Islam & International Law: an unlikely marriage

Introduction

When attempting to understand international law and some of its mechanisms – for example, legal systems, primary and secondary rules, sources of international legal rules, constitution-making, and treaties – within a historical context, there are a number of preliminary questions in reference to Islam and its place within the annals of international law. Most rudimentary, are the two compatible? Furthermore, does the documents written 1,400 years ago by Prophet Muhammad fulfill today’s requirements that scholars and political scientists hold true about treaties and constitutions? If so, does that imply that Islam can be included in the discussion of the history of international law?

In order to answer such questions, three topics that will be discussed, each providing an insight into the similarities and possible differences between contemporary international law and Muhammad’s intertribal law. The first section will provide a brief look into international law and connect similarities to Muhammad’s time. Issues such as the legal system according to Herbert Hart, as well as the sources of international legal rules by David Bederman will be discussed. Muhammad’s political resume will then be juxtaposed. The second section will focus on constitutions, and how they are understood on an international scale, in the way that Charlotte Ku and Paul Diehl describe it. Then, the Constitution of Medina will be discussed and compared to the criteria set forth by Ku & Diehl. The final section will focus on treaties and how they are understood in modern times according to Craig Barker and David Bederman. This will be followed with a compare and contrast to the Treaty of Hudaybiya.

****

A brief look into International Law & its Similarities with Prophet Muhammad

Introduction

In the attempt to find similarities between Muhammad’s handling of intertribal affairs during the seventh century CE to contemporary international law, constitution-making and treaties will be the focal points in this paper. The reason for such a sharpen approach is two fold: first, these two sources are very telling in how international laws are made in today’s international community. The requirement that law can only exist where it is the result of legislative activity is not only outdated but also unduly restrictive for it excludes laws created by custom, courts, or by an act of political founding, like treaties or constitution-making.[1] Although the existence of legislative institutions may be a feature of many legal systems, there is a diversity of mankind’s legal experience which suggests that other features or conditions of legal order, such as customs, treaties and constitution-making, also exist and are employed.[2]

Secondly, the implementation of a constitution and treaty were two major factors in intertribal law during Muhammad’s time. Therefore, the above argument that mankind’s legal experience suggests that other features or conditions of legal order, such as constitution-making and treaties, also exist supports the argument that although Muhammad lived in a certain time and place where legislative activity was nonexistent, his use of customary laws, treaties, and constitution-making can be seen as legitimate features or conditions of legal order. The objective then, is to determine if what political scientists know, use, and understand about customary laws, constitution-making, and treaties today was also incorporated and utilized during the Prophet’s time, roughly 1,400 hundred years ago.

International Law

Prior to discussing the similarities of constitutions and treaties between Muhammad’s intertribal law and contemporary international law, a look inside the understanding of international law is needed. David Bederman argues that essential to understanding the nature of international law as a legal system is comprehending the sources of international legal rules.[3] What he means by this is, what is a legal system and how compatible is it to international law? Secondly, what are the sources of international legal rules? As these questions are answered, it will become apparent as to why these issues are important and relevant to the topic at hand, and how understanding this aspect of international law will help better understand the comparison between Muhammad’s intertribal law and contemporary international law.

Legal System

A legal system, according to Herbert Hart must possess two rules: primary and secondary. Under the primary rules, human beings are required to do or abstain from certain actions, whether they wish to or not; duties are imposed on the people. The secondary rules provide that human beings may, by doing or saying certain things, introduce new rules, extinguish or modify old ones; create or change duties or obligations.[4] The importance of this legal system (for international law), as it is explained by Hart, is that only using primary rules will lead to uncertainty, staticity and inefficiency.[5] Therefore, there needs to be a system where you are not simply stating the rules but providing mechanisms for the change and development of those rules with the framework of those conventions.[6] Thus, understanding international law through the legal system is vital because if only primary rules are implemented that would mean that the international laws only exist as a set of rules rather than as a legal system.[7] This same understanding can be applied to the intertribal laws that were established under Muhammad’s leadership.

Boycott

An example of such a legal system can be seen in 616 CE when certain Arab Meccan tribes felt threatened by Muhammad’s new found following and strength. As a result, they decided to boycott Muhammad’s business. Under international law, there is the recognition that a state has the right to engage in lawful countermeasures ranging from the breaking off of diplomatic relations to the imposition of sanctions.[8] This lawful countermeasure, by way of boycott, by a number of Arab Meccan tribes was implemented against Muhammad and the tribe he was associated with at the time (along with another tribe that was family related). The stipulations of the boycott were that no one was allowed to marry anyone associated with Muhammad’s camp, and no one was to engage in commerce with them.[9] After the participating tribes agreed on the terms they wrote up the contract and displayed it in public. The purpose of this boycott was to punish Muhammad and his followers for causing trouble throughout Mecca, weaken his influence and strength, and decrease his following. Furthermore, the conditions for lifting the boycott was that either the tribe protecting Muhammad would outlaw him or Muhammad would renounce his claim to prophethood.[10]

Thus far, the primary rule has been set. The individuals who signed the agreement to boycott Muhammad and his followers were required to do so and abstain from those certain actions as stated in the agreement – whether they wished to or not. Interesting enough, there were some individuals who disagreed to the boycott due to its cruelty and disrespect – for Muhammad was a member of the most prestigious tribe at that time. As the number of individuals who were against this boycott increased, the secondary rule came to the forefront. Certain individuals did and said certain things that allowed the extinguishing of the old rules and changed the duties or obligations between the tribes back to the way it was before the boycott. And thus, this event during Muhammad’s prophethood shows that the nature of intertribal law, as a legal system, is virtually identical to the nature of international law as a legal system. Although, the former focuses on tribes and the latter on nation states, the similarities are undeniable.

