Identifying the norms underlying diverse traditions of Islamic law, especially as these apply to Muslim communities experiencing conflict or transition from conflict, is a long overdue endeavour. As one of our co-authors, M. Cherif Bassiouni has written, contemporary Islamic legal thinking in the vital area of post-conflict justice ‘has been impaired by the lack of development in the techniques and application of… the goals and policy of the shari’a.1 Such a needed contribution would benefit citizens in Arab and Muslim-majority nations trying to build locally intelligible pathways out of conflict. It would also help humanitarian and human rights practitioners working in conflict zones toward similar ends and aid international lawyers trying to bridge the gap between international law and Islamic law paradigms in conflict settings.
Yet, perhaps a far more transformative benefit of excavating shari’a norms lies in their ability to provide the intellectual basis to counter contemporary extremist and instrumentalist uses of Islamic norms to justify political violence toward innocents across the Middle East, Central and South Asian, African regions, and beyond. The largely exegetical task of identifying and clarifying such norms is, however, beyond the slim scope of this essay—and beyond the work of any single individual author. Rather, the purpose of this essay is to explore why—using interdisciplinary social science and comparative international legal analyses—such Islamic legal norms are not often invoked as a resource for restraint and guidance in conflict and post-conflict settings. Not only do the authors explore this puzzle, we make the argument for strengthening commensurate norms governing conflict in both Islamic and International Humanitarian Law traditions.
To do this, our approach situates religious and natural law discussions in contemporary problems of security policy and governance.2 That makes this collaborative work cross-cultural, reliant on legal pluralism, and also interdisciplinary, in ways reflective of ‘policy-relevant scholarship’ in the international law and security arenas.3 It is worth recalling that such border-crossing and translational work has shaped breakthrough moments in intellectual history: the late medieval recovery of Aristotle in the Latin West, for instance, which went on to spark modern philosophy, including the philosophy of law, occurred by virtue of Averroës’ Aristotelean commentaries, which made possible Aquinas’s own influential conception of natural law that came to anchor the universal idea of the rule of law captured in legitimate governance.4
As the ‘religious’5 or ‘sacred’6 law of Islam, shari’a is often defined as ‘an all-embracing body of religious duties, the totality of Allah’s commands that regulate the life of every Muslim in all its aspects’.7 This body of norms places ‘on an equal footing ordinances regarding worship and ritual, as well as political and (in the narrow sense) legal rules’.8 In the contemporary post-9/11 moment, it is critical to recognise two assumptions that have—for better or worse—framed Islamic legal scholarship. First, on the negative side, scholars have too often approached Islamic law within theological terms, even conflating law with theology, despite the fact that discourses of religion and law function in profoundly different ways in society. Law—no matter how important its inspiration—amounts to a system of rules enforced through social and political mechanisms and institutions to govern human, worldly behaviour.
Second, on the positive side, scholars have routinely noted that shari’a does not comprise the whole of Islamic law—far from it. As John Esposito explains, Islamic law refers to both shari’a and fiqh (Islamic jurisprudence), as well as other doctrinal sources and opinion (such as hadith), whereas shari’a is God’s ‘divine law’ contained in the Qur’an and Sunna. Fiqh refers to earthly efforts by jurists to interpret shari’a.9 Islamic law is grounded in the shari’a and derived from it through interpretation by jurists, and hence, shari’a is a normative source of Islamic law, not its entire body.10 To make a comparison, if public international law generally is comprised of agreements between states, customary rules considered by states to be legally binding (i.e. opinio juris), case law, and general principles, shari’a amounts to the “general principles” of Islamic law—the legal precepts and touchstones that orient different schools of thought, juristic opinion, and state-specific implementations of Islamic norms. While there is no question that religious ideals frame such precepts—the divine, the afterlife, moral standards of behaviour, the good life—these questions by no means exhaust the legal content of shari’a principles, which at bottom are resolutely practical.
We, therefore, use Islamic law to refer to all elements of the shari’a and other manifestations of fiqh, and we reserve shari’a itself for the core, transcendental principles evident in the corpus and sources of Islamic law. Notably, Islamic law has different internal legal regimes and schools that cover most aspects of human conduct, both collective and individual, and it includes many legal techniques for prevention and punishment, victim remedies, and reconciliation.11 What one might call the policy dimensions of shari’a reflect core principles and historical priorities evident in Islamic law applied (however badly) in practice. These include the pursuit and preservation of public order in a regulated society; the protection of the rights and dignity of individuals, albeit with an eye toward collective order, continuity, and stability; and specific prohibitions and appropriate penalties, including distinctive modalities of victim compensation and individual and social reconciliation.12 The Islamic legal system is both normatively comprehensive and, yet, flexible in adapting to different contexts and challenges,13 as shari’a principles orient the legal system in changing times and radically different contexts.
Yet, such norms have also routinely been ignored or distorted by governments, religious leaders, and conflict actors, many of whom claim to be acting precisely in accordance with Islamic law.14 The propensity to confuse Islamic norms and Islamist extremist practices, notably in conflict settings or areas with unstable or low governance, is evident in recent statements made by terrorist organisations, detailed in extremist magazines such as Dabiq or Rumiyah. Such confusion is also surprisingly widespread—among local religious authorities, nonviolent political groups, large swaths of Arab and Muslim publics, even scholars and well-meaning officials in democracies. Recent Pew public opinion polls, for instance, indicate broad-scale acceptance by many of propositions generally untenable in shari’a normative frameworks.15 At its core, such confusion depends upon a lack of understanding of well-established shari’a norms in the context of specific issue areas (i.e., pillage in warfare or rape). It also stems from applying over-inclusive elements of Islamic law to these issues, including any and all historical sources, local authorities’ opinions, uninformed decisions, or politically-motivated interpretations (a classic example is blasphemy laws).
Confusion and lack of rigor is not only to blame for this conundrum. Stakeholders, religious authorities, political leaders, even Muslim scholars have been slow to clarify these matters by identifying exactly what counts as Islamist extremism. While many individuals, organisations, and governments have begun to systematically address these oversights in light of recent atrocities committed by such groups as Al-Qaeda, Islamic State in Iraq and Syria (ISIS), Boko Haram, and al-Shahbab, for many past decades silenced has replaced urgently needed discussion. Members of the public are not only left in confusion about how Islamic traditions are different from extremist distortions, but also what they might do about rising extremisms among diverse Muslim communities, including those that claim the Islamic label. Thus, beyond making the case for the role of shari’a principles for addressing new conflict trends and post-conflict settings, a second vital goal of this essay is to sensitise broad audiences to the capacity of Islamic law to prohibit many types of violent conduct and offer internal measures for conflict prevention, punishment, and reconciliation.16
We begin the discussion of Islamic legal contributions to post-conflict challenges with these premises: first, that Islamic conflict norms apply in peacetime, conflict, and post-conflict settings, functioning to both prevent human harm and ameliorate conflict;17 and second, that Islamic law is broadly compatible in many ways with core principles in international law and its respective regimes, including international humanitarian law (IHL), but also international human rights law, which is beyond the scope of this essay. From this vantage point, what becomes clear is how contemporary polarised discussions of the role of Islamic law in current conflicts is inadequate: it is time to move beyond the Islam/not Islam dichotomy to explore what Islamic legal traditions say about conflict and transition, and why such restraints are too rarely implemented by Muslim-majority governments.
