Islamic Law and the Law of Armed Conflict: The Conflict in Pakistan PDF
Preview Islamic Law and the Law of Armed Conflict: The Conflict in Pakistan
fl Islamic Law and the Law of Armed Con ict Islamic Law and the Law of Armed Conflict: The Armed Conflict in Pakistan demonstrates how international law can be applied in Muslim states in a way that is compatible with Islamic law. Within this broader framework of com- patible application, Niaz A. Shah argues that the Islamic law of qital (i.e. armed conflict) and the law of armed conflict are compatible with each other and that the former can complement the latter at national and regional levels. Shah identifies grey areas in the Islamic law of qital and argues for their expansion and clarification. Shah also calls for new rules to be developed to cover what he calls the blind spots in the Islamic law of qital. He shows how Islamic law and the law of armed conflict could contribute to each other in certain areas, such as the law of occupation, air and naval warfare and the use of modern weaponry. Such a contribution is prohibited neither by Islamic law nor by international law. Shah applies the Islamic law of qital and the law of armed conflict to a live armed conflict inPakistanand arguesthat allparties – the Taliban,thesecurity forces of Pakistan and the American CIA – have violated one or more of the applicable laws. He maintains that whilst militancy is a genuine problem, fighting militants does not allow or condone violation of the law. Islamic Law and the Law of Armed Conflict will be of interest to students and scholars of international law, Islamic law, international relations, security studies and south-east Asian studies. Niaz A. Shah is a lecturer in law at the University of Hull, United Kingdom. Routledge Research in the Law of Armed Conflicts Available titles in this series include: Islamic Law and the Law of Armed Conflict The armed conflict in Pakistan Niaz A. Shah Forthcoming titles in this series include: Cluster Munitions and International Law Disarmament with a human face? Alexander Breitegger Islamic Law and the Law of fl Armed Con ict fl The armed con ict in Pakistan Niaz A. Shah First published 2011 by Routledge 2 Park Square, Milton Park, Abingdon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Avenue, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2011. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk. © 2011 Niaz A. Shah The right of Niaz A. Shah to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and PatentsAct1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised inanyformorbyanyelectronic,mechanical,orothermeans,nowknownor hereafter invented, including photocopying and recording, or in any information storageorretrievalsystem,withoutpermissioninwritingfromthepublishers. British Library Cataloguing in Publication Data AcataloguerecordforthisbookisavailablefromtheBritishLibrary LibraryofCongressCataloguinginPublicationData Shah, Niaz A. Islamic law and the law of armed conflict : the con flict in Pakistan / Niaz A. Shah. p.cm. “SimultaneouslypublishedintheUSAandCanada.” Includesbibliographicalreferencesandindex. 1. War(Islamiclaw)2. Jihad.3. War(Internationallaw)4. War–Religious aspects–Islam.5. Humanrights–Religiousaspects–Islam.6. Taliban.7. War crimes–Pakistan. I.Title. KBP2416.S452011 340.509–dc22 2010034607 ISBN 0-203-83077-6 Master e-book ISBN ISBN13:978-0-415-56396-3(hbk) ISBN13:978-0-203-83077-2(ebk) With love to Fatima Contents Acknowledgements viii 1 Introduction 1 PARTI The Islamic law of qital and the law of armed conflict 29 2 The Islamic law of qital 31 3 The Islamic law of qital among Muslims 60 4 The Islamic law of qital and the law of armed conflict 71 PARTII The armed conflict in Pakistan 91 5 Fighting the Taliban 93 6 War crimes in the armed conflict in Pakistan 118 PARTIII Concluding remarks 145 7 Concluding remarks 147 Select bibliography 150 Index 153 Acknowledgements The help, advice and good wishes of several people need to be acknowledged as I was very fortunate to have so many people around who were and are willing to assist and advise. Several academic colleagues were always available to comment on draft chapters and discuss ideas before they were developed to be put on paper. Special thanks in this regard go to Tony Ward and Owen McEldowney. Neither of them is an expert in Islamic law or international law but they were always willing to listen or to read and comment on draft chapters. It was always beneficial to hear to what non-experts had to say. Tony’s ability to spot weaknesses in the draft was very helpful. Robert Barnidge and Tony Rogers were always willing to provide expert comments. Lindsay Moir’s comments on the proposal of the monograph must be acknowledged. I was lucky to have Mel Dubnick, Tom Hadden and Mike Feintuck to hand for all kinds of general guidance and comments whenever needed. The continued encouragement to write of M. Shujaullah Baba (baba means ‘old man’ and is used for father or grandfather but here it is used as a token of respect) deserves to be thanked. The patience and constant check on the progress of the manuscript by Khanam Virjee, Editorial Assistant, is much appreciated. I am also grateful to Katherine Carpenter, Commissioning Editor, for taking an interest in the project from the very beginning. One person who endured my long working days and weekends is my wife, Shafqat Shah. I always promised her that this would be my last monograph, which cheered her up momentarily, but we both knew that it was a false promiseandlaughedatitlateron.Ido,however,intendtogetthebalanceright. Thebestthingthathappenedtousduringthecourseofwritingthemonograph was the birth of Fatima N. Shah. She did not stop the usual crying when I was writing, but sometimes she did pause when I whispered in her ear, ‘Baba is writing’, and I thank her for the pause. The support and best wishes of my parents and brothers and sisters are always a great source of strength and happiness. 1 Introduction The purpose of our research for the past few years has been the application of Islamic law and international law in Muslim states. We have observed two phenomena: a scholarly debate on the relationship of Islamic law and inter- national law and the reality of Islamic law in Muslim states and international law as they exist and operate today. Thescholarlydebateispolarised:Islamiclawiscriticisedforitsincompatibility with international law, especially human rights law, and international law is criticised for its secular and Western origin. This criticism of both legal systems has led to the creation of exclusionary and triumphalistic theories. The followers of exclusionary theory can be put into two categories: Muslim religious scholars and secular scholars. Muslim religious scholars are opposed to the application of international law in Muslim states. They want the application of laws based or derived from divine wisdom contained in the two primary sources of Islamic law, i.e. the Koran and the Sunnah (the model behaviour of the Prophet Muhammad). For them, divine wisdom is the ultimate measure for everything, and any nonconforming rule must give in to Islamic law. The secular scholars, who are mainly Western, are against religious law and want to enact and apply laws based on and derived from human intellect through debate and agreement. They are opposed to any rule that is not derived from this source through this process. For them man is the measure of everything. Both categories of scholar want to exclude the application of the other. This religious and secular dichotomy has led to the creation of triumphalistic theory. The thrust of the triumphalistic theory is which legal principle, Islamic or international, should prevail in case of a conflict. The secularists want international law to prevail whereas Muslim religious scholars want Islamic law to prevail over international law. In some cases, both groups of scholars stick to their arguments without any clear logic and in a fashion which could be rightly described as arrogant. Hence we face two fundamentalist camps: Muslim fundamentalists and secu- lar fundamentalists. The legal reality in Muslim states today is that most Muslim states want the application of Islamic law in Muslim states. The constitutions of most Muslim states have given Islam the status of official religion and require
Description:The list of books you might like
