Islamic humanitarian law

INTERNATIONAL humanitarian law, which is an important part of international law, aims at mitigating the effects of war by: (1) restricting the choice of means and methods of carrying out military actions; and (2) compelling the belligerents to spare persons who do not or no longer participate in hostilities.

The Geneva Conventions and Protocols are the main sources of this branch of law. According to the preamble to the Additional Protocol to the Geneva Conventions, international humanitarian law lays down provisions for the protection of victims of armed conflicts. It is silent on whether a state may or may not resort to war. It steps in whenever war breaks out, without concerning itself with the question of justification of that war. The fundamental rules of international humanitarian law that govern the conduct hostilities are:

1. Persons hors de combat and those who do not take direct part in hostilities are entitled to respect for their lives and physical and moral integrity.

2. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.

3. The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power.

4. Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights, and convictions.

5. Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment, or cruel or degrading treatment.

6. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare that cause unnecessary losses or excessive suffering.

7. Parties to a conflict shall, at all times, distinguish between the civilian population and combatants, in order to spare the civilian population and property. Neither the civilian population nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives.

Muslims can take just pride in the fact that Islam established the sanctity of life, honour, and property in times of war, and made rules for the conduct of war and ensured their enforcement, centuries before the West declared them to exist in the various present-day international instruments. The initial body of Islamic humanitarian law, which consisted of the injunctions given in the Quran and the Traditions of the Prophet, was further developed and elaborated by the Muslim jurists. Consequently, Islamic humanitarian law is more comprehensive and equitable than any set of modern treaties on this issue.

First of all, Islamic law clearly sets down guidelines as to when war can be conducted. The Quran mentions various situations when Muslims can indulge in armed conflicts. These include: when a non-Muslim state attacks an Islamic state; when Muslims living in a non-Muslim state are oppressed and persecuted; etc.

The Quran says: “And fight in the way of Allah against those who fight against you....” (2: 190) “Permission (to fight) is given to those on whom war is made....” (22: 39) “And what reason have you not to fight in the way of Allah, and of the weak among the men and the women and the children, who say: Our Lord, take us out of this town, whose people are oppressors, and grant us from Thee a friend, and grant us from Thee a helper!” (4: 75)

Islam allows war when all peaceful means of checking aggression, tyranny, violence, and injustice have failed. Here it must be mentioned that nowhere in the Quran and the Traditions is it mentioned that Muslims should resort to war for the spread of Islamic faith. The Quran clearly says: “There is no compulsion in religion....” (2: 256) This verse is a sufficient answer to all the nonsense which is talked about the Prophet offering Islam or the sword as alternatives to the non-Muslims.

Secondly, Islamic law also defines how the armed forces must behave during an armed conflict. In brief, the acts forbidden in war comprise: (1) starting war without formal ultimatum; (2) cruel ways of killing; (3) killing of non-combatants; (4) killing of prisoners of war; (5) killing of envoys; (6) massacre in the conquered territory; (7) dishonouring of women (8) inhumane treatment of prisoners of war; (9) punishing prisoners of war for acts of belligerency; (10) mutilation of dead bodies; (11) destruction of crops, trees, and other natural resources; (12) plundering and looting; (13) charging the prisoners of war for their maintenance; (14) depriving the conquered population of their possessions, interfering in their religious practices, forcing them to convert to Islam, and denying or restricting their legal and equitable rights. It must be noted that the observance of these rules is incumbent upon every Muslim soldier, commander, and ruler. Anyone who commits a violation of these norms is guilty of an offence under Islamic law.

Along with principles now incorporated in the Geneva Conventions, Islamic law contains provisions not yet incorporated in modern international instruments. For instance, the protections provided by the Conventions are in the nature of multilateral treaties. Islam provides all these protections unilaterally. Similarly, the Conventions allow the detaining state to exact labour from those prisoners of war that are below officer rank. According to Islamic law, no labour can be exacted from the captives.

The Prophet, the pious Caliphs, and later Muslim rulers strictly followed the rules of Islamic humanitarian law. The Prophet used to instruct his commanding officers and soldiers about war ethics. He would particularly emphasise on treating the captives with dignity and kindness. Caliph Abu Bakar’s instructions to his military commanders, regarding behaviour of troops, are also well known.

In 638, when Jerusalem was first conquered by the Muslims, Caliph Omar Bin Khattab made this declaration, which displays the humanity of the victors: “I grant them security of lives, their possessions, their children, their churches, their crosses, and all that belongs to them.... Their churches shall not be impoverished, nor destroyed; neither endowments, nor their dignity.... Neither shall the inhabitants of Jerusalem be exposed to violence in following their religion; nor shall one of them be injured.”

