By Corri Zoli

(Re-published from AJIL Unbound, March 17, 2016) This short essay focuses on the involvement of Muslim-majority state leadership in the pre-World War II development of international humanitarian law (IHL), including their appeals to Islamic norms.[1]  This historical snapshot reveals how national leaders joined debates during conferences leading up to the revised 1949 Geneva Conventions, the heart of modern IHL. Such accounts complicate our assumptions about the cultural and national composition of public international law as “Western,” and shed light on global hierarchies involving modern Arab and Muslim states and their investment in such norms. The essay argues by example that, ultimately, in Third World Approaches to International Law (TWAIL)[2] more emphasis is needed on history, traditions of governance, and states’ distinctive responses to macrostructural pressures—rather than on static notions of identity, resistant narratives, and presumed shared ideologies. TWAIL seeks alternatives to international law’s presumed oppressive role in Western-non-Western power dynamics, and new ideas and opportunities for a “third-world” legal scholarship beyond current global underdevelopment dynamics.[3]  Yet too rarely have scholars probed deeply into the history of third-world[4] participation and leadership in developing international law norms, particularly at the state level or from the semi-periphery.[5]  In fact, non-Western leaders have played a role in the pre-World War II period of lawmaking and have used existing cultural and legal traditions to do so. Accounting for this history makes for a more accurate, inclusive, and culturally-grounded approach to the law made by and for states. More pointedly, it reaffirms that cornerstone premise of sovereignty—in all of its diverse national expressions—an idea challenged today by global political-economic forces.[6]

“[T]oo rarely have scholars probed deeply into the history of third-world participation and leadership in developing international law norms.”

In comparative international law, legal history, and Islamic studies, it is fairly well established that Islamic norms historically governing use of force are broadly compatible with principles of the international law of war. BeyondQuranic verses, the classic example is Abu Bakr’s instructions to Arab armies invading Syria on the eve of the Riddawars (632/3 CE) in which the prophet Muhammad’s first successor sought to defeat and reintegrate rebellious Arab tribes into the newly-formed Islamic empire or caliphate.[7]  In laying out some of the first humanitarian norms—prohibitions against “treachery,” pillage, the killing of children, women, the elderly—Abu Bakr helped legitimize a young politico-religious community in its own early relations of rule, and defined lasting standards for conduct in warfare.[8]  Many scholars see an early Islamic footprint in the very idea of international law, its emphasis on treaties, and IHL.[9]

If the compatibility thesis is well-known,[10] less explored are Islamic contributions to the shared history of public international law, modern Muslim leadership in IHL,[11] and the too-rarely-treated role of Muslim states in the early Geneva and Hague diplomatic conferences. In fact, when we think of the 1949 Geneva conference, convened to update existing Hague and Geneva law, rarely do attendees from Afghanistan, Egypt, Iran, Lebanon, Pakistan, Syria, Turkey, and Albania spring to mind. Not only did delegates from these Muslim-majority states take part in deliberations, they signed the resulting agreements known as the revised Geneva Conventions of Aug. 12, 1949, including the unprecedented Fourth Convention covering civilians in war.[12]

It is worth noticing several features of this contribution. Firstly, and empirically, one sees an increase over time (see below) in Muslim state conference participation, a trend that continues until the 1960s, after which many states—partly through the Organization of Islamic Cooperation—begin to develop culturally-specific interpretations of international law with complex motives and results.

Secondly, an emphasis is placed on “humanity” as a collective project by Conference participants in keeping with the IHL framework. Less noted, though important—in light of TWAIL critiques of empire—is how often such humanitarian priorities emerge from an expressly imperial framework and its philosophy of largesse, notably by Persian and Turkish representatives (both coming from empires).

Two examples bundle these points: Note the following declaration by General Mirza Khan, the first delegate of Persia to the 1899 Hague Peace Conference:

The Russian Government having done Persia the honor of inviting it . . . and His Imperial Majesty the Shah, my august sovereign, having deigned to choose me to undertake this honorable mission. . . . All these marks of interest impose upon me the duty of adding also on my side . . . support of the great cause which is that of all humanity and with which we have here to deal.[13]

To refute critics who detect arrogance in the Emperor of Russia’s initiative, Khan relays this story:

“Permit me, gentlemen, to cite to you a proof of [Emperor Nicholas II’s] . . . elevated sentiments. In the first year after my appointment . . . [for] Persia at the Russian Court, I was accompanying on my horse the Emperor who was going from the Winter Palace to the Field of Mars . . . to be crowned. As I was somewhat ill that day, I fainted and slipped from my horse. The Emperor, seeing this, stopped his brilliant cortege and did not continue . . . until I had been put in a carriage. . . . Several times [he] sent his aides-de-camp to learn of my condition. Our celebrated poet Saadi has . . . describe[ed] pride: ‘Its glance is like that of a king who causes his army to pass before him.’ The young Emperor, an autocrat of 26 years of age, who, for the first time, after his accession to the throne, was passing in review a brilliant army of 30,000 men, did not, in that moment of legitimate pride, forget an accident . . . to a stranger. . . . He who acts thus can not be selfish, and . . . the initiative that he has taken for this Conference, can only proceed from a . . . noble heart. Gentlemen, let us fulfil our duty before the civilized world, and not discourage Their Majesties.” [14][15]

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[1] See James Cockayne, Islam and International Humanitarian Law, 84 Int’l Rev. Red Cross 597 (2002); Mohamed Badar, Ius in Bello under Islamic International Law, 13 Int’l Crim L. Rev. 593 (2013); Ahmed Mohsen Al-Dawoody, The Islamic Law of War (2011).