I. Post-Conflict Justice: the Role of Islamic Law
Few observers of international affairs could fail to notice the intensity of conflict in and across the Middle East, Central and South Asia, and North and East Africa today, including in Syria, Nigeria, Libya, Iraq, Afghanistan, Pakistan, Sudan, Somalia, Kenya, Mali, Yemen, Gaza, among other places. Likewise, few could miss the resulting toll of sectarian violence on civilian victims – a toll that includes lasting, disorienting pain, suffering, and insecurity. Too little rigorous discussion has, in turn, examined the prevalent use of force by Muslim conflict actors – both state and non-state actors alike – against other Muslim communities and its deleterious effects in fuelling cycles of recurring violence.18
To complicate these matters, some of the worst excesses in the use of force are regularly justified by appeal to Islamic traditions, including by such groups as Boko Haram, Al Shabaab, ISIS, Hamas, Al-Nusra, Al Qaeda (in its many branches), among thousands more.19 Such irregular uses of force that break all known bounds of lawful hostilities constitute one of the main threats to global security. Such unaccountable behaviour has contributed to worldwide increases in terrorist incidents, particularly for specific Muslim-majority states.20
In the end, witnesses to such atrocities and victims of such violence often pose this troubling and too often silenced question: ‘can this be Islam?’. In testimonies by such groups engaged in violence or in talking directly with perpetrators, we too have wondered: ‘why are you doing this?’, especially as such practices directly contradict longstanding Islamic legal principles. Invariably, the response is that ‘the end justifies the means’.21 Implicitly, what one sees in this rebuttal is a response situated in a discourse of ‘resistance’ to foreign or domestic oppression or to policies by other states. It is not, then, a rejection of Islamic norms per se but a chain of justifications. Conflict behaviours are excused and even defended as necessary by agents of such violence and their often political supporters in light of these commonly mentioned mitigating factors: the fundamental asymmetry of many conflicts, the strength of western actors, the double standards of U.S. foreign policy etc.22 Even well-meaning advocates of conflict resolution are seduced by such fundamentally flawed and self-defeating logics of ‘resistance’.23 Mobilising the charge of ‘Islamophobia’ against those who ask the question, ‘is this Islam?’, is likewise self-defeating and distorting, most obviously, because it forgoes the opportunity to explain the specific differences between shari’a principles and Islamist rationales for indiscriminate violence.
From a long gaze, progress has actually been made on post-conflict justice mechanisms across the diverse Arab state system and the broad Muslim world, though it is often hard to see.24 Less than fifty years ago, one could not open a dialogue about conflict behaviour or post-conflict transition with individuals engaged in Islamist militancy. However, recently, reconciliation and transition laws and initiatives have been passed in Morocco, Tunisia, and Egypt, in which governments are well aware of militant tactics and rationales; current efforts are ongoing in Afghanistan, Iraq, and Libya to develop rule of law resources; and specific measures are underway to create an international tribunal for Syria, among other efforts.25 No doubt, all of these initiatives have limits and flaws. But in the span of only several decades, many polities have moved from a position of essentially zero conflict and reconciliation mechanisms to increasing discussion and use of these tools to redress complex problems of transition, including broad-scale crimes and even atrocities.
Nevertheless, the number of recent armed conflicts in Muslim-majority states has created countless victims and deployed warfare practices that violate both international and Islamic law irrespective of whether one defines such incidents as internal, civil wars, domestic violence, international armed conflict, sectarian violence, insurgencies, acts of isolated violence, or transnational terrorism. It is worth repeating, as interdisciplinary scholars have long pointed out, that these normative regimes, international and Islamic law, are commensurate on many core principles, from the principle of distinction, which prohibits targeting non-combatants, to the general protection of the principle of humanity in warfare.26 Muslim-majority governments advocating for these respective regimes also reveal a history of collaboration with non-Muslim states during international peace conferences.27
But few scholars within the Islamic tradition have asked some of the following ‘first order’ questions, central to this inquiry: where do the resources (the inspiration, concepts, political will, institutional capacity, and leadership) come from for mitigating conflict and, in cases of war and political crises, for advancing post-conflict justice, reconciliation, and successful transition? Are these tools, both practical and analytical, confined to specific cultures and histories, advanced best by states and international and nongovernmental organizations, or merely a product of good timing and luck? What happens when various norms involved in reconciliation clash? How are certain constituencies—ethnic and religious minorities, groups excluded by virtue of gender and sexuality, tribal and local power affiliations, the vanquished in battles—marginalised or privileged in post-conflict outcomes in ways that pave the way for future stability or instability? How might we advance the limited progress already made in reconciliation measures across diverse Muslim communities (and beyond) in ways that further anchor conflict reduction and post-conflict justice norms in institutional supports and in increased awareness?
At its core, the essay explores the underappreciated role that Islamic norms might play in post-conflict transition processes. We are interested both in how Islamic law is a critical, albeit underutilized, resource in reducing harm in conflict settings and in providing useful norms, concepts, and guidelines for states, conflict actors, and third party mediators in post-conflict reconciliation and transition. Within the corpus of Islamic law, despite the limits of its modern interpretation and application, there are numerous core principles, some of which we describe herein, designed to reduce conflict and human harm, pave the way for justice and reconciliation, and rebut abuses of power in the context of warfare and civil strife.
