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Published online by Cambridge University Press: 20 January 2017
This short essay focuses on the involvement of Muslim-majority state leadership in the pre-World War II development of international humanitarian law (IHL), including their appeals to Islamic norms. This historical snapshot reveals how national leaders joined debates during conferences leading up to the revised 1949 Geneva Conventions, the heart of modern IHL. Such accounts complicate our assumptions about the cultural and national composition of public international law as “Western,” and shed light on global hierarchies involving modern Arab and Muslim states and their investment in such norms. The essay argues by example that, ultimately, in Third World Approaches to International Law (TWAIL) more emphasis is needed on history, traditions of governance, and states’ distinctive responses to macrostructural pressures—rather than on static notions of identity, resistant narratives, and presumed shared ideologies. TWAIL seeks alternatives to international law’s presumed oppressive role in Western-non-Western power dynamics, and new ideas and opportunities for a “third-world” legal scholarship beyond current global underdevelopment dynamics.
1 See Cockayne, James, Islam and International Humanitarian Law, 84 Int’l Rev. Red Cross 597 (2002)CrossRefGoogle Scholar; Badar, Mohamed, Ius in Bello under Islamic International Law, 13 Int’l Crim L. Rev. 593 (2013)CrossRefGoogle Scholar; Ahmed Mohsen Al-Dawoody, The Islamic Law of War (2011).
2 Gathii, James Thuo, TWAIL: A Brief History of its Origins, its Decentralized Network and a Tentative Bibliography, 3 Trade, L. & Dev. 26 (2011)Google Scholar; Mickelson, Karin, Taking Stock of TWAIL Histories, 10 Int’l Community L. Rev. 355 (2008)CrossRefGoogle Scholar.
3 Mutua writes: “The regime of international law is illegitimate. It is a predatory system that legitimizes, reproduces and sustains the plunder and subordination of the Third World by the West . . . Historically, the Third World has generally viewed international law as a regime and discourse of domination and subordination, not resistance and liberation. This broad dialectic of opposition to international law is defined and referred to here as Third World Approaches to International Law (TWAIL).” See Mutua, Makau, What is TWAIL?, 94 Proc. Ann. Mtg. ASIL 31 (2000)Google Scholar; Khosla, Madhav, TWAIL Discourse: The Emergence of a New Phase, 9 Int’l Community L. Rev. 291 (2007)CrossRefGoogle Scholar (arguing for three phases of concerns: colonialist, hegemonic uses of international law by powerful nations; international legal institutions embedded in North-South politics of globalization; and extreme post-9/11 violations of norms).
4 For social scientific debate of “Third World,” see Pletsch, Carl E., The Three Worlds, or the Division of Social Scientific Labor, circa 1950– 1975, 23 Comp. Stud. Soc. & Hist. 565 (1981)CrossRefGoogle Scholar; Randall, Vicky, Using and Abusing the Concept of the Third World, 25 Third World Q. 41 (2004)CrossRefGoogle Scholar.
5 But see, Munir, Muhammad, Islamic International Law, 20 Hamdard Islamicus 37 (2012)Google Scholar; Antony Anghie, Imperialism, Sover Eignty & The Making of International Law (2005); Surya Prakash Sinya, Legal Polycentricity & International Law (1996); Arnulf Becker Lorca, Mestizo International Law (2014).
6 See UN Charter art. 2(1), “The Organization is based on the principle of the sovereign equality of all its Members.”
7 See Fred M. Donner, Muhammad & The Believers (2010); and Fred M. Donner, Early Islamic Conquests (1986). For Quranic verses echoing related norms, see Yusuf Ali, The Holy Qur’an 47.4; 2.205; 48.25 (1934)—but see id. at 59.5 and 47.4.
