Legal Perspectives for Civil-Military Operations in Islamic Nations
Foulk, Vincent, Military Review
THE EVENTS OF 11 September 2001 brought forth the possibilities of U.S. forces being deployed as peacekeepers and nationbuilders in Muslim nations. As such, the military will be a major contributor to civil law and order, Previous operations in Haiti, Somalia, and the Balkans have shown that military officers providing assistance to civil autho cities should understand the legal underpinnings of civil and criminal law to operate effectively. Where this understanding is available, military and civil authorities have made considerable strides in establishing civil normalcy. Where this understanding is not available, there has been resistance from local and international civilian authorities. Most personnel that civil-military operators are likely to support would certainly come from a nation with an Islamic legal tradition.
While working within an Islamic nation, civil-- military operators must keep in mind the tension betty een Secular nationalism and Islamic religious principles. Unlike many other religions familiar to American non-Muslims, Islam inserts itself into the body politic far more aggressively than other religions.1 To misunderstand both points of view is to risk losing credibility and alienating the very people the mission depends on to succeed. It is important to remember that among some Muslims, westernization and globalization are threats. Some secular nationalist and Islamic adherents are likely to oppose government programs that advance these ends, resulting in a rallying point for both points of view.2 Most Western military operators easily grasp the concepts of secular nationalism, but the Islamic facet is often completely misunderstood.
The first concept U.S. forces must abandon when dealing with any dimension of an Islamic legal system is the concept of separation of church and state. Islam has long traditions of involving religion with law. Approaching any aspect of the legal system without first understanding Islamic principles is likely to result in misunderstandings and misinterpretations. For non-Muslims, another difficult concept to grasp is that Muslims and non-Muslims are not held to the same standard under Islamic law.3 This difference remains an aspect of law in many Islamic states and results in different laws and punishments for different religious groups.
American lawyers, as well as others charged to keep the peace and regulate behavior, are accustomed to a system with a foundation of constitutional statutes that reflect political will, regulations that reflect public policy, and precedentsetting court rulings. All these tools balance basic rights with political expediency. Grasping these concepts is essential to work within the American legal system.
Islamic legal systems rest on the Koran and the rights endowed by the Creator. The right to govern people in any Islamic state comes from God, as do all individual rights. A government is obliged to follow the law of God in defending those individual rights and obligations.4 Islamic law or government is not likely to accept the principle of democracy of the people. The question of whether democracy is even compatible with Islam is debated among many Islamic commentaries.5 The concept that authority to make laws and regulations comes from God, not the governed, poses an obvious problem for democratic governments. Some Islamic scholars have made distinctions between fundamental sovereignty, in which God grants and protects fundamental freedoms, that are unchanging and popular sovereignty, which deals with expedient policy and is thus subordinate to fundamental sovereignty.6 This results in an analysis that is foreign to Americans-first look at the religious law and obligations, and then to any national constitution. To understand government and law in any Islamic regime, it is as important to first understand the Koran just as it is important in the United States to understand the Constitution.7
Most Islamic states use a parliamentary code to establish specific laws, and all Islamic states use a system of religious law known as Shari'a, which is similar to the West's common law. …