At the same time, however, we are aware that Islamic legal norms are being repurposed today for disparate political uses, including exacerbating violence. Extremists are innovative and proactive in seizing the strategic initiative and in distorting the content of shari’a for battlefield use.28 In these contexts, Islamic norms are bracketed or abused by non-state, as well as state, actors under the ‘ends justify the means’ rationale and to enable political repression.29 The most recent example of this involves ISIS’s declaration of a new caliphate in erstwhile Iraq, Syria, Jordan, Lebanon, and parts of Turkey, Palestine, and Cyprus,30 as well as the group’s now spectacular use of atrocities to pacify and ‘terrify’ local populations.31 Such conduct is steeped in an appeal to ‘purifying Islam’ through violence32 and includes ethnic and religious cleansing of minorities, many of whom predate the arrival of Arabs and Islam in the region. Even while most imams and the ulema in general, including populist Islamist clerics like Yusuf al-Qaradawi, whose audience numbers in the millions, have declared such practices in violation of shari’a, ISIS supporters number in the tens of thousands. From Europe alone, over 7,000 ‘foreign terrorist fighters’ have joined their efforts, which thousands of social media supporters cheer on.33 Critics point out that ultraconservative clerics’ disavowal of jihadists is belied by the fact that they share many values, including the dream of the Islamic caliphate. Transnational financial patronage reveals a similar ironic message, lip-service condemnation while offering fungible financial support, though ISIS methods are shifting from wealthy donors to self-financing through criminal plunder.34 Largely categorised as ‘political Islam’ or Islamism, such efforts are finally being subject to critical, historical, scholarly analyses and strong condemnation by coalitions of regional governments.35
What has not yet been addressed in sufficient detail is how Islamic law is exceedingly rich as a normative resource in both spelling out the shari’a violations that such jihadist behaviour entails and by offering principles for restraining conflict behaviour, reducing harm to vulnerable populations, and in specifying the terms for post-conflict justice and reconciliation. This core tension, between rule of law possibilities and regressive abuses of the law for diverse Islamist and jihadist agendas, frames our analyses. Accordingly, we are mindful of the importance of strengthening research examining Islamic legal contributions to conflict and post-conflict transition, while critiquing its contrary use by Islamist organizations.
Moving forward in such an endeavour invariably requires acknowledging divergent voices and perspectives, including those practitioners working ‘on the ground’ in conflict settings where Islamic norms are invoked. After more than a decade and a half since 11 September 2001 attacks, a robust, interdisciplinary discussion of Islam, Islamic law, and political Islam is occurring in the western academy among experts from Islamic studies, international law, history, sociology, policy, and security communities. Yet, a significant challenge in this work, which must be mentioned, has been precisely in developing cross-cultural, cross-disciplinary rapports across national boundaries in ways that do not shy away from asking the hard questions, including why many non-western based scholars have been slow to address these topics in their own scholarship.36 Those with long experience in Muslim societies know the barriers to such research and dialogue are many: lack of support for such work, censorship and rigid or homogenous approaches to studying Islamic law, even profound misunderstandings circulated by authorities in public spaces. Anecdotally, one co-author who has been frequenting mosques in Egypt for over 30 years has noticed a sizeable portion of imams routinely referring to practitioners of the Jewish and Christian faiths as ‘kaffirs’, a prejudicial distinction by an authority that both contradicts Islamic norms and dehumanizes and hierarchizes others by virtue of their belief systems.
But perhaps the most serious obstacle to building a scholarly rapport on post-conflict traditions within Islamic law involving non-western partners is the dearth of social and cultural institutional contexts – in education, civil society, public media, political and policy dialogue – in which to foster open, pluralistic dialogue.37 Put another way, the lack of attention to Islamic norms as a resource in conflict and post-conflict resolution reflects deeper human development deficits across much of the Arab and Muslim world today: in the public education systems and credentialing institutions that produce imams; in the role of governance to promote inclusivity, tolerance, power sharing, stability, and public administrative performance; in media programs that advocate political discrimination, excuse violence, or pathologize minorities; in local governing regimes in which tribal opinions substitute for classical Islamic norms; in social and political movements that use ‘resistance’ to justify violence, repression, human rights abuses, and sectarian dynamics that target certain groups and beliefs systems for political marginalization, even violence.38
It is for these reasons that this work is not only timely, but urgent, an opportunity to engage emergent scholarship and build cross-cultural bridges needed in the present moment.
II. Global Conflict Trends and Limited Post-Conflict Resources
In conflict studies, social scientific methodologies and legal analyses share a common commitment to ‘case facts’, the empirical facts of any given situation which inform the conduct and choices by individuals, groups, or state actors. There are, in fact, few collective action problems as complex and confusing as war, as captured in the evocative notion of ‘the fog of war’. But there is another reason to stay close to the facts on the matter of Islamic law and war: few topics, particularly in the post-9/11 era, have elicited so much confusion and controversy and unleashed such sensitivities. In contemplating the role of Islamic law in conflict and post-conflict transition it is, thus, imperative to rely on evidence-based analyses and to take into account multiple perspectives to shift discussion from ever-present polemics to interdisciplinary investigation and dialogue.
A. Changing Conflict Dynamics, Few Tools for Post-Conflict Transition
Understanding conflict and post-conflict dynamics for Muslim-majority states has especial urgency in the contemporary moment, given the changing global landscape of armed conflict. In certain obvious ways, the story of global conflict is a positive one. By many measures, global conflicts in total (since their high point in World War II) show a decline in wars of all types, as well as in overall battle deaths, as indicated in the Uppsala University Armed Conflicts & Reported Battle Deaths dataset (see Figures 1 & 2).39 Such declines include both interstate and intrastate conflict and combatant deaths for both conflict types. In Figure 1, the dark blue area shows how intrastate (civil, internal) wars, which peaked in the 1990s, comprise the majority of post-World War II conflicts, though their total number has also since decreased.
Yet, if empirical research reveals a decline in war from its mid-century highpoint, such relatively good news captured in the ‘decline in war’ thesis must be tempered by new global conflict trends and dynamics.40 New, more variable and complex forms of conflict are on the rise, along with irregular, unconventional, and often transnational conflict actors, increasingly adept at spreading their networks far and wide and in destabilizing whole regions, not only states.41 The recent encroachment of foreign terrorist fighters into Iraq, Syria, and Lebanon, and their return to their homelands to continue their attacks, is an exemplar of this trend.42
Relatedly, such conflict actors leverage state weakness in their zones of influence, bond, compete, or spar with other extremist groups, and integrate with transnational criminal networks to erode existing, local governance. Such conflict practices, in turn, are supported by sophisticated, often illicit financial models with transnational implications far beyond the local site of conflict or its victimized communities. What such irregular conflict practices leave behind is billion-dollar resource theft, transnational networks of foreign patrons and charities, trafficking in precious resources and human persons, kidnapping, narcotics, even wildlife poaching and trade, all of which threatens whole communities and hastens food security risks.43
In such networks, many based both on relationships of convenience and broadly shared Islamist warfare practices and ideologies, classical Islamic norms and prohibitions are also casualties. For instance, various analysts have begun to track how kidnapping and other forms of hostage taking, expressly prohibited in the Quran as hirābah, have become a lucrative business strategy for Al Qaeda, affiliates and competitors, as well as non-state armed groups in West Africa. Their increased practice has both eroded longstanding prohibitions against kidnapping under Islamic law and prompted iconoclastic attempts to justify such acts.44 Ironically, as kidnapping and hostage taking, also prohibited under Common Article 3 of the Geneva Conventions and elsewhere, gain prevalence in asymmetric warfare, even international human rights lawyers who ought to know better become confused about this customary norm.45
Irregular tactics and weapons of war, as scholars, such as Assaf Moghadam identify, show similar dynamics of spread, as in the tactic of suicide bombing, prohibited under Islamic and international law, but now a “go to” method of asymmetric warfare used far beyond the Middle East.46 Likewise, strategic manuals—Abu Bakr Naji’s The Management of Savagery (2006), as well as Al Qaeda and Hamas field manuals—specifically treat and advocate for, often with keen self-awareness, violations of well-established principles of Islamic law.47
These conflict dynamics animating the global landscape today thus invite renewed attention to post-conflict transition, stability, and reconciliation efforts. In this new warfare environment, powerful actors use force in unpredictable, direct, and civilian-focused ways, deliberately stir up ethnic and religious sectarianism, destabilize whole regions, and create complex human security crises, including massive displacement which further undercut development and empower illicit economies. The need for constructive post-conflict pathways is urgent in the current security environment in part because conditions have shifted so that wars appear endless, the terms for reconciliation have stalled, global development deficits persist, and simmering conflicts disproportionately afflict Africa and the Muslim world (see Figure 3 for Regional Conflicts).48
The growing complexity of the global conflict landscape is also occurring against the backdrop of a demonstrated reluctance on the part of strong states and traditionally-law abiding members of the international community (the United States, United Kingdom, Canada, EU members, among others) to intervene in even limited or non-military ways in crises.49 This is true not only in Syria, where death and displacement have risen to over 400,000 and 9 million persons, respectively, but in Ukraine, Libya, South Sudan, Central African Republic, Kenya, Nigeria, Mali, Iraq, and elsewhere.50
In short, the complexity of present conflict dynamics make such pathways and tools for successful post-conflict transition vital, and yet so scarce.51 The urgent need for post-conflict resources and the scarcity of such tools is one of the fundamental paradoxes of our time.
