Euro-centrism, Islamic jurisprudence and public international law: An examination

It’s rightly said that “Law of nations is nothing but a law of nature applied to nations in a state of natural liberty.” An insightful dealing with the genesis of public international law from the lens of most of the international jurists such as L.F.L Oppenheim, however, depicts a distorted version. It seems the entire […]

It’s rightly said that “Law of nations is nothing but a law of nature applied to nations in a state of natural liberty.” An insightful dealing with the genesis of public international law from the lens of most of the international jurists such as L.F.L Oppenheim, however, depicts a distorted version. It seems the entire exercise of understanding the International law has been reduced to ‘Euro-Centrism’ or ‘Western Self Centrism.’ When Oppenheim states that –“There is no doubt that law of nations is a product of Christian civilization”, it contests the subject and object, both, of international law. A rational mind then argues as to whether only Christian states of Europe & Roman empire constituted the international community then and now.

It’s therefore imperative to understand the contribution of other civilisations like Islamic civilization in the growth and development of International Law since time immemorial. Shariat consisting of Quran, Hadis, Sunna, Ijma and Qiyas forming the body of Muslim common law and Siyar, the Muslim International Law that strengthens the obligations of Muslim states and doesn’t impose Islamic Law on Non-Muslim states carves out the most cardinal principles of contemporary Public International Law. The echoes of Shariyat & Siyar can be covertly heard in the development of Christian law of nations to contemporary international law. Its therefore worthwhile to trace the principles, practicality, utility, and implementation of International law through annals of Islamic Jurisprudence.

 Fiqh Al-Siyar is usually described as Islamic International Law. Imam Abu Hanifa was first Islamic jurist to accord Siyar the status of a distinct legal body. He was the one who systematically explained the rules of Siyar. According to Najmuddin, Al-Siyar connotes the rules of war and these rules were designated by this term because most of these cases involve going to war against the enemy and journey towards the enemy. The most vital implication of Siyar is that it sets out the relationship of Muslim communities with Non-Muslim communities especially during conquests. In the opinion of Prof . Hamidullah , Siyar is that part of custom of the land that determines the treaty obligations which a Muslim de facto or de jure state observes in its dealings with other de facto or de jure states.

The Principles of interactions between Dar-ul-Islam (territory of Islam) and Darul-ul-Harb(enemy ) are laid down by Siyar. The tenets of Islam compiled in Quran, Sunnah, Hadith, Ijma and Qiyas that unfold Shariat also invigorate the normative framework of modern international public law. The withering away of absolutist states post West Phalian arrangement and recognition of supremacy of sovereigns can be traced back to Roman empire, yet Islamic laws and customs during times of Prophet Muhammad(PBUH) too had even recognized NonIslamic sovereigns(tribal groups) who wanted to offer Hudna to Islamic sovereigns . Hudna was a kind of ceasefire of cessation of hostility and war. The peace treaties amongst contemporary nation states owes its existence to Hudna during the times of Prophet. The first such peace treaty (Hudna) was signed in 628 AD between Prophet Muhammad (PBUH), representing Medina and Quraish tribe of Mecca also known as the ‘Treaty of Hudaybiyyah’. It had helped to decrease the tension between the two cities of Mecca and Medina and affirmed peace for a period of 9 years, 9 months and 9 days. It had authorized Muhammad’s followers to return in the first pilgrimage the following year.

The Islamic Military Jurisprudence had its own specific ethics of warfare and the war was justified only in three circumstances – legitimate self-defence, to aid other Muslims and for violation of the terms of the treaty. The fighting should, however, be stopped if these circumstances cease to exist. A lucid exposition of this practice can be witnessed in the modern concept of Pacta Sunt Servanda (agreement must be kept) that germinated from Islamic Jurisprudence. It was advocated to avoid injuring non-combatants, it had to be an anger less expedition and humane treatment was to be accorded to prisoners of war, wounded or captured enemies were not to be killed(King Vikramaditya was accorded treatment of dignity and honour by Humayun after he had lost the battle of Panipat to Babur).

 Prophet Muhammad had himself propounded various injunctions for his forces. Some of the most important of these were summarized by Prophet’s companion and first Caliph, Abu Bakr in the form of ten rules for the Muslim Army. They were- not to commit treachery, not to mutilate the dead bodies, no killing of child, women and aged, no harm to trees, no burning of trees, no slaying of enemies’ flock, sparing people who have rendered monastic services, those surrendering should not be fought, those fleeing away from the battlefield should not be persued, only captured weapons and animals was considered as war booty. Caliph Ali had stated that “Islam does not permit Muslims to stop supply of water & food to their enemy”. In the battle with Franks, Al Kamil had defeated them, yet he had supplied the defeated Frankish army with food. Oliverus Schalisticus had lauded Islamic laws on war on this account.

The principals of Islamic military jurisprudence established by Prophet Muhammad and early Caliphs were carried forward in letter and spirit in Islamic states till eighteenth century. Mughal emperor Akbar later implemented ‘Sulh-i-Kul’ i.e. ‘Peace with all’ to control his vast empire by extending due respect to all other existing sovereign states, irrespective of their religious beliefs. Akbar had sent an embassy to his arch-rival Uzbek Abdullah in which he had asserted that difference in law and religion couldn’t be considered as a sufficient ground for wars. Interestingly, those same principles of ‘territorial integrity’ and ‘right of self-determination’ are important in contemporary international law that dictates relations of nation states today.

The Cairo Declaration of Human Rights adopted in Cairo,Egypt, on 5th August 1990 signed by 45 States was a watershed moment embarking inviolable respect for human rights. It binds the signatory nations to protect men from exploitation & persecution and affirms freedom & right to a dignified life in accordance with Islamic Shariah

. Siyar had indelible imprint on western European Commercial laws as well. The modern bills of exchange and assignment of debts owes its origin to hawalah practiced by Islamic states during eight century, modern concept of ‘Trust’ flows from Islamic ‘Wakf’. It was due to Islamic jurisprudence only that diplomatic missions of sending peace ambassadors to foreign states began. Musab Ibn Umayr was the first ambassador of Islam sent to Medina to prepare the city for forthcoming Hijra. This glorious tradition of dialogue with foreign states through ambassadors continued till Mughal era. England’s first ambassador to India, Thomas Roe had visited the court of Emperor Jahangir. The practice of embassies and diplomatic immunities in vogue today is developed out of this practice of Islamic jurisprudence.

Islamic Jurisprudence thus contributed in umpteen ways to the growth and development of public international law by laying the foundations of human rights, minority rights, gender equality, ceasefires, treaties, principle of self-determination, principle of belligerency, principle of reciprocity of accord, diplomatic relations, warfare ethics, sovereignty, legitimacy, liberalism, nationalism, constitutionalism, freedom of speech and expression, etc. It has channelized the course of public international law governing the relations of sovereign states with each other and the growing social interdependence of international community through the glorious tradition of Shariyat & Siyar.

Adv. Feroz Pathan practices in Delhi.