Islamic Law and the Law of Armed Conflict: The Conflict in Pakistan

174 Pages·2011·0.76 MB·English

by  Niaz A. Shah

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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
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Armed Con ict
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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