B. Impact on Muslim States and Communities
Nowhere is this paradox of persistent conflict and few post-conflict tools more profoundly felt than in Muslim-majority states and communities. As scholars note, complex conflicts are occurring across the diverse Muslim world, especially in the Middle East, Africa, South and Central Asia, in ways disproportionately impacting civilians, displaced persons, and youth populations (See Figure 3 for Total Conflicts by Region, 1947–2014). One serious indicator of the need for post-conflict tools in light of complex conflict is evident in the spate of resurgent conflicts in post-Arab Spring states and, more pointedly, in the failure of revolutionary aspirations to translate into stable and inclusive governance.52 The original wave of Tunisian protests (beginning on 17 December 2010 after Mohamed Bouazizi’s self-immolation) has given way to unacceptable levels of violence and entrenched political crises in Syria, Libya, Iraq, Afghanistan, Egypt, Bahrain, Yemen, Lebanon, and elsewhere.
There are, no doubt, longstanding structural factors at work in these governance and conflict dynamics, outlined in successive UN development reports.53 They include human development deficits, as mentioned, authoritarian regimes and limited representative governance, severe economic and demographic crises, resource, climate and energy issues, sectarian violence, and weak political and civil society institutions.54 Much of the International Committee of the Red Cross’s (ICRC) operations are, notably, carried out for these regions’ victims, be they prisoners, displaced persons, families of detainees, or other persons requiring support and aid.55 Once countries become embroiled in cycles of violence, existing structural deficits are often exacerbated in ways that pitch communities toward chronic conflict and development delays, ranging from food security to unemployment.56 Under constant crisis, the leaders and groups that come to achieve political power in these settings are often the strongest fighters—not those invested in building stable or inclusive political, civil, and economic institutions.57 Likewise, political reconciliation efforts are often hampered by militias that refuse to disarm as a condition for their political representation.58
Yet, despite the serious impact on stability, security, and development from these combined factors, too little research has probed problems of post-conflict resources for Muslim and Arab communities. Despite important work on post-conflict justice among exemplary scholars, work by NGOs, such as the International Center for Transitional Justice (ICTJ) and the United States Institute of Peace (USIP), and the efforts of international tribunals and stand-out prosecutors, few analysts have investigated the possible resources available within the rich tradition of Islamic law for such endeavours.59 Robust, if neglected, resources within Islamic law may aid and amplify such post-conflict opportunities, but these resources are too often left dormant, misunderstood, even misapplied in conflict settings. No doubt, well-described accounts of western misunderstanding of Eastern affairs may derail otherwise well-intentioned efforts. But far more troubling still are those conflict agents who deliberately distort Islamic law and apply select passages from primary sources (the Qur’an, hadith and sunnah) to justify political violence, social discrimination, and repression.60
But a more prosaic problem explains the neglect of Islamic law resources—it is the ‘primitive’ level of knowledge about Islamic law across much of the Muslim world itself, a phenomenon exacerbated by development and educational deficits.61 As co-author Bassiouni notes elsewhere, in addition to complex socioeconomic factors, too often “unqualified mullahs, imams, sheikhs, and other (self-) titled religious leaders” propagate misleading teachings of Islam in ways that set back progress in the law or even help to link ‘theological and legal doctrinal developments to political violence in the Muslim world’.62 Part of this educational deficit stems from the intellectual history of Islamic law itself. Tenth century CE Sunni scholars, for complex historical reasons and valid concerns about the splintering of the ummah in light of invasions in previous centuries, ‘pulled back the reins on intellectual openness’ that had once facilitated Islamic legal discussion and innovation, thus, ushering in a rigid literalism in interpretation, which still holds in many places today.63 For these and other reasons, authorities on Islamic law, especially in relation to the laws of war, human rights, and criminal law, are far too few, and even scholars with deep understanding of these areas of Islamic law may work in relative isolation or are subject to free speech constraints in their home nations.
Such neglect of Islamic legal resources in facilitating post-conflict justice limits available, local, and otherwise potentially powerful tools for transition.
III. Moving Past Traditional Approaches to Post-Conflict Justice
Post-conflict transition processes are often reduced to ‘transitional justice’, the rule-based processes designed to redress large-scale human rights violations, crimes, and atrocities committed during massive social upheaval.64 Among international and development circles, key international norms, judicial mechanisms, and procedural steps are seen as applicable to most conflict, including criminal prosecution, standing tribunals, truth-seeking commissions, memorials, reparations, etc.
But insofar as the desired outcome is stability, including restoring governance, other elements (social and political trust) as well as inclusive, effective, and responsive systems, go hand in hand with post-conflict transition. Post-conflict justice strategies must also make sense locally, given the particulars of history and underlying conflict drivers, so as to move communities from recurrent conflict to political accommodation.65 At a minimum, effective post-conflict transition approaches must, therefore, dream bigger than mere criminal prosecution or retribution-style justice to create conditions for sustainable peace. Aside from the ill-fit of the term ‘transitional justice’ for countries with Islamic traditions, in Afghanistan and Iraq, for instance, it is clear that the challenges of post-conflict transition, including the contours of post-conflict rule of law and justice, have threatened to undermine any arguable gains made during combat.
