It has been two years since I attended the IHL and Islam Expert Workshop in Geneva, which the ICRC has been so kind to send me to. It was a great and enlightening experience in general, and I guess it fulfilled its purpose. I had expected more, but I guess it is up to us participants to fulfil those extra expectations. I’d like to think that I am doing my best, but deep down I feel that I could be doing more.
Nonetheless, this post is about two particular issues that somehow always remain at the back of my head. I have discussed this with a couple of colleagues, but only today have I managed to muster the willingness to write about it. It is a mix of procrastination and other (more priority) work, afterall these are not exactly the most major things that came out of the workshop. Rather, these issues are the small pricks that has been bugging me. So I guess Im glad I have finally managed to write about this.
The First Issue: Medical Personnel In War
It is perhaps important for me to quote something on page 46 of the report of the workshop, which retells a particular point of discussion:
“One participant suggested that medical personnel should be encouraged or even obliged to seek amān (protection) from the parties to conflict. They could inform the parties of their intended activities, and the parties would then decide whether or not to afford them protection. Another expert, however, quickly interjected that this would be superfluous: Islamic law is extremely clear about the existence of an obligation to provide medical care, which itself falls under one of the Five Necessities of Islamic law, i.e. protection of life.“
So, the “one participant” at the beginning of the paragraph was yours truly, and yes this sentence does represent what I suggested. The problem is in the second sentence, especially the “parties would then decide” which is a misrepresentation of what I said. I never said that.
What I must mention first (which I believe I did mention first during the Workshop when commenting on this issue) is that I am not denying that Islamic law should afford protection towards medical personnel. My suggestion to encourage or oblige medical personnel (neutral ones, that is) to seek for amān was for mere practical purposes.
As quoted above, “another expert” said that “Islamic law is extremely clear”. I must say the argument is compelling and in fact I agree with it, but no it is not extremely clear”. The protection of neutral medical personnels is never mentioned explicitly and never discussed in the thousand of years of fiqh literature as it is a contemporary phenomenon. I worry that making ijtihad on a matter of such character and assume that there cannot be ikhtilaf is borderline arrogance.
Nonetheless, there are so many other potential problems in the application of this ruling. What if the local commander is unaware of the rulings, or made a wrong ijtihad? What if some rebel fanatic soldiers got too excited when they saw people marked with an insignia which, for whatever purpose, resembles the symbol of the Templar Knights? Misunderstandings could happen, anything could go wrong.
Regardless how true the ijtihad of the scholars were in that Workshop. I see nothing wrong or even an urgent need, for neutral medical personnels to seek amān just to be sure. There is nothing wrong with taking double fold protection to clear any doubts.
And, just in case a particular armed force or rebel group chooses not to grant amān, we will know this up front. Then we can consider how to respond to this situation. The failure of granting amān is the best way to know that the group will kill the medics. Or, would we rather find out by receiving bodybags, which by then all we can do is rant and condemn?
This is my opinion. Unfortunately I did not manage to clarify much due to how fast the dynamics went in the discussions. It was a minor point compared to the other things discussed.
However, I am not pointing fingers. It could be me not expressing myself properly. As I said earlier, I recall clearly that I did make a disclaimer to prevent this exact misunderstanding, but I guess its not the first time people misunderstood what I said. So, I guess, I hope this does not lead to more misunderstandings. If any readers are confused, or wish to clarify anything regarding this or any point, please feel free to comment on this post.
The Second Issue: Slavery in Islam
As mentioned in page 23 of the report:
“The expert then brought up the example of slavery: as all Islamic States had agreed to abolish slavery, and given the existing prohibition against it under international law, he said, it was time to recognize that the classical Islamic rules concerning slavery were obsolete.”
The first thing I wish to mention is about this particular issue of slavery in Islam. It is not true that all Islamic States have made such agreement. Putting aside the debate regarding whether we even have a true Islamic state at all these days, we will find a number of Muslim-majority nations not among the parties to the Slavery Convention 1926. True, perhaps no Muslim-majority has denied such a rule. But the real question is: to what extent do these Muslim-majority voices actually have any weight at all in Islamic law?
The books of fiqh mention that the Islamic ruler can decide to enslave a captive, but can they decide to make such option obsolete altogether in Islamic law? Perhaps the “all have agreed” may hint at the formation of an ijma, a claim made also in the Open Letter to Baghdadi. Never mind that there are debates at the early generations of the fuqaha on whether an ijma can even be made in the period after the sahabah. The claim of ijma is easily disproven by the fact that there are still contemporary major ‘ulama ruling in favor of the classical positions, such as Al-Lajnah Al-Da’imah of Saudi Arabia. And yes, screaming “Wahhabi!” does not negate their ruling, and they are not the only ones either.
