I. Muslim Law (Shari'a)

What immediately springs to mind when first considering Muslim Law, or the Shari'a, is the ritual dimension of this Law which translates into acts of devotion ‘ibâdat ¹. For, in spite of their fundamental importance and meaning in Muslim life, these acts only represent a single aspect of Islam, its spiritual aspect. There is another important aspect of this monotheistic religion which is temporal in nature ².

A believer's relationship with God makes up the Rights of God (hukuh Allah). The relationship between believers makes up the Human Rights (hukuk al-‘insan / hukuk al-‘abd), inseparable from a given society and encompasses all economic, political, and cultural relations which may exist ³.

Muslim Law governs all these relations between Muslim and their Creator, and between Muslims themselves. That is not to discount the relationships that are established between the sovereign and his subjects and between the Islamic State and other States in times of peace and war. For Muslim Law encompasses a wealth of rules, conceptions, sanctions and guarantees. It is a “complete and independent legal theory” ⁴, covering individual and collective life.

There are two sources of Muslim Law: the principal sources and complementary sources. The principal sources are:

1. The Koran.

2. The Sunna or the Tradition of Prophet Muhammad.
3. Consensus (‘jma').
4. Analogue reasoning (quyâs).

The complementary sources are:

1. Personnel Effort (‘jtihâd).
2. Discretion (al-istihsân).
3. Public Interest (masalha).
4. Custom ⁵.

For the purposes of this report we shall focus on the first two principal sources that is to say the Koran (A), and the Sunna (B).

A. The Koran ⁶

The Koran is divided into 114 chapters our surhs with 6236 verses, 85 surahs were revealed to Muhammad over the course of 12 year, 5 month and 13 days, the time he spent in Mecca. These surahs, which are called the Mecca surahs, lay Muslim dogma.

The 29 surahs that were revealed at Medina, after the Prophet's emigration to that town (Hegira) ⁷ and known as the Medina surahs, concern the relationship between Muslims, and they trace the rules that govern social life and contain the general legal provisions (penal, international etc.). In short, these are the rules of Muslim City. It should be noted that there are only 500 verses in the Koran that concern legal matters.

The surahs of the Koran were not revealed on a single occasion, but whenever the need arose, that is to say on the occasion of a particular event. The revelation was made in either long or short verses. According to Muslim Doctor's ⁸, this way of revealing the Koran reaffirms the heart of the Prophet, and also enables the Prophet's companions to learn the verses of the Koran by heart. At the end of his life, the Prophet dictated the current texts according to order of God.

B. The Sunna or the Tradition of the Prophet

The Sunna “is made up of all the words and acts attributed to the Prophet. It covers his customs, his behavioural, the way in which he decided whether or not to act, and his silences on whatever occasion” ⁹.

The Sunna has played a major role in the interpretation of the legal provisions of the Koran and in the development of its principles and rules. It has provided solutions to the problems of the new Muslim Community ¹⁰. It remains, however, that its place is always lower than that the Koran in the hierarchy of legal Muslim sources.

While the Koran possesses an authentic and undeniable value ¹¹, the same cannot be said for all of the ahadîth ¹². It was this fact that encouraged Muslim scholars to dedicate their entire lives to seeking, verifying and categorizing the ahadith within the work of scholars. The works of these scholars are numerous, but the best known among them are Bukharî (d. 870) ¹³, Muslim (d. 875), Tirmidhî (d. 892), and Abû Dâwûd (d. 888).

The distinction mad by Muslim Doctors among the three categories of countries according to Muslim Law will be described, before presenting the principals of International Humanitarian Law in Islam

II. Countries In Muslim Law

The majority of theses Doctors are in agreement in their studies and works regarding the existence in Muslim Law of three categories o countries: Dar al-Islam, Dar al-Harb, and Dar al-Sulh. It is important to make a distinction between the definitions given by their forbears and those provided today.

A. The House of Islam

The title of House of Islam (Dar al-Islam): to day's Muslim Doctors and their forbears this signifies countries in which the principals of Islam are respected and the rules of Muslim Law are applied, with Muslims existing in security, without threats to themselves or their property.

B. The House of War

The House of War (Dar al-Harb) refers to territorial space within which the principals and rules of Islam are neither respected nor applied because the authority does not reside in the hands of Muslims and Muslims are not in security ¹⁴.

C. The House of Treaty

The House of treaty (Dar al-‘ahd / Dar al Sulh): for the Doctors of past generations, in this third type of country, Muslims exercised no authority but had a treaty with the government of the country. In certain cases and by virtue of this treaty, this government paid tribute to the Muslims in the form of money.

Certain contemporary Muslim Doctors are of the opinion that this notion actually covers all non-Muslim countries since treaties exist between different countries of the World, with regular diplomatic cultural and commercial relations between them ¹⁵.