Sources of International Legal Rules

After answering the first question of what is the legal system in relations to international law, and how this concept was used during Muhammad’s time, the next question to be answered is what are the sources of international legal rules? The sources of international legal rules or international law or customary international law (these three terms can be used interchangeably) can be found in Article 38 of the Statute of the International Court of Justice, or the World Court, in which the world court applies four sources whenever a dispute is submitted in order to make a decision in accordance with international law:

  1. International conventions, whether general or particular, establishing rules expressly recognized by contesting states.
  2. International custom, as evidence of a general practice accepted as law.
  3. The general principles of law recognized by civilized nations.
  4. …Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law.[11]

One interesting similarity between the first three sources is the requirement of an agreement or consensus among the participating parties. The first source focuses on the meetings that are held and the rules that are made based on the agreements between the contesting states. The second focuses on customs that are accepted because of their general practice, which means that a large number of individuals or states believe in a specific custom for it to become an international law. The third source focuses on the general principles of law that are, once again, agreed upon by civilized nations. There are a number of similarities between the sources of international law and how Muhammad dealt with similar issues.

For example, the third source explains that the general principles of law that are recognized by civilized nations are recognized on a domestic level. The reason for such an approach is because the very sources of international law recognize that the international legal system remains primitive and unformed, and that often recourse must be had to borrow legal rules from the domestic level.[12] A similarity can be drawn here to the time of Muhammad; just as how the international legal system is seen as primitive and unformed, pre-Islamic Arabia’s “legal system” was primitive and unformed and when Islam was introduced to the people, Muhammad implemented many Islamic laws into the Arabian legal system. One major example had to do with women’s rights, where the changes that were made included: a law against killing new born girls, right to an inheritance, to choose who to marry, to receive a marriage dowry, and to have the right to a divorce.

The new rules that were brought in by Muhammad were not widely accepted by the Meccan patriarchy. Therefore, the second source of a general practice becoming an international (or intertribal in the case of Muhammad) custom did not develop in Arabia until much later when Muhammad’s following and strength increased significantly. In fact, this temporary setback is also a concern in international law. Bederman explains that in order for a domestic law [or Islamic law] to become an international law [or an Arabian law] there needs to be a large consensus on that particular issue which is very difficult.[13] He goes on to explain that usually if a consensus is found, the law is usually abstract and less useful; and if the law is more specific and more useful it is difficult to find a consensus, and with Muhammad’s introduction of the new women’s rights being specific and useful, it became difficult to initially find a consensus.

On the other hand, Muhammad introduced two important documents during his prophecy that have many similarities to the first and second sources of Article 38. The Constitution of Medina, and the Treaty of Hudaybiya were two crucial documents that helped not only Islam but also Muhammad maintain and increase their strength, existence, and following. One of the ways this was possible can be explained through the second source. With many of the laws that Muhammad introduced being specific and useful, and thus initially difficult to find a consensus, these two documents were more abstract than what Muhammad and his followers were use to. Although in the short term the constitution and treaty seemed counterproductive, as time went on they proved the contrary. The other similarity between these two documents and the sources of international legal rule can be found with the first source. The procedure with which Muhammad created these documents was through an intertribal convention where the establishing of their rules was expressly recognized by the contesting tribes.

Conclusion

Thus far, the attempt has been made to understand the nature of international law as a legal system as well as the sources of international legal rules. The objective of such an endeavor was to provide foundational information about international law, as a whole, before specifying on the topics of constitutions and treaties and how these are compatible to Muhammad’s time. Furthermore, understanding the broad concepts of international law has also hinted towards certain similarities between Muhammad’s intertribal laws and contemporary international laws. In other words, recognizing that laws do not have to exist only as a result of legislative activity has helped explain the importance of customs, treaties and constitutions. Therefore, the connection can then be made to Muhammad where legislative activity was almost non-existent and the use of customs, treaties and constitutions held more weight within the Arab community. Perhaps more importantly, knowing that in contemporary times this aspect of international law is recognized helps validate the actions taken by Muhammad.

To go one step further, contemporary international law has been described as a multifaceted entity. Its laws can be drawn from legislative activity as well as non-legislative activity, and it is the latter that will be the focus of this paper, with the discussion on constitutions and treaties. However, before examining this aspect it was important to briefly explain the legal system and the sources of international legal rules in order to provide some foundational support, linkage, and validity between Muhammad’s intertribal laws and contemporary international laws. The legal system, was explained as having a combination of primary and secondary rules that allow the international laws to exist as a legal system rather than just a set of rules. This is important because it allows for a higher probability for the laws and the society to evolve, adapt, and endure. And with the example of the boycott towards Muhammad, the legal system can explain how those events transpired from the primary rules of initially boycotting Muhammad and his followers to the secondary rules of certain members deciding to annul the boycott.