As part of the legacy of the last decade plus of fighting in Afghanistan and Iraq, coalition policymakers, military lawyers, and members of intergovernmental organizations and NGOs have all, in very different ways, begun to identify a fuller understanding of the factors that advance post-conflict stability. From those chastening experiences, a sober view of post-conflict stability has emerged which comprises four relevant insights. There is now some consensus that post-conflict reconstruction, first and foremost, rests upon multiple pillars. Five are often cited as essential to a ‘conflict-proof’ state. These include (1) security; (2) justice and reconciliation; (3) social and economic well-being and development; (4) governance, participation, and inclusion; and (5) robust and diverse civil society institutions.66 Second, practitioners and experts now understand that in cases of severe or protracted conflict, no single state, not even militarily dominant ones, can supply all needed resources for conflict transition. Such responsibilities must be shared (from resources to coordination) with multiple stakeholders, including local elites, government officials, publics, regional states, international organizations, among others.
Third, post-conflict success depends as much on political and practical solutions as political will, a state’s ability to form inclusive internal coalitions of constituencies, whether these are defined economically, politically, ethnically, and religiously.67 Fourth and most important for our purposes, while strong states and coalitions now understand what transition takes (often by making mistakes), helping states ‘plug into’ available resources, international norms, programs, and resources, is a priority, even while it is difficult given cross-cultural obstacles. Given these challenges, scholars and practitioners on the ground may help make the link between conflict states’ need for post-conflict transition resources and the available resources within cultural contexts, including Islamic law, especially for regions that absorb a large share of the world’s attention and aid.
A. Departures from Islamic Conflict Norms in the Muslim World
Conflicts involving Muslim state actors and non-state actors, irrespective of whether victims are Muslims or non-Muslims, often violate Islamic law without accountability, even though Islamic law is clear as to its norms in armed conflict.68 Some of these norms are preemptory and mandatory in their application, but they are not applied, which shows dereliction of duty on the part of political leaders in both state and non-state contexts alike, as well as lax accountability by thought leaders.69 It is thus imperative for scholars to address the gap between a robust, if underappreciated, conflict norm tradition within Islamic law, and conflict actors’ conduct during and after conflict. Studies consistently show a correlation between conflict and lack of economic development and low or repressive political governance. But one key neglected factor beyond socioeconomic or political variables is the absence of a substantive Islamic legal tradition that identifies available core norms incumbent upon Muslim religious, political, and social leaders in conflict and post-conflict settings. Such a unified account of Islamic norms, particularly in crises, would do a great deal to undercut distortions of Islamic law, as well as perceived divergences between Islamic law and international law, often used to justify recurrent conflicts today.70
At the very least, clarifying Islamic law guidelines in post-conflict settings would aid in pressuring conflict actors to consider Islamic norms in restraining their conduct and in anchoring post-conflict transition initiatives in Islamic conceptions of justice and reconstruction. 71
B. Our Approach: Compatibilities and Beyond
Our contention is that shari’a is not only compatible with contemporary approaches to post-conflict justice modalities, widely used in the international community, but also appropriate for use in Muslim societies.72 Examples of such shared norms include, inter alia, prioritizing accountability and the rejection of impunity, which prevents states from giving blanket amnesties or pardons to those who have committed serious transgressions against others. Moreover, grounding contemporary post-conflict processes73 in classical and contemporary Islamic legal doctrine make its more accessible to Muslim societies seeking historically meaningful legal mechanisms to deal with the aftermath of conflict. The argument as presented, however, is not simply one of substantive compatibility, but one of normative obligation: that is, Islamic law, by its very nature and terms, demands action in post-conflict situations. This fact that must be remembered by those opposed to the concept of post-conflict justice as alien, irreligious, or incoherent, and even by those who approach Islamic law through what Khaled Abou El Fadle calls ‘apologetics’.74
Our approach thus grounds contemporary post-conflict processes within classical and contemporary Islamic legal principles.75 Yet, our endeavour is not simply that of compatibility, as mentioned, but one compelled by essential elements in Islamic law itself, that of peace, accountability, truth, justice, and forgiveness. Such Islamic cornerstone principles, legal prescriptions and proscriptions, apply, despite little attention by traditional Muslim scholars, to contemporary arenas not addressed by the shari’a in this age of changing conflict dynamics and globalization.
We assert that classical approaches to the shari’a and Islamic law, particularly those areas enumerated under the auspices of criminal justice and classical Islamic international law, not to mention, the breadth and depth of the discourse concerning human dignity throughout Islamic law, offer specific pathways by which to explore Islam’s approach to conflict and post-conflict justice. At the same time, our reliance on the legal theoretical approaches of maqasid al-shari’a, the higher goals and values of Islamic law which must be implemented into legislation and jurisprudence, and siyasa al-shari’a, the government policy associated with preserving shari’a values and norms, adds historical context and overall purpose to interpretations of the Qur’an and the Sunna. These historically-based, legal methods of interpretation can be used as the basis to move past unhelpful or stagnant historical literalisms to address limitations on the use of force, the prohibition of jihadist and rebellious violence, or post-conflict justice.76
1. Shari’a Normative Obligations
Post-conflict modalities comprise several value-oriented goals embedded in international and domestic criminal justice for retributive and deterrence purposes:77 reconciliation between nations and peoples, providing relief and redress to victims, bringing closure to victims, establishing and recording truth, putting to rest past grievances, and preventing future conflicts. Such values are also reflected in the spirit of the shari’a, as we show in more detail below, and they are reflected in international legal obligations, which in accordance with the shari’a, are binding on Muslim states as treaty obligations.78
Such obligations arising under international criminal law, for instance, include the duty to prosecute jus cogens international crimes, peremptory norms against which no derogation is permissible, such as genocide, crimes against humanity, war crimes, torture, slavery and slave-related practices.79 With the exception of war crimes, these prohibitions apply in times of war and peace, whereas war crimes apply only in times of war, but extend without discrimination to ‘protected persons’ (non-combatants, POWs, the injured and sick, medical personnel, and so forth) and to prohibited targets (medical facilities, civilian and public property, religious and cultural structures, cultural property, etc.).80
2. Missing Shari’a Literacy and Educational Gaps
The need for this discussion on Islamic law and post-conflict justice is made most apparent in light of our treatment herein of global conflict trends among Muslim-majority states, among other work detailing how these regions of diverse Muslim communities have fared in armed conflicts since the end of World War II. At a minimum, it is clear that many ordinary people have been the victims of significant conflict, violence, and suffering over the past several decades. Perhaps counterintuitively, the deaths arising from this violence have come overwhelmingly at the hands of Muslims. Thus, irrespective of the legal characterization of these conflicts (as international, transnational, or purely internal), the need for post-conflict justice exists and, more importantly, has too long been overlooked among Muslim communities in their normative traditions.
