Jus in Bello Civilians Fundamental Righ PDF

Jus in Bello: Civilians’ Fundamental Rights under
Islamic and Public International Law*

Hilmi M. Zawati1
“Don’t beat up people or
humiliate them! Since when have
you turned men into slaves,
whereas they were born free?” 2
c
Umar Ibn al-Khat}t}āb
ABSTRACT
In the aftermath of the tragic events of September 11th, 2001, misconceptions of
jihād and the consequent branding of Islam as a “violent religion” have become
routine in Western literature and the media. A deluge of scholarly and journalistic
works on the concept of war and human rights in Islamic legal theory found their way
to the Western reader. These works, in general, have been written by persons who built
their hypotheses on the acts of so-called “fundamentalist” Muslim groups; particular
legal practices in some Muslim societies; misleading stereotypes; and a handful of
minor secondary sources in translation. In addition, the authors of these works utterly
failed to distinguish between Islamic law and the contemporary legislation of Muslim
nations, which is in general not Islamic. The result has been a distortion of the term
jihād to the point where it is virtually synonymous in the public mind with terrorism. In
contrast to the above hypotheses, and after examining and elucidating the many human
principles embodied in the primary sources of Islamic law, this paper argues that the
Islamic law of nations has played a significant role in protecting the personal, judicial,
and political rights of civilians during armed conflicts and introduced an ethical
revolution as early as fourteen centuries before the drafting of the Universal Declaration
1
Hilmi M. Zawati, D.C.L. (McGill), M.A. in comparative law (McGill), Ph.D. (CPU), M.A. (Punjab),
Post-Graduate Diploma in law (Khartoum), LL.B. (BAU), is currently president of the International Legal
Advocacy Forum (ILAF), and an international criminal law jurist and human rights advocate.
2
In the reign of cUmar Ibn al-Khat}t}āb, the second orthodox Muslim caliph (634-644 A.D.), an
Egyptian Coptic Christian lodged a case against Muh}ammad Ibn cAmr Ibn al-cĀs}, the son of the governor
of Egypt, who had beaten him with a whip while saying “I am the son of the nobleman”. cUmar Ibn al-
Khat}t}āb sent a warrant to cAmr Ibn al-cĀs}, ordering him to come and bring his son, Muh}ammad.’ When
c
Amr arrived with his son, cUmar Ibn al-Khat}t}āb addressed both father and son saying: “Don’t beat up
people or humiliate them! Since when have you turned men into slaves, whereas they were born free?”
Then he said to the Coptic Christian, “Here is the whip. Take it and beat the son of the nobleman.” See I.
Ibn Kathīr, al-Bidāya wal-Nihāya, 14 vols. (Beirut: Maktabat al-Macārif, n.d.) 8:70 [hereinafter Ibn Kathīr];
I. Ibn Kathīr, Tafsīr Ibn Kathīr, 4 vols. (Beirut: Dār al-Fikr lil-T{ibāca wal-Nashr wal-Tawzīc, 1981) 3: 112
[hereinafter Tafsīr Ibn Kathīr]; Y. al-Qarad}āwī, Ghayr al-Muslimīn fī al-Mujtamac al-Islāmī (Cairo:
Maktabat Wahba, 1977) 30-31[hereinafter al- Qarad}āwī].
* An earlier version of this paper was published in M. C. Bassiouni & A. Guellali, eds. Jihad and its
Challenges to International and Domestic Law (The Hague, The Netherlands: Hague Academic Press,
2010) 167-190.
Electronic copy available at: http://ssrn.com/abstract=2193111

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HILMI M. ZAWATI - CIVILIANS’ FUNDAMENTAL RIGHTS UNDER ISLAMIC AND PUBLIC INTERNATIONAL LAW
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of Human Rights in 1948. Moreover, this paper reveals that the provisions of the Islamic
law of nations, and consequently the doctrine of jihād, are realistic and practical and
regulate conduct during armed conflict on the basis of certain human principles
compatible with those upon which modern international conventions are based.
Furthermore, it asserts that Islamic humanitarian law regards civilians’ rights—
particularly the right to life—as sacred, and holds that any transgression against these
rights should be considered a crime against humanity.
1. INTRODUCTION
The word jihād may be one of the most misinterpreted terms in the history of
Islamic legal discourse by both Muslims and non-Muslims, particularly in the aftermath
of the tragic events of September 11th, 2001, when thousands of innocent civilians were
brutally murdered in New York and Washington D.C., followed by the US-led invasion
of Afghanistan and Iraq that has, thus far, resulted in the death of more than one million
civilians, with more than four million wounded, eight million displaced, and thousands
of men and women raped and sexually assaulted.3
3
A. Taguba, Hearing Article 15-6 Investigation of the 800th Military Police Brigade, Online: Global
Security <http:www.globalsecurity.org/intell/library/reports/2004/800-mp-bde.htm> (Accessed on: 5
August 2009) [hereinafter Taguba Report]; A. Zagorin, “The Abu Ghraib Scandal you don’t Know,”
Time 165:7 (14 February 2005) 36; C. Connolly, “U.S. Combat Fatality Rate Lowest Ever Technology
and Surgical Care at the Front Lines Credited With Saving Lives,” The Washington Post (9 December
2004) A24. [hereinafter Connolly]; C. Mychalejko, Iraqi Women Quietly Endure Horrors of War, Online:
Countercurrents.org (11 March 2008) <http://www.countercurrents.org/print.html> (Accessed on: 29
June 2009). [hereinafter Mychalejko]; Climate of Fear: Sexual Violence and Abduction of Women and
Girls in Baghdad, Human Rights Watch, July 2003, Vol. 15, No. 8 (E), p. 3 [hereinafter Climate of Fear];
D. Brown, “Study Claims Iraq’s ‘Excess’ Death Toll Has Reached 655,000,” The Washington Post
(11October 2006) A12 [hereinafter Brown]; Failed Responsibility: Iraqi Refugees in Syria, Jordan and
Lebanon, International Crisis Group, Middle East Report No.77 (11 July 2008) 34 [hereinafter Failed
Responsibility]; H. Zawati, “Impunity or Immunity: Wartime Male Rape and Sexual Torture as a Crime
against Humanity,” (2007) 17:1 Torture Journal 35. An earlier version of this paper was presented at the
IX IRCT International Symposium on Torture: Providing Reparation and Treatment, and Preventing
Impunity, A Conference Sponsored by the International Rehabilitation Council for Torture Victims
(IRCT), Copenhagen, Denmark, and the Behandlungszentrum für Folteropfer (bzfo), Berlin, Germany, 9-
10 December 2006 [hereinafter Zawati]; M. Bloche & J. Marks, “Triage at Abu Ghraib,” The New York
Times (4 February 2005) A19; M. Griffis, ed., Casualties in Iraq: The Human Cost of Occupation,
Online: Anti War (26 June 2009) <http://www.antiwar.com/casualties/> (Accessed on: 29 June 2009)
[hereinafter Griffis]; M. Hicks, et al., “The Weapons that Kill Civilians––Deaths of Children and
Noncombatants in Iraq,” (2009) 16:360 The New England Journal of Medicine 1585 [hereinafter Hicks];
Statistics on Displaced Iraqis around the World, Online: The UN Refugee Agency (April 2007)
<http://www.unhcr.org/cgibin/texis/vtx/home/opendoc.pdf?tbl=SUBSITES&id=461f7cb92> (Accessed
on: 29 June 2009) [hereinafter Displaced Iraqis]; T. Susman, “Poll: Civilian Toll in Iraq May Top 1M,”
The Los Angeles Times (14 September 2007) A17 [hereinafter Susman]; W. Bennett, et al., “None Dare
Call it Torture: Indexing and the Limits of Press Independence in the Abu Ghraib Scandal,” (2006) 56:3
Journal of Communication 469.
4
Shireen T. Hunter, “The Rise of Islamist Movements and the Western Response: Clash of
Civilizations or Clash of Interests?” in Laura Guazzone, ed., The Islamist Dilemma: The Political Role of
Electronic copy available at: http://ssrn.com/abstract=2193111

