytheists wherever you find them,” and the precedents set by the Prophet in his treatment of prisoners of war indicate that he adopted four courses of action: first, the execution of three Meccans; second, releasing prisoners freely, this, settling prisoners free in exchange for Muslim prisoners or for money – and some of the prisoners taken at the Battle of Badr were set free in exchange for teaching ten Muslim children to read and write; fourth enslaving prisoners of war. These Quranic references and the Prophet’s precedents caused a great controversy among the jurists. I and Jihad 251

As Ahmed Mohsen Al Dawoody author points out the parties to this controversy can be generally divided into three main groups: according to the first group who were among the companions of the Prophet, the Islamic ruling on prisoners of war is restricted to releasing them either freely or in exchange for ransom, as stipulated in the Quran )47:4). Moreover, this group argues that this verse abrogated the other options which were followed by the prophet, namely, execution and enslavement.

The second group, the Hanafi jurist, advocate that the head of state is entitled to either execute the prisoners or enslave them in accordance with what is in the best interest of the Muslims. Thus, in stark contrast to the first group, Abu Hanifa rejected releasing prisoners freely and exchanging them for Muslim prisoners or for ransom, i.e., the only tow options advocated by the first group. Abu Hanifa’s rejection of these two options is justified by the fear that releasing enemy prisoners, either freely or in exchange for Muslim prisoners, would strengthen the enemy. However, Shaybani, disagrees with his teacher, and accepts the exchange of prisoners for Muslim prisoners. Moreover, some Hanafi jurist advocate that the head of state is also entitled to free the prisoners but allow them to stay in the Islamic state and pay the jizyah. They should not be allowed to return to the enemy state because they would strengthen the enemy. However, Arab poly theists are excluded from this option.

The third group, the majority of Muslim jurists, including the Shafi’is, Malik’os, Hanbal’is, al Awza’I, Abu Thawr and al Thawri, broadened the options for the head of state. Depending on when he deems to best serve the interest of the Muslims, he is entitled to choose one of the following four options: to execute some or all of the prisoners, to enslave them, to set the free or to exchange them for Muslim prisoners or for money. It is interesting to note here that the second caliph, Umar ibn al-Khattab prohibited the enslavement of Arabs. The Maliki’is added a fifth option: prisoners can be permitted to stay in the Islamic state in return for the payment of jizyah. It is claimed that Malik, rejected the free release of prisoner. I in Jihad 251-252

Most of the Islamic position on the treatment of the prisoners of war is based on the incident of the seventy prisoners taken at the Battle of Badr. During the Prophets lifetime, prisoners of war were either held in the mosque or divided among the Companions of the Prophet. When the Prophet divided the prisoners taken at Badr to be housed with the Companions, he instructed them to “Observe good treatment towards the prisoners.” 256

The jurists agree that prisoners should be fed and, following the precedent set by the Prophet with one of the prisoners taken at Badr, clothed if need be 257. Prisoners should be protected from the heat, cold, hunger thirst and any kind of torture. Furthermore, it is prohibited to torture enemy prisoners of war to obtain military information.

It is important to add here that the jurists commonly agree that it is prohibited for the Islamic state to execute enemy hostages under its control, even if the enemy slaughtered the Muslim hostages it held. Here some jurists refer with pride to the precedent of the Caliph Muawiyah ibn Abi Sufyan when he refused to execute the Roman hostages under his control after the Roman emperor had broken the treaty with the Muslims be executing the Muslim hostages he held. The jurists also agree that, during the prisoner’s captivity or enslavement, members of the same family should not be separated; children should not be separated from their parents or grandparents or siblings 258.