The case of Qutaibah bin Muslim also demonstrates the strict discipline and control under which the Muslim armies were kept. A delegation from Samarqand met Caliph Omar bin Abdul Aziz and complained that Qutaibah, commander of the Muslim army, had unjustifiably stationed the troops in their town. Omar ordered the governor of Samarqand to appoint a judge to adjudicate upon the matter. A Muslim judge was appointed and an inquiry was made as per the instructions of the Caliph. In the light of the evidence obtained, the judge, Jami ibn Hadhir Albaji, pronounced that the Muslim army must vacate the city immediately. He also declared that the sudden attack on the city, without any warning, was a violation of the Islamic law.

Imagine. An army conquers a city and enters it. The inhabitants complain to the victorious government; its judge decides the matter against the victorious army and orders it to vacate the city. Can history point out any war in which the troops kept themselves so strictly bound by the moral code?

In 1187, the capture of Jerusalem by Sultan Salahuddin Ayubi and the excellent behaviour of his troops is another classic example of Islamic war ethics. In fact, during the Crusades, various European writers recorded their surprise at the noble conduct of the Muslims on the field of battle. Oliverus Scholasticus tells how the Sultan Al-Malik Al-Kamil provided a defeated Frankish army with food: “Who could doubt that such goodness, friendship and charity come from God? Men whose parents, sons and daughters, brothers and sisters had died in agony at our hands, whose lands we took, whom we drove naked from their homes, revived us with their own food when we were dying of hunger and showered us with kindness even when we were in their power.”

The Muslims also maintained the same morality while retreating from a territory. In 634, the Muslim army made a strategic retreat from the Hams, Damascus, and other cities to consolidate its strength to repel the army of Heraclius. The retreating army, unlike other contemporary armies, not only left the citizens and their possessions absolutely unhurt, but also returned the tax collected from the inhabitants.

Thus, we see that the nature of war in Islam is that of an extraordinary measure. As long as pacific means are available for settlement of disputes and issues, war is prohibited. Even when war becomes permissible, for the sake of self-defence, etc., Muslim troops are not given a freehand. While conducting hostilities, they must observe the above mentioned rules.

Many people are even unaware that Islam has unilaterally banned the use of chemical, biological, nuclear, and other weapons of mass destruction, by prohibiting cruel ways of killing, killing of non-combatants, destruction of vegetation, etc. Here it must also be mentioned that the 9/11 attacks on the World Trade Centre and the recent kidnappings, torture, and killings of foreign aid workers in Iraq are absolutely un-Islamic. The perpetrators are criminals not only under international law, but also under Islamic law.

A clash of values

THE recent worldwide reaction against the publication of the objectionable cartoons depicting Prophet Mohammad (PBUH) has once again highlighted the wide gulf that exists between the Islamic and western societies.

Several commentators, including the Danish government, have suggested that this matter has been blown out of proportion. They are right. It has been blown out of proportion by Muslim mobs that have gone on a rampage in the capitals of the Islamic world, targeting western embassies, symbols of western culture and, most ironically, the life and property of their own fellow citizens.

There is little that anyone can say in defence of what has been observed on the streets across much of the Muslim world in recent weeks. The violent Muslim reaction does not seem to serve any purpose except to cement the Muslim image as one of an extremist and emotional people, desperate enough to resort to unlawful means of conduct. The unfortunate actions of a very small minority have ended up tainting the Muslim image and feeding a stereotype of Islam that cannot be farther from the truth.

While the Muslim reaction to the cartoon episode is mind-boggling, so is the European stance that had led to this provocation. Clearly, the first publication of the cartoons in September 2005 attracted only minor, localized and peaceful protests. It was the republication of the caricatures in other European newspapers, in blatant defiance of the sensitivities of a billion and a half Muslims around the world that led to the present crisis.

Had the Europeans tackled the issue in an adroit and respectful manner, the furore would have simply died down in due course of time. But the Danish, and others, saw this as an opportunity to make a point or two about the freedom of expression, and here we are, once again, on the brink of an ever-growing gulf between Islam and the West. The choice of the subject as well as the timing couldn’t have been more unfortunate. For our lack of collective judgment, Dr Huntington must be a happy man today.

So why is this such a big deal for Islam? Being a Muslim myself, I can understand why Muslims around the world would find it offensive and hurtful to see their beloved and revered Prophet (PBUH) becoming an object of somebody’s ill-conceived and misdirected mischief. Islam prohibits rendering prophetic figures to graphical art for the fear of encouraging idol worship and also out of respect for the prophets. This not only applies to the Prophet of Islam but to all prophets throughout history.

Creating highly provocative cartoons of such revered personalities is not only in bad taste but also very bad satire. The editor of the Danish newspaper that started this episode said in a CNN interview that he wondered why Muslims could not see the intended message in these cartoons, while many Muslims seem to be wondering what the intended message was. The Danes haven’t gotten around to providing any satisfactory explanation and one cannot help but think that there isn’t much to offer in that respect either.