Upon closer examination, it is also evident that Muslim-majority states in which conflicts have occurred in the past half century include in large part failed and troubled states or those with some attributes of troubled states, including weak governance and a deficit in human development. In the latter case, this means that, among other factors, levels of literacy are low, including popular knowledge of the shari’a and Islamic law. Often, the general population in these states, including most imams who are one principal source of public and popular learning, has only rudimentary knowledge of Islamic law.81 Likewise, this religio-legal knowledge is frequently distorted by laypersons claiming theological expertise, or those erroneously repeating what they believe are authoritative views. Even in more developed societies, most Muslims have over-simplified notions of Islamic law, which are frequently distorted by local cultural practices. Curricula in theological institutions, likewise, offer little by way of teaching critical thinking, as pedagogies are often reliant on memorization.
This education deficit has further been augmented by a centuries-long approach wherein the majority of Muslim scholars have come from a linguistic, grammarian background that emphasizes knowledge of the Arabic language and philology in which progressive development is limited or nonexistent. The result is a lack of universal and critical perspectives on even traditional scholarship, not to mention contemporary opinion.82 This explains why critical and progressive intellectual output in the past century in Islamic law has not met the challenges of the times, including those of post-conflict justice.83
At the same time, one cannot fail to notice that although there is ample writing on almost every aspect of theology, philosophy, and law among Muslim jurists, there has been very little that has brought together the diversity of this intellectual production. In the field of law in particular, ‘the absence of explanatory restatements and codifications is evidence of both a lack of consensus among scholars and, arguably, the timidity of scholars in bridging gaps and forging progressive consensus’.84 As Bassiouni notes ‘[i]t is precisely because of this lack of synthesis that Islamic law in general has not progressed much since the 12th century C.E.’,85 and, further, in Muslim states in which it has progressed, ‘the progress has been hesitant or tentative, and without much continuity or relevance to contemporary issues’.86
Since the 1960s, more has been accomplished in the modern secular legislation of Muslim states than in centuries past, with implications for hybrid legal systems and the integration of several elements of Islamic law.87 Similar progress has not been made in Islamic law, on the subject of controlling and regulating armed violence, conflicts, and rebellion,88 an impasse that has resulted in the lack of development of techniques that undergird classical Islamic law (e.g., maqasid al-shari’a and siyasa al-shari’a, the purpose and policy of the shari’a, respectively).89 As the shari’a derives principally from the Qur’an, supplemented by the Sunna (insofar as it reflects an authoritative interpretation of the Qur’an), it is surprising that more scholars, both historically and in the present, have not devoted attention to the shari’a, and to those areas of human interaction not addressed in traditional shari’a. These areas cover a wide variety of human and social needs in the age of globalization: for instance, prohibition of jihadist, religious, and rebellious violence. Indeed, literal exegetes resist and even oppose maqāsid and siyāssat as a technique to preserve literalism.
3. Some Basic Observations about Shari’a and Justice
Islam regulates in a holistic manner all human relations and endeavors on earth: between the Muslim ummah and other non-Muslim states, internal governance of the ummah, inter-personal relations, and more importantly, relations between each human being and the Creator. As mentioned, Islam as a way of life, a code of inter-personal and collective conduct, is ultimately a guide for that which is connected to final judgment. The shari’a derives principally from the Qur’an and is supplemented by the Prophetic Sunna insofar as these reports of the Prophet’s deeds converge with authoritative interpretation of the Qur’an on mandatory prescriptions and proscriptions.90
In all of these matters, justice is the cornerstone of this holistic approach. That is, contrary to what many shari’a scholars advocate, justice is not narrow, formalistic, rigid, legalistic, strictly procedural, or blind. Instead, justice is inspired by the overriding and divine attributes of compassion and mercy. Insofar as human justice is, to be pursued as a value-oriented goal, it must be constantly adapted as to shari’a methods to achieve the best possible outcomes that fulfil its goals. In this respect, the Islamic criminal justice system is compatible with contemporary post-conflict justice modalities. The problem is, rather, that too often neither Muslim governments nor other actors apply the shari’a or contemporary international law to conflict and post-conflict justice situations.
4. Islamic International Law and Binding Treaties
Simply stated, according to the shari’a and Islamic public law, international legal obligations are binding on Muslim states and actors as treaty obligations.91 A treaty is a source of law in the shari’a, provided that the treaty’s purpose and terms are in compliance with the Qur’an. Historical controversies existed on these questions, but were resolved in favour of the treaty’s binding nature, even when contrary to some principle of Islam.92 The early history of Islam shows that treaties were probably the most important practice of the fledgling polity, as the Prophet relied on treaties to gain recognition for the ummah, a critical move for a new political community in search of influence. Treaties are, indeed, the best evidence of such community recognition as they presuppose an entity’s capacity to carry out its international obligations. Moreover, early Muslim treaties were focused on peace and peaceful coexistence, and these treaties with non-Muslim communities were deemed compatible with Islam and its goals of coexistence with other nations and peoples. Some of these treaties, however, contained concessions by the Muslim ummah, and were not questioned as to their legality because of the principle pacta sunt servanda (‘agreements must be kept’), which the shari’a recognizes.93
The Treaty of Hudaybiyyah, signed between Prophet Muhammad and the Quraysh of Mecca in 628 CE is often understood as the seminal precedent that attests to the recognition given to treaties in Islamic legal practice. In the course of negotiations, the Prophet used two emissaries sent to Mecca on successive occasions to establish the basis for the treaty. One of them, Uthman ibn Affan, who later became the third caliph, was (falsely) reported to have been killed, notwithstanding the fact that as an emissary he should have been secure. The negotiations were thus deemed broken and forces were readied for attack as the death of an emissary was deemed a causus belli. When the Quraysh subsequently made it known that Uthman was indeed safe and that his person as an emissary was inviolate, the news resulted in reopened negotiations. The Quraysh then sent to the Prophet their negotiator, Suhayl, who was treated as an inviolate ambassador. The Treaty of Hudaybiyyah was signed by the Prophet and Suhayl; Ali ibn Abi-Talib, the author of the treaty, also signed it as a witness (Ali became the fourth caliph and is the person the Shi’a most revere as the legitimate heir to the Prophet, that these events were also witnessed by Ali ibn Abi-Talib makes them of greater significance to the Shi’a). The Treaty of Hudaybiyyah and its negotiating history demonstrates, not only the sanctity of emissaries, that any violation of an ambassador’s immunity is a causus belli, and that no ambassador may be detained or harmed, but that in Islam the principle of pacta sunt servanda is recognized and has been faithfully adhered to in exemplary practice.
