Is Islamic Law an Answer for Humanitarians?

DUBAI, 24 April 2014 (IRIN) – Humanitarian action today is largely taking place in Muslim-majority countries where some combatants turn to Islamic law, among other sources, to guide their military behaviour.

As a result, in the last decade, aid and advocacy agencies have increasingly tried to understand Islamic law in order to use its humanitarian provisions as tools of negotiation with armed groups in the Muslim world.

This is particularly helpful in engaging Islamist armed groups, some of whom reject international humanitarian law (IHL).

Some aid agencies try to situate their arguments for access or protection of civilians within a religious context, sometimes using scholars, mullahs or other religious figures as liaison with Islamist armed groups. Others, like the International Committee of the Red Cross (ICRC), are trying to highlight the linkages between IHL and Islamic law by inviting religious scholars to discuss their views at conferences.

“In order to meet the challenges of the 21st century, in particular the growing influence of religion on politics, conflict and everyday life, ICRC has stepped up its dialogue with intellectuals, academics and scholars in various parts of the Muslim world,” the organization wrote in 2006, “the aim being to lay the foundations for greater mutual understanding, dispel existing misconceptions and find common ground for protecting human dignity in armed conflict.”

“This initiative to engage in a dialogue and to look for common features has been an exercise of overcoming misperceptions on all sides, of creating a common understanding, but very often already talking concretely on how to improve access, activities of protection, activities of assistance to victims of armed conflict,” Ronald Ofteringer, an Islamic law expert who advises the ICRC’s director of operations, told IRIN.

For the most part, however, this approach remains an ad hoc effort in the humanitarian sector; and while it has seen some successes; it also raises certain ethical dilemmas.

Benefits of using Islamic law

In 2006, Naz Modirzadeh, a senior fellow and head of the Counterterrorism and Humanitarian Engagement project at Harvard law School, wrote an harvard_human_rights_journal[1] arguing that the international human rights movement was failing to appropriately engage with Islamic law. She urged international NGOs to develop a “new theory of engagement with Islamic law”.

The status quo, she argued, risked forcing Muslims to either side with human rights or to side with God. “Whatever its intrinsic appeal, international human rights law is unlikely to be favored in this ultimatum.”

In 2007, Human Rights Watch apparently heard her call and became one of the first large international rights organizations to use Islamic principles to frame its advocacy. In addition to using traditional rights arguments, it used justifications from Islam’s holy book, the Koran, to challenge Egypt’s refusal to give followers of the Bahai faith identity cards, on the basis that they were apostates. (Egyptian courts ultimately ruled that Bahais were entitled to an Egyptian identity).

“Some of it is very instrumentalist. ‘Tell me verses of the Koran I can use if I get kidnapped’.” But this approach was used by pioneering humanitarians long before that. For instance, some aid workers who negotiated access into Taliban-ruled Afghanistan before the 2001 US invasion did so using the Islamic concept of aman, or safe passage. The ICRC first reached out to Islamic seminaries in Pakistan in the late 1990s when the Taliban were in power in Afghanistan.

More recently, when the Taliban banned one aid agency from using female staff in their medical clinic in southern Afghanistan, the agency responded by citing, among other things, the importance of women in the Koran.

“Some agencies under similar circumstances packed up and left,” said Ashley Jackson, who spent two years studying engagement with armed groups in Afghanistan, Somalia and Sudan for the Overseas Development Institute’s Humanitarian Policy Group. “But in these instances where people were persistent and used Islam as at least one of the pillars of their argument, they prevailed.”

“Speaking the local language” is nothing new, but aid agencies were initially – and to some extent remain – hesitant to use this approach extensively, according to Modirzadeh.

Now, however, some agencies are looking to hire Islamic law experts onto their staff; ICRC, for example, has a small team in Geneva dedicated to this, as well as a network of delegates who have knowledge of the issue. Others are tapping into a renewed effort among Muslim scholars to revive Islamic jurisprudence by translating texts in classical Islamic thought into English. Universities have started research initiatives on Islam and IHL.

The most dangerous countries for aid workers today are Afghanistan, Pakistan, Sudan, South Sudan, Somalia and Syria.

“Some of the most volatile operating environments are predominantly Muslim,” says Jackson. “There’s a need to gain greater acceptance in those environments. A lot of people are looking to local culture and values to distance themselves from the negative perceptions of the West. That’s got to be where a lot of this is coming from.” This became particularly important in the post 9/11 so-called “global war on terror”.

But increased security for humanitarian staff in the Muslim world is just one of the perceived benefits. Others are an improved and more open dialogue on humanitarian norms across cultures; a realization among armed groups that IHL is rooted in Islamic norms; and more success in aid operations on the ground.

“The greater understanding of Islamic law or even direct engagement with Islamic law might increase the ability of humanitarian organizations to negotiate access or effectiveness for their projects,” Modirzadeh, says.

