Shaybānī’s Notion of Authority of Awarding Amān: A Comparative Study of Contemporary International Law

The nature of relations between Muslims and non-Muslims has always been remained debatable. The notion that Muslim International Law (MIL) does not recognize coexistence of other nation states and it gives non-Muslims only option to embrace Islam. This comprehension is based on low arguments because MIL strives to maintain peaceful relations with non-Muslims and also recognize co-existence of nation states. MIL divides the world into different parts: Dar al-Islām, Dār al-Kufr and Dār al‘hd. MIL gives authority to Muslim state as well as Muslim individual to award protection to non-Muslim in both the situations of war and peace. The authority of awarding protection to non-Muslim is called Amān which is discussed by Shaybānī, the founder of MIL. According to Shaybānī, If Amān is demanded by non-Muslims, then Muslims are bound to award them. According to him, the authority of Muslim individual to award Amān cannot be snatched by Muslim state. On the other hand, Contemporary International Law (CIL) also recognizes protection of combatants called “Quarter”, protection of homeless people called “refugees” and protection of foreigners called “asylum”. The protection recognizes by CIL is the sole authority of state. This study sums up that the notion of Shaybānī about awarding Amān is quite comprehensive as compare to the concepts of the CIL. Scan for Download Al-Idah 38 (Issue-I) June, 2020 11 Keyword: Amān, Dār ul-Islām, Shaybānī, Muslims, NonMuslims

uttering a word or giving a gesture which explicitly or implicitly indicates using of the authority of awarding Amān. (11) Making such gestures or using words will not be inquired for the intention of the person who has the authority of awarding Amān. (12) Authority of awarding Amān changes with the change of the territory of the domain of Islam (Dār al-Islām ), domain of Infidelity (Dār al-kufr) and Domain of Treaty (Dār al-'hd). Division of the World by Shaybānī with Reference to the Authority of Awarding Amān: Territorial jurisdiction of Muslim state plays an important role in using the authority of awarding of Amān. The world is divided into three parts with reference to using the authority of awarding Amān. The Domain of Islam (Dār al-Islām ) the Domain of Infidelity (Dār al-kufr) and the Domain of Treaty (Dār al-'hd). (13) The important element in the Domain of Islam is the potential of Muslims to implement Islamic law which guarantees the protection awarded by the Muslim citizens of Muslim state. (14) This means that domain of Islam is a place where Muslims have legal power to use the authority of awarding Amān and the state is capable to regard such authority of its citizens. 15 The Domain of Infidelity is a territory where Muslims have physically not in a position to use the authority of awarding Amān. (16) Shaybānī believes that territorial jurisdiction has legal impact on the authority of awarding Amān. According to Shaybānī, a guarantee given by a Muslim prisoner in an alien state is not valid. A prisoner's guarantee does not yield any benefit to Muslim state rather amounting benefit to himself to make himself free from the chains of aliens. Usually guarantee is awarded when the guarantor by himself is secured while a prisoner is dominated and not secured by himself to protect others. Therefore, such guarantee will not be binding on other Muslims. The guarantee will be binding on him only. (17) Similarly, the guarantee of a Muslim in an occupied territory by Muslim state will also not be valid because the occupied territory status will not be changed to the domain of Islam unless Muslim state does announce it to be the part of Muslim state. (18) Shaybānī is the view that Muslim traders and newly converted Muslims beyond the territorial jurisdiction of Muslim state do not have the authority to award Amān. (19) According to Shaybānī, the third part of the division of the world is the domain of peace treaty. He is of the view if a person who belongs to a state with whom Muslim state has signed peace agreement, enters to a Muslim state without seeking guarantee; such person will be considered a guaranteed person because of peace agreement. (20) According to Shaybānī, peace treaty changes the status of hostility to peaceful relations but it does not merge two different territories (domain of Islam and war) into the same territory. (