169
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During the past six years or so, misconceptions of jihād and the consequent
branding of Islam as a “violent religion” have become routine in Western literature and
the media. A deluge of “scholarly” and journalistic works on the concept of war and
human rights in Islamic legal theory have in the process found their way to the Western
reader. Unfortunately, most of these works, which have been written by persons who
know less than nothing about Islamic law in general and the doctrine of jihād in
particular, are descriptive and polemical in nature, tending to rely heavily on misleading
stereotypes and, at best, a handful of minor secondary sources in translation. The result
has been a distortion of the term jihād to the point where it is virtually synonymous in
the public mind with terrorism.
The fictive constructs of these works are built on general misconceptions, wrong
assumptions, and political bias. Many earlier authors who engaged in the study of
Islamic legal theory judged Islamic law according to their own values and built their
hypotheses on the acts of so-called “fundamental” Muslim groups, and on particular
practices in some Muslim societies. In addition, authors utterly failed to distinguish
between Islamic law and the contemporary legislation of Muslim nations, which is in
general not Islamic.4
A closer look at the provisions of the Islamic law of nations, which governs the
doctrine of jihād, reveals that it is realistic and practical. It regulates conduct during a
jihād on the basis of certain human principles compatible with those upon which
modern international conventions are based. Furthermore, Islamic law made a great
contribution to international humanitarian law more than a millennium before the
codification of the four Geneva Conventions of 1949, and eight centuries before the
appearance of Hugo Grotius’s treatise “De jure belli ac pacis libri tres,” [The Law of
War and Peace in three books] which was published in 1625.
Islamist Movements in the Contemporary Arab World (Berkshire: Ithaca Press, 1995) 321. This theory has
been reflected in the works of many Western Scholars, particularly: Daniel Pipes, “Political Islam is a
Threat to the West,” in Paul A. Winters, ed., Islam: Opposing Viewpoints (San Diego: Greenhaven Press,
Inc., 1995) 190; Joseph Grinstein, “Jihād and the Constitution: The First Amendment Implications of
Combating Religiously Motivated Terrorism,” (1996) 105:5 The Yale Law Journal 1348; Steven Emerson,
“Political Islam Promotes Terrorism,” in Islam: Opposing Viewpoints, ed. Paul A. Winters (San Diego:
Greenhaven Press, Inc., 1995) 160.
For opposing viewpoints see Fred Halliday, Islam and the Myth of Confrontation: Religion and Politics
in the Middle East (London: I. B. Tauris & Co. Ltd., 1996) 112; Gustave Le Bon, La Civilisation des Arabes
(Paris: Librairie de Firmin-Didot et Cie, 1884) 110-154; John Kelsay, Islam and War (Louisville, Kentucky:
Westminster/John Knox Press, 1993) 29-36; Marcel A. Boisard, Jihād: A commitment to Universal Peace
(Indianapolis, Indiana: The American Trust Publications, 1988) 23; Michael Jansen, “Terrorism is a
Response to Western Hypocrisy,” in Paul A. Winters ed., Islam: Opposing Viewpoints (San Diego:
Greenhaven Press, Inc., 1995) 164-168; Rudolph Peters, Jihād in Mediaeval and Modern Islam (Leiden,
The Netherlands: E. J. Brill, 1977) 3.
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The issue of human rights in times of war and armed disputes is one of the most
fundamental human issues and, consequently, one of the most sensitive and controversial.
This analysis attempts to address the critical question: to what extent did Islamic
humanitarian law contribute to the protection of civilians’ personal rights? To maintain
that, a number of these rights will be examined in light of the norms of Islamic and
international humanitarian and human rights law, particularly, the right to life, the
prohibition of torture and inhuman treatment, the right to respect one’s religious beliefs,
customs and traditions, and the judicial rights.
2. RIGHT TO LIFE, THE PROHIBITION OF TORTURE AND INHUMAN

