Well before the fighting ended, diplomats and experts were already wrangling over how to resolve allied claims against Iraq for reparations and retribution. A dispute that is almost certain to arise within the coalition is whether those claims should be adjudicated by international or Islamic law.
The assumption in the West is that existing international law plus the legal framework of the Nuremberg and Tokyo tribunals will be applied. Both are based on principles derived from European custom and Christian rules of law and morality.
The Arab members of the U.S.-led coalition -- Saudi Arabia, Egypt, Syria, Kuwait and the other Gulf sheikhdoms -- on the other hand, adhere in varying degrees to Islamic law, as does Iraq. Islam is a personal law, grounded in the key concept of the unity of all Muslims, irrespective of their national origin or territorial affiliation. Western law, by contrast, is territorial -- all who live within a certain territory are subject to the law of the
To underscore this difference in legal culture last year the Conference of Islamic States, a Riyadh-based organization of 46 nations professing Islam, began negotiating a draft treaty for the establishment of an Islamic International Court of Justice aimed at resolving disputes among its member states on the basis of Islamic law.
Modeled after the International Court at the Hague, article I of the treaty designates the proposed court to become the "principal judicial organ" of the Conference, dedicated to upholding Islamic principles of law and morality.
Whether the Arab members of the coalition will demand that this new body become the arbiter of Gulf War claims remains to be seen. The United States would clearly prefer a claims tribunal made up of Arab judges applying conventional international law. But the prospect of a forum composed of Islamic judges trying fellow Muslims on the basis of anything other than Islamic law would be offensive in the Middle East, especially in the wake of another Arab humiliation by the West.
Even more problematic for Islamic scholars is the fact that international Western law is full of inconsistencies and contradictions when it comes to distinguishing between just and unjust war, or determining what constitutes the appropriate conduct of war. Islamic law is far more consistent.
Under Western international law, war has long been viewed as an instrument of national policy which is morally reprehensible but legally legitimate. (Only a year ago, Washington justified its invasion of Panama to bring down the Noriega regime in precisely these terms.) Yet at the Nuremberg and Tokyo war-crimes trials at the end of World War II, the U.S. sought to distinguish between aggressive and defensive war, and to brand aggressive war as a crime against world peace.
International legal concepts on the conduct of war are also vague when it comes to determining where "military necessity" ends and aggressive warfare begins. As Telford Taylor, chief prosecutor at the Nuremberg trials, noted, the extent of force needed to achieve a war's stated aims is subject to "infinite circumstantial variations." Critics of U.S. policy in the gulf conflict have questioned the coalition's conduct of the war on the grounds that it exceeded the mandate given by Security Council resolutions for the liberation of Kuwait.
From the point of view of Islamic law, there is only one just war and that is the jihad. Its purpose is to expand or to safeguard the Islamic commonwealth, not to annihilate the enemy. Since it is viewed as a means to a divine end, "unnecessary damage" in prosecuting it is unacceptable, according to Shaybani, the father of the laws of war and peace in Islam. Shaybani also advised Muslim commanders to consider negotiating with the enemy whenever possible as an alternative to fighting.
When it comes to defining and penalizing "war crimes" and violations of "human rights," international law becomes even murkier. For one thing, these violations have to be directly related to hostilities; for another, the concept of fundamental human rights is of such recent origin that it has yet to find its way uniformly into all legal systems.
Islamic law, by contrast, has worked out over the centuries a far more consistent view of the relations between the individual and the community. In a society where communal welfare must guide all human conduct, the corporate usually takes precedence over the individual, who is viewed more as the bearer of duties than the subject of rights.
What puts Islamic legal culture at such variance with Western culture is the greater value it places on reconciling opposing claims in the interest of social solidarity and harmony over and above the merits of the case alone or the guilt or innocence of the individual. The emphasis on the rule of law and fundamental individual rights that is associated with Western legal culture give way in Islamic legal culture to promoting and safeguarding the community of Muslims as a whole.
Throughout the Persian Gulf crisis, the Bush administration has stressed the role of the U.N. Security Council and the international support this has given it for the use of force against Iraq. To many Muslim and Third World countries however, the legalistic ordering of international relations provided by the U.N. ignores the diverse political, legal and cultural systems in the world. Were these given the acknowledgement they deserve at the international body, we might well have seen a more peaceful and equitable resolution of regional conflicts than has been the case so far.
George N. Sfeir is an international legal consultant specializing in the legal systems of the Middle East. He wrote this commentary for Pacific News Service.