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The Muslim Conception of International Law and The Western Approach. By Mohammed Talaat al-Ghunaimi. [Martinus Nijhoff: The Hague, 1968, 228 pp. Bibliography].
Published online by Cambridge University Press: 12 February 2016
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1 On this latter point the author merely echoes an assertion made almost twenty years earlier by a leading personality in Arab politics. “… ce caractère original du el-jihãd, guerre de défense … C'est à cet aspect surtout… que s'est attaché Abdul Rahman 'Azzām Pacha, Secrétaire Général de la Ligue Arabe, dans son beau livre (en arabe) Ar-Rissâlãt El-Khâlida (Le Message Eternel), pour démontrer que la guerre dans l'Islam ne cherche point à s'étendre pour dominer”. See: Rabbath, Edmond “Pour une théorie du droit international musulman” (1950) 5 Revue Egyptienne de Droit International 1–23, at p. 16.Google Scholar
2 Schwarzenberger, , International Law as Applied by International Courts and Tribunals, vol. II, The Law of Armed Conflict (London, 1968) 37.Google Scholar
3 The italics of “utter failure” and “similar” are ours. One might also add the legal opinion (fatwã) given by Muslim religious scholars justifying the jihãd against the British during the Indian Sepoy Mutiny, in 1857–8. See: 'Ahmad, Aziz, “Role of the Ulema in Indo-Muslim History” in XXXI Studia Islamica 1–13 at pp. 10–11.Google Scholar
4 One of the author's earlier works is his book (in Arabic) on The Palestinian Problem in International Law: al-Ghunaimi, M.T., Qadiyat Filasttn amãm-a 'l-Qãnün al-Duwwalî (Alexandria, 1961).Google Scholar
5 References to examples set by the Prophet Muhammad are not infrequent in current Arab politics. President Sadat is reported to have based his refusal to negotiate with the Israelis on the bitter experience gained by the Prophet Muhammad who had negotiated with the Jews but was later “cheated” by them. “This is a people of meanness and deception” he said (See his speech of April 25, 1972, reported in Le Monde April 27, 1972, p. 2 and The Jerusalem Post of the same date, p. 1). This statement gave rise to comments in the Israeli Press. Retorting to an assertion that “Muhammad hated Jews but loved Jewessess”, allegedly made in one of these newspapers, Muhammad Asa'ad al-Imam al-Husayni cites Muslim sources to the effect that the Prophet never had any wordly lusts. Moreover the Sheikh turns the tables on that journalist by calling upon him to stop spreading religious fanaticism (See the Arab Daily Al-Quds, Jerusalem, May 10, 1972, p. 3). Thereby the Sheikh seems to be in agreement with President Shazar who commented on President Sadat's statement by saying that ‘Outstanding commentators of the Qur’än, and Jewish scholars among them, have been unable to find in that book any hint of hatred of nations… on the contrary, it champions love and brotherhood”. (The Jerusalem Post, April 28, 1972, p. 12).
6 “The method used by the modernist jurists and legislators in the Near East savours of unrestrained eclecticism which goes beyond combining the doctrines of more than one recognized school (talfiq…); any opinion held at some time in the past is apt to be adopted, without regard to its historical and systematic context”. Schacht, J., An Introduction to Islamic Law (Oxford, 1964), 106.Google Scholar
7 See Kāsāni, , Badā'i' ‘l-Sanā'i’ (Cairo, 1910) vol. VII p. 131.Google Scholar
8 This is the impression gained, at least, from the declaration of India, under the British as Dar al-Harb by Shah Abdul Aziz at the middle of the 19th Century. See the unpublished thesis submitted for the degree of M.A. at McGill University 1964, by Mushiru-1-Haqq, “Indian Muslim Attitude to the British in the Early Nineteenth Century etc.”, as cited by Ahmad, Aziz. “Role of the Ulema in IndoMuslim History” in XXXI Studia Islamica 1–3 at pp. 10–11.Google Scholar Even territories inhabited by heterodox Muslims, such as the Druz who now live in Lebanon, southern Syria (Jabal al-Durūz) and the north of Israel, are assimilated to Dar al-Harb. See Muhammad Amīn Ibn ‘Ābidīn, , Radd al-Muhtār, (Bulaq, Cairo, 1284/1864, vol. II, p. 1000)Google Scholar.
