War and Diplomatic of International Law in Islam Perspective
Diplomacy is
comprises any means by which states establish or maintain mutual relations,
communicate with each other, or carry out political or illegal transactions, in
each case through their authorized agents.[1] In
Vienna Convention on Diplomatic Relations 1961 the function of a diplomatic
mission consists : a. Representing the sending State in the receiving State; b. Protecting in the receiving State the interests of the sending State and of
its nationals, within the limits permitted by international law; c. Negotiating with the Government of the receiving State; d. Ascertaining by all lawful means conditions and developments in the
receiving State, and reporting thereon to the Government of the
sending State; e. Promoting friendly relations between the
sending State and the receiving State, and developing their economic, cultural and scientific relations.[2] According to Lord Strange, the function of
diplomacy is to settle every dissidences between states to get the composure
and friendship by discuss or negotiation.[3]
From the definition and the function above, we know that diplomacy
simply as the relation between states. Contextualization of Islamic doctrine
there are some basic principle of diplomatic in the Qur’an. The relation is
good and fair (QS. Al-Mumtahanah:8), every diplomacy relation between state are
obey all the regulation whether in International law or in national law and
also the religion value. The most important should bring justice in every
aspect of life. Reconcilement is the priority (QS. Al-Anfal:61), when some
state make a diplomatic relation they should not make conflict or some problem
after the relation happened. Strengthen vigilance in peace (QS. Al-Anfal:62) ,
war is allowed only for defensive purposes not offensive (Al-Hajj:39-40) , and
respecting treaties tracts that have been signing (QS. At-Taubah:7).[4]
In Islam perspective, there are two kind of diplomatic relations,
the first is diplomatic relations in peace time and the second is diplomatic
relations in war time. Diplomatic relation in peace time, peace is the
principle of diplomatic relations in addition as the obligations of the state
to another state. Which mean, respecting the rights of the other country and held
the International agreements. [5] According
to Abdul Wahab Khalaf that the origin of diplomatic relations in two opinion.
The first opinion refers to verses of war in Al-Qur’an ( Al-Baqarah:216, An-Nisa:74,
Al-Anfal: 65, At-Taubah:29 ) and The Prophet said “I was ordered to fight the
people until they say syahadah, pray and giving zakat” The conclusion of the
first opinion is the core of the diplomatic relations in International law is
war. The second opinion is opposite of the first opinion. They said that the
origin of diplomatic relations in International law is peaceful. The reasons
that make the war are allowed because of some reasons. The reasons are to
refuse tyranny, avoid slander in order to defense their self as describe in Al-Qur’an.
In Hadist, according to these groups, applies to people or groups who are
possessing or fight Islam to deny their tyranny. Moreover coercion in religion
is not allowed.[6]
Before give more explanation about diplomatic relations in war
time, firstly we give some reason why war happen. Defend our self, from the
history book of Tarikh Islam, how The Prophet Muhammad SAW gather the strength
and defend the Madinah country from the attacks of enemy infidels Quraisy. In
war of Badar, not Prophet Muhammad who will attacks but the enemy attack
Madinah. The time of Fathul Makkah, Rasulullah came to Makkah not for war or as
the conqueror but as giving the general amnesty and still respect the dignity
of Makkah people such as Abu Sofyan who at that time who still pagan. [7]
The second reason why war does exist is for Da’wah. War can
also occur in order to ensure the da’wah path. Which is mean, da’wah for the truth and justice and to the
noble principles should not be hindered oppressed by any ruler. It has been
clear that Islam does not require religious coercion. If the authorities
imposed his religion and oppressing the Muslim, the rulers were despotic. The
behavior like that was exhibited by the Persian and Roman at that time who did
not give freedom for their Muslim citizen. [8]
According to Ali Wahabah, there are three groups who are allowed to
be fight in Islam. The first is idolaters who started to fight against Muslim.