Limitations of this approach

But the use of Islamic law as a negotiation tool with militants remains largely a quiet effort, because of the many concerns this raises among international aid workers over operations and resources, let alone principles and effectiveness.

“Alas, at least thus far,” Modirzadeh cautioned in a 2012 article in the European Journal of International Law, “Islamic legal texts do not function as a ‘cryptex’ that will activate certain outcomes in the Muslim
world.”

“It can work, at a very tactical level, but it is profoundly dishonest and conceptually dangerous. Once we start that debate, we have essentially accepted that IHL is not enough in itself” One of the most commonly cited obstacles is a lack of knowledge among fighters themselves about Islamic rules of war.

Jackson said she realized the limitations of using Islamic law to engage with groups when she spoke to a local mullah in Afghanistan, who told her: “They think they’re fighting for Islam. It’s absolutely ridiculous. They’re not even true Muslims. They can’t read. They’ve never read the Koran. How can you debate these principles with them?”

One Palestinian IHL expert who has trained armed groups in the Middle East for years says many of the fighters in Syria are new to Islam. “They know nothing about Islam except what they were told…. [Free Syrian Army] fighters smoke and tell me about their wild experiences on [downtown Beirut’s] Hamra Street,” he told IRIN.

As such, the expert said, many of them act upon misinterpretations or partial adoptions of the Koran. In training fighters on IHL, he reminds them Islamic law goes far beyond IHL in the protection it provides civilians. “‘If you’re following Islamic law properly, you’re already satisfying requirements of IHL’,” he tells them. “They come to the conclusion that they don’t even know Shariah [Islamic law].”

For Francoise Bouchet-Saulnier, legal director of Médecins Sans Frontières (MSF), certain aspects of the religion are clear: “Nothing in the Koran authorizes or requests violations of medical ethics or humanitarian principles.”

Where combatants use religious arguments to justify violations of humanitarian principles, “we will sit with people and discuss our counter-arguments. In case of disagreement, we can also submit our case [for] proper legal advice from Koranic courts. This is what we’ve done in northern Syria.”

She said MSF has negotiated the respect of its hospitals in Islamist-controlled areas of northern Syria and argued a number of cases related to the treatment of wounded with Islamist armed groups and Shariah courts, during which it referenced humanitarian principles alongside Koranic guidance of mercy and care to the vulnerable.

Ethical dilemmas

But MSF is careful not to go too far. Like other agencies, it is wary of the risks of engaging in too detailed a legal debate on Islamic or any other law, or as one aid worker put it, arguing with “one trillion interpretations” and “one-man shows”.

“You can find some convergence, if you look in the right texts [and] quote the more progressive among authorities, but you can find lots of stuff that does not conform with IHL,” said one international aid worker in a Muslim country who requested anonymity because of the sensitivity of his work. “Who are we to tell Muslims which bits are to be interpreted how?”

Photo: Nicholas Long/IRIN
Engaging Muslim community leaders is not a silver bullet
“There is a real concern for many organizations… that this is a door that once opened can’t be closed,” says Modirzadeh, who advises aid agencies on issues of IHL and counter-terrorism. “This is such a rich and complex body of law that easily your organization could be pulled into a debate you don’t want to have.”

For example, does using Shariah law in your argumentation mean that you condone all of what Shariah says, including for example, the permissibility of killing prisoners of war? Given every group has its own interpretation of Islamic law, could you inadvertently legitimize a fringe interpretation of Islam? If you accept Islamic law, why not accept local customs? Is it a slippery slope? And most importantly, would you be detracting from the universality of IHL? This last question, Modirzadeh says, “causes people to get very nervous at the headquarters and management levels.”

According to Ofteringer of ICRC, the fact that many international aid workers still feel uncomfortable dealing with religious matters may be an added psychological or ideological barrier that must be overcome.

“If we want to do humanitarian work in these critical contexts, we have to go beyond our usual approaches, the way we see things and have to learn to see things through the eyes of the others, and then on that basis establish commonalities that are clearly based on the basic tenets of humanitarian principles, without deviating from it,” he says.

But for others, the approach is morally and strategically risky.

MSF came face to face with these dilemmas when it was asked to participate in the application of corporal punishment in northern Mali. Under Islamic law, the punishment for theft is the amputation of the hand. When asked to sanitize the wound and providing an ambulance, MSF refused, accepting only to treat the wounded person once in hospital.

Best strategies

Rather than citing specific verses of the Koran, experts suggest making a nod to broad Islamic notions or principles, by referring to a general principle of IHL – for example: not attacking civilians – and adding that the principle is also in accordance with Islamic Shariah or the principles found in the holy Koran.

They also suggest engagement with lower-level religious leaders like Friday prayer leaders and religious advisers to tribal councils; as well as those who may be open to different interpretations of Islamic law, like fatwa councils and shuras of ulama (consultations between legal scholars). Instead of trying to determine what Shariah says, they advise simply referring to jurists who have already interpreted the law.