Authority of Muslim State to Award Amān
According to Shaybānī Muslim state is bound to act in the best interest of its citizen. It can be in form of armistice contract with non-Muslims or in the form of awarding Amān to non-Muslims. (23) Imām al-Shāfī'ī is of the view that the Amān awarded by Muslim state will only be valid if it is awarded in the large interest of Muslims. (24) According to him Muslim state has a one-degree preference in awarding Amān over Muslim individuals because it has inherent right for awarding guarantee while the guarantee given by Muslim individuals is subject to the general interests of Muslims and Muslim state. According to Imām al-Nawawī and al-Kāsānī Muslim state can award Amān to unlimited number of persons. (25) The logic for this rule of law is that awarding Amān unlimited persons suspends fighting against belligerents and the decision of suspending fighting against belligerents is the sole authority of Muslim state. (26) According to Imām Mālik, principally, the authority of awarding guarantee can only be entertained by Muslim state. The logic for this rule of law is that awarding guarantee to aliens is directly linked to the security of Muslims and Muslim state, so it should only be awarded by Muslim state. (27) According to Shaybānī, Amān is directly related to the security and benefit of Muslims. Any guarantee awarded by Muslim individuals or Muslim state that endangers the security or interest of Muslims can be dismissed by Muslim state being communicating it to the guaranteed persons. (28) Shaybānī has made the base of this rule of law on the verse of the Qur'ān. (29) This verse of the Qur'ān indicates that if Muslim state fears treachery of aliens then may announce the treaty is being revoked This verse gives Muslim state the power of dismissal Amān. The dismissal of any Amān will only be dismissed being publicly announced.
Moreover enough time will be given the protected persons to safe themselves (30) and their properties otherwise it will be considered perfidy in accordance with the Qur'ān. (31) Shaybānī has referred to a precedent of Mu'āwiyah RA regarding the fulfillment of peace treaty with aliens. (32) From this precedent, Shaybānī concludes that Muslims must fulfill their covenants with others and have not only to avoid explicit disloyalty but also not to indulge suspicious activities that lead to dishonesty. (33) It can be concluded that Shaybānī, al-Nawawī, Imām Aḥmad, Imām Mālik and al-Kāsānī recognize the unconditional authority of awarding Amān for Muslim state. While Imām al-Shāfi'ī restricts it with a condition of large interests of Muslims and Muslim state. Shaybānī recognizes the authority of awarding Amān for Muslim individuals along with Muslim state. According to Shaybānī principally, Muslim state should not deprive the authority of Muslim individuals from awarding Amān. (34) The logic for this rule of law is that MIL has already authorized every Muslim for awarding Amān which cannot be taken away by issuing a simple order by Muslim state. Another reason to this rule of law is the unawareness of the seeker of Amān about preventing of Muslims individuals by Muslim state. If Muslim state does not consider such Amān then it will result to perfidy by the Muslim guarantors and Muslim state. (35) .

Shaybānī Notion of Authority of Muslim Individuals to Award Amān:
Shaybānī is of the view that Muslim individuals are equally capable for the authority of awarding Amān without any discrimination. (36) He is of the view that awarding guarantee is a kind of assisting Islam and every Muslim without gender discrimination is required to assist Islam. According him, assisting Islam will be either to fight against belligerents or provide support to those who fight for the cause of Islam. Inviting non-Muslims to observe the qualities of Islam by awarding them Amān is one kind of assisting Islam. (37) According to him, awarding guarantee does not need any physical force. It is a pledge that may be given verbally, in writing or by indicating a gesture for awarding guarantee. (38) Shaybānī has argued that the Prophet (Peace be upon him) ratified the Amān awarded by Zaynab RA to her husband Abū al-'ās (39 ) and had also endorsed the Amān awarded by Umme Hani RA to her two relatives. (40) The Prophet (Peace be upon him) not only ratified their guarantees but also encouraged them for awarding guarantees by saying; we have given guarantee to whom you have given guarantee. (41) Imām Mālik, Imām al-Shāfi'ī and al-Māwardī also consider the guarantee awarded by Muslim females as valid like Shaybānī. (42) According to Abū 'Umar al-Māliki the guarantee of a Muslim female is subject to the approval of Muslim state. (43) 46) The logic behind the view of al-Kāsānī that group of Muslims is also capable for armistice contract is that the armistice contract is a part of Amān as he considers. The authority of awarding Amān is given to all Muslim individuals by the Prophet (Peace be upon him). (47) According to Aḥmad bin Ḥanbl, Muslim individuals are capable of awarding Amān with a condition if such persons are limited in numbers. This opinion of Aḥmad bin Ḥanbl is based on two premises. The first one is that limited number usually cannot endanger the national security of Muslim state and the second premise is that Muslim state can easily accommodate the guaranteed persons in Muslim state. According to him awarding Amān to a huge number of persons is the sole authority of Muslim state. The reason to this argument is that Muslim state can assess by itself all its capabilities, limitations and other necessary arrangements in this connection. He did not discuss the number of guarantors along with guaranteed persons. It is possible for a large number of persons to be awarded by a large number of guarantors. The issues related to the security of Muslim state or other accommodation problems may be controlled when a large number of grantors present their sureties for awarding Amān to a large number of persons. According to him, whether guaranteed persons are large in number or small will be decided by the prevailing national and international customs and will be assessed in accordance with the variation of space and time.