TREATMENT
International humanitarian and human rights law guarantee the protection of
civilians’ human rights, whether those rights are exercised alone or in association with
others. The right to life is an imperative norm of international law, which should inspire
and influence all other human rights.5 In his article “Human Rights as the Modern Tool
of Revolution,” Irwin Cotler concluded that “The struggle for human rights and human
dignity, as Havel and Mandela have put it––separately but in solidarity––is really initially
and ultimately the struggle for ourselves.”6 Therefore, the international law of human
rights, which is concerned with the promotion and protection of human rights must be in
the forefront of the discipline, charting new courses and establishing new models.
The United Nations Charter, of 1945 made no explicit reference to the individual’s
right to life, but it emphasized the promotion of human rights and fundamental freedoms
in the first chapter on purposes and principles.7 In examining the other instruments of the
Bill of Rights, one may find that the Universal Declaration of Human Rights, of 1948,
clearly confirmed the right to life. Article 3 affirmed universal entitlement to the rights of
life, liberty and security.8 Any act of torture is declared to be an offence to human
dignity, and condemned as a violation of human rights and fundamental freedoms
proclaimed in the United Nations Charter and the Universal Declaration of Human
Rights. Article 5 of the same declaration states that “[no] one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment.”9 Furthermore, this right is
also confirmed in Article 6 (Part III) of the International Covenant on Civil and Political
5
B. G. Ramcharan, ed., The Right to Life in International Law (Dordrecht, The Netherlands: Martinus
Nijhoff Publishers, 1985) 6 [hereinafter Ramcharan]; Leo Kuper, The Prevention of Genocide (New Haven,
Conn.: Yale University Press, 1985) 3.
6
Irwin Cotler, “Human Rights as the Modern Tool of Revolution,” in Kathleen E. Mahoney & Paul
Mahoney, eds., Human Rights in the Twenty-First Century: A Global Challenge (Dordrecht, The
Netherlands: Martinus Nijhoff Publishers, 1993) 20.
7
Albert P. Blaustein, Roger S. Clark & Jay A. Sigler, eds., Human Rights Sourcebook (New York:
Paragon House Publishers, 1987) 8-9 [hereinafter Albert P. Blaustein, Roger S. Clark & Jay A. Sigler];
United Nations Charter, signed at San Francisco, 26 June 1945. Entered into force on 24 October 1945
[hereinafter United Nations Charter].
8
Universal Declaration of Human Rights. G.A. Res. 217 A (III), 3 (1) U.N. GAOR Resolutions 71, U.N.
Doc. A/810, 1948. [hereinafter Universal Declaration of Human Rights].
9
Ibid.
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Rights, of 1966. Paragraph 1 of Article 6 declares that “[e]very human being has the
inherent right to life. This right shall be protected by law. No one shall be arbitrarily
deprived of his life.”10 Paragraph 6 of this article asked the States Parties to the Covenant
not to delay or to prevent the abolition of capital punishment. In light of the above-
mentioned statement, one may argue that Article 6 of the International Covenant on Civil
and Political Rights is limited to arbitrary deprivation of life such as by homicide, and
does not guarantee any persons security against death from famine or lack of medical
attention. Therefore, mere toleration of malnutrition by a state will not be regarded as a
violation of the human right to life.
On the other hand, the Convention on the Prevention and Punishment of the Crime
of Genocide, of 1948, was designed to prevent, as well as to punish, the crime. The
definition of genocide in the Convention reflects the emphasis on punishment of the
crime. It reads as follows:
“In the present convention, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such:
a. Killing members of the group;
b. Causing serious bodily or mental harm to members of the group;
c. Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
d. Imposing measures intended to prevent births within the group;
e. Forcibly transferring children of the group to another group.”11
According to the article cited above, the crime of genocide is defined by reference
to specific acts not in general terms, but the inclusion of intent raises some difficulties in
proof, as the denial of intent could be used as a defence. The concept of intent was
exploited, for example, when the defence minister of the government of Paraguay, in
answering to charges of genocide against the Aché Indians, replied that there was no
intention to destroy them.12
Seeking evidence on the individual’s right to life outside the United Nations, one
may refer to the Charter for the International Military Tribunal that tried the major war
criminals at Nuremberg specified, in Article 6, three types of crime falling under the
jurisdiction of the tribunal.13 These crimes are: crimes against peace, including the
10
B. G. Ramcharan, supra note 5, at 30; International Covenant on Civil and Political Rights. G.A. Res.
2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) at 52, U.N. Doc. A/6316, 1966. [hereinafter International
Covenant on Civil and Political Rights].
11
Convention on the Prevention and Punishment of the Crime of Genocide G.A. Res. 260 A (III), 3(1)
U.N. GAOR at 174, U.N. Doc. A/810, 1948.
12
Leo Kuper, “Genocide and Mass Killings: Illusion and Reality,” in B.G. Ramcharan, ed., The Right to
Life in International Law (Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1985) 115.
13
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis
Powers and Charter of the International Military Tribunal, August 8, 1945, 82 U.N.T.S. 279, 59 Stat. 1544,
E.A.S. No. 472.
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waging of a war of aggression; war crimes, such as murder of the civilian population, the
killing of hostages, and the destruction of cities; and crimes against humanity such as
murder, extermination, and inhuman acts committed against civilian populations before or
during a war.14
Moreover, Article 3 which is common to all four Geneva Conventions, of 1949,
prohibits violence to life and person, in particular murder of any kind, mutilation, cruel
treatment and torture.15 Article 4 of Protocol II Additional to the Geneva Conventions
prohibits the same actions prohibited in Article 3.16 Protocol I Additional to the same
conventions and relating to the protection of victims of international armed conflicts can
be viewed as a significant addition to the conventions.17 The one hundred and two
articles of this protocol are built on the four Geneva Conventions and other previous
conventions, which emphasize, inter alia, the protection of civilians’ rights.18
However, Islamic international law considers the right to life as the most basic and
supreme right which human beings are entitled to have, without distinction of any kind,
based on race, colour, sex, language and religion. The right to life is a sacred right, and
any transgression against it is considered a crime against the entire community.19 This
right has been emphasized in the following verses:
“On that account: We ordained for the Children of Israel that if any one slew a
person - unless it be for murder or for spreading mischief in the land - it would be
as if he slew the whole people, and if any one saved a life, it would be as if he
saved the life of the whole people.”20
“Nor take life - which Allāh has made sacred - except for just cause.”21
“Nor kill yourselves: for verily Allāh hath been to you Most Merciful.”22
Islamic humanitarian law guarantees fair treatment of civilians who have not
14
Benjamin Ferencz, “The United Nations and Human Rights Forty Years Later,” in Irwin Cotler, ed.,
Nuremberg Forty Years Later: The Struggle Against Injustice in Our Time (Montreal & Kingston: McGill-
Queen’s University Press, 1995) 102.
15
Adam Roberts and Richard Guelff, eds., Documents on the Laws of War (Oxford: The Clarendon
Press, 1982) 273 [hereinafter Adam Roberts & Richard Guelff].
16
Protocol II Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of
Victims of Non-International Armed Conflicts, 1125 U.N.T.S. 609 (opened for signature on December 12,
1977 and entered into force on December 7, 1978) [hereinafter Protocol II].
17
Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts, signed at Geneva on December 12, 1977, entered into force on
December 7, 1978, UK Misc. 19 (1977), Cmnd. 6927 [hereinafter Protocol I].
18
Charles A. Allen, “Civilian Starvation and Relief during Armed Conflict: The Modern Humanitarian
Law,” (1989) 19:1 Georgia Journal of International and Comparative Law 19 [hereinafter Charles].
19
Ahmad Farrag, “Human Rights and Liberties in Islam,” in Jan Berting et al., eds., Human Rights in a
Pluralist World: Individuals and Collectivises (Westport: Meckler Corporation, 1990) 137 [hereinafter
Ahmad Farrag].
20 c
Abdullāh Yūsuf cAlī, The Holy Qur’ān: Text Translation and Commentary, 2ed ed. (Kuwait: That
Essalasil, 1984) V:32 [hereinafter The Holy Qur’ān].
21
Ibid., XVII: 33.
22
Ibid., IV: 29.
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engaged in war, and prohibited random use of weapons in a manner that would affect
warriors and civilians indiscriminately. Muslim fighters have been instructed to avoid
civilian targets. Section 1 (paragraph 47) of al-Siyar fī Ard} al-H{arb [the Islamic Law of
Nations] states that, “Whenever the Apostle of Allāh sent forth a detachment he said to it:
Do not cheat or commit treachery, nor should you mutilate or kill children, women, or old
men.”23 This obligation is supported by another tradition which states that the Prophet
Muh}ammad saw people gathered around something and sent a man to investigate saying:
“see, what are these people collected around?” The man returned and said: “They are
around a woman who has been killed.” The Prophet said: “This is not one with whom
fighting should have taken place.” The Prophet sent a man to follow Khālid Ibn al-Walīd
and said: “Tell Khālid not to kill a woman or a hired servant.”24
Excessive and arbitrary killings are prohibited. This principle has been expressed in
the following verse: “If any one is killed wrongfully, we have given his heir authority, but
let him not exceed bounds in killing.”25 Thus, Muslim fighters (mujahidu>n) are not
permitted to push killing to the point where they cannot distinguish between civilians and
combatants. Prophet Muh}ammad instructed the Muslim fighters, dispatched against the
Byzantine army, to “spare the weakness of the female sex; injure not the infants or those
who are ill in bed. Refrain from demolishing the houses of the unresisting inhabitants;
destroy not the means of their subsistence, nor their fruit-trees and touch not the palm,
and do not mutilate bodies and do not kill children.”26
The rightly-guided Caliphs followed the prophet’s example. Abū Bakr al-
S{iddīq, the first Muslim Caliph exhorted the Muslim army marching to Syria, to learn the
following rules by heart:
“Do not commit treachery, nor depart from the right path. You must not
mutilate, neither kill a child or aged man or woman. Do not destroy a palm tree,
nor burn it with fire and do not cut any fruitful tree. You must
23
Muh}ammad Ibn al-H{asan al-Shaybānī, Abwāb al-Siyar fī Ard} al-H{arb [the Islamic Law of Nations]
Edited by Majid Khadduri (Beirut: al-Dār al-Muttah}ida lil-Nashr, 1975) Section 1 (paragraph 47)
[hereinafter the Islamic Law of Nations].
24
Abu> Dāwūd Sulaymān Ibn al-Ashcath, Sunan Abī Dāwūd, 2 vols. (Beirut: Dār al-Janān, 1988) 2:739
[hereinafter Abu> Dāwūd].
25
The Holy Qur’ān, XVII: 33.
26
Abū Bakr Ah}mad Ibn al-H{usayn al-Bayhaqī, al-Sunan al-Kubrā, 10 vols. (H{aydar Abād: Mat}bacat
Majlis Dā’irat al-Macārif al-cUthmāniyya, 1925), 9:89 [hereinafter al-Bayhaqī]; cAlī Ibn cAbd al-
Malik Muttaqī, Kanz al-cUmmāl fī Sunan al-Aqwāl wa-al-Afcāl, 16 vols. (H{alab: Maktabat al-Turāth al-
Islāmī, 1969) 4: 472 [hereinafter Kanz al-cUmmāl]; cAlī Ibn al-H{asan Ibn cAsākir, Tārīkh Madīnat
Dimashq wa-Dhikr Fad}lihā wa-Tasmiyat man H{allahā min al-Amāthil aw Ijtāza bi-Nawāh}īhā min
Wāridīhā wa-Ahlihā (Dimashq: Majmac al-Lughah al-cArabiyyah, 1951) 2:9 [hereinafter Ibn cAsākir];
Mālik Ibn Anas, al-Muwat}t}a’ (Kuwait: Markaz al-Buh}ūth wa-al-Dirāsāt al-Kuwaytiyyah, bi-al-Tacāwun
maca al-Sundūq al-Waqfī lil-Thaqāfah wa-al-Fikr, 1997) No. 10 [hereinafter al-Muwat}t}a’]; Karima
Bennoune, “As-Salāmu cAlaykum” Humanitarian Law in Islamic Jurisprudence,” (1994) 15:2 Michigan
Journal of International Law 624 [hereinafter Karima Bennoune]; Muh}ammad Ibn cUmar al-Wāqidī,
Kitāb al-Maghāzi, 3 vols. (London: Oxford University Press, 1966) 1: 758 [hereinafter al-Wāqidī]; al-
Qurt}ubī, infra note 119, at 2: 348.
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not slay any of the flock or the herds or the camels, save for your subsistence.
You are likely to pass by people who have developed their lives to monastic
services; leave them to that to which they have devoted their lives.”27
Furthermore, cUmar Ibn al-Khat}t}āb, the second orthodox Caliph, warned the
commanders of the Muslim army, he said: “Do not mutilate when you have power to do
so. Do not commit excess when you triumph. Do not kill an old man or a woman or a
minor, but try to avoid them at the time of the encounter of the two armies, and at the time
of the heat of victory, and at the time of expected attacks.”28 By the same token, the
fourth Caliph, cAlī Ibn Abī T{ālib, prohibited the Muslim fighters from killing those who
have laid down their weapons, or fled from the battlefield. During his struggle with the
Umayyads, and before the battle of S{affīn, ‘Alī gave his fighters the following
commands, which can be considered as basic rules of conduct in Islamic international
humanitarian law. cAlī said:
“If you defeat them, do not kill a man in flight, do not finish off a wounded man,
do not uncover a pudendum, or mutilate the dead, do not rip open a curtain or
enter a house without permission, do not take any of their property, and do not
torture or harm their women even though they may insult your leaders, and
remember Allāh, may you will have knowledge.”29
Regarding the treatment of the enemy in the battlefield, Ahmed Zaki Yamani argues
that Islamic humanitarian law is extremely concerned with the basic rules of the
international humanitarian law. These rules are the object of many verses and traditions.
The Muslim rules of war are highly practical and realistic.30 Islamic international law of
armed conflict has forbidden the breaking of promises and treaties and the separation of
captive women from their children, and has called for the fair treatment of prisoners of
war. Section 1 (paragraph 44) of al-Siyar fī Ard} al-H{arb [the Islamic Law of Nations]
27
Muh}ammad Ibn Ah}mad al-Sarakhsī, Sharh} Kitāb al-Siyar al-Kabīr li-Muh}ammad Ibn al-H{asan al-
Shaybānī, 5 vols. (Cairo: Mat}bacat Sharikat al-Iclānāt al-Sharqiyya, 1971-1972) 1:41 [hereinafter al-Siyar
al-Kabīr]; Muh}ammad Ibn cAlī al-Shawkānī, Nayl al-Awt}ār Sharh} Muntaqā al-Akhbār min Ah}ādīth Sayyid
al-Akhyār, 8 vols. (Cairo: Mat}bacat Mus}t}afā al-Bābī al-H}alabī, 1952) 7:263 [hereinafter al-Shawkānī];
Waldemar A. Solf, “Protection of Civilians against the Effects of Hostilities under Customary International
Law and under Protocol I,” (1986) 1 The American University Journal of International Law and Policy 118
[hereinafter Waldemar].
28 c
Abd Allāh Ibn Muslim Ibn Qutayba al-Dīnawarī, Kitāb cUyūn al-Akhbār, 4 vols (Cairo: Dār al-Kitāb
c
al- Arabī, 1957) 1:107-108 [hereinafter Ibn Qutayba]; Karima Bennoune, supra note 26, at 626. Shihāb al-
Dīn Ah}mad Ibn cAbd Rabbu al-Andalusī, al-cIqd al-Farīd (Beirut: Dār wa Maktabat al-Hilāl, 1986) 1:79
[hereinafter Ibn cAbd Rabbu].
29
Ahmed Zaki Yamani, “Humanitarian International Law in Islam: A General Outlook,” (1985) 7
Michigan Yearbook of International Legal Studies 195 [hereinafter Ahmed Zaki Yamani]; cIzz al-Dīn Abu>
H{āmid Ibn Abī al-H{adīd, Kitāb Nahj al-Balāgha, 4 vols. (Beirut: Dār al-Macrifa, n.d.) 3:425 [hereinafter
Nahj al-Balāgha].
30
Marcel A. Boisard, “The Conduct of Hostilities and the Protection of the Victims of Armed Conflicts
in Islam,” (1978) 1:2 Hamdard Islamicus 10 [hereinafter Marcel A. Boisard].
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states that, “The prisoner of war should not be killed.”31 In this sense, the Prophet
Muh}ammad said:
“War prisoners are your brothers. Allāh has put them in your hands; so
whosoever has his brother in his hands, let him give food to eat out of what he
himself eats and let him give him clothes to wear out of what he himself wears,
and do not impose on them a work they are not able to do themselves. If at all
you give them such work, help them to carry it out.”32
The Holy Qur’ān, a primary source of Islamic international law, confirms these
rules in the following verse: “And they (the devotees of Allāh) feed the indigent, the
orphaned and the captive in spite of their need and love of that food.”33
In his book, Kitāb al-Umm, al-Shāficī says: “Whatever is accepted by the Muslims
and receives their consensus as being permissible in the Land of Islam is not forbidden in
the land of unbelievers, and whatever is forbidden in the land of Islam, is also forbidden
in the land of unbelievers. He who commits a forbidden act will receive the punishment
prescribed by Allāh for his offence.”34 In this connection, Ahmed Zaki Yamani reported
that “cUmar Ibn al-Khat}t}āb heard that a Muslim soldier had said to a Persian combatant
captive: Do not be afraid! then killed the Persian. Thereupon, cUmar wrote to the
commander of the army in these terms: “As Allāh is my witness, if I hear anyone has
done this, I shall cut his neck.”35
Moreover, right to life, prohibition of torture and inhuman treatment are also
confirmed by contemporary Islamic human rights law. Article 1 of the Universal Islamic
Declaration of Human Rights affirmed that “human life is sacred and inviolable and every
effort shall be made to protect it.”36 Article 7 also emphasized the right to protection
against torture. It states that “No person shall be subjected to torture in mind or body, or
degraded, or threatened with injury either to himself or to anyone related to or held dear
by him, or forcibly made to confess to the commission of a crime, or forced to consent to
an act which is injurious to his interests.”37 The other Islamic document is the Cairo
Declaration on Human Rights in Islam, of 1990. Articles 2 and 11 (a) of this declaration
affirm the right to life and protection from torture and inhuman treatment, while Article 3
confirms civilians’ protection in time of war. Article 2 states that life is a God-given gift,
and the right to life is guaranteed to every human being, and safety from bodily harm is a
31
The Islamic Law of Nations, supra note 23, at Section 1 (paragraph 44).
32
Jalāl al-Dīn al-Suyūt}ī, al-Durr al-Manthūr fī al-Tafsīr bi-al-Ma’thūr, 8 vols. (Beirut: Dār al-Fikr,
1983) 2:532 [hereinafter al-Suyūt}ī]; Muh ammad Ibn Ismācīl Ibn Ibrāhīm al-Bukhārī, al-Jāmic al-Sahīh, 6
vols. (Beirut: Dār al-Kitāb al-cArabī, 1984) No. 2545 [hereinafter al-Jāmic al-S ah īh ]; Muslim, infra note
82, at 11:182.
33
The Holy Qur’ān, LXXVI: 8.
34
Muh}ammad Ibn Idrīs al-Shāficī, Kitāb al-Umm, 7 vols. (Cairo: al-Hay’a al-Mis}riyya al cĀmma lil-
Kitāb, 1987) 7:322 [hereinafter al-Shāficī].
35
Ahmed Zaki Yamani, supra note 29, at 202.
36
Albert P. Blaustein, Roger S. Clark & Jay A. Sigler, supra note 7, at 8-9.
37
Ibid., p. 920.
176
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guaranteed right, and it is prohibited to breach it without a sharīca-prescribed reason.38