The sources of international legal rules are a bit more complex but still provide an adequate explanation for how an entity who seeks to have a “rule” become an (customary) international law needs to get the “rule” agreed upon through a consensus, have it followed as a general practice, and then have it accepted as law. Since this process is somewhat difficult, there is a way to gain a consensus but at the cost of making the law abstract and less useful. Furthermore, the gathering of participating parties is also important, but not as important as getting their recognition of the established rules. When applying Muhammad’s situation to the sources of international legal rules it becomes clear that not only are there many similarities but there is also an indication of how Muhammad approached the Constitution of Medina and the Treaty of Hudaybiya. With that said, each document will now be discussed in further detail in order to elaborate further on the similarities between Muhammad’s intertribal law and contemporary international law.

****

The Constitution of Medina versus International Law’s Operating System

Contemporary Concepts of Constitutions, or International Law’s Operating System

In order to fully uncover the similarities between what a constitution consists of today compared to the Prophet’s we will first examine the criteria set forth by Charlotte Ku and Paul Diehl in their book International Law: classic and contemporary readings, and then we will juxtapose the Constitution of Medina in order to determine how the two are similar. Ku & Diehl describe constitutions in a number of ways. The first is that constitutions assign the legislative, judicial and executive functions in order to separate institutions. The second is that it provides legal capacity by allocating power and recognizing rights and duties. And the third is that it conditions the environment in which power is to be used and rights and duties to be exercised.[14] The interesting connection that Ku & Diehl make with these functions is with the operating system of international law. In other words, the above concepts and functions that are normally used for a constitution on a domestic level have been borrowed and incorporated into international law. So much so that the laws function between states in such a way that the states carry out the legislative, judicial and executive functions – among other things.[15] Therefore, although the term constitution may not be used on the international level, its concepts and functions are.

Ku & Diehl elaborate further by discussing four primary components that help explain how international law’s operating system works. They begin with the sources of law which include: the system rules for defining the process through which law is formed, the criteria for determining when legal obligations exist, which actors are or are not bound by that law, and the specifics of a hierarchy of different legal sources.[16] The second is in regards to the actors which include: who is eligible to have rights and obligations under the law, which then determines how and the degree to which they might exercise those rights internationally.[17] The third component is jurisdiction, which defines the rights of actors and institutions to deal with legal problems and violations on either a national or international level. The final component is courts or institutions which create forums and accompanying rules to where disputes can be heard or decisions enforced.[18] With this framework in mind, the Constitution of Medina can be dissected using each one of the sub-components as points of validity.

Backdrop to the Constitution of Medina

Before discussing the Constitution of Medina it will be helpful to paint a backdrop to this event in order to contextualize this document within the environment from which it was created. Pre-Islamic Arabia was very heavily tribal oriented. In fact, the tribes during Muhammad’s time can be seen as an equivalent to modern day nation states. With that said, one can imagine that some of the international relations’ issues that exist today, the Arabs tribes had with one another – trading, war and peace, allies and enemies, coalitions, legal issues, and so on. When Muhammad began to preach his new and different message of a monotheistic religion that challenged every fiber of what these tribes believed in, tension began to mount. No matter how difficult his adversaries made his mission, Muhammad continued to preach and continued to gain followers. As time went on, he realized that he was not safe in his home town (Mecca), and soon after he was invited by a number of his followers (who were members of a tribe called the Banu al-Khazraj or Khazraj) from a different town (called Yathrib, and later called Medina) to go help them with their intertribal problems as well as become their leader. This invitation would soon lead to the Constitution of Medina, but before that, a number of smaller events occurred.

The First & Second Pledge at al-Aqaba

Before Muhammad and his followers went to Medina he had the Khazraj pledge their allegiance to him on two different occasions within Mecca, each with different circumstances and stipulations. The overall understanding from these pledges was that the Khazraj tribe would: (1) not associate anything/anyone with God, (2) not steal, (3) not commit fornication, (4) not kill their offspring, (5) not slander their neighbors, (6) not disobey Muhammad in what was right, (7) pledge themselves to war in complete obedience to Muhammad in weal and woe, in ease and hardship and evil circumstances, (8) not wrong anyone, (9) speak the truth always, and (10) in God’s service fear the censure of none. In return, Muhammad offered his own agreements: he would fight anyone who was at war against the Khazraj and was also at peace with anyone who was allies with Khazraj. Furthermore, if they (those specific members of Khazraj) fulfilled this agreement, paradise was theirs, if not it was up to God to decide.[19]

These two pledges provide a glimpse of things to come with the Constitution of Medina. In addition, referring back to Ku & Deihl, there are some sub-components that can be found within these pledges. For example, under sources of law, the actors are mentioned who are bound by this agreement (each individual name has been documented by Ibn Ishaq and with the limitations of this paper I humbly defer to his book) and the hierarchy of legal sources are specified with Muhammad as the second most important, behind God as the ultimate source. Under the actors component, it is clear which actors are eligible to have rights and obligations under this pledge, Muhammad and his followers and the participating members of the Khazraj tribe (as well as the Aws tribe, who are not a main actor in this pledge but deserve recognition nonetheless). For example, the Khazraj’s obligations were the ten items mentioned in the pledge, and Muhammad’s obligation was to support the Khazraj against any attack. Finally, under the jurisdiction and courts or institution components, Muhammad and God were the ‘actors’ or ‘institutions’ that would hear, deal and decide on violations or problems with upholding the pledge.

