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Islamic Law and Sociopolitical Processes

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.

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Their increased practice has both eroded longstanding prohibitions against kidnapping under Islamic law and prompted iconoclastic attempts to justify such acts. 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. 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.

In short, the complexity of present conflict dynamics make such pathways and tools for successful post-conflict transition vital, and yet so scarce. 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, — 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.

There are, no doubt, longstanding structural factors at work in these governance and conflict dynamics, outlined in successive UN development reports. 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. No doubt, well-described accounts of western misunderstanding of Eastern affairs may derail otherwise well-intentioned efforts.

Such neglect of Islamic legal resources in facilitating post-conflict justice limits available, local, and otherwise potentially powerful tools for transition. 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.

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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. 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.

Such responsibilities must be shared from resources to coordination with multiple stakeholders, including local elites, government officials, publics, regional states, international organizations, among others.

Book Display – January 2017

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. 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.

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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. 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.

Moreover, grounding contemporary post-conflict processes 73 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.

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  4. Our approach thus grounds contemporary post-conflict processes within classical and contemporary Islamic legal principles. 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.

    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 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.

    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.

    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. 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.

    Justice in Post-Conflict Settings: Islamic Law and Muslim Communities as Stakeholders in Transition

    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. 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.

    Since the s, 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. 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.

    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. In all of these matters, justice is the cornerstone of this holistic approach.

    Instead, justice is inspired by the overriding and divine attributes of compassion and mercy. In this respect, the Islamic criminal justice system is compatible with contemporary post-conflict justice modalities. 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.

    The Treaty of Hudaybiyyah, signed between Prophet Muhammad and the Quraysh of Mecca in 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 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 and on diplomatic and consular relations. Today, all contemporary Muslim states are members of the United Nations and parties to the Geneva Conventions. 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. 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.

    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 CE AH. 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.

    Instead, what is examined are the social interests sought to be protected such as life, physical integrity, human dignity, etc. 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.

    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. While an expansive subject, we offer by way of conclusion several summative and exploratory instances of Islamic contribution to post-conflict justice, below. 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:. 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. To complete the look, we offer design and installation of many counter products including Granite, Quartz and Wood countertops.

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