Issue 8 / October - December 1994
International Law Today
In this article, I shall consider the impact on the earliest European writes on international law of al-siyar or Islamic international law. Thereafter in relation specifically to human rights, I shall look at the basic difference between Sultan Abdul-Mejid's 'Gulhane Hatt-i Humayun' of 1839 and other earlier proclamations such as the English Bill of Rights of 1689, The American Declaration of Human Rights of 1776 and the French Declaration of the Rights of Men and Citizens of 1789.
In European history the 'dark ages' encompass the period of the scholastic thinkers and go as far as the dawn of the 'modern' age, around the beginning of the seventeenth century after Christ. During this long period, it can fairly be said that there was no significant development in the philosophy or principles of law: The principles and rules of Roman Law were accepted without question, with very little amendment and interpretation. But the same period in the Islamic world saw significant developments in the principles and rules of law, as well as in the social and natural sciences. Europe's 'dark ages' (insofar as the label is justified) were not 'dark' for the Islamic world.
One example of this is the development of the concept of al-Siyar or international law, the term was first used in the discourses of the great jurist, Imam Abu Hanifah. During the Abbasid Caliphate, these discourses were written down and edited by Imam Muhammad al-Shayhani in his famous Kitab al-Siyar al-Saghir and Kitab al-Siyar al-Kabir. Another example is that, in the time of 'The Karahans', the first Muslim Turkish state, Serahsi, the greatest jurist of his age, wrote a five-volume study of international law, Sherhu's Siyar al Kabir (see Akgunduz,199l). During the Ottoman period, this book was recommended by Sultan Mahmut II for teaching to the Janissaries.
International law before Islam
The concept of an international law was certainly known before Islam - envoys were sent and received between states, for example. But the concept was very limited - for example, there were no recognized rules for the treatment of prisoners of war and in any case applied only to a limited number of states or city-states whose people had the same race or religion or language.
Among the ancient Greeks, international law was only recognized between the city-states of the Greek Peninsula: non-Greeks were considered 'barbarians'. A sort of 'League of Nations' had been established and the principle of protection for civilian objects' and non-combatants - which meant not destroying a town or cutting off its water supply - was acknowledged between the Greek city-states but only between them. Roman Law was likewise applied only for states which were allied by treaty to the Roman Empire: inhabitants of states not protected by such a treaty could be enslaved and their property confiscated , Roman Law did not recognize any rights for belligerents or non-belligerents in a situation of war. And Roman Law in principle and practice protected only Roman citizens (Shaw, 1991).
al-Siyar as international law
The law of Islam was the first to give formal recognition to a truly international law to manage affairs between groups of people. M. Hamidullah (1973) says that "when Islam came and founded a state of its own, the earliest name given by Muslim writers to the special branch of law dealing with war, peace and neutrality seems to have been siyar the plural form of sirah meaning conduct and behaviour.' One of the features of al-siyar was that there was no discrimination against foreigners or non-Muslim states.
One can see that the principle of international law was enshrined from the inception of Islam. An example is the treaty of Hudaybiya which was made during the time of the Prophet Muhammad, upon him he peace. The negotiation of the articles of the agreement had ended, and the Prophet, upon him he peace, had consented for them, but the agreement had yet to be signed. Abu Jandal then came to the Muslim camp seeking refuge. When Suhail saw his son, he said to the Prophet:
'The matter between you and me has already been settled.' The Prophet, upon him be peace, said: 'You speak the truth.' On hearing that, Abu Jandal said: '0 Muslims, am I to be returned to the idolaters to be deprived of my religion?' But Abu Jandal was returned to the non-Muslims according to the terms of the agreement despite the objections raised to it by many of the Companions. This event illustrates the degree of importance attached to a treaty as one of the sources of international law in Islam.
As regards the sources of international law in Islam, Abdurrahman Doi (1984) has pointed out that, as well as treaties, custom, reason and authority were also relevant. However, these terms have a different meaning from that specified in Article 38 of the statutes of the International Court of Justice. The concept of international law encompasses 'all public functions conducted by the state or its citizens in any intercourse not necessarily subject to private regulations in the performance of the public functions.'
It is worth noting here that traditional international law does not include individuals as a subject of its rules, that is, its jurisdictional application is limited to 'states' only. As Shaw (1991) points out, individuals are recognized as subjects of modern international law primarily through the establishment of human rights law after World War II. In Islam by contrast, international law governed not only the conduct of the Muslim state with other states, but also the relation of non-Muslim states and non-Muslim individuals living in the Muslim state.
The impact of al-siyar as international law
There was an impact of al-siyar on the earliest European writers on international law - among them, Pierre Bellow, Ayala, Victoria, Gentiles. All came from Spain or Italy and were influenced by Islam and Muslims during the Renaissance that was, in part, a response to the impact of Islam on Christendom. Moreover, Islamic international law must have influenced Grotius, as this impact can be seen from his discovery that postiliminium was known to Muslim law (see, Doi, 1984, p.421).
Leading authorities on international law such as Oppenheim have speculated on the long gap (about a millennium) between the period of Roman Law and the period when Grotius wrote his Do Jure Belli (1623). Given that many concepts of modern international law and relations are prefigured in Islamic codes, the impact of Islamic legal concepts should and could be seen to bridge that long gap in European legal studies.
Earlier human rights declarations
In the Western tradition, fundamental human rights and freedoms have been 'declared' in very well known documents - among others, the Bill of Rights consequent on the English Revolution of 1689, the Bill of Rights promulgated by the state of Virginia in June 1776, the Declaration of Independence issued by American States in July 1776, the French Declaration of Rights of Men and Citizens issued by the Constituent Assembly of France in 1789. In Western thought on the subject, Sultan Abdul-Mejid's 'Gulhane Hatt-i Humayun' of 1839 and Islahat Fermani of 1856, the Ottoman Imperial Restricts, are also counted as documents on international human rights, but, there is a substantial difference between them and the Western documents. The latter announced and initiated reforms in fundamental rights and freedoms; by contrast, the Ottoman documents (as Akgunduz, 1990, has pointed out) formalized in writing what had already been practised in the Ottoman Empire, i.e. in the Islamic countries. On the Gulhane Hatt-i Humayun, Kuzu (1991) points out that its prohibition of the separation of people as Muslims and non- Muslims was practically meaningless because there was no problem in the Ottoman Empire of the freedom of conscience and religious belief.
REFERENCES AND FURTHER READING
AKGUNDUZ, A. (1991) Belgeler Gercekleri Konusuyor Vols 3-4, Nil Yayinlari, Izmit
CIN, H and AKGUNDUZ, A. (1990) Turk Hukuk Tarihi Istanbul.
DOI, A, (1984) The Islamic Law. Ta-Ha Publishers, London.
GAUHAR, A. (1978) The Challenge of Islam. (ed), Islamic Information Services, London.
HARRIS, n.i. (1991) Cases and Materials on International Law, Sweet & Maxwell, London.
KUZU, a. (1992) Demokrasi - Resmi Ideoloji - Sivil Toplum', The Magazine of
Ankara Universtiy, Faculty of Political Sciences ,47, p.346.
LAGUEUR, W. & RUBIN, B. (1979) (eds) The Human Rights Reader, New American Library. New York.
MCCAUBRY, H. (1990) International Humanitarian Law: The Regulation of Armed Conflict, Dartmouth, Hants.
SHAW, NI. N. (1991) International Law, Grotius Publications Limited, Cambridge.
SIEGHART. p. (1986) The Lawful Rights of Mankind, Oxford University Press, Oxford.