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Is neutral humanitarian action permissible under Islamic law?

Published online by Cambridge University Press:  07 October 2015

Mohd Hisham Mohd Kamal
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Abstract

In this Opinion Note, Mohd Hisham Mohd Kamal examines neutral humanitarian action during armed conflicts from an Islamic perspective. By analyzing the Qur'an and the Sunnah, he finds that it is permissible to recognize a neutral third party. Moreover, Mohd Hisham Mohd Kamal considers siyasah al-Shar'iyyah and maqasid al-Shari'ah and finds that neutrality leads to the protection of lives and dignity and is thus compatible with the two concepts. He concludes that neutrality is permissible from the Islamic perspective.

Keywords

humanitarian actionhumanitarian principlesneutralityIslam
Type
Principles and faith
Information
International Review of the Red Cross , Volume 97 , Issue 897-898: Principles guiding humanitarian action , June 2015 , pp. 423 - 431
Copyright
Copyright © icrc 2015 

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References

1 Statutes of the International Red Cross and Red Crescent Movement, October 1986, Preamble, available at www.icrc.org/eng/resources/documents/misc/statutes-movement-220506.htm (all internet references were accessed in May 2015).

2 There is no literature on the Islamic perspective on whether humanitarian work can be neutral with regard to good and evil; thus, the present work is justified.

3 Plattner, Denise, “ICRC Neutrality and Neutrality in Humanitarian Assistance”, International Review of the Red Cross, No. 311, 1996CrossRefGoogle Scholar, available at: www.icrc.org/eng/resources/documents/misc/57jn2z.htm.

4 Bouzenita, Anke I., “The Principle of Neutrality and ‘Islamic International Law’ (Siyar)”, Global Jurist, Vol. 11, No. 1 (Advances), 2011, Article 4, p. 2CrossRefGoogle Scholar.

5 D. Plattner, above note 3.

6 For the underlying rationale of the principle of neutrality, see Jean Pictet, The Fundamental Principles of the Red Cross: Commentary, ICRC, Geneva, 1979, available at: www.icrc.org/eng/resources/documents/misc/fundamental-principles-commentary-010179.htm.

7 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950).

8 Statutes of the ICRC, 3 October 2013, Art. 1, available at: www.icrc.org/eng/resources/documents/misc/icrc-statutes-080503.htm.

9 J. Pictet, above note 6. This definition also figures in the Preamble to the Statutes of the International Red Cross and Red Crescent Movement, above note 1.

10 D. Plattner, above note 3.

11 Ibid.

12 Sunnah means sayings, deeds and approvals of Prophet Muhammad.

13 Shari'ah means the laws ordained by Allah for His servants through Prophet Muhammad. It is found in the Qur'an and the Sunnah.

14 Muhammad Hamidullah, Muslim Conduct of State, revised ed., Kashmiri Bazar, Lahore, 1945, p. 271.

15 Ibid.

16 Abu 'Abd Allah Muhammad ibn Ahmad al-Ansari al-Qurtubi, Al-Jami’ li-Ahkam al-Qur'an, Vol. 6, Dar al-Kutub al-'Ilmiyyah, Beirut, n.d., p. 33.

17 Ahmed Zaki Yamanai, “Humanitarian International Law in Islam: A General Outlook”, in Hisham M. Ramadan (ed.), Understanding Islamic Law: From Classical to Contemporary, AltaMira Press, Lanham, MD, New York, Toronto and Oxford, 2006, p. 83; M. Hamidullah, above note 14, p. 216.

18 Qur'an, 4:58–59:

Allah commands you to render back your trusts to those to whom they are due; and when you judge between man and man, that you judge with justice: verily how excellent is the teaching which He gives you! For Allah is He Who hears and sees all things. (58)

O you who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If you differ in anything among yourselves, refer it to Allah and His Messenger, if you do believe in Allah and the Last Day: that is best, and most suitable for final determination. (59)

Qur'an, 4:135:

O you who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts), lest you swerve, and if you distort (justice) or decline to do justice, verily Allah is well-acquainted with all that you do.

19 M. Kamal Hassan, The Need to Understand al-Wasatiyyah as Part of IIUM's Mission of Islamisation, Centre for Islamisation, CENTRIS IIUM, Selangor, 2013, p. 13; Mohamad Akram Laldin, Introduction to Shariah and Islamic Jurisprudence, CERT Publications, Kuala Lumpur, 2006, p. 33.

20 Qur'an, 3:110 in part:

You are the best of peoples, evolved for humankind, enjoining what is right, forbidding what is wrong, and believing in Allah …

Qur'an, 3:104 in part:

Let there arise out of you a band of people inviting to all that is good, enjoining what is right, and forbidding what is wrong …

Qur'an, 9:71 in part:

The Believers, men and women, are protectors, one of another: they enjoin what is just, and forbid what is evil: they observe regular prayers, practice regular charity, and obey Allah and His Messenger …

21 Qur'an, 5:62–63:

Many of them (People of the Book) do you see, racing each other in sin and transgression and their eating of things forbidden. Evil indeed are the things that they do. (62)

Why do not the rabbis and the doctors of law forbid them from their (habit of) uttering sinful words and eating things forbidden? Evil indeed are their works. (63)