My personal position has two sides. The first side is the end ruling, which is that I concur with the jumhur of the classical jurists. It must be noted that the option of enslavement (as are the other options, i.e. execution, release gratuitiously or with ransom) are chosen by maslahat which has its own elaborate science. So when Shaykh Musthafa Al-Khin and Shaykh Musthafa Al-Bugha said that there is no maslahat in this age, I find that the point is that it may be ruled that there is no maslahat in this era but to say that the entire ruling is obsolete is simply baseless. But thats just me.
The second and most important side is regarding the notion of “enslavement” itself. What does that term even mean? The terrible experience of the slaves in America usually represents our imagination of what that term means. Does this represent the Islamic concept of enslavement, though? Read this hadith, it is not very detailed but is perhaps sufficient for us to answer that question. A more elaborate explanation is perhaps something that would require proper research. InshaAllah, I have planned to commence a research project on this topic next year which will involve a team. May Allah help me to execute it.
However, the second thing, what I feel most important to discuss is the aura I feel around this discussion in particular and most Islam-International law discussions. It is hard not to feel an aura of inferiority complex that makes many feel necessary to “satisfy western-international standards”, and that what we truly want is to hold hands with everyone and sing Heal the World with sparkles and flowers. Nesrine Badawi strongly criticizes this mentality, and the discussion of jihad is usually at the center of this.
True, Islam is against terrorism. True, jihad has its rules. But I feel that many Muslims, some scholars included, are so terrified that Islam is associated with terrorism that they end up being terrified of jihad itself. In a different forum, I was merely recommending a paper presenter to consider some ahadith on war for her analysis of war. Suddenly some academics felt the sudden urge to strongly criticize me because “jihad is not only about war! Jihad is against the nafs!”.
When ISIS enslaved the Yazidis in 2014, a lot of us Muslims were very quick to condemn such act and say that it enslavement is not an Islamic teaching. Boy, how suprised we were when we realized that enslavement is actually found in the vast majority of our fiqh literature. Of course putting aside how ISIS actually treated those Yazidis, and many other transgressions they made.
It is too easy to say how generally it is important to be honest and open about Islamic teachings, that we have nothing to hide and we believe that everything in the Sharia is good. However, many of us are guilty of not being able to put that into practice and worry more about about what people might think of Islam, so much so that we end up lying or misleading people. There is seriously no good in doing this.
Not only that this is unproductive and will achieve nothing but hostility from both “Islamophobes” who criticize our lack of honesty and fellow Muslims who feel lied at. Rather, Muslims know best that Islamic law is an extension of how we worship Allah. Even fiqh, as product of ijtihad, is how Muslims apply that to things not explicitly mentioned in the Qur’an and Sunnah. There are two elements for a deed to be accepted by Allah: (1) that it must be in accordance with the Qur’an and Sunnah, and (2) that it must be with correct intentions i.e. to please Allah.
So it is true that a lot of new ijtihad needs to be done nowadays. We dont see Shaykh al-Islam ibn Taymiyyah say anything about nuclear weapons, for example. The maslahat of war can change over time depending on the trends of warfare at the time, and fiqh rulings must keep up with that. There are two extremes here: some do not want any changes, others want to change everything. Finding the balance between the two is a question of ushul al-fiqh, but “needing to please the West” is not part of that. Before we even start to think of how to change products, we must start by rethinking and reorienting our intentions.
Remember, we dont live forever and Muslims should know best the consequences of that.
To End My Rant
There is actually some more issues I feel like sharing about. Such as how some participants have this mentality of “lets just ditch all the classical scholars, its a new day and age now”. I mean, yes we do need new ijtihad on new trends of war. I would like to think of what we do as continuing the tradition of the scholars, as opposed to “ditching them”. This is a long story of its own, but I think it would deserve its own special post. Perhaps one day, inshaAllah.
Be that as it may, my quest for knowledge goes on. I do my best to further my research. I am often distracted by other projects, but this IHL and Islam is always at the back of my mind and resurfaces once in a while in form of other projects. InshaAllah, two books of mine are coming out soon. One of them is a Bahasa Indonesia translation of my Ph.D Thesis which is entirely about Islam and IHL (the English original thesis is downloadable online), the other one is a short introductory book on contemporary Islamic international law, also in Bahasa Indonesia.
I look forward to more discussions and works in this area.
Lecturer at the International Law Department, Fakultas Hukum, Universitas Gadjah Mada
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