8 Abu Bakr’s instructions include: “Oh army, stop and I will order you [to do] ten things; learn them from me by heart. You shall not engage in treachery; you shall not act unfaithfully; you shall not engage in deception; you shall not indulge in mutilation; you shall kill neither a young child nor an old man nor a woman; you shall not fell palm trees.” See the History of Al-Tabari Vol.10: The Conquest of Arabia (Fred M. Donner trans., 1983); Rudolph Peters, Islam & Colonialism 23 (1979) (noting other schools using the Prophet and Quran i.e. 59.5 permitted these acts, justified them, and refuted Abu Bakr’s prohibitions, as the “deeds of the companions can never abrogate deeds of the Prophet”).
9 For non-Western contributions in Africa studies, see Bello, Emmanuel G., Shared Legal Concepts between African Customary Norms & International Conventions on Humanitarian Law, 23 Mil. L. & L. War Rev. 285 (1984)Google Scholar. But see, Modirzadeh on incompatibilities in Islam and IHRL, Modirzadeh, Naz K. Taking Islamic Law Seriously: INGOs and the Battle for Muslim Hearts & Minds, 19 Harv. Hum. Rts. J. 191 (2006)Google Scholar.
10 Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (2005). See Cockayne, supra note 1,; Al-Dawoody, supra note 1.
11 See Powell, Emilia Justyna, Islamic Law States and Peaceful Resolution of Territorial Disputes, 69 Int’l Org. 777 (2015)CrossRefGoogle Scholar.
12 For Conference sources cited, see James Brown Scott, The Proceedings of the Hague Peace Conferences, 1899 (1920) [hereinafter SCOTT 1920]; A. Pearce Higgins, The Hague Peace Conferences Concerning the Laws & Usages of War (1909); James Brown Scott, The Geneva Convention of 1906 for the Amelioration of the Condition of the Wounded in Armies in the Field (1916) [Hereinafter Scott 1916]; 1-3 Final Record of the Diplomatic Conference, Geneva, Apr. 1-12 Aug. 1949 (1968).
13 SCOTT 1920, supra note 12, at 305 (Hague, June 23, 1899).
14 Id. at 306 (Hague, Jun. 23).
15 The work of Saadi Shirazi (d. 1291) adorns the UN entrance. See Saadi Shirazi, Rose Garden, The Manners of Kings (1258): “All human beings are members of one frame; Since all, at first, from the same essence came. When time afflicts a limb with pain; The other limbs at rest cannot remain. If thou feel not for other’s misery, A human being is no name for thee.”
16 Scott 1920, supra note 12, at 63.
17 Scott 1916, supra note 12, at 100.
18 Id. at 683.
19 For a critique of Elias’s treatment of sovereignty as a barrier to international law reform see, Gathii, James T., A Critical Appraisal of the International Legal Tradition of Taslim Olawale Elias, 21 Leiden J. Int’l L. 317 (2008)Google Scholar.
20 Scott 1916, supra note 12, at 63 (Hague, Jul. 20).
21 Id.
22 Scott 1920, supra note 12, at 454.
23 Id. at 67.
24 Id. at 484 (Hague, May 30, 1899).
25 For this core element of IHL, see Corn, Geoffrey S. & Corn, Gary P., The Law of Operational Targeting: Viewing the LOAC through an Operational Lens, 47 Tex Int’l L. J. 338 (2012)Google Scholar.
26 Paul Robinson, Military Honour & The Conduct of War (2006).
27 Scott 1920, supra note 12, at 525 (Hague, Oct. 16, 1907, Annexes).
28 Id.
29 Id. (Hague, Oct. 16, 1907, Annexes).
30 Id.
31 See Khosla, supra note 3, and Sinya, supra note 5, at 1; Samour, Nahed, Is there a Role for Islamic International Law in the History of International Law?, 25 Eur. J. Int’l L. 313 (2014)CrossRefGoogle Scholar; and for a contemporary example, Shah, Niaz A., The Use of Force under Islamic Law, 24 Eur. J. Int’l L. 343 (2013)CrossRefGoogle Scholar.
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