9 See James Lorimer, as cited by Clive Pary, “Climate of International Law in Europe”, in Proceedings of the American Society of International Law, April 22–25, 1953, p. 40. See also E. Foda, The Projected Arab Court of Justice (The Hague, 1957) 135–6.Google Scholar
10 The author's doctoral thesis is dedicated to one of the ways of settling international conflicts: Mohammed Talaat El-Ghoneemi, Le Règlement Juridictionnel des Différends Internationaux. Thèse discutée à la Faculté de Droit de l'Université du Caire le 7 janvier 1954, en arabe, pp. 370. (1955) V. Iïeuve Egyptienne de Droit International, pp. 260–270.
11 See also p. 84 n. 7: “Muslim jurists dedicate to practise a considerable room among sources of law”.
12 Khadduri, Majid, The Islamic Law of Nations, Shaybani's Siyar (The John Hopkins Press, Baltimore, 1966).Google Scholar
13 Edmond Rabbath, “Pour une théorie du droit international musulman” (1950). Revue Egyptienne de Droit International, 1–23, particularly the bibliography mentioned at p. 4, n. 1. See also two book reviews which appeared ibid., in the Arabic section 1961, pp. 166–168, and the article by Muhammad Abd-Allah Darāz, “AI-Qãnün al-Duwwalî al-'Ām wal-Islām”, ibid. vol. 1949, pp. 1–15.
14 The Sheikh Muhammad Abu Zahra, “Nazariyat al-Harb Fi ‘l-Islam”, Ibid., vol. 1958, Arabic Section, pp. 1–42. It is regrettable to note that the author of this peace-inspired article issued in the Egyptian daily Al-Akhbār of February 27, 1972, a responsum (fativã) absolving the four Palestinians, who had assassinated the Jordanian Prime Minister Wasfi At-tal, while he was on a visit in Cairo. Accordding to the Sheikh Abu Zahra, the murderers are “warriors of a holy war” (mujāhidūn) who did a good job by killing this “head of the oppressors” (Ra's al-bughāt). Later on the Egyptian Government released the four suspects without any trial. This release was followed a few weeks later by the official congratulations expressed by the Egyptian Prime Minister, Dr. Aziz Sidki, to the Palestinian terrorist movement which stood behind the massacre of over twenty Christian pilgrims and other innocent passengers at Lod airport on May 30, 1972, at the hands of three Japanese murderers. (See Le Monde June 3, 1972, under the heading “Aucun commentaire officiel”, where an effort is made to minimize the official character of the congratulations. However, the Egyptian Prime Minister's “remarks” were considered sufficiently official for the U.S. Government to protest officially against them. See: the Jerusalem Arab Daily Al-Quds of June 6, 1972.) Sheikh Abu Zahra's responsum obviously does not account for this governmental policy, but there can be no doubt that such “legal” responso do play a role in the formation of pubic opinion in Arab countries. Another recent instance of the use of such responsa in propaganda is, on the one hand, the Egyptian responsum, prepared by the Sheikh Ahmad Al-Sharbasi of the Responsa committee of Al-Azhar University denouncing as “illegal” King Hussein's project for a settlement of the Middle East conflict, and, on the other hand, the responsum prepared by Jordan's. Supreme Cadi, Abdalla Ghosha, and others, in defence in this political project.
15 See the term milk (which is the same as mulk) in the index of legal terms in: Meron, Y., L'Obligation Alimentaire entre Epoux en Droit Musulman Hanéjite, Librairie Générale de Droit et de Jurisprudence (Paris, 1971) 343–282Google Scholar, 365a, b.