Constitution of Medina

Ibn Ishaq provides a very accurate and detailed depiction of the constitution in its entirety. However, due to its extensive length, only the segments that are similar to Ku & Diehl’s description of the international law operating system will be examined – the complete version as it was written by Ibn Ishaq can be found in Appendix A. The objective here is to determine how similar the Constitution of Medina is to the International Law’s Operating System. The possible information that can be discovered from such a connection can contribute to the field of political science by helping further understand the history of international law, and constitution-making. Therefore, each component of the international law operating system will be addressed along with the items of the Constitution of Medina in order to determine if what we know today about constitution-making was already being implemented 1,400 years ago.

Table 1 shows the multiple connections that are between the Constitution of Medina and the international law’s operating system. Every component has a connection to the constitution, less three. The reason for that is because two of the components – the criteria for determining when legal obligations exist and the hierarchy of different legal sources – are both with God and then Muhammad and thus are not required to be written in because the majority of the people already acknowledged this. And the third under jurisdiction, dealing with legal problems and violation on the international level, or in this case the intertribal level, was not emphasized by Muhammad and instead he allowed almost each participating tribe to deal with their problems internally.

From the other components that can be seen in the constitution, there are two that are very interesting: (1) under actors, who is eligible to have rights and obligations under the law, and (2) under courts or institutions, where disputes can be heard or decisions enforced. The former is interesting because the constitution does not only mention who has the rights and obligations but also who does not have the rights and obligations. For example, number 20 states that no polytheist shall take the property or person of Quraysh (Muhammad’s rivals) under his protection nor shall he intervene against a believer. Or take number 43 for example where it states that the Quraysh do not have the right to protection. The interestingness of this finding is that with the operating system of international law, there is no mention of which actors not having certain rights. Perhaps that was to ensure if future entities wanted to join they could, but with Muhammad’s constitution, it might seem too exclusive. Nonetheless, the connection is there. The latter is also interesting because the courts and institutions where disputes can be heard and decisions enforced is with God and Muhammad. That means if certain disputes are never fully settled, it will have to wait until the Day of Judgment. Aside from that, Muhammad is the arbiter and in fact that was one of the agreements when Muhammad was invited to Medina.

Conclusion

Although the above two pledges were not as binding when compared to the Constitution of Medina they still offer quite a bit of insight into how Muhammad conducted his intertribal affairs. Clear distinctions were made as to who the participating actors were and what their rights and obligations were, as well as who held the highest form of authority. Furthermore, explaining these events that led up to the writing of the constitution allows the reader to grasp a better understanding of what the environment was like. Here you have a highly respected individual who is a member of a highly respected tribe that begins to preach a message that is very challenging to the norms of his society. For almost ten years of living with fear, threats, harassments, and the like he is invited to another town where he can preach his message as well as lead the people. Given the experience he had in his home town, Muhammad was looking for some reassurance through this constitution that the negative events that occurred at Mecca would not happen in Medina.

As a result, the constitution provided clear distinctions as to who is bounded by this document and what their rights and obligations are. It also stated what certain individuals could not do, and it made no mistake in clarifying who is in charge. But at the same time, it allowed the agreeing participants to deal with their own issues before turning to Muhammad for consultation. And even though the operating system is for international law, it can still be applied to a timeframe where there were no nations but tribes, and the effectiveness of it still remains. That means that even though Islam, the Prophet Muhammad, and the Arab culture might seem far too different and difficult to be compatible with Western views and ideas, this comparison shows that it is possible and similarities are there to be found.

****

Treat of Hudaybiya versus Treaties under International Law

Introduction

After comparing the Constitution of Medina to contemporary international concepts it became clear that although with many similarities there were still a few nuanced approaches during Muhammad’s time that attributed to the fact that he was a prophet of God and therefore religion and faith played a significant role in how Muhammad dealt with intertribal affairs. When it comes to treaties, however, this might be a different story because as Craig Barker explains, international law, in its various forms, has governed the relations between different social groupings, including tribes, cities, sovereigns and ultimately states for many thousands of years.[20] In fact, the first known international treaty dates back to 3100 BCE between two Mesopotamian city-states.[21] Another well known ancient treaty has been dated back to around 1284-1283 BCE between King Ramses II of Egypt and King Hattusilis of the Hittites called the Treaty of Kadesh, which entailed eternal peace and alliance.[22]

Ultimately what this shows is that by the time of the ancients, a form of international law had been firmly established in a number of areas. Moreover, many of the principles of modern international law were reflected in the treaties, principles of sovereignty, recognition, responsibility, consent and good faith.[23] Barker does a great job in presenting a brief history of how treaties were used over time and the examples he provides helps make the comparison with the Treaty of Hudaybiya more plausible. He also explains how the participating parties changed over time from empires during antiquity into the medieval period to sovereign rulers at the start of the twelfth century. Religion was also of fundamental importance to the early writers and Barker provides the example of Francisco de Vitoria who saw the binding nature of pacts among men as lying in the law which governed the whole world, the law of God. So much so, that those who violated international rules were regarded as having committed a mortal sin.[24] Thus, when comparing the Treaty of Hudaybiya to contemporary ideas of treaties it is important to be aware of its historicity.

