The Intersection of IHL and Islam with Dr. Ahmed Al-Dawoody

Welcome, I'm Tracy Beggley and this is Intercross, the podcast. Welcome to Intercross, the podcast, I'm in Geneva at the ICRC headquarters with Ahmed Aldaoudi, who is the legal advisor on IHL and Islamic law. Welcome, Ahmed. Thank you so much. So during this episode, we'll talk about international humanitarian law and Islamic law and some similarities between the two bodies of law. But first to start, Ahmed, when we talk about Islamic law, where does this law come from? Is it all law that's within the Quran, and can you speak a little bit about who the authoritative interpreters of the law are? Yes, thank you so much. Although this question might look a bit a simple question, but actually, it's a question that goes into the heart of the complexity of this legal system. Because usually people associate Islamic law mainly with the Quran. The Quran is the holiest scripture of the Muslims. It is the revealed word of God to Prophet Muhammad through the angel Gabriel. So it is not per se as a legal document. Some verses of the Quran take legal issues, but the greatest majority, of course, does not mainly concern it with legal matters. It includes issues related to theology related to ethics, moralities, narrations about previous revelations, previous prophets, and so on. So the Quran, of course, is one of the sources of Islamic legislation, and it is, in fact, the first source of Islamic legislation. The second source is the tradition of the prophet, or what falls under this category is to mean categories called Sunnah or Hadith of the prophet, and both these two sources, the Quran and Sunnah, are the two of the main three sources of Islamic law. The third one is called Ijma or consensus, whether it is some consensus of the Muslims in general or the consensus of the Muslim jurists. These three sources are described as the major sources of Islamic law, or the primary sources of Islamic law. There is another number of sources or methods or techniques or methodologies called the secondary sources of Islamic law, such as clear or analogy. So when you have no cases or situations that address these three sources, then the jurists could use the analogy to reach the Islamic law on certain issues. You have also public interest or laws that develop to ensure the public interest of the Muslims, you have also custom, because custom is also part of the Islamic legal system in case of the absence of rules in the Quran or the Sunnah, or that were developed by the jurists. Also, you have public interest, which is part of the mechanisms for developing regulations for the Muslims. But they're various, of course, different Muslim countries, and there's not the same law that applies in all of these different countries. So when you talk about Islamic law that's coming from all these different sources, how does that apply in each country, let's say? Yeah. Also, Islamic law, first of all, emerged as a kind of scholars contribution. It was not developed by a legislative body. So this meant that throughout Islamic history, there have been a number of different schools of law. At certain point in Islamic civilization, there was about, according to some scholars, about 130 schools of law. Now, you have two major sects in the Muslim world, the Sunnis and the Shiais, and under the Sunnis, you have four major schools of law, and in the Shiais, you have five or six major schools of law. And these different schools of law spread in different regions of the Muslim world. For example, in North Africa, you have a school of law called the Maliki School of Law. In some Indian continent, in India, Pakistan, Bangladesh, you have the Hanabi School of Law. In Southeast Asia, you have the Shiais School of Law. So you have different schools of laws in different parts of the Muslim world. And part of Islamic law itself, as I said, it developed as a Jew, as scholars, or a Jewelist legal system, meant that it was developed by individual and dependent Muslim jurists, which amended that indefinitely, you have different interpretations, and you have contradictory rulings. So this is part of the Islamic legal system. So to hone in on the topic that you're focusing on at the moment, and to look at the connection between IHL, as it's codified in the Geneva conventions, and the additional protocols, and end Islamic law, what have you seen are some of the core similarities between these two bodies of law? Basically, I would say that the similarities would exist, not only in the case of Islamic law, but in any other legal tradition. Because IHL's main concern is to alleviate the suffering of the atrocities of war, and to protect certain categories of non-compatients. Let's say put it this way. And at the same time, to ensure that you do not lose the war. So it is the right of the adversary parties that they have the right to win the war, but not to target or harm certain categories of persons or objects. And the same exists in Islamic law. So you see that in Islamic law, there are certain principles or core principles for the protection of certain persons and objects, the same like IHL. And at the same time, you see that the jurists were somehow negotiating, deliberating, struggling between this, and at the same time winning the war. And this is you see an ongoing process of deliberation, discussions and negotiations among the Muslims to ensure this. So this is what I see as the main similarities. The main disagreement is unlike the Geneva Conventions, that Islamic law throughout the its history has not been codified particularly in this area. So you have conflicting or contradictory rolling in so many issues. And this is one of the main challenges that we have now, because some of these rules could be selected to sanction abuses against certain categories of non-competence. So when you talked about the specific people and objects that are protected, can you give us some examples of the types of people that are specifically mentioned within Islamic law as receiving protection and some objects? For example, derived even from the prophetic tradition, there were specific categories who were enlisted or mentioned by a name that they cannot be harm or targeted during war operations. For example, women, children, the agent, the clergy, and a category called an Arabic or classical Arabic al-Asofa, which means that anyone who is hired to do services for the enemy in the battlefield, but they do not engage in direct hostilities. You can see also the jurists understanding the rational behind prohibition against targeting these five categories, they increase the list of the people. and competent immunity to include others who cannot be targeted and will, like for example the farmers, the traitors or anyone who actively does not engage in hostilities. This is on one level. On the other level you see also a deep discussion about