IHL, Islam and Access to Humanitarian Aid in War Zones
Around 1400 years ago, about 3 kilometres from the prosperous city of Makkah, Prophet Muhammad (PBUH) received the first revelation of the Holy Quran and, since then, dedicated his (PBUH)’s life to the prosperity and spread of Islam. Although intrinsically a religion of peace, Islam, owing to its misuse by certain extremist groups, is increasingly perceived as a violent and harsh religion by its outsiders. Yet anyone who has genuinely studied this “marauding gang of a religion” would know that such accusations are just that- mere accusations that lack any footing. In fact, the biggest argument against the polemics of Islam, to demonstrate that Islam is not an incendiary religion, set on killing whoever it perceives as a “disbeliever”, are the similarities in the Islamic Law of War (ILOW) and International Humanitarian Law (IHL).
The overlap between Islamic Law of War and International Humanitarian Law comes in manifolds- the treatment of prisoners of war, the warfare methods allowed, the reasons permitting war, and the extent to which one may go to gain military advantage are some of the aspects in which the two complement each other. Another aspect in which the two markedly intersect is permitting access to humanitarian aid in war zones. This article explores the interaction between IHL and Islam regarding allowing humanitarian relief in war zones by focusing on the permissibility of humanitarian corridors, blockades on humanitarian aid, neutrality, and protection provided to aid workers. The article will also dive into the divergences between IHL and ILOW with regards to rulings regarding non-international armed conflicts.
The Fourth Geneva Convention requires states to “allow the free passage of all consignments of medical and hospital stores intended only for civilians” and “the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.1Fourth Geneva Convention, Article 23 (cited in Vol. ICh. 17, § 361 https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf Therefore, access to humanitarian aid is mandatory, according to IHL. Similarly, “a cardinal objective of Islamic law is the protection of life; and the preservation of humanity is the natural outcome of the sanctity of life. This vital objective is linked to delivering essential services, such as medical care and economic assistance.”2‘How Do IHL And Islamic Law Protect And Ensure Humanitarian Assistance In Afghanistan? – Humanitarian Law & Policy Blog’ (Humanitarian Law & Policy Blog, 2022) <https://blogs.icrc.org/law-and-policy/2022/04/28/how-do-ihl-and-islamic-law-protect-and-ensure-humanitarian-assistance-in-afghanistan/> Accessed 20 August 2022. Hence, under Islamic law, providing access to humanitarian aid for civilians is imperative.
Both IHL and Islamic law distinguish between international armed conflicts and non-international armed conflicts distinctly. According to customary IHL, while an international armed conflict occurs when “one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of this confrontation”,3Common Art. 2 to the GC of 1949. a non-international armed conflict “is when one or more non-State armed groups are involved”.4Common Art. 3 to the GC of 1949 and Additional Protocol 2 Article 1 On the other hand, the Islamic law of war defines an international armed conflict as a Muslim and non-Muslim state resorting to armed force against one another.5Ahmed Al Dawoody, ‘IHL And Islam: An Overview – Humanitarian Law & Policy Blog’ (Humanitarian Law & Policy Blog, 2017) <https://blogs.icrc.org/law-and-policy/2017/03/14/ihl-islam-overview/> Accessed 20 August 2022. In contrast, a non-international armed conflict is one where Muslim parties resort to force against each other. In Islamic law of war, the rules applicable in a non-international armed conflict are ostensibly stricter than in an international armed conflict.6Heba Aly, ‘Islamic Law And The Rules Of War’ (The New Humanitarian, 2022) <https://www.thenewhumanitarian.org/2014/04/24/islamic-law-and-rules-war> Accessed 20 August 2022.
A Consensus on Permitting Access to Humanitarian Aid
According to Rule 55 of Customary IHL, “parties to IACs have an obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction”. Similarly, Islamic law too emphasizes the protection of human lives even during a war, and hence, “hindering access to humanitarian assistance would fall contrary to the objective of saving lives and ensuring “maslaha” (the public good), which would constitute the infliction of harm, an act prohibited in Islam by the first part of the Fiqh legal maxim ‘la darar wa la dirar’ (harm should not be inflicted nor reciprocated)”.7no.2 Thus, it is evident that both ILOW and IHL, except for certain exceptions, enforce conflict parties to allow access to humanitarian aid in war zones.
Humanitarian Corridors and Protecting the Wounded and the Sick
Now that it has been established that access to humanitarian aid is endorsed by both IHL and ILOW, the question arises as to whether a frequently used method of providing humanitarian assistance, i.e. humanitarian corridors, are allowed or not and to what extent are the wounded and the sick to be protected? A deeper dive into this question would help us understand the extent to which the two laws on war overlap- is the fundamental rationale of IHL, minimizing civilian suffering, also what ILOW aims for?