Contemporary Understanding of Treaties

David Bederman in his book International Law Frameworks, provides a very detailed and insightful account of the ins and outs of treaties as it is understood and used in contemporary times. By approaching the discussion of treaties from such an angle allows us to work backwards in order to determine how a treaty from 1,400 years ago compares to today. Bederman begins by explaining that treaties are not exclusively for states, that non-state entities, like tribes in the case of Muhammad, can also enter into a treaty. Furthermore, the principle of ius tertii is very important because if even one party does not agree to participate, from that tension problems can arise. Therefore, the treaty should not be binding or legally enforceable against those states that decline to participate.[25] One of the reasons why the Treaty of Hudaybiya was successful can be attributed to the fact that each tribe agreed to the terms and conditions of the treaty.

One interesting relationship that Bederman briefly touches on is between treaties and customs. He explains that the two can correlate and clash with each other, but because there is no hierarchy between them the possibility of their being tension or problems does raise issues of concern. In other words, if a country or tribe rejects a treaty provision containing a rule but fails to also eradicate it from the state or tribe practice, that rule can become bound as a custom. This scenario occurred between Muhammad and his rivals. During the writing of the treaty, the Quraysh (Muhammad’s enemy) insisted that certain terms and phrases referring to Islam were not to be used. However, when they (the Quraysh) had the chance to eradicate this from their town, a number of years earlier, they did not and over time the beliefs about Islam grew which later came to hurt the Quraysh.

When it comes to the actual structuring of a treaty the first step, according to Bederman, is the negotiating, in which diplomats or representatives are given instructions and authority to draft and sign an agreement.[26] Deciding on who signs the agreement is paramount because the act of signing a document legally binds that state or tribe. Therefore, it is significant to know the authority of the individual signing. However, the ratification of the treaty is equally important because that also shows the state or tribe’s intention to be legally bound by the treaty.[27] Another aspect of a treaty is the possibility to try to unilaterally change the legal effects of the treaty after the fact. In a bilateral agreement, changes might be possible if both parties agree to negotiate and re-negotiate. Furthermore, specificity of geographical and territorial parameters needs to be addressed, as far as where the rules of the treaty pertain to. Also, concerns of retroactively including certain events into the treaty also need to be addressed.[28] Ultimately the more transparent each party is with their intentions and objectives the more successful their relationship with each other will be through their treaty.

However, the world is an imperfect place and sometimes the need may arise to suspend or terminate an agreement. Bederman explains the circumstances where ending of a treaty is allowed. One party may suspend or terminate the treaty if the other has materially breached a provision essential to the accomplishment of the object or purpose of said treaty. If the breach is trivial or accidental it does not warrant a unilateral termination. If the unilateral termination is performed any ways and later it is realized that there was a mistake, the party that terminated the treaty will be regarded as the party that breached the agreement.[29] The objective here is to preserve as many treaty obligations as possible, because in more cases than most at least one party is not fully satisfied with the agreements. Therefore, it is important that the ending of a treaty is for legitimate reasons and not because one party is unhappy with a certain part of the agreement.

Leading up to the Treaty of Hudaybiya

Throughout this paper, Muhammad has been depicted of living in an environment where he was not welcomed. He was subject to a number of negative attacks, and was forced to flee to another town. Starting out weak and outnumbered, over time his following grew as did his strength. Also, living in a stress free area helped him focus on issues more important to him and his mission. But there was one thing still missing, Muhammad wanted to return to his hometown and reclaim it in the name of Islam. In order to do this, he would need to head for the most important location inside Mecca (the Kaabe) to demonstrate his intention for peace, and that Islam is a good religion, and confront the same individuals who excommunicated him in the first place.[30] Fortunately, things were different this time, he had more followers and his military was stronger. Therefore, he along with many of his followers (some accounts say 700 others claim 1,400-1,500, and they were unarmed) headed out for Mecca to perform the lesser pilgrimage when they were confronted by members of the Quraysh and were forced to stop right outside the city entrance.[31] After a few conversations they agreed to negotiate a peace treaty.