Article 11 (a) maintains that human beings are born free, and no one has the right to
enslave, humiliate, oppress or exploit them.39 Article 3 asserts that in the event of the use
of force and in case of armed conflict, it is not permissible to kill non-belligerents such as
old men, women and children. The wounded and the sick shall have the right to medical
treatment, and prisoners of war shall have the right to be fed, sheltered and clothed. This
article also prohibits the mutilation of dead bodies or the destruction of the enemy’s civil
properties.40
Ann Elizabeth Mayer criticized Article 2 and Article 11 (a). She described Article 2
as “loosely modelled on modern international law provisions.”41 She added that this
article “is another instance where the authors went beyond the Islamic sources in
fashioning their principles.”42 In her critique of Article 11 (a), Mayer said:
“Article 11 (a) of the Cairo Declaration provides that no one has the right to
enslave human beings - without any Islamic qualifications. This is emblematic of
the selectivity with which rules taken from Islamic law have been resuscitated in
Islamic human rights schemes. Slavery was a deeply ingrained feature of many
Muslim societies and was extensively regulated in Islamic law.”43
Comparing this commentary with the text of the two articles brings to our attention
what was mentioned earlier that any interpretation of Islamic law out of its context is null
and misleading. It is clear that Mayer has misunderstood Article 2 and distorted Article
11 (a). One may wonder about the accuracy and the obscurity of this critique. Article 11
(a) reads as follows: “Human beings are born free, and no one has the right to enslave,
humiliate, oppress or exploit them, and there can be no subjugation but to God the Most
High.”44 Subjugation to God does not mean, in any case, an Islamic qualification to
enslave human beings. On the other hand, the institution of slavery was not established
according to Islamic law. Slavery pre-dated Islam by thousands of years and has, as an
institution, been the source of great suffering for Muslims, taken as war prisoners, and
sold to slavery. Islamic humanitarian law regulated slavery with protective injunctions,
which favoured the slave and ameliorated his status.45 A slave is never called a slave in
Islamic society but a brother. In this sense, the Prophet Muh}ammad said: “They (the
slaves) are your brothers, and whoever has a brother under his care, has to feed him and
cloth him of the same food and cloth he eats and wears.”46 In point of fact, Islamic
38
The Cairo Declaration on Human Rights in Islam. (A/CONF. 157/PC/62/Add. 18) Annex to Res. No.
49/19-P, 9 June 1993, [hereinafter the Cairo Declaration on Human Rights in Islam].
39
Ibid.
40
Ibid.
41
Ann Elizabeth Mayer, “Universal Versus Islamic Human Rights: A Clash of Cultures or a Clash with a
Construct?” (1994) 15 Michigan Journal of International Law 344 [hereinafter Ann Elizabeth Mayer].
42
Ibid.
43
Ibid., p. 346.
44
The Cairo Declaration on Human Rights in Islam, supra note 38.
45
Ahmed Zaki Yamani, supra note 29, at 212.
46
Muslim, infra note 82, at 11:182; al-Suyūt}ī, supra note 32, at 2:532.
177
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humanitarian law has laid down the rules regulating slavery, with an eye to its gradual
disappearance.47
3. RIGHT TO RESPECT OF RELIGIOUS BELIEFS, CUSTOMS AND

TRADITIONS
A human right, including religious liberty, is defined as the ability and freedom to
perform an action, and religion is a collection of beliefs that every individual has the right
to decide on and adopt.48 Therefore, all individuals have the right to freedom of religion,
including the right to choose one’s religion. This right shall include the freedom of
parents to ensure the religious and moral education of their children in conformity with
their own convictions.49 Contrary to the statement of Hurst Hannum that, “religion was
certainly the most significant right among most groups until at least the eighteenth
century,”50 one can argue that religion is still the most significant distinction among
societies, as most people still believe that religion is more than a set of beliefs, and often
47
Compared with their status in jāhiliyya (pre-Islamic) society, the situation of slaves under Islamic
law was a vast improvement. Slaves benefited from the dispensations of Islam and from its overall view
of slavery as an act incompatible with Islamic principles of justice. Bernard Lewis sees the Qur’anic
legislation as having effected two major changes to pre-Islamic slavery: belief in freedom as a universal,
indispensable right, and the prohibition of the enslavement of free persons except in certain
circumstances, namely during captivity (on a reciprocal basis). In contrast to pre-Islamic legislations,
Islamic law considered slaves human beings with human dignity. In relation to religious matters, a
Muslim slave was to be considered equal to a Muslim freeman, and deserved to be treated kindly by
master and society. Slaves were to enjoy the same standard of living as their masters. If a master failed to
comply with a slave’s rights under Islamic law, a slave could complain to a judge, who normally forced
the master to fulfill his obligations. In cases where the master could not afford to do so, the judge usually
ordered him to sell his slave or set him free. Moreover, the Qur’anic legislation considered manumission
of a slave to be a religious duty for the expiation of certain sins, such as killing by mistake or sleeping
with one’s wife during the day in Ramadan. See A. Al-Hibri “An Islamic Perspective on Domestic
Violence,” (2003) 27 Fordham International Law Journal 210 [hereinafter Al-Hibri]; B. Lewis, Race and
Slavery in the Middle East: An Historical Enquiry (New York: Oxford University Press, 1992) 6
[hereinafter Lewis]; The Holy Qur’ān, IV:92 & XC:13; J. Brockopp, “Slaves and Slavery” in The
Encyclopedia of the Qur'ān, ed. Jane Dammen McAuliffe, et al. Leiden: E. J. Brill, 2001-5, 5:56-60
[hereinafter Brockopp]; W. Clarence-Smith, Islam and the Abolition of Slavery (London: C. Hurst &
Co., 2006) 25[hereinafter Clarence-Smith].
48
Leonard Swidler, “Human Rights and Religious Liberty: From the Past to the Future,” in Leonard
Swidler, ed., Religious Liberties and Human Rights in Nations and in Religions (Philadelphia and New
York: Ecumenical Press and Hippocrene Books, 1986) vii.
49
Article 18(4) of the International Covenant on Civil and Political Rights, of 1966.
50
Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of
Conflicting Rights (Philadelphia: University of Pennsylvania Press, 1990) 50.
51
For instance, many Muslims believe that Sharīca is a comprehensive code that includes ethics,
worship, and religious practices.
178
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needs to be translated into actions.51