Equally, we could add that States are linked by bilateral and multilateral treaties. They are members of various International Organizations and are supposed to work together for peace and security in the World. This means therefore that, today, we face two types of countries: the so-called Islamic countries and the so-called countries of treaty. If a country of treaty declares war on an Islamic country, invades it, occupies its territory or attacks its population, it will be considered as a country in a state of war, and the Islamic nation will therefore have the right of self defence.

It is worth considering the notion of jihâd in the context of these three different countries, which gives rise to the following questions: dose jihâd really signify war or holy war? Has jihâd been considered as an act of devotion?

Jihâd in Arabic, derives form the word jihâd, meaning effort. As for the word war its translation in Arabic is harb. Thus in terms of word for word translation, jihâd means neither war nor holy war ¹⁶.

Jihâd in Islam is an effort undertaken by many to do well and keep evil at bay. Jihâd is the effort to follow “God's path”, an interior effort which as Gardet explained, “Should be kept up unceasingly so as to keep vices and passions at bay” ¹⁷.

The Prophet Muhammad once said: “Here we are thus returned from the little jihâd to engage in the great jihâd (al-Jihâd al-Akbar), the effort of the soul” ¹⁸. An other hadith also offer several meanings to the word jihâd: “The best jihâd is to speak a just word in the presence of an unjust sovereign”. Jihâd, here, is the courage to denounce the injustice of a sovereign by showing him that he is not on the right path. All this without lifting a weapon or making any threat. And the fate reserved for this man if the sovereign kills him is paradise as he will be among the martyrs, and that is the true sense of word martyr.

The other meaning of the word jihâd is that of effort against enemies, the armed struggle? It is only in precise conditions that the word jihâd signifies armed struggle as this struggle or war is only an exception to the general rule, which is peace between the Muslim State and other States ¹⁹.

Muslim Doctors spoke of jihâd in terms of an armed struggle or war in precise and clear situations. The mad the distinction between two situations:

1. When the House of Islam (Dar al-Islam) is protected and defensible, jihâd consists in ensuring the defence of this land. Such defence is an obligation that only concerns a limited number of Muslims, with other Muslims not being obliged to take par. In this case, the jihâd is (Farid Kifata) ²⁰, as there is no danger that threatens the entire Muslim Community.
2. When the House of Islam is threatened, invaded by foreign troops or occupied by enemies, Muslims are obliged to take up arms to defend this land and expel the invaders. This is a combat against aggression or oppression ²¹. This combat should be undertaken with strict respect for humanity. Muslims only enter into combat with combatants of the opposing party, while women, children and the elderly etc., are to be protected against all forms of hostility ²². In this second situation, the obligation to fight becomes individual to ach member of the Muslim Community: (Fard ‘aya) is war (harb).

Jihâd, therefore, is not holy war, but an effort that takes up many forms, along the path of God. Neither is jihâd a merciless war against the infidels ²³.

On the other hand, jihâd is not the sixth obligation in terms of the acts of devotion. Jihâd dose not figure amongst the pillars of Islam ²⁴.

III. Respect for Human Dignity in Islam

Respect for the human being in the first and most important principal in Islam. After respect for life comes the respect for the dignity of the human being. This and respect for others are defined notions encouraged by Muslim Law ²⁵.

When God created Man, he gave him a soul, reason and the power of speech. He favours him above other creatures. From this distinction there derives the dignity of the human person ²⁶, and several verses of the Koran confirm this conception of human dignity: “Yes we have created man in the most perfect form” ²⁷.

The conception of human dignity in Islam allows no distinction between men, even as regards their religion, as this dignity is linked to the human being over and above his convictions and his beliefs. In the Koran it can be read that “We have ennobled the son of Adam” ²⁸.

This dignity centres on three fundamental points, that is to say:

A. Self Respect

This respect manifests itself in the fulfilment of duties towards God and others. Thus the Muslim should only kneed before God and be conscious of his responsibilities throughout the limited duration of his life on earth ²⁹.

B. Respect for the dignity of others

Respect for dignity is not limited to one's self; it also covers that for others with no distinction whatsoever, not even toward the enemy: “Oh you who believe! Hold firm like witnesses before God whilst practicing, justice. May hate towards a people not incite you to commit injustice” ³⁰.

C. The forbidding of torture and inhuman and degrading treatments

Torture and inhuman and degrading treatments are forbidden. Thus in the penal code for example, no confession may be extorted through force or violence. And the forbidding of torture is not limited in Islam to men but it also includes animals.

IV. Cairo Declaration on Human Rights in Islam, 1990

On August 2, 1990 the nineteenth Conference of the foreign ministers of ? of Islamic Conference Organization adopted, in its resolution 49/19-P ³¹, “The Cairo Declaration on Human Rights in Islam”. It contains a Preamble and twenty-five articles ³².