Interestingly, the same tribe and individuals who earlier harassed Muhammad and forced him to leave were now willing to negotiate a treaty. One of the reasons why there was such a change in tone was mentioned earlier with Muhammad’s increased following and strength. Also the Quraysh were struggling in the trade market and appeared to be weaker in comparison to Muhammad.[32] Therefore, the idea of war was the farthest thing from their minds, and so the negotiations for a peace treaty began in 628 CE.[33]

Treaty of Hudaybiya

The key individuals involved in the negotiations were Muhammad who represented the people of Medina and Suhayl who represented Mecca. Ali, who was Muhammad cousin, son-in-law and second in command wrote up the treaty. Initially there was heated negotiations, but these demands were not about issues like the terms and conditions, or time frame or territorial concerns. It had to do with certain phrases; Suhyal did not recognize the God of Islam or that Muhammad was His messenger, so he demanded that those phrases not be used. Muhammad agreed and they simply wrote “O Allah” and Muhammad’s name the traditional way, Muhammad b. Abduallah (Muhammad’s first name followed by his father’s first name).[34] Many Muslims were upset over the conditions of the treaty because they felt it favored the Quraysh over themselves. However, Muhammad had long term plans with this agreement and realized that the best way to recapture Mecca was through peaceful means; even if that meant compromising on a number of issues. Moreover, as mentioned above, Bederman states that if a country or tribe rejects a treaty provision containing a rule but fails to also eradicate it from the state or tribe practice, that rule can become bound as a custom; and that is what exactly happened. The Quraysh were able to omit certain phrases from the treaty but they failed to eradicate it from society and over time these beliefs turned into customs and grew too strong for the Quraysh to overcome.

Muhammad and Suhayl agreed on the following conditions:

  1. They have agreed to lay aside war for ten years during which men can be safe and refrain from hostilities.
  2. If anyone comes to Muhammad without the permission of his guardian Muhammad will return him to their guardian.
  3. If anyone of those with Muhammad comes to Quraysh they will not return him to Muhammad.
  4. We will not show enmity one to another and there shall be no secret reservation or bad faith.
  5. He who wishes to enter into a bond and agreement with Muhammad may do so.
  6. He who wishes to enter into a bond and agreement with Quraysh may do so.
  7. Muhammad must retire from Mecca this year and not enter against the Quraysh’s will.
  8. Next year the Quraysh will make way for Muhammad to enter it with his companions and stay for three nights.
  9. Muhammad and his companions may carry a rider’s weapons, the swords in your sheaths, you can bring in nothing more.[35]

After one year passed and Muhammad went on his three night pilgrimage, one of the Meccan tribes (Khuzaah) decided to enter into a bond or agreement with Muhammad – this would be in line with condition number five and would not violate number two because the guardians of the tribe made the decision to align themselves with Muhammad.[36] After some time passed, a member of a Meccan tribe (Abd Manat) breached condition number four when he showed enmity and bad faith by writing some verses hostile to Muhammad.[37] In retaliation, the Khuzaah went and killed the individual who wrote those verses. In response, the Abd Manat performed a surprise attack.[38] One thing to keep in mind with this event is that according to norms of that time the Khuzaah were in the right because they (the followers of Muhammad) were harassed first and so they were allowed to retaliate in kind. But when the Abd Manat performed a second breach (condition number one) the Meccans had to confront Muhammad and discuss the situation.

Before approaching Muhammad, the Quraysh thought of their options, they could either disown the guilty members of the Abd Manat and leave them to the mercy of Muhammad, pay the blood money which would ruin their reputation, or declare war and run the risk of losing because as time has gone by Muhammad has grew stronger and the Quraysh weaker.[39] Muhammad was also aware of this so when Sufyan tried to compromise with him, Muhammad declined and realized that now was the best time to recapture Mecca and soon enough he did.

Treaty of Hudaybiya & Contemporary Understandings of Treaties

After reviewing the events and the document surrounding the Treaty of Hudaybiya it is clear that there are many similarities between how Muhammad wrote up his treaty almost 1,400 years ago and how treaties are understood today. Perhaps the most surprising and important similarity is the fact that the parties involved agreed to the treaty and upheld heir end of the agreement. And only up until the point where someone materially breached a provision essential to the accomplishment of the object or purpose of the treaty was their action taken to end the treaty. The reason why I say ‘surprising’ is because many critics of Muhammad and Islam criticize him for being violent, and yet he approached the situation through a peace treaty and upheld his end of the agreement. Although concerns such as geographical/territorial parameters, or retroactively including certain events were not important and therefore not discussed, there was still an emphasis for clearly setting the rules of the treaty – something that was stressed by Bederman. Ultimately, the Treaty of Hudaybiya was a simple yet well executed document.

****

Conclusion

In closing, all of the concepts that have been discussed throughout this paper about international law, legal system, primary and secondary rules, sources of international legal rules, constitution-making, and treaties can be found within Islam. For starters, under international law, laws do not have to exist only from legislative activities and can result out of a number of avenues; such as, customs, courts, treaties and constitution-making. During the time of Muhammad, the latter approach was used, primarily because pre-Islamic Arabia was very weak in its legislative activity. However, with the rise of Prophet Muhammad and Islam, Arabia became strong in customs, constitution-making and treaties.

In regards to constitution-making, the international law’s operating system is very much compatible with Muhammad’s intertribal constitution-making at Medina. As Ku & Diehl explained, the sources of law, actors, jurisdiction, and courts or institutions provide the frame work for how states are to handle the international affairs. These four components clarified how the laws were formed, which actors were bound by the laws, what their rights and obligations are, how to deal with legal problems and violations, who is to hear the disputes and make the decisions, and so on. When these components are juxtaposed with the Constitution of Medina it shows that the majority of the criteria as explained by Ku & Diehl are fulfilled by the constitution that Muhammad wrote, and Table 1 displays the appropriate connections and similarities.