Respect for religious beliefs, in modern times, can be traced back to the Treaty of
Westphalia, of 1648, which guaranteed equality of rights for both Roman Catholics and
Protestants in Central Europe. In the aftermath of World War II, a new attitude towards
human rights, including right to a religion, emerged. The United Nations Charter, of
1945 provides in Article 1 and 55 that universal respect shall be given to fundamental
freedoms for all without distinction based on race, sex, language and religion. More
concretely and without creating legal obligations, Article 18 of the Universal Declaration
of Human Rights, which was adopted in Paris on 10 December 1948, states that,
“everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief in teaching, practice,
worship and observance.”52 Moreover, Article 18 (1) of the International Covenant on
Civil and Political Rights, of 1966, provides that, “everyone shall have the right to
freedom of thought, conscience and religion. This right shall include freedom to have or
to adopt a religion or belief of his choice, and freedom, either individually or in
community with others and in public or private, to manifest his religion or belief in
worship, observance, practice and teaching.”53
A comparison of these two articles will show that the guarantee to freedom of
religion in Article 18 (1) of the International Covenant on Civil and Political Rights was
proclaimed in better terms. It clearly states that “this right shall include freedom to have
and to adopt a religion or belief of his choice”, not only “to manifest his religion or
belief,” as provided in Article 18 of the Universal Declaration of Human Rights.54 On the
other hand, it is obvious that there is an overlap between the two articles as regards
protection of the right to disseminate religious ideas.55
In 1981, the General Assembly of the United Nations adopted the Declaration on the
Elimination of all Forms of Intolerance and of Discrimination Based on Religion or
Belief. The eight articles of the Declaration confirm, in line with the previous
declarations, that discrimination between human beings on the grounds of religion or
belief constitutes an affront to human dignity and should be condemned as a violation of
52
Universal Declaration of Human Rights, supra note 8.
53
International Covenant on Civil and Political Rights, supra note 10. Religiously speaking, al-h}ijāb
(Islamic women’s head cover) is considered a part of a Muslim woman’s beliefs. The first controversy
regarding the wearing of the h}ijāb in Quebec occurred in November 1993, when Quebec Judge Richard
Alary asked Ms. Wafa Mousseyine to remove her h}ijāb in his court. In October 1994, Dania Baali, a tenth
grade student at Ecole Regina Assumpta, a private Catholic girls’ school in Montreal, was told that she
could not return to school the following year if she continued to wear the h}ijāb. In January 1995, a public
primary school instructed parents to have their daughter remove her h}ijāb or change school.
54
Karl Josef Partsch, “Fundamental Principles of Human Rights: Self-Determination, Equality and Non-
Discrimination,” in Karl Vasak, ed., The International Dimensions of Human Rights, 2 vols. (Westport,
Connecticut: Greenwood Press, 1982) 1: 83.
55
Brice Dickson, “The United Nations and Freedom of Religion,” (1995) 44:2 International and
Comparative Law Quarterly 340 [hereinafter Brice Dickson].
179
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human rights. The United Nations Commission on Human Rights willingly approved the
draft of the Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, which was adopted by the General Assembly on 18
December 1992. Article 1 of the Declaration requires States Parties to encourage
conditions for the promotion of the religious identity of minorities and to adopt
appropriate legislation towards its realization.56 In Article 2 (B) of Part II of the Vienna
Declaration and Programme of Action on Human Rights, of 25 June 1993, the World
Conference on Human Rights urged States and the international community to promote
and protect the rights of persons belonging to national, ethnic, religious and linguistic
minorities. The Vienna Declaration contains six paragraphs devoted specifically to
racism, racial discrimination, xenophobia and other forms of intolerance.57
Examining the documents of international law on armed conflict, one may find that
the Annex to the 1907 Hague Convention IV Respecting the Laws and Customs of War
on Land, the 1949 Geneva Convention IV Relative to the Protection of Civilian Persons
in Times of War, as well as the 1977 Additional Protocol I and Protocol II to the same
convention, have recognized and respected the individuals’ rights to thought, conscience
and religion. Article 46 of the Annex to the 1907 Hague Convention IV Respecting the
Laws and Customs of War on Land confirms that family honour and rights, as well as
religious convictions and practice, must be respected.58 Articles 27 of the 1949 Geneva
Convention IV Relative to the Protection of Civilian Persons in Time of War proclaim
that protected persons are entitled, in all circumstances, to respect for their religious
convictions and practices, and their manners and customs.59 Article 53 of the 1977
Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Article
16 of Protocol II Additional to the same conventions, prohibit the committing of any acts
of hostility directed against historic monuments, works of art or places of worship which
constitute a people’s cultural or spiritual heritage.60
In spite of these fine-sounding ideals, the extent of state violations of religious
freedom remains frighteningly high. Human rights Watch World Report of 1995 notes
that “hatred and violence along ethnic and religious lines continued to pose the paramount
threat to human rights world-wide: genocide in Rwanda; ethnic war in Bosnia; the Indian
government’s failure to prosecute police for participating in attacks on Muslims; violence
by Islamist movements, which was, in turn, aggravated by Middle Eastern governments’
denial of political freedoms; the Egyptian government’s clash with Islamist militants; and
the raging violence in Algeria.”61
56
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities, G.A. E/1992/22, Chap. II, Section A.
57
Vienna Declaration and Programme of Action on Human Rights, Doc. A/CONF, 157/24 (Part 1), 13
Oct. 1993.
58
Adam Roberts & Richard Guelff, supra note 15, at 56.
59
Ibid., 282 and 303.
60
Ibid., p. 417 and 456.
61
Human Rights Watch World Report 1995: Events of 1994 (New York: Human Rights Watch, 1995)
XIX.
180
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However, in his book on autonomy and self-determination, Hurst Hannum

concludes that: “A distinctive system of ensuring a certain degree of cultural and religious
autonomy was the “millet” system developed by the Ottoman Empire. The millets
generally followed religious lines, with each religious community (the most important
being the Orthodox, Armenian, and Jewish) having the authority to regulate such matters
as personal status and inheritance.”62 This statement can be interpreted in light of the
Islamic concept of rights of non-Muslims to freedom of religious beliefs, customs and
traditions. Islamic international law considers this freedom as a component of opinion and
expression. Consequently, everyone has the right to choose a religion, which suits his/her
personal inclinations. This freedom is guaranteed by the Holy Qur’ān, Sunna, and by the
order of early Muslim Caliphs to commanders in the battlefield.63 Religious liberty is
grounded in the Holy Qur’ān in the following verses: “Let there be no compulsion in
religion,” 64 and “Wilt thou then compel mankind against their will to believe.”65
Moreover, Islamic law respects non-Muslim customs, traditions and places of
worship. In their own towns and cities, non-Muslims have full freedom to practice their
customs and traditions, as well as to celebrate their holy days and communal festivals.
Non-Muslim places of worship are not to be interfered with and are well-protected in
times of peace and war. Furthermore, if these places are damaged or destroyed in one way
or another, they should be rebuilt or repaired.66 Jews and Christians “the People of the
Book” have a respected position and special status in Islamic international law. Muslims
are ordered by the Holy Qur’ān to treat them and argue with them gently. This issue is
addressed in this Qur’anic verse: “And dispute ye not with the People of the Book except
with means better.”67 Moreover, in the speech cited earlier, Abū Bakr al-S{iddīq,
instructed the Muslim fighters, saying: “...You are likely to pass by people who have
devoted their lives to monastic services; leave them to that to which they have devoted
their lives.”68
62
Hurst Hannum, supra note 50, at 50-51.
63
Ahmad Farrag, supra note 19, at 137.
64
The Holy Qur’ān, II: 256.
65
Ibid., X: 99.
66
Sayyid Abul Aclā Mawdūdī, The Islamic Law and Constitution, trans., Khurshīd Ahmad (Lahore,
Pakistan: Islamic Publications Ltd., 1960) 309.
67
Mohamed Talbi, “Religious Liberty: A Muslim Perspective,” in Leonard Swidler, ed., Religious
Liberty and Human Rights in Nations and in Religions (Philadelphia and New York: Ecumenical Press and
Hippocrene Books, 1986) 186; See The Holy Qur’ān, XXIX: 46.
68 c
Alī Ibn Muh}ammad Ibn H{abīb al-Māwardī, al-H{āwī al-Kabīr, 24 vols. (Beirut: Dār al-Fikr, 1994)
14:426 [hereinafter al-H{āwī al-Kabīr]; Ibrāhīm Fīrūzābādī al-Shīrāzī, al-Muhadhdhab fī Fiqh al-Imām al-
Shāficī , 3 vols. (Beirut: Dār al-Kutub al-cIlmiyyah,1995) 3:265 [hereinafter al-Muhadhdhab]; Ibrāhīm Ibn
Mūsā Ibn Muh}ammad al-Shāt}ibī, al-Ictis}ām, 2 vols. (Cairo: al-Maktabah al-Tijāriyyah al-Kubrā, 1980)
1:390 [hereinafter al-Shāt}ibī]; Muh}ammad cAlī Ibn H{azm, al-Īs}āl fī al-Muh} allā bil-Āthār, 12 vols.
(Beirut: Dār al-Kutub al-cIlmiyya, 1988), 10:162 [hereinafter Ibn H{azm]; Muwaffaq al-Dīn cAbd Allāh Ibn
Qudāmah al-Maqdisī, al-Kāfī fī Fiqh al-Imām Ah}mad Ibn H{anbal, 4 vols. (Beirut: Dār al-Fikr, 1992)
4:122 [hereinafter al-Maqdisī]; Muwaffaq al- Dīn Ibn Qudāma al-Maqdisī and Shams al-Dīn cAbd
al-Rah}mān Ibn Qudāma al-Maqdisī, al-Mughnī wa Yalīhi al-Sharh} al-Kabīr, 12 vols. (Beirut: Dār al-Kitāb
181
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Similarly, in his peace treaty with the people of Bayt al-Maqdis (Jerusalem), cUmar
Ibn al-Khat}t}āb, the second Muslim Caliph, gave them a guarantee that their churches and
crosses, would not be used by Muslims, or damaged or diminished in number, and that
they would not be forced to abandon their faith.69 When cUmar visited Jerusalem to sign
the peace treaty, he saw a huge building almost filled up with earth, and when he was
informed that the building was a Jewish temple buried by the Roman army, he initiated
removing the earth with his hands along with other Muslim soldiers until they cleaned it
and asked the Jews to use it.70 cAmr Ibn al-cĀs}, did the same with the Egyptians. He
guaranteed that their churches and crosses, would not be damaged or interfered with.71
Abdullahi An-Na’im affirms that the “Muslim Arabs showed promising signs of religious
tolerance and political accommodation for the indigenous Coptic population.”72 In the
pact issued by the Prophet Muh}ammad and his successors to the people of Najrān, they
affirmed that the people of Najrān “shall have the protection of Allāh and the guarantee of
Muh}ammad, the Apostle of Allāh, that they shall be secured in their lives, property, lands,
creed, those absent and those present, their buildings and their churches. No bishop or
monk shall be displaced from his parish or monastery and no priest shall be forced to
abandon his priestly life. All their belongings little or much, remain theirs.”73
On the other hand, Articles 10 and 13 of the Universal Islamic Declaration of
Human Rights, of 1981, affirms that religious rights of non-Muslim minorities are
governed by the Qur’anic principle: “There is no compulsion in religion”, and those
minorities have the choice whether to be governed in respect of their civil and personal
matters by Islamic law or by their own laws. According to his or her religious beliefs,
every person has the right to freedom of conscience and worship.74 Article 10 of the
Cairo Declaration on Human Rights in Islam emphasized the prohibition of exercising
any form of compulsion on anyone to convert him or her to another religion or belief.75
4. JUDICIAL RIGHTS
4.1 The Principle of Punishment According to Individual Responsibility
By the second half of the nineteenth century, the state had become the main
subject of international law. Since then, there have been a series of rules of international
al-cArabī, 1983), 10:530 [hereinafter al-Mughnī].

