Humanitarian assistance and access in armed conflict is often required in order to save lives and preserve human dignity in armed conflicts. According to the UN, more than 80 percent of humanitarian crises in the world can be attributed to armed conflicts.1Secretary General, “Secretary General’s Opening Remarks at World Humanitarian Summit.” United Nations. <https://www.un.org/sg/en/content/sg/statement/2016-05-23/secretary-general%E2%80%99s-opening-remarks-world-humanitarian-summit> Accessed 2 OCtober 2022 Many armed conflicts today involve Non-State Armed Groups and as two-thirds of the armed conflicts today take place in the Muslim world2Al-Dawoody, Ahmad. IHL and Islamic Law in Contemporary Armed Conflicts. ICRC.Org, 2018. it may become useful for aid organizations to engage with these organizations in the language of Islamic law. This paper looks at the legal position regarding the provision of humanitarian aid in armed conflicts and the protection of aid workers under both International Humanitarian Law (IHL) and Islamic law.
Humanitarian Access in IHL
Under international law, states bear primary responsibility in ensuring that the basic needs of the population are provided for3Schwendimann, Felix. The Legal Framework of Humanitarian Access in Armed Conflict. International Review of Red Cros, Vol. 93, 201, Pg. 997. however, if states are unable to do so, as is often the case in armed conflicts, there is an obligation on all parties to allow for humanitarian access provided by others. According to Article 70 (1) of Additional Protocol I, if the basic necessities of the population are not being met then impartial relief actions are to be allowed and states are under a duty to “facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel” without discrimination as to which segment of the civilian population the relief is meant for. These humanitarian actions are required to be with the consent of the receiving state. This same duty to allow for the passage of humanitarian aid for civilians is also found in Customary International Law.4“Customary IHL – Rule 55. Access For Humanitarian Relief To Civilians In Need”. Ihl-Databases.Icrc.Org, 2022, <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule55.> Accessed 30 Sept 2022
There is a related and corollary duty to also ensure the freedom of movement and to assist humanitarian aid workers. This freedom can only be temporarily restricted in times of imperative military necessity.5Ibid IHL Rules 56 This freedom of movement of personnel is considered essential for the performance of their functions in both International and Non-International Armed Conflicts. Even though there is no direct requirement that such personnel need to be authorized, interpretation and practice show that a party to the conflict can only ensure freedom of movement and security of such personnel which it has authorized.6Doswald-Beck, L., & Henckaerts, J. M. (2005). Customary international humanitarian law. Cambridge University Press. Pg. 202
The requirements of the consent of the receiving party and authorization of relief organizations and personnel cannot be denied on arbitrary grounds and the refusal must be for valid reasons. Whether a decision to refuse is arbitrary or not is determined on a case-to-case basis. In some circumstances such as where refusal would amount to starvation, there can be no valid reasons for refusal.7Schwendimann, Felix. The Legal Framework of Humanitarian Access in Armed Conflict. International Review of Red Cros, Vol. 93, 201, Pg. 999.
Protection of Aid Workers in IHL
Aid workers engaged in armed conflicts provide for the basic needs of civilian populations without discrimination while remaining neutral and impartial towards the parties of an armed conflict. Furthermore, such personnel also include medical personnel who cater to the sick and wounded combatants of any side. As these functions do not fall in the category of using a weapon or taking direct part in hostilities they are clearly non-combatants. As civilians they are protected from being made the object of attack.8International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 -Article 48 and 51(2)