According to IHL, “humanitarian corridors or safe passages are essentially agreements between parties to the armed conflict to allow for safe passage for a limited time in a specific geographic area. They can allow civilians to leave, humanitarian assistance to come in or allow for the evacuation of the wounded, sick or dead”.8‘How Humanitarian Corridors Work To Help People In Conflict Zones’ (International Committee of the Red Cross, 2022) <https://www.icrc.org/en/document/how-humanitarian-corridors-work> accessed 20 August 2022.
Moreover, as per article 17 of the Fourth Geneva Convention, “specific categories” of civilians are allowed to leave war-conflicted areas to avoid the dire consequences of having limited resources by setting up humanitarian corridors. This specific category entails individuals who are either sick, wounded, aged, or children or those who have maternity-related cases.9no.5 Thus, although “not expressly defined in IHL”, safe passages are recognized and have been used in the past to aid civilians.10no.8
Notably, the importance of humanitarian corridors and protecting specific categories of individuals in IHL intersects with ILOW’s concept of safe passage or “Amān” as well as the tradition of the Prophet (PBUH) and his (PBUH)’s companions. Amān, “in the sense of safe conduct, refers to the protection and specific rights that are granted to non-Muslim nationals of an enemy State who are temporarily living in or making a brief visit to the Muslim State in question for business, tourism, education or other peaceful purposes.”11no.5 In addition to this, if enemy combatants, either verbatim or in writing or through any other action, request Aman, according to ILOW, they are to be granted it and shall be protected until they reach their country.12ibid Scholars cite the following verse as proof of Amān being mandatory; God says, “If one of the polytheists asks thy protection, grant him protection until he hears the word of God, then see that he reaches his place of security; that is because they are a people who have no knowledge.”13Ahmed Yamani, ‘Humanitarian International Law In Islam: A General Outlook’ (1985) 7 Michigan Journal of International Law <https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1784&context=mjil> accessed 20 August 2022. Therefore, it is imperative for Muslims not only to provide protection when asked for by non-combatants but also to arrange for humanitarian corridors if need be.
Moreover, protecting the aforementioned category of individuals is not alien to the ILOW. To elaborate, to attack any individual from the following five categories, including women, children, the elderly, the clergy, and, significantly, the ʻusafā’ (enslaved people or people hired to perform certain services for the enemy on the battlefield, but who take no part in actual hostilities), save some exceptional circumstances where they were involved in combat, would be a transgression in the eyes of God. Historically, the Muslim caliphs too reiterated these rules to their soldiers before battles- a famous example being when Caliph Abu Bakr told his warriors before departing for the conquest of the Levant:
“When you meet your enemies in the fight, behave yourself as befits good Muslims…. If Allah gives you victory, do not abuse your advantages and beware not to stain your swords with the blood of one who yields; neither you touch the children, the women, nor the infirm, also men, whom you may find among your enemies.”14ibid
In addition, the extent of the respect with which Islam treats the wounded and the sick enemy can be gauged by a well-known story about Salahuddin al- Ayyubi, a famous Muslim ruler and warrior, and Richard Coeur de Lion, when the latter was taken ill. “Salahuddin covertly went to his enemy’s camp and treated him until he recovered, although Richard was the strongest and the fiercest Crusader. The story shows that Muslims take care of the wounded and the sick in their hands and extend their care to include the wounded and the sick in their enemy’s camp. Whatever the motive of such action may be, Salahuddin would not have acted as he did if the action was contrary to the teachings of Islam.”15ibid Hence, IHL and ILOW recognize the importance of humanitarian corridors, safe passages, and providing protection and aid to specific categories of individuals, particularly the wounded and the sick. However, although notably, it is both IHL and ILOW that endorse the aforementioned rights and protections, it is evident that Islam offers a protection much vaster than IHL by extending its aid to enemy combatants who seek it.
Ruling on Imposing a Blockade on Humanitarian Aid
Although humanitarian access remains mandatory under IHL and ILOW, there are instances where it may not be allowed. To safeguard the sovereignty of states, a requirement of consent by the state in whose territory the humanitarian operations will be carried out was added during the diplomatic conference of 1974-1977.16Ahmed Al Dawoody, No. 5 However, this requirement does not provide unfettered powers to states to reject humanitarian aid if they meet the stipulated conditions, i.e., the relief action must be exclusively humanitarian and impartial. To refuse humanitarian assistance, the state must have valid reasons and not do it arbitrarily.17ibid Additionally, Articles 54(1) and (2) of AP I “protect objects indispensable to the survival of the civilian population” and provide that “starvation of civilians as a method of warfare is prohibited.”18ibid Therefore, a siege or blockade intended to starve the population is prohibited under this provision.
