Islamic International Law

by

Maurits Berger

• LAST REVIEWED: 28 August 2018
• LAST MODIFIED: 28 August 2018
• DOI: 10.1093/obo/9780199796953-0170

Introduction

Islamic law does not distinguish between national and international law in the modern sense of these words. Islamic law does, however, contain a large corpus of rules on how Muslims should deal with the nonbeliever inside and outside the realms of Islamic rule. These nonbelievers were, in the early period of Islam, approached as peoples (tribes or towns) and later as states. Muslims engaged with nonbelievers by means of alliances, war, and pacts. The main example for these practices was the prophet Muhammed (prophet from 610 to 632 CE) and his first successor caliphs during the early wars of conquest in the 7th century CE. The set of prophetic and caliphatic rules and practices on war and peace was later elaborated by Muslim scholars into the legal domain called siyar. In modern terms this corpus encompasses interpersonal law, international private law, and various elements of international law. Of the surviving scholarship, the most famous are the two monographs on siyar by Mohammed al-Shaybani (d. 805 CE), which are the reference points for most contemporary authors writing on the subject. Islamic international law has been subject to change in time. The legal dichotomy of the “Realm of Islam” and the “Realm of War” was gradually augmented with the addition of the “Realm of Accord” and “Realm of Peace.” Islamic empires and states (khanates, emirates, sultanates, etc.) have always exchanged diplomatic missions with other Muslim-majority and non-Muslim states, but only from the 18th century onward started to establish fixed embassies in non-Muslim states (the first Ottoman embassies in France, Germany, and Great Britain were established in the 1790s). In 1856, the Ottoman Empire was the first Muslim country admitted to the European “Concert of Nations.” Among the original members of the United Nations, there were only six Muslim-majority states out of a total of fifty; in the early 21st century, all Muslim-majority states are members of the United Nations and parties to most of the international treaties. In 1969, fifty-seven Muslim-majority countries formed the intergovernmental institution Organization of the Islamic Conference—now renamed the Organization of Islamic Cooperation—that endeavors to create an international legal framework among its member states. The contemporary study of Islamic international law is mostly an academic exercise, as all modern Muslim-majority states, without exception, adhere to the principles of modern international law. Nevertheless, many Muslim-majority states and Muslim authors claim that international law is not much different from, or even indebted to, Islamic notions of international law. This assertion has become particularly vocal since the 1980s among Muslim-majority states and Muslim authors. In addition, since the late 1990s, there has also been an emergence in the practice of alleged Islamic legal principles by nonstate actors operating in the international domain (e.g., Hamas, Taliban, al-Qaeda, so-called Islamic State or Da’esh), which has prompted scholars to study their interpretations of Islamic international law.

General Overviews

The concise overview Badr 1982 is a good introduction for any beginning student of Islamic international law. An elaborately referenced overview of the general and thematic issues of Islamic international law can be found in Bassiouni 2013 and Baderin 2008. Khadduri 1966 and Hamidullah 1961 are both considered seminal studies, the former being an annotated translation of al-Shaybani’s Siyar. Some books that discuss a specific theme of Islamic international law also contain elaborate and insightful introductions to the legal domain in general, such as Badar 2013 and Malekian 2011. All contemporary authors discuss Islamic international law in the context of modern international law theory. In doing so, some of these authors take the logic, structure, and terminology of the Islamic legal system as a point of reference and consider where it may or may not fit in modern international law theory, but most authors take the opposite approach by exploring the Islamic legal corpus from the vintage point of modern international law.

• Badar, Mohamed Elewa. “Ius in Bello under Islamic International Law.” International Criminal Law Review 13.3 (2013): 593–625.

  DOI: 10.1163/15718123-01303002

  The introductory paragraphs of this article contain a general overview of Islamic international law, with references to the main contemporary authors on the subject.

• Baderin, Mashood A., ed. International Law and Islamic Law. Aldershot, UK, and Burlington, VT: Ashgate, 2008.

  A collection of published articles of overall high quality on a variety of topics of Islamic international law.

• Badr, Gamal M. “A Survey of Islamic International Law.” American Society of International Law Procedures 76 (1982): 56–61.

  A concise and very informative article that lays out the main principles and concepts of Islamic international law.

• Bassiouni, M. Cherif. “Islamic International Law and International Humanitarian Law.” In The Shari’a and Islamic Criminal Justice in Time of War and Peace. Edited by M. Cherif Bassiouni, 150–246. New York: Cambridge University Press, 2013.

  Lengthy explanation of Islamic international law, with an elaborate historical contextualization and references to Qurʾanic verses and Hadith.

• Hamidullah, Muhammad. Muslim Conduct of State. 4th ed. Lahore, Pakistan: Muhammad Ashraf, 1961.

  A standard book on the rules of war and peace in Islam, written in a clarifying manner.

• Khadduri, Majid. The Islamic Law of Nations: Shaybani’s Siyar. Baltimore: John Hopkins Press, 1966.

  This seminal book is an annotated translation of al-Shaybani’s Siyar al-Saghir, the only surviving monograph of classical Islamic law on siyar. It describes the development of Islamic international legal theory through the centuries and discusses the conceptualization of Islamic international law.

• Malekian, Farhad. Principles of Islamic International Criminal Law: A Comparative Search. 2d ed. Leiden, The Netherlands: Brill, 2011.

  DOI: 10.1163/ej.9789004203969.i-452

  Part 1 of this book contains an elaborate study of the nature, principles, and philosophy of Islamic international law. Very informative, with many references to relevant literature of the past and present.