The writings of many scholars indicate that envoys, ambassadors, deputies, delegations, and emissaries to and from the world of Islam have been numerous throughout its history. That practice has been continued by Muslim states in their contemporary international relations since their acceptance of the two Vienna Conventions of 1961 and 1963 on diplomatic and consular relations. Today, all contemporary Muslim states are members of the United Nations and parties to the 1949 Geneva Conventions.94 Several are parties to the Genocide Convention,95 as well as to a number of conventions restricting or prohibiting the use of certain weapons in time of war,96 and most are parties to the International Convention on Civil and Political Rights (ICCPR).97 In accordance with these and other conventions, a number of obligations arise in times of conflict and peace. These treaties often include the duty to prosecute or extradite persons who commit violations of treaty obligations. These and other obligations are binding on Muslim states, and include prosecution (or extradition) of those who violate these obligations, without limitation as to rank or status under international humanitarian law. Certain conflict and post-conflict mechanisms are thus available for and binding upon many Muslim states.
5. Islamic Humanitarian Law and Human Dignity in Islam
Another concrete area of compatibility and normative obligation includes Islamic approaches to human rights and early conceptions of humanitarian law for conduct during warfare, both of which have been long recognized as core parts of Islamic public law’s contribution to modern international law. Acts constituting jus cogens, international crimes such as the killing of noncombatants or physical harm done to civilians or attacks on their personal integrity, including torture and rape, also constitute crimes under the shari’a in these areas, in addition to various offences under Islamic criminal law.
The first application of human rights in Islam came about in what is commonly called the Treaty of Madinah in the first year of the hijra. In this agreement between the Prophet and those who followed him in migration from Mecca to Madinah, as well as the different tribes belonging to different religions including Christians and Jews who lived in and around Madinah, a covenant was established providing for equality before the law of all citizens,98 supremacy of the law for each religious community, non-discrimination between persons of different tribes and religions, albeit with structured distinctions and discriminations, and guaranteed freedom of religion for Muslims, Christians, and Jews.99 This was followed by the Treaty of Hudaybiyyah, as mentioned, between Muslims and their enemies in Mecca, providing for non-aggression, protection of life and property, and prisoner exchange. The most noteworthy Muslim text applicable to the law of armed conflict is the Admonition of Abu Bakr, the first caliph of Islam after the death of the Prophet, who dispensed instructions to Muslim troops before engaging in the Syrian campaign in 637 CE-12 AH.100 In view of the time of its promulgation it is also seen as a precursor to the set of evolving law of war norms that contribute to contemporary international humanitarian law.
Lastly, the Jerusalem Pledge of Umar ibn al-Khattab, second caliph, following the defeat of the Romans at the Battle of Yarmuk in 638, which preceded the Muslim army’s entry into Jerusalem, insisted on behalf of all Muslims and for all times to protect the religious places of worship of Jews and Christians and to allow freedom of access to them by their respective co-religionists. Subsequent practices have too often neither affirmed nor continued the application of these early commandments. However, one positive example shines through in history, the behaviour of the Muslim army under Salah Al Din al-Ayyoubi during the Fourth Crusade, which treated Christian crusaders with fairness and humanity.101
6. Islamic Criminal Law
Without reiterating subjects covered in detailed elsewhere, we describe Islamic law’s three categories of crimes, hudud, qisas and taz’ir, as providing a legal baseline for prosecuting those who commit international crimes, establishing the truth about evidence and the facts, and providing for victim redress in a manner consonant with many international standards.102 Labelling crimes varies between legal systems, which is why comparative criminal law does not regard such categories as conclusive with respect to their meaning and content. Instead, what is examined are the social interests sought to be protected (such as life, physical integrity, human dignity, etc.), the general characteristics of the crime, and the existence of related crimes (e.g., the different categories of property crimes such as theft, embezzlement, and fraud).
Consider the practice of extradition, for instance, in which the requested state seeks to determine the existence of dual criminality: inquiry focuses on whether the underlying facts constitute a crime in the legal systems of the requested and requesting state, and whether the crimes in the two legal systems have the same general meaning and purpose, irrespective of how the crimes are characterized or their legal elements. The same method can be used for purposes of ascertaining whether the shari’a crimes of hudud, qisas, or taz’ir correspond (and vice versa) to international crimes that require prosecution either by an internationally established body or by national criminal courts.
Moreover, obligations arising under international criminal law include the duty to prosecute jus cogens international crimes such as genocide, crimes against humanity, war crimes, torture, slavery and slave-related practices also apply under Islamic law.103
IV. Conclusion: Islamic Contributions to Post-Conflict Justice
We have noted that the same value-oriented goals of post-conflict justice are reflected in both the spirit and norms of the shari’a and Islamic public law. Consequently, the primary problem is how to operationalize post-conflict justice mechanisms, which depend on identifying both what the shari’a and Islamic public law principles are and how they are to be applied in conflict and post-conflict settings. While an expansive subject, we offer by way of conclusion several summative and exploratory instances of Islamic contribution to post-conflict justice, below.
A. Islam and Post-Conflict Justice Norms: A Summary
There are several arenas in which Islamic law may offer helpful principles and prescriptions for post-conflict settings, especially in areas of compatibility with well-established international norms pertaining to post-conflict justice. These include:
- Respect for human life, dignity and personal integrity are fundamental components of Islamic law.
- In IHL, noncombatant immunity, protection of civilians, prohibition against torture and rape, among other precepts, form core parts of Islamic law.
- Some shari’a crimes under the categories of hudud, qisas and tazir are prohibited as ‘war crimes’ under the Rome Statute of the International Criminal Court, 1999.
- The value-oriented goals of international post-conflict justice, including victim redress, establishment of truth, bringing closure to victims, and the prevention of conflict return, are reflected in both the shari’a spirit and norms.
- Justice as one of the overarching values of Islam and, in turn, of Islamic law in conflict and post-conflict settings. As in any system of justice, accountability for transgressions of legal rules is foundational.
- Islamic law prohibits granting blanket amnesties and therefore rejects impunity for serious crimes.
- Provisions for victim compensation or reparations are ingrained in the Islamic legal system, which comports with the provisions of the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005. This, and many other rules of Islamic criminal justice, reflect the strong emphasis on the rights of the victim under shari’a.
- At the broadest level, the pursuit of justice under Islamic law is divided into categories of transgression: some of these, the hudud, are basically beyond the scope of reconciliation as they are simply putative, and their underlying assumption is that they will produce a deterrent effect. More importantly, the haad crimes are intended to protect public order more than individual interests. Not so for the other category of crimes, the qisas, which is essentially reconciliation-oriented, with prosecution being optional. That means that in these cases mechanisms such as truth and reconciliation commissions can work on a collective level, as can other measures designed to provide reconciliation between groups and to prevent the reoccurrence of future conflict.
B. Redefining Challenges and Priorities: Gaps and Possibilities
If certain Islamic legal norms and prescriptions exist, that is, if tools are available, what is more often lacking is the political will, including leadership, and the institutional structures at the state and international levels to implement them. Also lacking is a supportive political and institutional cultural foundation that rejects abusive Islamic practices.