Furthermore, the criteria of treaties as discussed by Bederman are also fulfilled by the Treaty of Hudaybiya. Conditions such as, stating a clear objective, negotiating and renegotiating, ensuring ius tertii, and making sure that the treaty is only terminated or suspended when there is a real breach of an essential part of the treaty were all present in Muhammad’s treaty. And with these examples, I believe it has been shown that Islam is compatible with international law. Furthermore, questions can be raised as to whether concepts of constitution-making and treaties were apart of Islam before modern scholars began researching and looking back in the history books. Or perhaps, should Islam be included within the history of international law along with the Ancient Indians, Chinese, Egyptians, Greeks and Romans? I believe with the uncovering of such similarities between Islam and international law, we can know begin to discover how Islam’s political realm falls into the history of international politics, relations, and law.

****

Table 1

This table indicates which individual item from the Constitution of Medina matches with which component of the International Law Operating System.

Table 1_Islam & IL

****

Appendix A

Constitution of Medina

The following account of the Constitution of Medina comes from pages 231-233 of Ibn Ishaq’s book The Life of Muhammad.

The apostle wrote a document concerning the emigrants and the helpers in which he made a friendly agreement with the Jews and established them in their religion and their property, and stated the reciprocal obligations as follows:

  1. In the name of God the Compassionate, the Merciful.
  2. This is a document from Muhammad the prophet [governing the relations] between the believers and Muslims of Quraysh and Yathrib, and those who followed them and joined them and labored with them.
  3. They are one community to the exclusion of all men.
  4. The Quraysh emigrants according to their present custom shall pay the bloodwit within their number and shall redeem their prisoners with the kindness and justice common among believers.
  5. The Banu Auf according to their present custom shall pay the bloodwit they paid in heathenism; every section shall redeem its prisoners with the kindness and justice common among believers.
    1. The B. Saida, the B. al-Harith, the B. Jusham, and the B. al-Najjar likewise. The B. Amr b. Auf, the B. al-Nabit and the B. al-Aus likewise.
    2. Believers shall not leave anyone destitute among them by not paying his redemption money or bloodwit in kindness
    3. A believer shall not take as an ally the freedman of another Muslim against him.
    4. The God-fearing believers shall be against the rebellious or him who seeks to spread injustice, or sin or enmity, or corruption between believers; the hand of every man shall be against him even if he be a son of one of them.
    5. A believer shall not slay a believer for the sake of an unbeliever, nor shall he aid an unbeliever against a believer.
    6. God’s protection is one, the least of them may give protection to a stranger on their behalf.
    7. Believers are friends one to the other to the exclusion of outsiders.
    8. To the Jew who follows us belong help and equality.
    9. He shall not be wronged nor shall his enemies be aided.
    10. The peace of the believers is indivisible.
    11. No separate peace shall be made when believers are fighting in the way of God.
    12. Conditions must be fair and equitable to all.
    13. In every foray a rider must take another behind him.
    14. The believers must avenge the blood of one another shed in the way of God.
    15. The God-fearing believers enjoy the best and most upright guidance.
    16. No polytheist shall take the property or person of Quraysh under his protection nor shall he intervene against a believer.
    17. Whosoever is convicted of killing a believer without good reason shall be subject to retaliation unless the next of kin is satisfied (with blood-money), and the believers shall be against him as one man, and they are bound to take action against him.
    18. It shall not be lawful to a believer who holds by what is in this document and believes in God and the last day to help an evil-doer or to shelter him.
    19. The curse of God and His anger on the day of resurrection will be upon him if he does, and neither repentance nor ransom will be received from him
    20. Whenever you differ about a matter it must be referred to God and to Muhammad
    21. The Jews shall contribute to the cost of war so long as they are fighting alongside the believers.
    22. The Jews of the B. Auf are one community with the believers (the Jews have their religion and the Muslims have theirs), their freedom and their persons except those who behave unjustly and sinfully, for they hurt but themselves and their families.
      1. The same applies to the Jews of the B. al-Najjar, B. al-Harith, B. Saida, B. Jushman, B. al-Shutayba
      2. Loyalty is a protection against treachery.
      3. The freedman of Thalaba are as themselves.
      4. The close friends of the Jews are as themselves.
      5. None of them shall go out to war save with the permission of Muhammad, but he shall not be prevented from taking revenge for a wound.
      6. He who slays a man without warning slays himself and his household, unless it be one who has wronged him, for God will accept that.
      7. The Jews must bear their expenses and the Muslims their expenses.
      8. Each must help the other against anyone who attacks the people of this document.
      9. They must seek mutual advice and consultation, and loyalty is a protection against treachery.
      10. A man is not liable for his ally’s misdeeds.
      11. The wronged must be helped.
      12. The Jews must pay with the believers so long as war lasts.
      13. Yathrib shall be a sanctuary for the people of this document.
      14. A stranger under protection shall be as his host doing no harm and committing no crime.
      15. A woman shall only be given protection with the consent of her family.
      16. If any dispute or controversy likely to cause trouble should arise it must be referred to God and to Muhammad the apostle of God.
      17. God accepts what is nearest to piety and goodness in this document.
      18. Quraysh and their helpers shall not be given protection.
      19. The contracting parties are bound to help one another against any attack on Yathrib.
      20. If they are called to make peace and maintain it they must do so; and if they make a similar demand on the Muslims it must be carried out except in the case of a holy war.
      21. Every one shall have his portion from the side to which he belongs; the Jews of al-Aus, their freedmen and themselves have the same standing with the people of this document in pure loyalty from the people of this document.
      22. Loyalty is a protection against treachery: He who acquires aught acquires it for himself.
      23. God approves of this document.
      24. This deed will not protect the unjust and the sinner.
      25. The man who goes forth to fight and the man who stays at home in the city is safe unless he has been unjust and sinned.
      26. God is the protector of the good and God-fearing man and Muhammad is the apostle of God.