A. Respect for Human life

1. In this Declaration, life is presented as “a gift of God”, and this gif is “guaranteed to all men” (art. 2 (a)). According to the Shari'a for example, that of a foetus is considered to be a life from the fourth month, and must be protected as should be the mother who bears (art. 7 (a)).
2. The Declaration also insists on the respect for the integrity of human body, such that “it is prohibited to breach it without a Shari'ah-prescribed reason”. It is a duty of the State to guarantee the respect for this inviolability (art. 2 (d)).

B. The Principals of International Humanitarian Law

1. The Declaration states several principles of International Humanitarian Law. Indeed, Article 3 specifies these principles through the forbidding, in case of the recourse to force or armed conflict, “to kill non-belligerents such as old men, women and children”, or “to cut down trees, to destroy crops or livestock, to destroy the enemy's civilian buildings and installations by shelling, blasting or any other means”.
2. Article 3 also speaks of the rights of the wounded and sick to receive care, the exchange of prisoners, their right to be fed, lodged and clothed, and the reunion of separated families.

C. Respect for Human Dignity

Article 4 of the Declaration stresses the safeguarding of the dignity and honour of every man “during one's life and after one's death”. And it holds the State and society responsible for the protection “one's body and burial place from desecration”.

Conclusion

The rules of Muslim Law, or the Shari'a, envisage respect for the dignity of human being without distinction of colour, religion, sex, or social or economic origin. The respect concerns one's self, others and the forbidding of torture and inhuman and degrading treatments.

The opinion and personal effort (‘ijtihâd), of Muslim Doctors (mujtahads) has resulted in the distinction between three different type of countries: the House of Islam (Dar al-Islam), the House of War (Dar al-Harb), and the House Treaty (Dar al-ahd / Dar al-Sulha). But today we should speak of the House of Islam and House of Treaty. The mistranslation of the word (jihâd) as “holy War” gives a false image of the Muslim Community and its position concerning others communities.

The 1990 Cairo Declaration on Human Rights in Islam adopted by the Islamic Conference Organization is an example of modern texts containing several legal provisions concerning the protection of life, respect for human dignity and the principals of International Humanitarian Law.

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Text in Humanitarian Law and Religions, 2^nd International Course for the Formation of Catholic Military Chaplains to Humanitarian Law, Rome, 12-13 October 2007, Pontifical Council for Justice and Peace. Libreria Editrice Vaticana, Vaticana, 2009, pp. 37-46. (Text translated from French by Pontifical Council for Justice and Peace).
Mohammed Amin Al-Midani, President of Arab Centre for International Humanitarian Law and Human Rights Education, Lyon-Strasbourg, France. Visiting Professor, Strasbourg University, France.

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[1] AZAM S. F "Al-Houkouk Al-Madnieh Wal Siyasieh fi Al-Dasatir Al-Arabieh "in Arabic" Civil and Political Rights in Arab Constitutions" at 58 published in Al-Doustour fi Al-Watan Al-ARabi" in Arabic " The constitution in the Arab World" No47 year 2006, Marka Dirasat Al-Wehda Al-ARABIA, Arab Unity Studies Center.

[1] For the transcription of the Arab terms we have referred up to the work. Vocabulaire de l'Islam, D. SOURDEL et J. SOURDEL-THOMNIE, que sais-je? n° 3653, Paris, P.U.F., 2002.

[2] As GARDET has explained, Islam governs “community responsible solely and in separably for the relations between each believer and God and the relations between believers in moral, social and political terms”. See L. GARDET, L'Islam. Religion et Communauté, Paris, L'Ordinaire Desclée de Brouwer, 1967, p. 273.

[3] For distinction between these two categories and the conception of human rights in Islam. See M. A. AL-MIDANI, Les apports islamiques au développement du droit international des droits de l'homme, Thèse d'Etat en Droit Public, Faculté de Droit et des Sciences Politiques, Université de Strasbourg III, octobre 1987, pp. 15 et s.

[4] SAVAS, quoted by A. RECHID, « L'Islam et le droit des gens ». Revue des Cours de l'Académie de Droit International de la Haye, tome 60, 1937, p. 401.

[5] For the two sources of Muslim Law. See, M. A. AL-MIDANI, ”Introduction au droit musulman”, I TRE ANELLI, Les Trois Anneaux, revue des trois cultures monothéistes, n° 7, avril 2004, pp. 31-47.

[6] The word Koran comes from the Arab word (Kara'a) meaning (To read).

[7] On Monday 12 (Rabi' al-'awal) of the Hegira, which corresponds to 31 May 622 of Christian era, the Prophet Muhammad arrived at Medina, thus leaving Mecca, two of his birth, ton emigrate amongst the inhabitants of Medina, marking the star of the year of the Hegira of Islam.

[8] In this study we will use the expression (Muslim Doctors) to denote lawyers, legal experts, scholars and mujtahids (professional Muslim legal theologians).