Authority of awarding Protection in Contemporary International Law
Contemporary International Law recognizes only the authority of state to award protection to combatants during war, this protection is known as Quarter. While in the situation of peace, state also has the authority to award protection to foreigners as refugees or asylum seekers. "Quarter is a contract of protection provided during war-time to protect the person and the property of an enemy or belligerent, or a regiment, or everyone inside a fortification or the entire enemy army or city". (57) Article 40 of the additional protocol 1 is about Quarter. It states "It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis" (58) article 41 of the said protocol states that who will be considered safe during war? It says "A person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the subject of attack". This article protects wounded belligerents who cannot fight during war. According to Hague Law 1907, only the following persons can be provided quarter: 1.
Army soldiers under one command and control, 2.
Army soldiers in one uniform, 3.
People showing war weapons openly; and 4.
Persons who are performing their military operation under the laws and customs of war. (59) These four kinds of people are also recognized for quarter under Geneva Convention 3 article 4 that differentiate combatants from non-combatants. Such person shall be given all the rights and privileges of the combatants if they are detained in any military operation and will be considered war prisoners under the IHL. There is only one exception to this rule of law that some time civilian will be considered as combatants although they do not meet this criterion of IHL. The rule of "levee en masse" is an exception to this rule of law that means taking up weapons by civilians to fight for making themselves and their children safe from the aggressors. (60) According to this exception such civilians do not fight under a proper command and in distinctive uniform or emblem will be considered combatants. They will avail all the rights of combatants including quarter. (61) This article of The Hague Law is repeated by the Geneva convention 3. (62) Both the laws focus on the civilians who take up guns suddenly and have no enough time to regulate themselves under a proper command and control. Such civilians must carry guns openly to avoid perfidy. During war combatants before their detention may be killed but after their arrest they must not be harmed and will be protected. (63) According to the general rules of IHL, the wounded combatants "hors de combat" will not be killed. Exception to this rule of law is that if a prisoner of war has committed a crime before or after of the arrest which amounts to death penalty so the said person would be killed. (64) CIL also recognizes the term "Asylum" for the protection on the grounds of diplomacy or politics only. (65) The notion of refugee is also recognized by CIL, refugee is a stateless person. (66) According to Geneva Convention 4, refugee is a person who does not enjoy any shelter of any government. (67) Usually, refugeestatus is demanded by the persons who have fled from their mother countries in order to seek protection along with fundamental rights. (68) According to IHL, the rights of refuges are to be determined either by Customary International Law (CuIL) or by International Peace Treaty between the states concerned. In the absence of (CuIL) and any peace treaty, the rights of refugees are to be determined by the host state. (69) Comparative study of the authority of awarding Amān: Under MIL, the seekers of Amān are not required to be belligerents they may be laymen residing beyond the territorial jurisdiction of Muslim state while under the rules of IHL, Quarter will be given to those fighters who meet the criteria of belligerents like carrying a unique symbol, proper uniform, carrying weapons openly, fighting under the supervision of a commander and observing the rules and regulations of IHL. Moreover, Amān may be awarded by an Muslim individual while awarding Quarter is the sole authority nation state, individuals have no authority of awarding Quarter. (70) According to IHL, individuals will only be capable to award quarter by the appointment of the state in case of using the delegated authority. Muhammad Hamidullah got misconception about the terms "Quarter" and Amān. He has considered both the terminologies as synonym. He is of the view that impact of guarantee (Amān) and (Quarter) is similar and both assure the protection of life and property of the person under consideration. (71) The process of Amān is very simple and easy which needs no formal or legal procedure and does not require the intention of the guarantor. If guarantor shows any understood gesture of Amān will enact it immediately. (72) In Amān, guaranteed person has more rights as compared to a person to whom the Quarter has been given. Under the IHL, a person to whom the Quarter has been given entitles the fundamental human rights like food, shelter, cloths, freedom of thought and expression and medical facilities like hygienic environment. (73) While guaranteed person enjoys the same rights of non-Muslim citizen of Muslim state. The notion of "asylum" is a restricted phenomenon of awarding protection. It is the sole authority of state which is to be given on the proper demand by the person/s concerned. Asylum is usually awarded on the basis of diplomatic or political grounds. The rights of a person who gets asylum are to be judged in accordance with the rules of CIL but there are no agreed rules through which the rights of the person who has obtained asylum are to be determined. The rights of the person who got asylum are determined by the International Court of Justice are not unanimously agreed. (74) The notion of refugee is also different from the legal philosophy of Amān. The status of refugee is be given by the state only and to those persons who are stateless. (75) Refugee-status is demanded by the persons who have fled from their mother country in order to seek protection along with fundamental rights. (76) The rights of refuges are based on reciprocity rules. (77) It can be concluded that the notion of Amān is a broader phenomenon with respect to legal process of completion, impact on both the parties, consequences, revocation or termination and the rights of protected person under Muslim International Law as compare to Quarter, asylum and refugee law.

Conclusion:
This research may be concluded as that MIL recognizes division of the world into different parts on the basis of territorial jurisdiction. Domain of Islam, Domain of war and Domain of Treaty. Conversely, all those who reside beyond the territorial jurisdiction of Muslim state will not be protected and their cases will not be heard by the courts of Muslim state. According to Shaybānī anyone irrespective of religion wants to move from one domain (Islam, peace, war) to other he/she must get Amān. The authority of awarding Amān is given to every Muslim individual along with Muslim state. According to Shaybānī, Muslim state and all Muslim individuals are equally capable without any gender discrimination of awarding Amān. According to him, Muslim state cannot snatch the authority of awarding Amān from Muslim individuals. Once the Amān (guarantee) is awarded, all rights of the concerned persons will be protected by Muslim state. The status of guaranteed persons is just like the status of the citizens of Muslim state with reference to their fundamental rights. On the other hand, CIL also recognizes the authority of state to award protection to foreigners as well as aliens. CIL does not recognize the authority of awarding protection by individuals. Individuals do not represent the authority of state while awarding protection. The notion of CIL is restricted as compare to MIL with reference to awarding Amān (guarantee). MIL awards the authority of warding Amān to every individual along with Muslim state while CIL awards the authority of awarding protection to nation state only.