We briefly address some of these gaps below, but this list is by no means comprehensive, and identify issues of common concern by redefining contemporary challenges involving Islamic law for conflict and post-conflict settings.
1. Issues of Common Concern
Some issues of common concern include the following:104
- The identification of precisely what the shari’a and Islamic law are in accordance with the four Sunni and three Shi’a schools and the cultural context of their application in different countries; and assessing the historical processes of their transmission over time and contextually, including socio-economic and political factors. This issue underscores the need for, and the historical neglect of, the codification of the shari’a or, at the very least, the establishment of common principles and guidelines for domestic legislation as well as for Islamic public law.
- Investigating the context, causes, and bases of Islamic legal-theological diversity, the different methods for employing and applying the shari’a and Islamic law, and understanding the orienting contexts for diverse interpretation. A core part of this issue remains assessing the respective rationales for accepting such diversity without rigorous and critical appraisal of the validity of diverse methodologies and outcomes in light of Islamic values.
- Addressing corrective mechanisms for reigning in the more divergent approaches, methods, interpretations, and outcomes. This includes placing values and policy goals above procedures, techniques of interpretation (i.e., literalism), and the force of precedents, and redressing the polarization of Islamic law under conditions of globalization.
- The relationship between power and values in Islamic-law based governance needs to be clarified, especially in light of a long history of conflict ‘precipitated by the political aspirations of groups and individuals who sought power by overthrowing the khalifa or by seceding from the Muslim ummah’.105 Too often an examination of the history of these military campaigns reveals victories without a single application of Islamic law or justice norms, a startling conclusion when one considers that Islam comprises a nexus of religious values in which individuals and their rights must be respected and vindicated and in which utilitarian approaches to justice (that sacrifice individuals) are prohibited. At the very least, ‘Islam demands that something be done when a violation occurs’.106
2. Political Institutional Culture and Leadership
A significant failure in upholding Islamic legal norms belongs to conflict actors in applying existing Islamic law norms to conflict settings. Relatedly, there has been a failure to build a political and institutional cultural foundation for the application of Islamic legal norms inside polities. Religious and civic leaders in Muslim societies have too often simply not fulfilled their obligations to express what is properly required by Islamic law. Similarly, political, social, and other thought leaders have often failed to carry out their civic and moral responsibilities to express disapproval of conduct by Muslim actors in diverse arenas of conflict, which represents transgressions in both Islamic law and international law.
Importantly, some Muslim-majority states have no or fewer incidence of armed conflict, their governments have not involved their societies in interstate or intrastate wars, and, further, they exhibit no record of noncompliance with international treaty norms covering conduct during hostilities. Examples of those states engaged in no modern international (IAC) or noninternational (NIAC) conflicts (as primary belligerents from 1947–2012) as defined under IHL include: Benin, Brunei-Darussalam, Gabon, Guyana, Kazakhstan, Maldives, Turkmenistan, and the UAE. Likewise, states in the same period engaged in no recorded IHL violations are: Burkina Faso, Cameroon, Gambia, Jordan, Malaysia, Togo, even while some were engaged in armed conflicts.
These examples are important points of reference in trying to understand how and why conflict develops across the diverse Muslim world and how to advance conflict and post-conflict measures.
3. Moving Past the “Other” of Islamic Law
Having made these observations, it is also important to note, as legal historian Wael Hallaq emphasises, the recent geopolitics of Islamic law in which the traditional has become entangled with multiple discursive and political pressures which make seeing its distinctiveness and contemporary utility difficult. While Islamic law is comprised of multiple schools and traditions, which are neither static, coherent, or codified in the positivist sense, ‘to write the history of shari’a is to represent the Other’, Hallaq notes.107 Islamic legal concepts, that is, do not fit easily within modern western precepts and scholarly definition, including the concept of ‘law’ itself, which often implicitly conveys a western standard against which Islamic law ‘could only disappoint’,108 notably in its inability to distinguish between state and religion, law and morality. In short, ‘the very use of the word law is a priori problematic’, as its use is to ‘superimpose’ on ‘the legal culture of Islam notions saturated with the conceptual specificity of nation-state law, a punitive law that, when compared to Islam’s jural forms, lacks the same determinant moral imperative’.109 A positivist conception of law may also miss Islamic law’s ‘efficient, communally based, socially embedded, bottom-top methods of control that rendered it remarkably efficient in commanding willing obedience’, especially in its period of emergence, making it in certain ways ‘less coercive’ than ‘any imperial law Europe has known since the fall of the Roman Empire’.110
An additional oversight is the common charge of Islamic law’s lack of integrity and authority with, again, the reference point of the nation state, not the broader ummah, as the standard for this charge. Accordingly, then, the ‘hands-off approach of the shari’a adopted as a way of life’, specific to communities that span continents, cultures, and peoples, and the ‘extraordinary diversity of fiqh, or legal doctrine’ is one of many forms of Islamic juristic pluralism often missed in the West, as well as the highly ornate localized relationships between legal doctrine and community practice.111 Awareness of such issues is important as these may misconstrue or understate the force, appeal, and reach of Islamic legal traditions today across.112
4. Departures from Islamic Conflict Norms in the Muslim World
One of the most significant lessons in contemplating Islamic contributions to post-conflict justice involves a sober and realistic appraisal of post-Arab Spring governance challenges in the region. There is a lasting sense that such public movements and critiques, many of which referenced the ummah and shared Islamic norms, were met with a level of unexpected violence and repression by domestic governments not seen in generations. In the aftermath, such cross-national developments have created both an intellectual space for revisiting Islamic law in conflict settings, but also a deep scepticism about any contributions that Islamic law might make to conflict prevention, mitigation, or reconciliation moving forward. Ironically, some of the most robust spaces for these urgent discussions have been in the western academy.
Such pessimism has not been entirely pervasive: Several leaders and officials in Egypt, Jordan, and among the Gulf States and some if its outspoken clerics have been forceful in pushing for shared responses to groups like ISIS and in developing cross-Arab initiatives for strengthening Islamic law responses to current instability. Yet, there is also a sense among ‘Arab Spring’ activists, ordinary citizens of the ‘Arab Street,’ and outspoken scholars, that too many governments are conspicuously silent on recent atrocities by terrorist groups, militia, or governments themselves in these same countries and in Syria, Libya, and elsewhere. In fact, some commentators are finding extremist minorities empowered by the silent majorities, either tolerating extremist ideas or ignoring extremist conduct in violation of Islamic and international norms. In many respects, groups have begun to set the terms for global public discussion on issues related to Islamic law and justice, including dividing the world up into Muslims and non-Muslims regions and identities.
In prioritizing current challenges, the factors that we must focus on continually are how human harm committed by Muslims, whether against Muslims or non-Muslims, can be mitigated by the responsive application of Islamic law, and which legal mechanisms should be put in place to enhance compliance by Muslims with Islamic law and to prevent non-compliance.