[9] N. H. HILMY, « Dimensions des droits de l'homme en Islam ». Bulletin du Centre de Documentation et d'Etudes Economiques, Juridiques et Sociales. Le Caire, n° 12, avril 1981, p. 128.

[10] See, G. B. CECCOLI, « L'Umma, communauté islamique: approche possibles », I TRE ANELLI, Les Trois Anneaux, revue des trois cultures monothéistes, n° 3, avril 2002, p. 30 et s.

[11] «We have sent down the Reminder (the Koran); of which we are the guardians». (Chapter 15, verse 9). Le Coran. Introduction, traduction et notes par MASSON D., Paris, Gallimard, 1967.

[12] Hadîth word of the Prophet, plural ahaîith.

[13] See, R. STEHLY, Le Sahîh de Bukharî. Contribution à l'étude du hadith. Université de Lille III, 1994, II tomes.

[14] W. AL-ZUHAYLI, (al-'alaqat al-dawliyya fi l-islam, muqarana bi l-qanun al-dawli al-hadth) (International Relations in Islam, compared with modern International Law), Ed. (al-Risala), Beirut, 1981, p. 105, (in Arabic).

[15] M. AL-KATAN, (Iqamat al-muslim fi bald ghayr islamiyya) (The Life of a Muslim in a non-Muslim country), Ed. Euro-Media, Amiens (s.d.), pp. 7-8, (in Arabic).

[16] It is FAGNAN who translated (jihâd) as “holy war” and “war of interests”. See, T. EL-AZEMOURI, « Libre opinion sur la « Guerre Sainte », Le Monde, 8 septembre 1969, p. 4.

Even in English, the word (jihâd) could be translated as “exertion, toil, painstaking, doing one's utmost or striving”, but not by “War”. See, M. T. AL-GHUNAIMI. The Muslim Conceptions of International Law and Western Approach, Martinus Nijhoff, The Hague, 1968, p. 164.

[17] GARDET, op. cit., p. 134.

[18] "The term Jihâd has many associations in Islam, but it is important first to note the distinction between the internal psychological dimensions as apposed to external action against others. On the first place there is jihâd, or self-exertion, against the whims and impermissible desires of one's own self which the prophet, peace be upon him, described as aj-jihâd al-akbar, the primary jihâd". See, A. AN-NA'IM, Human. Rights in Islam: Critique and Prospects. Or: Human Rights in Islam: Frame-work for Radical Reform, in Rockefeller Fellow in Human Rights, 1981-1982. Centre for the study of Human Rights. Columbia University, New-York, pp. 55-56, (typed study).

[19] M. ABOU ZAHARA, (al-‘alakat al-dawaliyya fi al-islam), (International Relations in Islam), Ed. (al-Dar al-Kawmiyya lltiba'h wa al-Nashir), Cairo, 1964, p. 71, (in Arabic).

[20] S. MAHMASSANI, “The Principal of International Law in the Light of Islamic Doctrine”, Recueil des Cours de l'Académie de Droit International de la Haye, tome 117, I, 1966, p. 281.

[21] M. Z. KHAN, « L'1slam et les relations internationales », Revue Justice dans le Monde, tome V, n° 3, mars 1964, p. 307.

[22] M. A. DRAZ, « Le droit international public et l'Islam », Revue Internationale de la Croix Rouge., 1952, p. 201.

[23] "From the foregoing presentation we conclude that neither the Qur'an nor the hadith (...) can amply support the theory of waging unprovoked war against the unbelievers", T. M. AL-GHUNAIMI, op. cit., pp. 178, 179.

[24] R. MANTRAN, L'expansion musulmane, Nouvelle collection (Histoire et ses problèmes), Paris, P.U.F., 1969, p. 92.

[25] T. MOSTAFA KAMEL, « Statut juridique et droits de la personne dans la Charia musulmane », Revue Juridique et Politique. Indépendance et Coopération, tome 36, 1982, p. 114.

[26] M. K. EREKSOUSSI, « Le Coran et les conventions humanitaires », Revue Internationale de la Croix Rouge, 1960, p.642.

[27] The Koran (chapter 95, verse 5).

[28] The Koran (chapter 17, verse 70).

[29] A. AMERAD, « Le concept de "Droits de l'Homme" en Islam », in Eglises et Droits de l'homme, Colloque de Strasbourg, 19-20 novembre 1981, p. 3.

[30] The Koran (chapter 5, verse 8).

[31] A/CONF. 157/PC/62/Add. 18, 9 juin 1993.

[32] See the text of this Declaration in M. A. AL-MIDANI, Les droits de l'homme et l'Islam. Textes des Organisations arabes et islamiques. Association des Publications de la Faculté de Théologie Protestante, Université Marc Bloch, Strasbourg, 2003, pp. 72-77.