In Al-Baqarah, Allah commanded the Muslim to dispel the hostility. Therefore,
if there are idolaters parties who initiated the hostilities, Allah command
Muslim to avenge their fight. In history of Islam was known a hostility of
pagan Quraish of Makkah to the Prophet Muhammad and the Muslim, so that Prophet
Muhammad and Muslim avenge their fight anyway. The second is the party who
cancel the agreement unilaterally. If there are those who hold pacts with
Muslim, then they betray, so they are legal to be fought. This can be referred
to agreement between Prophet Muhammad and the Jews of Medina or known as Medina
charter. But they undergo the betrayal and disrupt the lives of Muslim in
Medina. Finally as the reward for their treachery, The Prophet Muhammad
punished them. The last is the enemies of Islam who hold the alliance to
destroy Islam and Muslim. As happened in Ahzab ( Khandaq War ). In this war,
the pagan Meccans entered into conspiracy with residents around Mecca and the
Jews of Medina to fight Muslim. To face this fight, Prophet Muhammad based on
advice of Salman Al-Farisy to build trenches to fortify Medina. Finally, the
allied army broke up and went back to their place without result. Those kind of
group are allowed to be fought.[9] In
addition to the three groups above, there is another group that should be
fought within Islam. They are people who deliberately disrupt and hinder the
propagation of Islam.
Generally, war is fardu kifayah which is mean the
obligations imposed on some people who can fight. But if some people who have
driven the enemy or the war was ended with a treaty, so that the obligation
fall upon other Muslim. Actually it is not only the obligations of the war in
the battle. But also, all of the aspects which can be support the victory of
Muslim army. Therefore, those who are weak like a blind, elderly parent,
children and woman if they have surplus economy, they must be “at war” by help
the Muslim army with their financial.
Regarding diplomatic relations in perspective of Islam itself it is
highly preferred because this way use peaceful as the most important point. As
explain earlier that the goal of Islam
for peace. Despite war, but it is form of defensive action of Muslim in
desperate condition. Making treaty is one of the forms of diplomacy either in
International law or Islamic law. Islam itself is very respect in treaties and
agreement and does not hesitate to fight the parties who decide unilaterally.
Now days, the law of war also developing as one of the branch in
International law or known as International Humanitarian law. In common with
general in International Humanitarian law in prescribing, the laws relating to
the use of force (Jus ad bellum) , Islamic law and syiar also
regulate the conduct of hostilities (Jus in bello). Although Islamic law
attempted to inject strong humanitarian precepts in warfare, the jus in
bello principles are often heavily intertwined with jus ad bellum. In the
Islamic tradition, substantial limitations are placed in conducting warfare. [10]
In International Humanitarian Law, there are two kind of armed conflict. They
are internal armed conflict and International armed conflict. Main topic of
this article is about war and diplomatic relation in Islam perspective,
therefore we only explain about international armed conflict which has relation
with the topic. International armed conflict
is any other armed conflict which may arise between two or more state of
the High Contracting Parties, even if the state of war is not recognized by one
of them. [11]
The situations referred to here are conflicts between states. The ‘High
Contracting Parties’ mentioned in this text are sovereign entities. Depending
on the case in question, these situations may take the form of a direct
conflict between states or of intervention in a previously existing internal
conflict. [12]
[1] Ian
Brownlie. The Principles of International
Law. Third Editon. Oxford University Press Nations, 1979.
[2]
Article 3 of The Vienna Convention in Diplomatic Relation 1961
[3]
Jusuf Badri,1993,p.24
[4]
M.Iqbal. Fiqh Siyasah. 2001
[5] http://zahratunisa.blogspot.com/2010/05/fiqh-siyasah.html
last access in 31 January 2013
[6] Prof.
H.A. Djazuli, Fiqh Siyasah implementasi kemaslahatan umat dalam rambu-rambu
syariah, page.135
[7] Ibid
page.144
[8]
Ibid page.144
[9] http://zairifblog.blogspot.com/
last access on 3 February 2013
[10]
Bennoune, fn 9 page. 620-621
[11]
The same field of application was also retained for other instrument of
International Humanitarian Law. In particular Additional Protocol I (see Art.
1(3))
[12]
Humanitarian debate: Law, policy action “Typology of armed conflict” 2009