69
Zakariyya al-Birrī, “al-Islām wa H{uqūq al-Insān: H{aqq al-H{urriyyah” (1971) 1:4 cĀlam al-Fikr 115
[hereinafter Zakariyya al-Birrī].
70
Ibid.
71
Zakariyya al-Birrī, supra note 69.
72
Abdullahi Ahmed An-Na’im, “Religious Freedom in Egypt under the Shadow of the Islamic Dhimma
System,” in Leonard Swidler, ed., Religious Liberty and Human Rights in Nations and in Religions
(Philadelphia and New York: Ecumenical Press and Hippocrene Books, 1986) 50.
73
The Islamic Law of Nations, supra note 23, at 268; Muh}ammad H{amīdullāh, Majmūcat al-Wathā’iq
al-Siyāsiyya lil-cAhd al-Nabawī wal-Khilāfa al-Rāshida (Beirut: Dār al-Irshād, 1969) 145.
74
Albert P. Blaustein, Roger S. Clark & Jay A. Sigler, supra note 7 at 920-921.
75
182
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law, which postulate that man, irrespective of nationality, has inalienable rights and
duties inherent in human nature. Provisions of international humanitarian law apply
directly to the individual and are aimed at the protection of his life, freedom, health and
morality. Since the creation of the United Nations in 1945, and its specialized agencies
and organizations, a great number of conventions and treaties have been enacted on
behalf of the individual’s rights and responsibilities.76
The concept of personal responsibility is essential to the rule of law. Laws and
practices which impose punitive measures upon non-offenders are inherently unjust and
oppressive. The imposition of collective punishment involves the taking of summary
action without the benefit of a trial or the possibility of a judicial review. As a policy, it
is designed to achieve immediate results through intimidation of whole sectors of the
population. In counteraction, the Geneva Convention IV Relative to the Protection of
Civilian Persons in Time of War , of 1949, goes on to provide, in Article 33, that:
“No protected person may be punished for an offence he or she has not
personally committed. Collective penalties and likewise all measures of
intimidation or of terrorism are prohibited. Pillage is prohibited.”77
The principle of punishment according to individual responsibility was also

confirmed in Article 50 of the Annex to the Hague Convention IV Respecting the Laws
and Customs of War on Land, of 1907. This Article affirms that:
“No general penalty, pecuniary or otherwise, shall be inflicted upon the
population on account of the acts of individuals for which they cannot be
regarded as jointly and severally responsible.” 78
Furthermore, this principle was briefly and clearly confirmed by Article 5 (para.
3) of the American Convention on Human Rights, of 1969. This Article proclaims that:
“Punishment shall not be extended to any person other than the criminal.” 79 From the
afore-mentioned norms, it may be concluded that international humanitarian law has
prohibited the imposition of collective or vicarious punishment on the civilians of
occupied territories.
As already noted, respect for the individual is the central precept of Islamic law.
The individual is considered the most sacred of Allāh’s creations, so he must be treated
with justice.80 The warning against the persecution of individuals is repeated two
hundred and ninety-nine times in the Holy Qur’ān, and the terms justice and equality
76
Criton G. Tornaritis, “The Individual as a subject of International Law and International Criminal
Responsibility,” in M. Cherif Bassiouni & Ved P. Nanda, eds., A treatise on International Criminal Law,
2 vols. (Springfield, Illinois: Charles C. Thomas, Publisher, 1973) 1: 104.
77
78
Ibid., p. 56.
79
Albert P. Blaustein, Roger S. Clark & Jay A. Sigler, supra note 7, at 552.
80
Matthew Lippman, “Islamic Criminal Law and Procedure: Religious Fundamentalism v. Modem
Law,” (1989) 12: 1 Boston College International and Comparative Law Review 46 [hereinafter Matthew
Lippman].
183
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appear more than sixteen times. Islamic law goes on to provide that: a. Every adult
offender is responsible and should be punished for his crime; b. in punishment, the
concept of personal responsibility is associated with the principle of equality and
uniformity; and c. penalties are to be applied equally upon all, regardless of race,
religion, colour, sex, language,81 and social class.82
The prohibition against collective punishment in Islamic law is of general
application. The principle of individual criminal responsibility means that the individual
himself is the only one who must be charged for his criminal acts. This responsibility
can also be applied to persons who take part in criminal acts according to the rules of
accountability. Islamic criminal law affirmed this principle twelve centuries before it
was confirmed in the Declaration of the Rights of Man and of the Citizen during the
French Revolution of 1789.83 Before being adopted by the French Revolution in the Act
of 21 January 1790, and the French Constitution of 1791, the principle of individual
responsibility was not recognized in pre-revolutionary France.84
The principle of individual responsibility has been confirmed in several verses of
the Holy Qur’ān. All these verses proclaim that the offender is the only one responsible
for his criminal act. It reads:
“Every man will be held in pledge for his deeds.” 85
“Whoever works evil, will be requited accordingly.”86
“Nor can a bearer of burdens bear another’s burden.”87
In this respect, the Prophet Muh}ammad confirmed in his farewell-pilgrimage
81
Matthew Lippman, Sean McConville, and Mordechai Yerushalmi, Islamic Criminal Law and
Procedure: An Introduction, with a Foreword by M. C. Bassiouni (Westport, Conn.: Greenwood Press,
Inc., 1989) 81.
82
When Usama Ibn Zayd, the loved one of the Prophet Muh}ammad, interceded on behalf of a woman
who had committed theft, the colour of the Prophet’s face changed, and he said: Do you intercede in one
of the prescribed punishments of Allāh? Then the Prophet stood up and addressed the people: “0 people;
those who have gone before you were destroyed, because if anyone of high rank committed theft among
them, they spared him, and if anyone of low rank committed theft, they inflicted the prescribed
punishment upon him. By Allāh, if Fatima, daughter of Muh}ammad, were to steal, I would have her hand
cut off.” See Abu> al-H{usayn Muslim Ibn al-H{ajjāj al-Naysābūri>, S{ah}īh} Muslim, 5 vols. (Beirut: Mu’ssasat
c
Izz al-Dīn lil-T{ibāca wal-Nashr, 1987) 3: 522 [hereinafter Muslim].
83
Uthman Abd al-Malik al-Salih, “The Right to Individual Security in Islam: A Comparative Study,”
(1983) 7: 3 Kuwait University Journal of Law 37 [hereinafter Uthman Abd al-Malik al-Salih].
84
Before the French Revolution, collective punishment was common in the French criminal legal
system. In fact, every capital sentence brought with it the confiscation of the offender’s property, which
consequently affected not only the offender, but also his legal heirs. Moreover, during the ancien régime
in France, the monarch could convict or imprison anybody without a trial and even without an offence
having been committed. See C. Elliott, French Criminal Law (Devon, UK: Willan Publishing, 2001) 5; C.
von Bar & T. Bell, A History of Continental Criminal Law (Boston, Mass.: Little, Brown and Company,
1999) 270.
85
The Holy Qur’ān, LXXIV: 38.
86
Ibid., IV: 123.
87
Ibid., XXXV: 18.
184
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sermon that “No man should be held responsible for his father’s or brother’s burdens.”88
It is important to note that Islamic criminal law places Muslims and non-Muslims
(dhimmis and musta’mins) on equal footing during armed conflicts as well as in times of
peace. Both groups have received the same full protection and treatment in this regard.89
Moreover, non-Muslims have been exempted from punishment for drinking wine.90
The principle of individual responsibility is affirmed by modern Islamic human
rights law. The Universal Islamic Declaration of Human Rights, of 1981, proclaims in
Article 5 (para. e) that “every individual (Muslim and non-Muslim) is responsible for
his action. Responsibility for a crime cannot be vicariously extended to other members
of his family or group, who are not otherwise directly or indirectly involved in the
commission of the crime in question.”91 Similarly, the Cairo Declaration on Human
Rights in Islam provides, in Article 19 (para. c), that “liability is in essence personal.”92
Through the glasses of this concept, one may conclude that Islamic criminal law has
recognized individual responsibility, and prohibited collective punishment as early as
twelve centuries before the drafting of the first positive law in this regard.
4.2 The Principle of Proportional Crime and Punishment