Notes

[1] Terry Nardin, Law, Morality and the Relations of States (New Jersey: Princeton University, 1983), 122.

[2] Nardin, Law, Morality and the Relations of States, 123.

[3] David J. Bederman, International Law Frameworks (New York: Foundation Press, 2006), 13.

[4] Herbert Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 81.

[5] Hart, The Concept of Law, 92-93.

[6] Craig J. Barker, International Law and International Relations: international relations for the 21st century (New York: Continuum, 2000), 18.

[7] Barker, International Law and International Relations, 18.

[8] Barker, International Law and International Relations, 33.

[9] Muhammad Ibn Ishaq, The Life of Muhammad, trans. Alfred Guillaume (Oxford: Oxford University Press, 1955), 159.

[10] Martin Lings, Muhammad: His Life Based on the Earliest Sources (Rochester: Inner Traditions, 1983), 90.

[11] Bederman, International Law Frameworks, 13.

[12] Bederman, International Law Frameworks, 14.

[13] Bederman, International Law Frameworks, 14.

[14] Charlotte Ku and Paul F. Diehl, International Law: classic and contemporary readings (Colorado: Lynne Rienner Publishers, 2009), 3-4.

[15] Ku and Diehl, International Law, 3.

[16] Ku and Diehl, International Law, 4.

[17] Ku and Diehl, International Law, 4.

[18] Ku and Diehl, International Law, 5.

[19] Ibn Ishaq, The Life of Muhammad, 199, 208.

[20] Barker, International Law and International Relations, 1.

[21] Barker, International Law and International Relations, 2.

[22] Barker, International Law and International Relations, 2.

[23] Barker, International Law and International Relations, 2.

[24] Barker, International Law and International Relations, 4.

[25] Bederman, International Law Frameworks, 29.

[26] Bederman, International Law Frameworks, 31.

[27] Bederman, International Law Frameworks, 31.

[28] Bederman, International Law Frameworks, 34.

[29] Bederman, International Law Frameworks, 39.

[30] Montgomery Watt, Muhammad, Prophet & Statesman (New York: Oxford University Press, 1969), 184.

[31] Ali Furrukh, “Al-Hudaybiya: an Alternative Version,” The Muslim World 71 (1981): 60-61.

[32] Furrukh, “Al-Hudaybiya: an Alternative Version,” 47.

[33] Watt, Muhammad, Prophet & Statesman, 183.

[34] Ibn Ishaq, The Life of Muhammad, 504.

[35] Ibn Ishaq, The Life of Muhammad, 504.

[36] Watt, Muhammad, Prophet & Statesman, 201.

[37] Watt, Muhammad, Prophet & Statesman, 201.

[38] Watt, Muhammad, Prophet & Statesman, 201.

[39] Watt, Muhammad, Prophet & Statesman, 202.

Bibliography

Ali, B. Furrukh. “Al-Hudaybiya: an Alternative Version.” The Muslim World 71 (1981): 47-62.

Barker, J. Craig. International Law and International Relations: international relations for the 21st century. New York: Continuum, 2000.

Bederman, David J. International Law Frameworks. New York: Foundation Press, 2006.

Hart, Herbert L.A. The Concept of Law. Oxford: Clarendon Press, 1961.

Ibn Ishaq, Muhammad. The Life of Muhammd. Translated by Alfred Guillaume. Oxford: Oxford University Press, 1955.

Ku, Charlotte and Paul F. Diehl. International Law: classic and contemporary readings. Colorado: Lynne Rienner Publishers, 2009.

Lecker, Michael. The “Constitution of Medina”: Muhammad’s First Legal Document. Princton: The Darwin Press, 2004.

Lings, Martin. Muhammad: His Life Based on the Earliest Sources. Rochester: Inner Traditions, 1983.

Nardin, Terry. Law, Morality and the Relations of States. New Jersey: Princeton University Press, 1983.

Serjeant, R.B. “The Sunnah Jami’ah, Pacts with the Yathrib Jews, and the Tahrim of Yathrib:

Analysis and Translation of the Documents Comprised in the So-called ‘Constitution of Medina’.” Bulletin of the School of Oriental and African Studies 41 (1978): 1-42.

Watt, Montgomery W. Muhammad, Prophet & Statesman. New York: Oxford University Press, 1969.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s