[2] James Thuo Gathii, TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography, 3 Trade, L. & Dev. 26 (2011); Karin Mickelson, Taking Stock of TWAIL Histories, 10 Int’l Community L. Rev. 355 (2008).

[3] Mutua writes: “The regime of international law is illegitimate. It is a predatory system that legitimizes, reproduces and sustains the plunder and subordination of the Third World by the West . . . Historically, the Third World has generally viewed international law as a regime and discourse of domination and subordination, not resistance and liberation. This broad dialectic of opposition to international law is defined and referred to here as Third World Approaches to International Law (TWAIL).” See Makau Mutua, What Is TWAIL?, 94 Proc. Ann. Mtg. ASIL 31 (2000); Madhav Khosla, TWAIL Discourse: The Emergence of a New Phase, 9 Int’l Community L. Rev. 291 (2007) (arguing for three phases of concerns: colonialist, hegemonic uses of international law by powerful nations; international legal institutions embedded in North-South politics of globalization; and extreme post-9/11 violations of norms).

[4] For social scientific debate of “Third World,” see Carl E. Pletsch, The Three Worlds, or the Division of Social Scientific Labor, circa 1950–1975, 23 Comp. Stud. Soc. & Hist. 565 (1981); Vicky Randall, Using and Abusing the Concept of the Third World, 25 Third World Q. 41 (2004).

[5] But see, Muhammad Munir, Islamic International Law, 20 Hamdard Islamicus 37 (2012); Antony Anghie,Imperialism, Sovereignty & the Making of International Law (2005); Surya Prakash Sinya, Legal Polycentricity & International Law (1996); Arnulf Becker Lorca, Mestizo International Law (2014).

[6] See UN Charter art. 2(1), “The Organization is based on the principle of the sovereign equality of all its Members.”

[7] See Fred M. Donner, Muhammad & the Believers (2010); and Fred M. Donner, Early Islamic Conquests (1986). For Quranic verses echoing related norms, see Yusuf Ali, The Holy Qur’an 47.4; 2.205; 48.25 (1934)—but see id. at 59.5 and 47.4.

[8] Abu Bakr’s instructions include: “Oh army, stop and I will order you [to do] ten things; learn them from me by heart. You shall not engage in treachery; you shall not act unfaithfully; you shall not engage in deception; you shall not indulge in mutilation; you shall kill neither a young child nor an old man nor a woman; you shall not fell palm trees.”See The History of al-Tabari Vol.10: The Conquest of Arabia (Fred M. Donner trans., 1983); Rudolph Peters, Islam & Colonialism 23 (1979) (noting other schools using the Prophet and Quran i.e. 59.5 permitted these acts, justified them, and refuted Abu Bakr’s prohibitions, as the “deeds of the companions can never abrogate deeds of the Prophet”).

[9] For non-Western contributions in Africa studies, see Emmanuel G. Bello, Shared Legal Concepts between African Customary Norms & International Conventions on Humanitarian Law, 23 Mil. L. & L. War Rev. 285 (1984). But see, Modirzadeh on incompatibilities in Islam and IHRL, Naz K. Modirzadeh Taking Islamic Law Seriously: INGOs and the Battle for Muslim Hearts & Minds, 19 Harv. Hum. Rts. J. 191 (2006).

[10] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (2005). See Cockayne, supra note 1,;Al-Dawoody, supra note 1.

[11] See Emilia Justyna Powell, Islamic Law States and Peaceful Resolution of Territorial Disputes, 69 Int’l Org. 777 (2015).

[12] For Conference sources cited, see James Brown Scott, The Proceedings of the Hague Peace Conferences, 1899(1920) [hereinafter Scott 1920]; A. Pearce Higgins, The Hague Peace Conferences Concerning the Laws & Usages of War (1909); James Brown Scott, The Geneva Convention of 1906 for the Amelioration of the Condition of the Wounded in Armies in the. Field (1916) [hereinafter Scott 1916]; 1-3 Final Record of the Diplomatic Conference, Geneva, Apr. 1-12 Aug. 1949 (1968).

[13] Scott 1920, supra note 12, at 305 (Hague, June 23, 1899).

[14] Id. at 306 (Hague, Jun. 23).

[15] The work of Saadi Shirazi (d. 1291) adorns the UN entrance. See Saadi Shirazi, Rose Garden, The Manners of Kings (1258): “All human beings are members of one frame; Since all, at first, from the same essence came. When time afflicts a limb with pain; The other limbs at rest cannot remain. If thou feel not for other’s misery, A human being is no name for thee.”

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