22 “Whosoever among you saw an evil should change it with his hands. If he is not able to do so, he should change it with his tongue. If he is not able to do so, he should hate it with his heart, but that is the weakest state of faith.” (Sahih Muslim)

23 M. Hamidullah, above note 14, pp. 277–297.

24 Qur'an, 4:88–91:

Why should you be divided into two parties about the hypocrites? Allah has upset them for their (evil) deeds. Would you guide those whom Allah has thrown out of the way? For those whom Allah has thrown out of the way, never shall you find the way. (88)

They but wish that you should reject the faith, as they do, and thus be on the same footing (as they): so take not friends from their ranks until they flee in the way of Allah (from what is forbidden). But if they turn renegades, seize them and slay them wherever you find them; and (in any case) take no friends or helpers from their ranks – (89)

Except those who join a group between whom and you there is a treaty (of peace), or those who approach you with hearts restraining them from fighting you as well as fighting their own people. If Allah had pleased, He could have given them power over you, and they would have fought you: therefore if they withdraw from you but fight you not, and (instead) send you (guarantees of) peace, then Allah has opened no way for you (to fight) against them. (90)

Others you will find that wish to gain your confidence as well as that of their people: every time they are sent back to temptation, they succumb thereto; if they withdraw not from you nor give you (guarantees) of peace besides restraining their hands, seize them and slay them wherever you get them; in their case We have provided you with a clear argument against them. (91)

25 Abu al-Fida Ismail ibn Kathir, Tafsir Ibn Kathir, Vol. 2, abridged by Safi-ur-Rahman al-Mubarakpuri, 2nd ed., Darussalam, Riyadh, 2003, pp. 537–542.

26 A. I. Bouzenita, above note 4, pp. 12, 16.

27 Banu ’Abd ibn ’Adi was a clan of the tribe Banu al-Dil, of the Kinanah group.

28 M. Hamidullah, above note 14, p. 289; A. I. Bouzenita, above note 4, p. 17.

29 The first verse of the Qur'an revealed on the subject of fighting shows that it was the Quraysh who had declared war on the Muslims: “To those against whom war is made, permission is given (to fight)” (Qur'an, 22:39 in part).

30 Che Pa, Bharudin, Basir, Siti Arni and Mohamed, Shukeri, “Perlaksanaan Siyasah Syar'iyyah dalam Pentadbiran di Malaysia”, Jurnal Al-Tamaddun, Vol. 5, 2010, pp. 57Google Scholar, 60; Shukeri Muhammad, “Siyasah Syar'iyyah dalam Membentuk Gagasan Fiqh Masyarakat Majmuk”, paper presented at Simposium Fiqh Masyarakat Bukan Islam dalam Negara Islam, organized by the Association of Muslim Scholars of Selangor Branch in cooperation with the Department of Islamic Religion of Selangor and the Council of Islamic Religion of Selangor, in Selangor on 23–24 December 2009.

31 B. Che Pa, S. A. Basir and S. Mohamed, above note 30, pp. 57, 60.

32 Ibid., pp. 60–62.

33 Ijtihad means the process of inferring rules of Shari'ah from its sources or applying rules of Shari'ah to a particular issue.

34 B. Che Pa, S. A. Basir and S. Mohamed, above note 30, p. 62.

35 Ibid., pp. 61–62.

36 ICTY, The Prosecutor v. Blagoje Simić, Milan Simić, Miroslav Tadić, Stevan Todorović, Simo Zarić, Trial Chamber, 27 June 1999, para. 46, fn. 9.

37 For the principle of confidentiality, see Memorandum, “The ICRC's Privilege of Non-Disclosure of Confidential Information”, in this issue of the Review.

38 Fakhr al-Din 'Uthman ibn 'Ali al-Zayla'i al-Hanafi, Tabyin al-Daqa'iq on the margin of Sharh Kanz al-Daqa'iq, ed. al-Shaykh Ahmad 'Azr 'Inayah, Vol. 4, Dar al-Kutub al-'Ilmiyyah, Beirut, 2000, p. 80. See also Mohammad Talaat al-Ghunaimi, The Muslim Conception of International Law and the Western Approach, Martinus Nijhoff, The Hague, 1968, p. 141.

39 Qur'an, 4:95.

40 Qur'an, 9:122.

41 Qur'an, 5:1 in part:

O you who believe! Fulfill (all) obligations …

Qur'an, 16:91–92 in part:

Fulfill the covenant of Allah when you have entered into it, and break not your oaths after you have confirmed them: indeed you have made Allah your surety; for Allah knows all that you do. (91)

And be not like a woman who breaks into untwisted strands the yarn she has spun after it has become strong. Nor take your oaths to practice deception between yourselves, lest one party should be more numerous than another … (92)

Qur'an, 2:177 in part:

… But it is righteousness … to fulfill the contracts which you have made …

42 Qur'an, 17:34 in part:

… And fulfill (every) engagement, for (every) engagement will be enquired into.

43 Qur'an, 8:72 in part:

… But if they (Muslims who have not come into exile) seek your aid in religion, it is your duty to help them, except against a people with whom you have a treaty of mutual alliance. And Allah sees all that you do.

44 Common Art. 3 to the GC.