In the context of Islam, unnecessary torture and infliction of harm are severely prohibited. Hisham ibn Hakim said, “I testify that I have heard God’s Messenger say that God will torture those who torture people on this earth.” The Prophet (Pbuh) also says: “Cultivate the goodwill of people and treat them gently, do not attack them until you have called them (to embrace the faith).”19Yamani, no.13 Thus, blocking humanitarian aid arbitrarily to harm innocent civilians is not permissible under Islam.
Moreover, historically in Islam, instances where water was “cut off from the enemy or polluted by blood, filth, or poison, were aimed at combatants and not civilians”.20ibid Additionally, permission for such acts was limited by necessity. In fact, caliph Abu Bakr is reported to have given specific instructions to his armies that “when Muslim armies ran out of food, they should only take food from civilians in enemy territory enough for one meal.”21No.5 Another example of the emphasis on permitting humanitarian aid during wartime and removing any blockades can be found following the 6th year of Hijrah (Islamic calendar):
“In the Year 6 of the Hijrah, Thumamah, Chieftain of Yamamah, decided to withhold supplies from Makkah, whose inhabitants depended on his tribe’s grain, in order to force the Mekkans to embrace Islam or until the Prophet ordered Thumamah otherwise. However, when Makkah was threatened with famine, its inhabitants asked that the embargo be removed, and the Prophet (PBUH) wrote to Thumamah to remove it. The Prophet (PBUH) even sent ripe dates to Makkah while hostilities were at their peak, and he gave a big amount of money. Needless to say, Makkah was at war with the Prophet (PBUH) from the time he left it to emigrate.”22ibid
Thus, the Prophet (PBUH)’s ruling to prohibit unnecessary destruction and torture, allow humanitarian aid and supply of resources for non-combatants even during war reinforces that in ILOW, like IHL, arbitrary blockade of humanitarian assistance to civilians is not allowed.
Is Accepting Aid from Neutral Parties Acceptable?
A cardinal IHL principle of providing humanitarian aid is that the organization providing it ought to be neutral. Neutrality itself is a duty to abstain from committing any act or deed which might be “interpreted as furthering a conflict in the interest of a particular party”.23Mohd kamal, ‘Is Neutral Humanitarian Action Permissible Under Islamic Law?’ (International-review.icrc.org, 2016) <https://international-review.icrc.org/sites/default/files/irc_97_1-2-17.pdf> Accessed 20 August 2022. Article 3, common to the four Geneva conventions, identifies the ICRC as “an impartial humanitarian body” that “may offer its services to the Parties to the conflict.”24ibid Therefore, a variety of humanitarian organizations are explicitly neutral so that they may assist victims of armed conflicts without any hindrances.
Islamically, according to Muhammad Himadullah, Muslims too are allowed to accept humanitarian assistance, such as medical services, from non-Muslims so long as the humanitarian parties act neutrally.25ibid Similarly, the idea of Muslims providing humanitarian aid to their enemies is not a foreign concept, for this was practised, as aforementioned, during the incident of famine in Quraysh, even during the Prophet Muhammad (PBUH)’s time. Muhammad Hamidullah also writes that the term “i‘tizala”, which means neutral, was “used by nations before the advent of the Prophet Muhammad (PBUH), and continued into his (PBUH)’s time”.26ibid He argues that the Quranic injunction prohibiting third fighting parties that neither supports the Muslims nor their enemies is proof that Islam recognizes a neutral party.27ibid
Protection to Aid Workers
For any humanitarian organization and its operations, aid workers and volunteers are invaluable. Under IHL, notably, Article 17 (2) of the 1977 Additional Protocol I, the parties to a conflict may appeal to aid societies such as the National Red Cross and the Red Crescent Societies “to collect and care for the wounded, sick and shipwrecked, and to search for the dead and report their location”. In conjunction with this, Article 71(2) of AP 1, Article 26 of the First Geneva Convention, as well as Customary IHL Rules 31 and 32 require that relief personnel be respected, protected, and assisted, to the fullest extent practicable, in carrying out their mission. Deliberate attacks upon persons or objects “involved in the provision of humanitarian access” is also prohibited under the Rome Statute of the ICC.28no.5 The Special Court for Sierra Leone also convicted three militia leaders for targeting aid workers.29ibid Moreover, the 1994 UN Convention on the Safety of United Nations and Associated Personnel and its Optional Protocol “created a regime of compulsory trial or extradition for trial for certain offences against persons carrying out activities in support of UN operations (from emergency humanitarian assistance to peacebuilding and the delivery of humanitarian, political, and development assistance.)”30ibid
Moving on to the Islamic perspective: the Quran affirms that the needy have a right to aid and that believers must give to the poor, the orphans, and the captives “for the countenance of Allah” (76:8-9).31Aly, no.4 For some analysts, “this places an obligation on Muslim fighters to either provide aid themselves or allow others to do so”.32ibid Often, aid workers are protected under the aforementioned contract of “Aman” that Muslims are then obligated to respect and adhere to. When groups like Médecins Sans Frontières and the International Committee of the Red Cross negotiate with armed groups for safe access to conflict zones, they negotiate an “aman”, even if the terminology is not used.33ibid Moreover, since a plethora of Muslim states across the globe are now signatories of the Geneva Conventions, they are bound to respect the terms within them, which amongst other things, also include protecting aid workers. Thus, once again, the IHL and ILOW converge on their perspective on the protected status of aid workers.
