Modern Islamic International Law between Accommodation and Resistance: The Case of Israel and BDS

Modern Islamic International Law Between Accommodation and Resistance: The Case of Israel and BDS. 19 Yearbook of Islamic and Middle Eastern Law (2016-2017), pp. 247-78 ( December 13, 2018, Forthcoming)

24 Pages Posted: 2 Dec 2018

See all articles by Mohammad Fadel

Mohammad Fadel

University of Toronto - Faculty of Law

Date Written: 2018

Abstract

Most scholarship on modern Islamic conceptions of international law and global peace emphasize two diametrically opposed trends. The first amounts to an accommodationist view of Islamic law, whereby it abandons Islamically distinctive doctrines such as jihad in order for Muslim states to live peaceably in the post-World War II global community. The second amounts to a rejectionist view, whereby Islamic law continues to adhere to classical views on world order developed in the first centuries of Islam during the heyday of Islamic imperial expansionism, and rejects the legitimacy of contemporary international law. Most scholarship dismiss the second trend and asserts the triumph of the first. Yet, even among the contemporary Muslim jurists who most categorically endorse modern international law and the United Nations, such as Yusuf al-Qaradawi, the State of Israel presents a conceptual conundrum. Given Muslims’ universal rejection of its legitimacy, even accommodationist jurists such as Qaradawi continue to refer to Israel as part of the dar al-harb – a territory of war – and not part of global community living on the basis of peaceful relations. Yet, applying the category of dar al-harb, even to Israel, is incoherent when other commitments, such as the commitments to the UN system, are taken into account. Using the framework of international law developed by the Egyptian jurist `Abd al-Raziq al-Sanhuri, I argue that Sanhuri’s conception of a modern, rules-based international order, provides a properly Islamic response to the challenge of states that formally profess adherence to international norms, but systematically breach them. Because such states recognize the law, they are not outside of the law, and accordingly, cannot be deemed to be part of a territory of war. Rather, such states are internal to a league of states legally at peace with another, but are law-breakers, and in extreme cases, their violations of law may be criminal. From the perspective of modern Islamic international law, the law-abiding members of the international community have a duty to restrain the law-breaking member. If they fail to do so, drawing on Islamic law principles governing the duty to refrain from transacting with a known criminal, the paper argues that boycott by civil society is the remedy that must be pursued against a law-breaking state when the law-abiding states of the world community are unwilling or unable to check its transgressions. From this perspective, the Boycott, Divest and Sanction Movement that resists continued Israeli colonization of Palestine can serve as exemplary case study in the development of modern Islamic international law’s responses to international lawlessness that goes unremedied.

Keywords: Islam, International Law, Abd al-Raziq al-Sanhuri, Islamic Modernism, jihad, Kellogg-Briand Pact, Palestine, Israel, Boycott, Divest and Sanction, Modern Islamic International Law, dar al-harb, United Nations

Suggested Citation

Fadel, Mohammad, Modern Islamic International Law between Accommodation and Resistance: The Case of Israel and BDS (2018). Modern Islamic International Law Between Accommodation and Resistance: The Case of Israel and BDS. 19 Yearbook of Islamic and Middle Eastern Law (2016-2017), pp. 247-78 ( December 13, 2018, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3293805

Mohammad Fadel (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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