In addition to the general privilege available to all civilians in armed conflict, aid workers are further protected under IHL. Customary IHL rules 31 and 32 as well as Article 71(2) of AP 1 and Article 26 of the First Geneva Convention provide that relief personnel are to be respected, assisted and protected while carrying out their mission, to the fullest extent possible. Furthermore, deliberately attacking persons or objects “involved in the provision of humanitarian access” is considered a war crime which invokes individual criminal responsibility under the Article 8(2)(b) of Rome Statute of the International Criminal Court.9The United Nations Rome Statute of the International Criminal Court. International Organizations, 2001. Similarly the Special Court of Sierra Leone convicted three militia leaders for attacks carried out against humanitarian aid workers and UN peacekeepers.10Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao (the RUF accused) (Appeal judgment), Case No. SCSL-04-15-A, Special Court for Sierra Leone, 26 October 2009,
Islam and Humanitarian Assistance
Humanitarianism and the act of helping others in distress is a fundamental principle of Islam.11Krafess, Jamal. The Influence of the Muslim Religion in Humanitarian Aid. Icrc.Org, 2022, https://www.icrc.org/en/doc/assets/files/other/irrc_858_krafess.pdf. Accessed 29 Sept 2022. There are clear instructions in primary Islamic texts to this effect such as, “Rescue prisoners, feed the hungry and look after the ill…”12Sahih Al Bukhari, Sahih Al Jami’e, Vol. 4, p. 90. In contrast to other belief systems humanitarianism is not just encouraged in Islam but is rather seen as an obligation and not left entirely upon the free will of its followers.13Krafess, Jamal. The Influence of the Muslim Religion in Humanitarian Aid. Icrc.Org, 2022, https://www.icrc.org/en/doc/assets/files/other/irrc_858_krafess.pdf. Accessed 29 Sept 2022. It shall further be noted that this obligation to aid applies without discrimination as to whether the recipients are Muslims or Non-Muslims. For e.g., at the time of famine the Prophet [P.B.U.H] organized a humanitarian convoy to help inhabitants who at that time had not converted to Islam.14Al Baïhaki, Chouab Al Iman (Th e paths of the faith), Dar El Koutoub Al Alilmya, Hadith No. 3319, Vol. 3, 1990, Pg. 199. Similarly the prophet [P.B.U.H] sent 5000 dinars to the leaders of Makkah, who were enemies of Muslims at that time, to buy wheat for the poor people of the city in a time of calamity.15Abū Zahrah, Al-ʻAlāqāt al-Dawliyyah fī al-Islām , p. 44.
This central theme of preserving sanctity of human lives would apply in armed conflicts as well and hence refusing or hindering access to humanitarian operations would run contrary to the objective of saving lives and protecting the public good (“maslaha”). Such a prohibition would have the result of inflicting harm on innocent individuals and hence go against the Islamic maxim of “harm should not be inflicted nor reciprocated.”16‘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 18 October 2022.
Islamic Restrictions in Warfare
Islamic law placed restrictions on warfare and its conduct long before they were recognized by international law in the form of IHL. Since the 7th century based on the Quran and Sunnah (the primary sources of Islamic Law/shariah) Islam and Muslim jurists of all sects established principles of warfare with the aim of alleviating the sufferings of victims and protecting certain persons and objects, in addition to laying some prohibition against aggression.17Al-Dawoody, Ahmad. IHL and Islamic Law in Contemporary Armed Conflicts. ICRC.Org, 2018. Pg. 19
Protection of Civilians and Aid Workers
Under Islamic Law, fighting is only permitted against enemy combatants and civilians and non-combatants must not deliberately be harmed during the course of hostilities.18Ahmed Al-Dawoody. “IHL and Islam: An overview” Humanitarian Law & Policy Blog. (2021) <https://blogs.icrc.org/law-and-policy/2017/03/14/ihl-islam-overview/#:~:text=The%20Islamic%20law%20of%20war%20sought%20to%20humanize%20armed%20conflict,happens%20unintentionally%2C%20as%20collateral%20damage.> Accessed October 19, 2022. This has been laid down in the Quran at 2:190 “And fight in the way of God those who fight against you and do not transgress, indeed God does not like transgressors.” According to the commands laid down by the Holy Prophet (S.A.W.) the following categories of people are afforded non-combatant immunity under Islamic law; children, women, monks, religious hermits and hired servants (usafã).19 Hadith 2669, Sunan Abu Dawud, Vol-3.
This protection of hired servants (al-uswa) is also recognized by all Muslim jurists and in the context of armed conflicts means anyone who has been employed or is paid by the enemy to perform certain functions on the battlefield but does not directly participate in hostilities.20Al-Dawoody, Ahmad. IHL and Islamic Law in Contemporary Armed Conflicts. ICRC.Org, 2018. Pg. 19 Aid workers and those involved in the humanitarian efforts would fall in the category of hired servants and have non-combatant immunity from being attacked during armed conflicts.