Humanitarian Access and Non-International Armed Conflicts
Although the ILOW and IHL patently overlap concerning the rulings for international armed conflict, they vary significantly from one another when it boils down to non-international armed conflicts. The rules and regulations under IHL pertaining to armed conflict of a non-international nature are less stringent and elaborate than those for international armed conflicts.34Yamani, no.12 The Geneva Conventions and Additional Protocol I are far more protective of both civilians and combatants than either Common Article 3 or (with respect to internal conflict) Additional Protocol II.35Adil Ahmed Haque, ‘Whose Armed Conflict? Which Law Of Armed Conflict?’ (exchange of notes, 2016) <https://deanruskintlaw.com/2016/11/04/whose-armed-conflict-which-law-of-armed-conflict/> Accessed 26 August 2022. Similarly, the Statute of the International Criminal Court “recognizes 34 war crimes in IAC but only 19 war crimes in NIAC”.36ibid Notably, the Statute recognizes knowing violation of the proportionality rule as a war crime when committed in IACs but not when committed in NIAC.37Yamani, no.12 However, despite these differences, a commonality between customary IHL pertaining to IACs and NIACs is the emphasis on allowing rapid and unimpeded passage to humanitarian aid.38See Rule 55 of the ICRC International Customary Law Study: http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule55. But this protection in both IACs and NIACs is only for non-combatants. To elaborate, as encapsulated within Article 3, common to all Geneva Conventions, the protocol guarantees protection only to non-combatants during an NIAC, including the wounded, the sick and those who do not play an active part in aggression.39ibid On the other hand, Islam takes a much more sympathetic route when fighting other Muslims- permitting guarantees that are not present when in combat against non-Muslims, such as the emphasis on ensuring that combatants are not killed or excessively harmed since they are fellow Muslims.40ibid Thus, this highlights the difference between ILOW and IHL pertaining to NIACs.
A useful example of this is after the termination of the battle of Nahrwan when Hazrat Ali (RA) “protected 400 wounded combatants, who were seriously injured, and their tribesmen were allowed to take them back along with their belongings to provide medical treatment.”41Syed Mahmood Akhter Hussain Gardezi “COMPARATIVE STUDY OF ISLAMIC LAWS OF WAR AND IHL – POINTS OF CONVERGENCE FOR UNIVERSAL CONSENSUS ON LAWS OF WAR” (2021), Margallla papers, Issue 1, Accessed 26 August 2022. Thus, replicating a humanitarian corridor inclusive of aid for enemy combatants and increased emphasis on the safety of nationals of the enemy state and their combatants that the IHL lacks with regards to NIAC.
Therefore, although the two laws of war intercede in certain aspects such as allowing rapid, unimpeded humanitarian aid, the apparent emphasis on limiting the harm you render to the enemy combatants and non-combatants during NIACs under ILOW demonstrates that the rules on humanitarian aid are sterner under ILOW than IHL.
Evidently, when it comes to allowing access to humanitarian aid in war zones, there is an overlap between ILOW and IHL. In fact, there are certain instances where Islamic injunctions on war with regards to access to humanitarian aid are more stringent; for example, requiring Muslims to ensure that their enemies are not excessively harmed during NIACs, and if they seek Aman, then they reach their countries safe and sound. Whereas IHL lacks such strictness with regard to NIACs. At this juncture, one cannot help but think that perhaps particular injunctions enshrined within ILOW ought to be made a part of IHL too. For example, as aforementioned, IHL, with regards to NIACs, is less strict and particular about allowing humanitarian aid to enemy combatants as compared with ILOW. Perhaps rules seeking inspiration from ILOW which enforce access to humanitarian aid to enemy combatants as well during NIACs may be formulated and made a part of the IHL.
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Aimun Munir is a BA-LLB student at the Lahore University of Management Sciences (LUMS).