This is clearly not just a freedom of expression issue. The writer Robert Fisk, in a recent piece on the subject, highlights the duplicity of standards that European governments are guilty of. He maintains, for example, that denial of or writing anything against the Holocaust is prohibited by law in many European countries. In any case, if someone dares to do so, he or she would be immediately accused of anti-Semitism and forced to retract and apologize. (Or go to jail as in the case of British historian David Irving). If freedom of speech were absolute, as the Europeans seem to claim in this instance, it would have also applied to anti-Semitism. But it doesn’t and very rightly so.

In fact, the International Herald Tribune recently reported that the Danish newspaper that published the caricatures rejected a set of cartoons of Christ in 2003 saying that these might affect the sensitivities of a vast number of Christians around the world. Why should a newspaper editor use a particular standard of self-censorship in one instance and apply a different standard in a similar case?

In the same way, the most recent publication of additional pictures from the Abu Ghraib abuse in an Australian newspaper seems to have attracted an irritated reaction from the Bush administration that seems to view it as being highly inflammatory to Muslims’ sensitivities. Doesn’t freedom of expression apply in this instance?

In this day and age when the world faces the scourge of international terrorism and building bridges of understanding between civilizations is the only way to fight it, the Europeans have embarked upon a quest that is bound to bring all Muslims — not just extremists and fanatics — on the wrong side of this struggle. If one has no regard for the religious sensitivities of a billion and a half Muslims, how can they convince them that they are not fighting a battle against their faith?

Even if it were an issue of freedom of expression, a little more common sense would have been helpful. The best way to protect freedom, as argued recently by an analyst, is not to misuse it. Indeed, freedom of expression is a laudable value that many of us in the Muslim world positively identify with and struggle to bring to our closed societies. However, we also know that our freedom ends where it impinges on others’ freedoms and sensitivities.

Even in America, there are laws that make it possible for us to enjoy our freedoms while protecting those of others. For example, it is nearly impossible for anyone to “freely” roam around in a nude state because, although it might be perceived by those engaging in this sort of display as part of the freedom to express themselves, others may not see it that way, and by going ahead with such a display in public, distress might be caused to others. That the freedom of expression is not absolute is a lesson that now seems lost on the Europeans in particular and the West in general.

This is clearly not an issue about the freedom of expression. It is in fact a very crude manifestation of a clash of values that has been seething beneath the surface for a while now. Europe clearly believes that freedom of expression is a sacred value worth fighting for but it must also understand that other civilizations and cultures also hold certain values as sacred and that they have every right to do so. Muslims, for instance, hold all prophets — not just their own — at least as sacred as the freedom of expression, if not more.

When these two sets of values clash, we have to find a way to accommodate both by reaching a mutually satisfactory solution. Can Europe live without showing disrespect to the Prophet or must Europe’s indecency be thrust down the throats of the world’s Muslims as a necessary cost of life in the twenty-first century? Would respecting our prophets seriously jeopardize the freedom of expression in European societies? Would this achieve any meaningful purpose?

Only by building bridges of understanding and respecting each other’s traditions and values can we coexist despite our differences and build a better tomorrow for future generations. What we really need is a compact that allows civilizations to peacefully coexist as they enjoy their own freedoms. Episodes like the current one only make the ultimate task more difficult.

The writer is a public policy analyst based in Santa Monica, US. Email: athar.osama@gmail.com

New doubts about devices

FOR decades, pharmaceutical companies in the US have lavished gifts on doctors, including meals, sports tickets and extravagant trips billed as “educational seminars.” Now there’s growing evidence that such graft, to use the term in its nonmedical sense, is migrating to the fast-growing medical device industry.

Earlier this month, the renowned Cleveland Clinic announced tighter conflict-of-interest rules after a hospital investigation found that its chief executive had a financial relationship with a medical device firm that sold products used in a type of surgery the hospital has advocated.

Last month, it was revealed that a former employee at industry giant Medtronic Inc. has filed a whistle-blower lawsuit alleging that the company improperly paid millions of dollars to dozens of surgeons across the country, possibly encouraging them to perform unnecessary surgeries. (One doctor allegedly received $400,000 for eight days of work a year.)

Another worrisome trend: surgeons who own their own medical device companies, which then sell to hospitals where the surgeons work. The practice may be legal, but California’s attorney general has started an investigation into the issue.

At best, questionable financial relationships such as these dilute the public’s faith in doctors. At worst, they may be putting patients’ lives at risk.

Since last year, Guidant Corp. has recalled or issued safety advisories for nearly 88,000 defibrillators and more than 200,000 pacemakers. At least seven deaths have been linked to faulty devices, and company executives evidently knew of problems long before they disclosed them to physicians. The company has used financial incentives to sell its products to doctors; surely those who’ve taken advantage of those incentives without asking too many questions deserve some scrutiny, if not blame.

—Los Angeles Times