In legal history, since the adoption of the Magna Carta, the English legal system
has guaranteed that criminal sanctions be proportionate to the severity of the crime
committed.93 The American legal system incorporated the traditional notion of
proportionality into the eighth amendment to the Constitution. Since that time, the
American courts have emphasized that the eighth amendment serves as a vehicle for the
protection of proportional punishment.94
As a result of unfair trials and the maltreatment of civilians during World War II,
the Geneva Convention IV Relative to the Protection of Civilian Persons in Time of
War, of 1949, provides, in Article 67, that the military courts of occupying authorities
should consider the principle of proportional crime and punishment. This Article asserts
that courts shall apply only those provisions of law which were applicable prior to the
offence, and which are in accordance with general principles of law, in particular the
principle that the penalty shall be in proportion to the offence. The same Article
emphasizes that the courts of the belligerent occupier shall take into consideration the
88
Abu> cAbd al-Rah}mān Ah}mad Ibn Shucayb al-Nasā’ī, Sunan al-Nasā’ī, 8 vols. (Cairo: Al-Maktaba al-
Tijāriyya al-Kubrā, 1930) No. 4138 [hereinafter al-Nasā’ī]; Nūr al-Dīn cAlī Ibn Abī Bakr al-Haythamī,
Majmac al-Zawā’id wa Manbac al-Fawā’id, 10 vols. (Cairo: Maktabat al-Qudsī, 1353 A.H.) 6:286
[hereinafter al-Haythamī]; al-Shawkānī, supra note 27, at 7:245.
89
Matthew Lippman, supra note 80, at 46.
90
Sayyid Abul Aclā Mawdūdī, The Islamic Law and Constitution, trans., Khurshīd Ahmad (Lahore,
Pakistan: Islamic Publications Ltd., 1960) 305 [hereinafter Sayyid Abul Aclā Mawdūdī].
91
Albert P. Blaustein, Roger S. Clark & Jay A. Sigler, supra note 7, at 920.
92
93
The concept of proportionality was later featured in the English Bill of Rights.
94
Ian A.J. Pitz. “Letting the Punishment Fit the Crime: Proportional Forfeiture under Criminal Rico’s
Source of Influence Provision,” (1991) 75: 4 Minnesota Law Review 1226.
185
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fact that the accused person is not a national of the Occupying Power.95 This means that
courts of occupiers should understand the special status of the people of occupied
territories, and treat them as foreigners. For instance, if nationals of the Occupying
Power commit an offence which intended to inflict harm upon the Occupying Power or
serious damage to its property, they may be charged with committing high treason, and
accordingly, be sentenced to death, but if the offenders are nationals of the occupied
territories they shall be liable to simple imprisonment.
Article 68 of the same Convention has illustrated the above-stated principle, and
affirmed that the duration of internment or imprisonment should be in proportion to the
offence committed. This Article goes on to provide that protected persons who commit
an offence which is solely intended to harm the Occupying Power, but which does not
constitute an attempt on the life or limb of members of the occupying forces or
administration, nor a grave collective danger , nor serious damage to the property of the
occupying forces or administration or the installations used by them, shall be liable to
internment or simple imprisonment; provided the duration of such internment or
imprisonment is proportionate to the offence committed.96 Article 118 of the same
Convention supports the above-mentioned articles by confirming that the courts or
authorities shall, in passing sentence, take into account the fact that the defendant is not
a national of the Detaining Power and, accordingly, reduce the penalty prescribed for
the offence with which the internee is charged; they shall not, however, be obliged to
apply the minimum sentence prescribed.97
In this respect, Islamic criminal law has recognized the principle of proportional
crime and punishment since the revelation of the Holy Qur’ān in the seventh century.
Islamic criminal law has asserted that criminal sanctions must be proportionate to the
severity of the crime committed. Therefore, Islamic criminal law has differentiated
between the punishment for ordinary theft and the penalty for banditry (highway
robbery), as well as for murder, accidental homicide and premeditated murder.98
The Holy Qur’ān confirms in several verses that punishment is proportionate to
the offence committed. Allāh says:
“That Day will every soul be requited for what it earned, no injustice will there
be that Day.” 99
“Allāh created the heavens and the earth for just ends, and in order that each
soul may find the recompense of what it has earned, and none of them be
wronged.”100
95
96
Ibid.
97
Ibid., p. 313.
98 c
Abd al-Qādir cAwda, al-Tashrīc al-Jinā’ī al-Isālmī, 2 vols. (Beirut: Dār al-Kitāb al-cArabī, n.d.) I:
385 [hereinafter cAbd al-Qādir cAwda].
99
The Holy Qur’ān, XL: 17.
100
Ibid., XLV: 22.
186
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As noted earlier, Muslims and non-Muslims (dhimmis and musta’mins) receive

the same full protection of Islamic criminal law, and the principle of proportional crime
and punishment is equally applied to both of them. Non-Muslims will be deprived of
their right to protection only when they leave the Muslim state and join its enemies, or
when they openly revolt against the state and try to overthrow it.101
The Universal Islamic Declaration of Human Rights, of 1981, proclaims, in
Article 4 (para. c), that punishment shall be awarded in accordance with the law, in
proportion to the seriousness of the offence and with due consideration for the
circumstances under which it was committed.102
4.3 The Right to Protection from Retroactive Law

The Annex to the Hague Convention IV Respecting the Laws and Customs of
War on Land, of 1907, provides, in Article 43, that the occupant must respect, unless
absolutely prevented, the laws in force in the occupied territories,103 but for the
maintenance of public order and safety, the occupant may, where necessary, set up
military courts instead of ordinary courts. Accordingly, in order to restore to the
German people the rule of justice and equality before the law, the Allied Troops
entering Germany enacted the first law on September 18, 1944, which invalidated
within Germany all fundamental Nazi laws.104 Five years later, the Geneva Convention
IV Relative to the Protection of Civilian Persons in Time of War, of 1949, provides, in
Article 64, that the penal laws of the occupied territory shall remain in force, with the
exception that they may be repealed or suspended by the Occupying Power in cases
where they constitute a threat to its security or an obstacle to the application of the
present Convention.105
In order to protect the people of the occupied territories from laws applied
retroactively, the authors of the Geneva Convention set up Articles 65 and 67 of the
same Convention. Article 65 proclaims that “the penal provisions enacted by the
Occupying Power shall not come into force before they have been published and
brought to the knowledge of the inhabitants in their own language. The effect of these
penal provisions shall not be retroactive.”106 Similarly, Article 67 of the same
Convention asserts that courts set up by the Occupying Power shall apply only those
provisions of law which were applicable prior to the offence, and which are in
accordance with general principles of law.
Nevertheless, states may apply law retroactively when they act as organs of the
international community. The case of the Attorney General of Israel v. Eichmann
101
Sayyid Abul Aclā Mawdūdī, supra note 90, at 307.
102
103
Ibid., 56.
104
L. Openheim, International Law: A Treatise, 2 vols., Edited by Hersch Lauterpacht (London:
Longmans, Green & Co., Inc., 1963) 2: 446.
105
106
Ibid., p. 294.
187
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involved an accused Nazi war criminal. Eichmann was to be prosecuted in Israel under
the Israeli Nazis and Nazi Collaborators (Punishment) Law, which provides for
punishment of crimes against the Jewish people, crimes against humanity and war
crimes.107 The statute was passed in 1950, subsequent to the actions of Eichmann, but
the Israeli Supreme Court applied the law retroactively, as an organ of the international
community.108
The right to prevention of the application of retroactive laws, is confirmed by
Article 11 (para. 2) of the Universal Declaration of Human Rights, of 1948, which
proclaims that:
“No one shall be held guilty of any penal offence on account of any act or
omission which did not constitutes a penal offence, under national or
international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time the penal
offence was committed.”109
This Article seems to be echoed in Article 15 of the International Covenant on