when this category is called for feed the non-competent immunity, for example in the case of women. So what if a woman just throws stones at the enemy, stone could kill a certain point? This is a question. What if the woman only patrols the enemy or what if the woman is a wealthy business woman and she given money for buying arms for the enemy or if a woman is the queen of the enemy and she attended the battlefield, so if she is targeted and she is killed or captured then the enemy will be dispersed and the fighting will come to an end. The same kind of negotiations or situations execs with children in the case of the agent for example. So these were some of the questions that scholars were debating and do you feel like there's any clarity among scholars on some of these situations or that it's still open for the Bay? It is still open because this is a scholarly discussion and it is not verified like the Geneva Conventions and this is actually one of the main challenges because the jurists have different opinions between those who categorically prohibit targeting them. Even if they sometimes engage in some sorts of hostilities, others who say no it is allowed, others who say it's allowed in certain cases but not on others. And even some who allow it, they say we allow it but it is disliked. It's the team we do not prefer that they could be harmed. So the rooms are open for different interpretations and for selectively, you're choosing certain regulations. Okay. And what about the specific objects like as cultural property, as it is in I.H.L. specifically protected or are there other objects? And first of all, we have to bear in mind when we address this issue that we are addressing the war situation that existed in the seventh century over Islamic Merjid. And this is where most of the rules were developed. So the war situations are a bit more very primitive and like what we have right now. So basically what I found in the Islamic leak and literature that the jurists described this under the issue of property in general, they did not use cultural property as such. So they discussed whether it is allowed or not to use certain kinds of indiscriminate weapons against any enemy property. Because at that war situations, you have two situations of fighting. Number one which is fighting on one-on-one, where you use like swords and something like this. There is no possibility or a chance of harming a woman or a child and so on. But at that situation also, some enemy group sometimes retreat to what the jurists call their fortifications. So in this way, when you fight, so you have to shoot something called mangenia or catapults. In this case, you use like big stones or fire. And in this case, when these mangenia were shot, there is no possibility that you could harm non-competence or enemy property. You see, this is also lengthy discussion, some jurists allowed, some jurists prohibited. But mainly those who allowed on the grounds or under the justification of military necessity or as a collateral damage. So because even for pragmatic considerations, just want to destruction for the enemy was not permitted because at the culture at that time or the tradition at that time, so enemy property after the cessation of hostilities becomes the spoils of the war. So you do not see this kind of wanton destruction permitted in the classical Islamic legal tradition. And even it is very interesting to see one of al-Azai and eight century Muslim jurists who says that I translate from the Arabic, causing wanton destruction to enemy properties, a kind of facelifalard, which means something like a crime against humanity in the modern words right now, because there is no justification for causing wanton destruction. So thank you for that explanation, Nakhmed. Today there are a number of non-state armed groups throughout the world that are fighting in the name of Islam, and that seem to be intentionally violating IHL and either codified IHL or customary law, but also then some of these principles that you've been describing under Islamic law, some of these protections for certain people and certain property. So how do you make sense and how are Islamic scholars making sense of this disruption between groups fighting in the name of Islam but also violating some principles of Islam as well? You see that this is related particularly or mainly to two issues. Number one, as I just said, Islamic law was not codified, so you have contradictory opinions between this who allow, this who permit under the justification of collateral damage or military necessity, and we have a seven century and eight century primitive symbol war situations, and what happens now that some of these non-state armed groups, they have their own interpretation that justify them under collateral damage, but you see that the rational or the analogy is different because the war situations at that time as described was completely different. You have an enemy who sometimes be equal to their own fortifications, but they are fighting from behind the fortifications, but now you see that targeting of civilians who are non-competent cannot be considered the same situation. So basically because of contradictory rolling, so some people call it choose, selectively choose from them, or interpreting current situations in a manner that would consider these kind of violations as collateral damage. Okay, so basically different interpretations, just as we see between lawyers and scholars and government states as well, governmental forces, always discrepancies. Is there anything else that you'd like to add or talk about? I think it's still a responsibility not only on IEL experts, but all those who are interested in whether they are Islamic scholars or otherwise, that they should promote IEL, and it's principles which I would say that very similar to many legal traditions including the Islamic legal tradition. So what we need here is dissemination and education about the core principles, whether you call them under IEL or you call them under Islamic law. By the end of the day, both of them want to ensure certain principles which is number one, the protection of civilians and non-competence and protection of certain objects as well. Right, so at the end they all have the same goal and can find that common ground. Yes. Great. Thanks for your time. That's my pleasure. Thanks a lot. There is much more to the places and context in which the ICRC works than just conflict. Despite the hardships, culture, art and music can still remain, thrive even in difficult times. It is this human element that is often missing in portrayals of a place at war. So in this segment of the podcast, we bring that element to you. The universal experience of being human, spoken through the language of music. This week, take a listen to the traditional music of Yemen. Enjoy. [Music] (upbeat music) (upbeat music) (upbeat music)