However, Ofteringer cautions that groups may not succeed in using this approach if they are not seen to be neutral.

Another approach is to help combatants in the Muslim world feel more ownership of IHL.

MSF’s guidebook on humanitarian law, which has been translated into Arabic and includes a section on Islamic law, explains to field staff that humanitarian principles have their roots in religious principles, whether Muslim, Christian, Buddhist or otherwise.

One aid worker in Afghanistan says the message he tries to send is: “IHL is yours. It’s not different. It’s not something new.”

In one sign of success, after dialogue with Geneva Call and ICRC, respectively, the Pattani United Liberation Organization (PULO) in southern Thailand and the Moro Islamic Liberation Front (MILF) in southern Philippines, two nationalist movements, published codes of conduct for their troops, in which they cited both relevant international humanitarian law and the corresponding Islamic teaching for each principle.

In another example, when Islamist rebel groups took control of northern Mali in 2011, limiting access for many aid agencies, ICRC had already established a relationship with Muslim scholars there, in particular the High Islamic Council. Through that dialogue, the two groups discussed access, humanitarian ethics and protection issues, and the ICRC was able to work with the Council at times as a go-between with the armed groups. Ultimately, the Council issued a position paper on the rules of engagement in jihad and the application of Shariah law, in which it advised against the use of corporal punishment. According to Ofteringer, this succeeded in influencing rebel behaviour.

“This dialogue is really about a journey together in which both sides – humanitarians and scholars – are faced with certain challenges and – via dialogue – identify means how to address these challenges,” he told IRIN.

Whom to educate? Sheikhs, rebels or civil society

But it is also important to understand who you are engaging with.

“Some people, when they approach Islam, they do so in a very philosophical manner, which complicates things,” says the Palestinian IHL expert. “You do that with the scholars, the sheikhs, but not with these guys on the ground.”

ICRC, HRW and MSF have all organized conferences on Islam and IHL in Islamabad, Sana’a, Fes, Alexandria and other predominantly Muslim cities, in which they inform scholars from places as diverse as Sudan, Bangladesh, Saudi Arabia and Malaysia about IHL and invite the scholars to share their understandings of humanitarian norms in Islam.

“It’s not about Islamic law, but we are sharing what IHL is about,” said the aid worker in Afghanistan, who organized such forums there. “They [Muslim scholars] usually say, ‘Oh, it’s the same; it’s not much different! … Then when they’re back home, in Friday prayer, they talk about it.”

From 2005-2009, HRW similarly tried to create a groundswell of support for protection of civilians on the Middle Eastern street through its Civilian Protection Initiative, in which it engaged civil society activists in discussions about civilian immunity, in part by highlighting the commonalities between IHL and Islamic law.

“In the process of promoting respect for core international humanitarian law principles and effective accountability mechanisms in Arab societies, there is clearly a role for persons who are able to articulate those principles in language that will persuade other Muslims, including Islamists and nationalists who use primarily Islamic idioms and doctrinal references,” Joe Stork, deputy director of HRW’s Middle East and North Africa Division, wrote in a 2010 essay. “The underlying element in both [Islamic ethics and IHL] systems is the understanding that, in warfare, there are limits as to the means and methods that warring parties may employ.” He went on to reference elements of Islamic tradition that prohibit treachery and mutilation, and specify categories of enemy persons who are immune from attack in Islam, including children, slaves, women, and the lame and blind.

However, targeting Muslim thinkers – or even members of civil society – has its limitations too.

“These scholars are not carrying arms,” says the Palestinian IHL expert. “They can give you a fatwa [ruling], but they are not the ones running the show nowadays.”

Rule versus rules

But at the end of the day, it is important not to overemphasize the role that Islamic law plays in governing even Islamist militants’ behaviour. In many instances, the bottom line is power, not constraint linked to religious ideals or ethical codes.

“Even today, armed groups’ attitudes to IHL depend in large part on whether they see the norms within that regime as reinforcing their rule and less on whether the conduct in question is sanctioned by Islam,” says James Cockayne, who studied engagement with armed group as a senior associate with the International Peace Institute before taking a position with the United Nations University in New York.

In Syria, jihadists with largely similar theological views are fighting each other for control of territory. Some became more “moderate” when they realized their excesses were counter-productive.

According to the Geneva Academy of International Law and Human Rights, this leaves negotiations with Islamist armed groups in a tough spot. Diverse interpretations of Islam make a purely Islamic legal approach challenging, while an approach that pushes IHL alone is also unlikely to prevail.

Where armed groups “assert the primacy of divine over man-made law,”, the Academy wrote in a January 2014 policy brief, “it is evidently difficult to persuade such groups to change their behaviour via theological arguments or by simply affirming the authority of IHL.” Still, the briefing says, such groups are not immune to public pressure.

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