Civil and Political Rights, of 1966; Article 7 (para. 1) of the European Convention on
Human Rights, of 1950; and in Article 9 of the American Convention on Human Rights,
of 1969.
The International Covenant on Civil and Political Rights, of 1966, goes on to
provide, in Article 15, that “no one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal offence, under
national or international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable when the criminal offence was
committed. If, subsequent to the commission of the offence, provision is made by law
for the imposition of the lighter penalty, the offender shall benefit thereby.” In
paragraph (2) of this Article it is asserted that “Nothing in this article shall prejudice the
trial and punishment of any person for any act or omission which, at the time it was
committed, was criminal according to the general principles of law recognized by the
community of nations.”110
Accordingly, one may conclude that the paragraph quoted above is consistent
with what the International Military Tribunal at Nuremberg had decided twenty years
prior to the drafting of International Covenant on Civil and Political Rights in 1966.111
107
Nazis and Nazi Collaborators (Punishment) Law 5710-1950, reprinted in Human Rights in Israel,
Yearbook on Human Rights, 1950.
108
Eric S. Kobrick, “The Ex Post Facto Prohibition and the Exercise of Universal Jurisdiction over
International Crimes,” (1987) 87: 7 Columbia Law Review 1531 [hereinafter Eric S. Kobrick].
109
Universal Declaration of Human Rights, supra note 8.
110
International Covenant on Civil and Political Rights, supra note 10.
111
The International Military Tribunal at Nuremberg was established pursuant to an agreement
entered into by the United States of America, France, the United Kingdom and the Union of Soviet
Socialist Republics in London on August 8, 1945. Its purpose was to prosecute and punish the major war
criminals of the European Axis.
188
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During the war crimes trials that followed the Second World War, the Nazis raised an
ex post facto in defence of their actions; they asserted both that they lacked fair warning
of the illegality of their activities and that they were the victims of vindictive
legislation. The ex post facto defence was rejected as Nazi actions constituted criminal
behaviour when it was committed, according to the general principles of international
law.112 It is clear that Article 7 (para. 1) of the European Convention on Human Rights,
of 1950, and Article 9 of the American Convention on Human Rights, of 1969, have
copied word-for-word Article 11 (para. 2) of the Universal Declaration of Human
Rights, of 1948, and Article 15 (para. 1) of the International Covenant on civil and
Political Rights, of 1966, successively.
From what has been explained, the principle of prevention of applied retroactive
law, has only been enunciated by positive legal systems, since the end of the eighteenth
century. To the contrary, this principle was established by Islamic criminal law some
fourteen centuries ago. Islamic criminal law asserts that no one can be punished for an
act which is not expressly declared to be criminal prior to its occurrence. The Holy
Qur’ān explicitly guarantees this right in the following verse: “We never punish people
for wrongdoings until we have sent an apostle with legislation to warn them.”113
Accordingly, Islamic law has long recognized the principle of non-retroactivity of
criminal laws as a part of the foundation of its criminal justice system.114 Thus, new
adherents to Islam are excused and are not questioned for criminal acts committed
before embracing Islam. When cAmr Ibn al-cĀs} gave homage to the Prophet
Muh}ammad and embraced Islam, the Prophet said: “O ‘Amr! Islam cuts off any conduct
which preceded it.”115 Furthermore, Islamic law affirms that laws shall not come into
force before being brought to the knowledge of the people.116 Ignorance thereby
becomes an excuse which prohibits punishment for violation of the law. In this sense,
the jurist Abū Yacla al-Farra’ proceeded to say: “He who is authorized to keep people
away from suspicious situations and to enforce his orders, should not discipline anyone
before first cautioning him.”117 In the case of a Bedouin v. cUmar Ibn al-Khat}t}āb, cUmar
prohibited men and women from mixing around the Kacba. Having seen a man
wandering with women, he struck him with a rod. The man said to cUmar: “By Allāh, if
I have done wrong, you have not educated me.” cUmar said: “Are you not aware of my
decree against men and women walking together around the Kacba?" The man said: “I
112
Eric S. Kobrick, supra note 108, at 1533.
113
The Holy Qur’ān, XVII: 15.
114
Uthman Abd al-Malik al-Salih, supra note 83, at 52.
115
Muh}ammad Abu> Zahra, al-Jarīma wal-cUquba fī al-Fiqh al-Islāmī (Cairo: Dār al-Fikr al-cArabī,
n.d.) 174 [hereinafter Muh}ammad Abu> Zahra].
116
al-Haythamī, supra note 88, at 9:353; Muh}ammad Ibn cAlī al-Shawkānī, Fath} al -Qadīr al-Jāmic
bayn Fannay al-Riwāyah wal-Dirāyah min cIlm al-Tafsīr, 5 vols. (Beirut: Dār al-Fikr, 1997) 2:433
[hereinafter al-Shawkānī].
117
Abu> Yacla> al-Farra>’, al-Ah}kām al-Sult}āniyya (Cairo: Mat}bacat Mus}t}afa> al-Bābi> al-H{alibi,> 1938) 277
[hereinafter al-Farra>’].
189
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have not seen such a decree.” cUmar handed the man the rod and said: “Iqtas}
(retaliate)”. When the Bedouin refused to retaliate, cUmar asked him to forgive him.118
Islamic criminal law makes an exception to applying laws retroactively when the
new law provides a lighter penalty than the existing law at the time of violating the law.
In Khawla Bint Thaclaba v. Aws Ibn al-S{āmit, the Prophet applied the lighter penalty for
the crime of al-Z{ihār.119 In the pre-Islamic era, the punishment was a permanent
divorce, but Islamic law has reduced the penalty by asking the husband to give a slave
his freedom. If that is not possible, he has to fast two months consecutively. If that is
still not possible, he has to feed sixty poor people. The Prophet applied the new law
even when the conduct took place prior to the revelation of the law.120
In the scope of the non-retroactivity principle, and in light of the Islamic rule
“Islam cuts off what preceded it”, the Prophet Muh}ammad, after the conquest of Mecca,
gave amnesty to those people who persecuted him. He also did not question Abū Sufyān
Ibn H{arb and his wife on their previous bad conduct.121 Furthermore, the Holy Qur’ān
gives several examples in which this principle was applied. For instance, Allāh forbids
al-ribā (usury) in financial transactions, but He did not punish those who had practised
usury before the revelation of this law. Allāh says:
“Allāh hath permitted trade and forbidden usury .These who after receiving
direction from their lord desist, shall be pardoned for the past.”122
5. CONCLUDING REMARKS
To this end, one may conclude that Islamic humanitarian law, under the doctrine of
jihād, has affirmed and protected all personal individual rights, for all people, without
distinction as to race, sex, language or religion. Islamic law which rests on two universal
human principles, al-‘adl (justice) and al-ih}sān (kindness), has recognized equality and
justice as two sides of the same coin, and concluded that all rights become of little value
when any of those who have a right cannot secure a remedy.123 Accordingly, it must be
118 c
Alī Ibn Muh}ammad Ibn H{abīb al-Māwardi>, al-Ah}kām al-Sult}āniyya wal-Wilāyāt al-Dīniyya (Cairo:
Dār al-Fikr lil-T{ibāca wal-Nashr, 1983) 249 [hereinafter al-Māwardī].
119
Abū cAbd Allāh Muh}ammad Ibn Ismacīl al-Bukhārī, S{ah}īh} al-Bukhārī, 8 vols. (Beirut: Dār al-Fikr
lil-T{ibāca wal-Nashr, 1981) No. 7385 [hereinafter al-Bukhārī]; Abū cAbd Allāh Muh}ammad al-Qurt}ubī,
al-Jāmic li-Ah}kām al-Qur’ān, 20 vols. (Beirut: Dār al-Kutub al-cIlmiyya, 1988) 17: 269-273 [hereinafter
al- Qurt}ubī]; Abū Dāwūd, supra note 24, at No. 2214 ; Ah}mad Ibn H{anbal al-Shaybānī, al-Musnad, 6
vols. (Beirut: al-Maktab al-Islāmī, 1969) 6:410 [hereinafter Ibn H{anbal]; Muh}ammad Ibn cIsā al-
Tirmidhī, Sunan al-Tirmidhī, 5 vols. (Beirut: Dār al Fikr, 1983) No. 3299 [hereinafter al-Tirmidhī]; The
Holy Qur’ān, LVIII: 1-3; Tafsīr Ibn Kathīr, supra note 2, at 68-72.
120 c
Abd al-Qādir cAwda, supra note 98, at 269.
121
Muh}ammad Abū Zahra, supra note 115, at 323.
122
The Holy Qur’ān, II: 275.
123
Lateef Adegbite, “Human Rights in Islamic Law,” (1977) 7 The Journal of Islamic and Comparative
Law 9. Furthermore, human rights in Islamic international law are based on the premise that these rights are
considered necessary (d}arūrāt) and essential to the preservation of world public order. These rights include:
respect of religious beliefs, customs and traditions (h}ifz} al-dīn); right to life, and prohibition of torture and
190
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emphasized that all personal individual rights are not realized through the Islamic
principle of equality alone, but are also accompanied by a system of legal and
administrative rules, which are designed to ensure their application and implied that any
violation of these rights should be brought before a judge.124
inhuman treatment (h}ifz} al-nafs); children’s right to life, custody and education (h}ifz} al-nasl); the right to
individual ownership and private property (h}ifz} al-māl); and the right to freedom of thought, opinion and
expression (h}ifz} al-caql). These rights are protected by (al-h}udūd), which are penalties established by Allāh
and left a judge no discretionary authority. See Abū H{āmid al-Ghazālī, Shifā’ al-Ghalīl fī Bayān al-Shabah
wal-Mukhīl wa Masālik al-Taclīl, Edited by H}amad al-Kubaisī (Baghdād: Mat}bacat al-Irshād, 1971) 160;
Abū Ish}āq al-Shāt}ibī, al-Muwāfaqāt fī Usūl al- Sharīca, ed. Muh}ammad cAbdullāh Darrāz, 4 vols. (Beirut:
Dār al-Macrifa, n.d.) 1: 38; Abū al-Macālī al-Juwaynī, al-Burhān fī Usūl al-Fiqh, ed. cAbdul cAz}īm al-Dīb,
2 vols. (al-Qāhira: Dār al-Ans}ār, 1400 A.H.) 2: 1151; Ah}mad al-Raysūnī, Naz}ariyyat al-Maqās}id ‘ind al-
Imām al-Shāt}ibī (Beirut: al-Mu’ssasa al-Jāmiciyya lil-Dirāsāt wal-Nashr wal-Tawzī‘, 1992) 139-141;
Hammādī al-cUbaydī, al-Shāt}ibī wa Maqās}id al-Sharīca (Tripoli, Libya: Manshūrāt Kulliyyat al-Dacwa al-
Islāmiyya, 1992) 123-129.
124
Abdur Rahman O. Olayiwola, “Human Rights in Islam,” (1992) 36:4 The Islamic Quarterly 272.
91
HILMI M. ZAWATI-CIVILIANS’ FUNDAMENTAL RIGHTS UNDER ISLAMIC AND PUBLIC INTERNATIONAL LAW
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Jus in Bello: Civilians’ Fundamental Rights under

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2. RIGHT TO LIFE, THE PROHIBITION OF TORTURE AND INHUMAN

guaranteed right, and it is prohibited to breach it without a sharīca-prescribed reason.38

3. RIGHT TO RESPECT OF RELIGIOUS BELIEFS, CUSTOMS AND

needs to be translated into actions.51

However, in his book on autonomy and self-determination, Hurst Hannum

al-cArabī, 1983), 10:530 [hereinafter al-Mughnī].

The principle of punishment according to individual responsibility was also

In this respect, the Prophet Muh}ammad confirmed in his farewell-pilgrimage

4.2 The Principle of Proportional Crime and Punishment

As noted earlier, Muslims and non-Muslims (dhimmis and musta’mins) receive

4.3 The Right to Protection from Retroactive Law

This Article seems to be echoed in Article 15 of the International Covenant on

II. Secondary Sources

Bennoune, Karima. “As-Salamu cAlaykum?” Humanitarian Law in Islamic

Islamic Dilema: The Political Role of Islamist Movements in the Contemporary

Mayer, Ann Elizabeth. “Universal versus Islamic Human Rights: A Clash of

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