THE CONCEPT OF WAR AND PEACE IN ISLAMIC LAW (MAFHUUM AL-HARB WAS-SALAAM FISH-SHARI’ATILISLAMIYYAH)

CHAPTER 1

GENERAL INTRODUCTION

1.0                                                     INTRODUCTION

Although this work is not the first of its kind. There were various works on Islamic Law of War and peace dated back to over 700 years ago by reknown scholars

such as Ibn Taymiyyah^1, Khadduri Majid,² and Abu Sulaiman Abdul Hamid³ and a host of others. Perhaps the only mark of difference in the present work is its contemporary nature. Since arabic language is relevant to Islamic Law just as latin is to the English law,it is therefore pertinent to state the arabic version of the subject matter of the study as:Mafhuum ul-Harb Was-Salaam Fish-shariy’atil Islamiyyah meaning ‘Concept of war and peace under Islamic Law’

As the global community is increasingly characterised  by a “clash of

civilizations” particularly between Western civilization and Islam⁴.The universality of the application of Laws relating to war and peace becomes seriously threatened. With this threat on the increase, certain legal concepts particularly under Islamic Law became misunderstood.

The present work attempts to explore the principles of war and peace under the ambit of Islamic Law for further and better understanding of the contemporary laws of war and peace. Any study on Islamic International Law must essentially entail the two opposing concepts of war and peace, hence the legal principles of war and peace under Islamic law will attract prominent attention in this work.

The need for this study is further underscored by the varieties of the rules of warfare as prescribed by International Treaties and Conventions which have been discovered

1. Ibn Taymiyyah ,’Al-siyasa al shar’iyyah’ ,Dar al katib al Arabi,.n.d

• Khadduri. M, War and Peace in the Law of Islam, 2^nd Ed., ‘ New York press (1399) AH/(1979) AC.

³Abu Sulayman. A.H, The Islamic Theory of International Relations: Directions for Islamic Methodologyand Thought’, Hemdon, V.A: The International Institute of Islamic Thought, (1408) AH (1987) AC.

• Huntington, S. P., The Clash of Civilizations, Foreign Affairs,Vol.72,No 3,Summer (1983), P.22

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to be grossly inadequate and subject to manipulative skills of the big powers in favour of their interests inspite of the fact that the rule is placing emphasis on the material of

the “highest persuasive character”⁵

The various arbitral tribunals or judicial bodies have had cause to make pronouncements on the diverse conflicts in various parts of the world. The question is how far have these decisions been? There is thus, the need to critically analyse some of these decisions in order to fully appreciate the position in the new world order. The available international judicial organs need be critically assessed so as to come to a relative yardstick of high objectivity and steer clear of the perceived greater subjectivity that we presently go through.

In the final analysis, the study of this area of Islamic law is informed by the limited knowledge as it presently exists and this has fundmentally put in place the difficulty to maintain the integrity of the doctrine of international law in this field of study,this need not be so. It is against this background that one deems it fit and most relevant to embark on a thorough research work on the concept of war and peace under Islamic law.

1.1        STATEMENT OF THE RESEARCH PROBLEM

The problem relating to the concept of war and peace under the Islamic law is the manner the non-Muslims want to solve the problem of war in Muslims states, according to their understanding of war. For example the united state of America’s intervention in Afghanistan, Iraq and Iran. The difference between the Muslims’ conception and non-Muslims’ conception of war makes it difficult to profer solution to the problem of war in the Muslim nations. Precisely, the statement of the research problem of this thesis can be stated as follow:- ‘The problems of war in the

• Schwarzenberger.G, International Law as Applied by International Courts and Tribunals,Vol.2, 1968, Sweet & Sons, London, P.6

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International Community and Search for means of making peace among the conflicting Nations of the world is the statement of the research problems of the present dissertation.

THE CONCEPT OF WAR AND PEACE IN ISLAMIC LAW (MAFHUUM AL-HARB WAS-SALAAM FISH-SHARI’ATILISLAMIYYAH)