Similar to under IHL, members of these protected groups lose their non-combatant immunity once they take part in hostilities.21Ahmed Al-Dawoody “IHL and Islam: An overview”, Humanitarian Law & Policy Blog. (2021) <https://blogs.icrc.org/law-and-policy/2017/03/14/ihl-islam-overview/#:~:text=The%20Islamic%20law%20of%20war%20sought%20to%20humanize%20armed%20conflict,happens%20unintentionally%2C%20as%20collateral%20damage.> Accessed October 19, 2022. The definition of direct participation in hostilities however is much broader in Islamic Law than in IHL.22Aly, Heba. “Islamic Law And The Rules Of War”. The New Humanitarian, 2014 Classic muslim jurists have held that a woman using money to finance an enemy army would lose her non-combatant immunity, similarly an elderly person involved in planning of enemy operations would also lose their immunity.23Ibid No. 22 Under more extreme interpretations all those associated with the war effort, even if not carrying weapons, and supporting the enemy “even by opinion, propaganda or moral support” makes them a combatant.24Ibid
Islamic jurisprudence is not universal on this point however, as jurists adopt different legal philosophies and different methodologies based on their adherence to a particular school of thought.25Grant, Patrick B. “Islamic Law, International Law and Non-International Armed Conflict in Syria.” Boston University International Law Journal. Vol. 35:1 Certain issues such as whether the functions of aid workers fall in the category of taking part in hostilities consequently fall in a grey zone because of these widely varying different interpretations. Consequently some Non-State Armed Groups justify targeting aid workers and other civilians using Islamic Law.26Aly, Heba. “Jihadi Jurisprudence? Militant Interpretations Of Islamic Rules Of War”. The New Humanitarian, 2014, https://www.thenewhumanitarian.org/analysis/2014/04/24/jihadi-jurisprudence-militant-interpretations-islamic-rules-war. Accessed 29 Sept 2022.
The role and functions of humanitarian operations are too significant and the protection of aid workers cannot be left to chance, hoping that the groups involved would respect their non-combatant status and immunity. Hence it becomes essential that they are protected by ensuring that an aman is negotiated with the parties to conflict.
Protective Status using Aman
The concept of aman translates literally to protection or safety. It is basically a contract of protection and safe-conduct granted to a Non-Muslim to enter into the Islamic State on a temporary basis for peaceful purposes such as business, education or tourism. 27Charpentier, Emilie. “Islamic Law and Humanitarian Relief: Protections and Challenges When Negotiating Access in Time of Armed Conflict.” Indonesian Journal of International & Comparative Law, vol. 8, no. 2, April 2021, pp. 133-148. HeinOnline. Respecting promises made and fulfilling contracts is one of the essential features of Islamic law.28Aly, Heba. “Islamic Law And The Rules Of War”. The New Humanitarian, 2014, https://www.thenewhumanitarian.org/2014/04/24/islamic-law-and-rules-war. Accessed 29 Sept 2022. General aman can only be granted by the Muslim head of state and hence it needs to be sought and negotiated rather than such protection being a default position. Humanitarian aid organizations have been using this concept to ensure the protection of their workers in armed conflicts29Ibid and this ensures specific safety and protection. Once an aid organization and its workers are granted aman it not only ensures that they will not be targeted and attacked upon by the group granting it but rather, under Islamic Law it is a guarantee of protection. Hence it offers an even greater protection to aid workers than other non-combatants or civilians.
Furthermore it shall be noted that seeking aman does not create additional hurdles as the requirement of seeking consent and authorization from the receiving state already exists in IHL.
To conclude both IHL and Islamic law place a duty on the state involved in an armed conflict, whether as a belligerent or an occupying power, to provide for the humanitarian needs of civilian populations. Furthermore, in contrast to IHL, even though it is not a specific requirement under Islamic law to seek permission before providing humanitarian aid there is a legal and theoretical space to seek such authorization in order to ensure further safety and protection.
Lastly, both require that aid workers, medical personnel and other civilians are not targeted in hostilities. However, in Islamic law because of the wide scope of the definition of “participating in hostilities”, this protection may prove insufficient in many cases and hence the seeking of permission i.e. the negotiation of aman may be a way to mitigate against the harmful effects of such as a broad, all-encompassing definition.
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Muhammad Talha Riaz is a final year BA-LLB student at Lahore University of Management Sciences. He has been the Vice President of Lums law and Politics Society and is currently part of the Lums Law Journal editorial Committee. His areas of interest include Global Governance, International Human Rights Law and Constitutional Law.