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Isis, Boko Haram, and the Human Right to Freedom from Slavery Under Islamic Law

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Isis, Boko Haram, and the Human Right to Freedom from Slavery Under Islamic Law Fordham International Law Journal Volume 39, Issue 2 Article 2 Isis, Boko Haram, and the Human Right to Freedom from Slavery Under Islamic Law Bernard K. Freamon∗ ∗Seton Hall University School of Law Copyright c by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj Isis, Boko Haram, and the Human Right to Freedom from Slavery Under Islamic Law Bernard K. Freamon Abstract There is now a worldwide consensus on the firm existence of a human right to freedom from slavery. This consensus gives rise to what was thought to be an irrefutable argument that the right to be free from slavery is a jurisprudential universal, with no competent legal system or govern- ment able to deny its existence or permit derogation from its tenets. This argument is now being tested by the ideologies, policies, and actions of Muslim insurgencies in Iraq, Syria, and Nige- ria, each claiming that the enslavement of non-believing combatants and war captives and slave trading in such persons is permitted under Islamic law. This Article considers the implications of these claims for the future of Islamic law and for its relationship with the world’s legal systems, particularly international humanitarian law. It posits that the claims of these insurgencies, while glaringly out of step with modern views of chattel slavery, should be taken seriously and actually have a great deal of support in Islamic legal history. It argues that, despite the long presence of slavery and slave-trading in Islamic legal and imperial history, there is now a firm jurisprudential basis for declaring that slavery in Islam can and should be abolished, even under a government bound by the Shar??ah. It asserts that Muslims and scholars of Islam must engage the Islamic State and Boko Haram in dialogue on this point. It argues that the moral questions raised by the continued specter of slavery in Islamic legal culture are profound and fundamentally more signifi- cant than any other questions facing the Muslim community at this time. The Article closes with a pessimistic assessment of the future of Islamic law in its relationship with international human- itarian law and in its ability to improve the lives of its subjects, should Muslims and scholars of Islam fail to achieve a community-wide understanding on the need for de jure abolition. KEYWORDS: Dabiq; Slavery; Islam; Qur’an; Sunnah; Islamic Juristic Consensus; Moral Progress; Well-Being; Muslim Community; International Law ARTICLE ISIS, BOKO HARAM, AND THE HUMAN RIGHT TO FREEDOM FROM SLAVERY UNDER ISLAMIC LAW Bernard K. Freamon* ABSTRACT There is now a worldwide consensus on the firm existence of a human right to freedom from slavery. This consensus gives rise to what was thought to be an irrefutable argument that the right to be free from slavery is a jurisprudential universal, with no competent legal system or government able to deny its existence or permit derogation from its tenets. This argument is now being tested by the ideologies, policies, and actions of Muslim insurgencies in Iraq, Syria, and Nigeria, each claiming that the enslavement of non-believing combatants and war captives and slave trading in such persons is permitted under Islamic law. This Article considers the implications of these claims for the future of Islamic law and for its relationship with the world’s legal systems, particularly international humanitarian law. It posits that the claims of these insurgencies, while glaringly out of step with modern views of chattel slavery, should be taken seriously and actually have a great deal of support in Islamic legal history. It argues that, despite the long presence of slavery and slave-trading in Islamic legal and imperial history, there is now a firm jurisprudential basis for declaring that slavery in Islam can and should be abolished, even * Professor of Law and Director, Program for the Study of Law in the Middle East and Zanzibar Program on Modern Day Slavery and Human Trafficking, Seton Hall University School of Law, Newark, New Jersey USA. Portions of this Article will appear as an Afterward in the author’s forthcoming book, POSSESSED BY THE RIGHT HAND: THE PROBLEM OF SLAVERY IN ISLAMIC LAW AND MUSLIM CULTURES. Thanks to my former student Shahab Nassirpour for helpful comments on an earlier draft. Special thanks to Sabrina F. Mirza, Uche Enwereuzor, Sofia Iqbal, and Iman Saad for excellent research assistance and to Ms. Mirza for superb editing advice and for having the courage to challenge some of the assumptions that underlie arguments made herein. 245 246 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 39:245 under a government bound by the Sharīʿah. It asserts that Muslims and scholars of Islam must engage the Islamic State and Boko Haram in dialogue on this point. It argues that the moral questions raised by the continued specter of slavery in Islamic legal culture are profound and fundamentally more significant than any other questions facing the Muslim community at this time. The Article closes with a pessimistic assessment of the future of Islamic law in its relationship with international humanitarian law and in its ability to improve the lives of its subjects, should Muslims and scholars of Islam fail to achieve a community-wide understanding on the need for de jure abolition. ABSTRACT ....................................................................................... 245 INTRODUCTION ............................................................................. 246 I. BACKGROUND ............................................................................ 248 II. FACTUAL ACCOUNTS .............................................................. 253 III. DABIQ ......................................................................................... 257 IV. THREE QUESTIONS ................................................................. 261 V. SCHOLARLY DISCOURSE ON SLAVERY AND ISLAM ...... 268 VI. DEFINITIONS ............................................................................ 270 VII. ISLAMIC LAW AND SLAVERY: CRAFTING AN EFFECTIVE LEGAL HISTORY ............................................ 275 A. Finding a Jurisprudential Basis for the Abolition of Slavery in the Qur’an and Sunnah ..................................... 281 B. Is There Now an Ijmāʿ (Islamic Juristic Consensus) on Slavery? ............................................................................. 290 C. Isis, Boko Haram, and the Relationship Between the Shari’ah and International Humanitarian Law .................. 295 D. Slavery, Moral Progress and the Public Interest and Well-Being of the Muslim Community: Examples From History ..................................................................... 301 CONCLUSION .................................................................................. 305 INTRODUCTION The firm existence of a human right to freedom from slavery is now acknowledged by the worldwide community of jurists, by all major international nongovernmental organizations dealing with the 2015] FREEDOM FROM SLAVERY UNDER ISLAMIC LAW 247 recognition and enforcement of human rights, by organs of the United Nations and regional intergovernmental organizations, and by all the world’s national and municipal jurisdictions. These facts give rise to what was thought to be an irrefutable argument that the right to be free from slavery, like the right to be free from genocide, torture, racial discrimination and piracy, is a jurisprudential universal, with no competent legal system or government able to deny its existence or permit derogation from its tenets.1 To the great surprise and grim consternation of many contemporary scholars, observers and commentators, particularly those who seek a place for the Sharīʿah among the world’s legal systems, this argument is being tested by the ideologies, policies, and actions of Muslim insurgencies in Iraq and Syria and in Nigeria, each claiming that the enslavement of non- believing combatants and war captives and slave trading in such persons is permitted under Islamic law. This Article considers the implications of these claims for the future of Islamic law and for Islamic law’s relationship with the world’s international and domestic legal systems, particularly the emerging system of international humanitarian law. It posits that the claims of the Muslim insurgencies in Iraq, Syria, and Nigeria should, from a jurisprudential perspective, be taken seriously and that such claims, while glaringly out of step with modern views of chattel slavery, actually have a great deal of support in Islamic legal history. It argues that, nonetheless, there is now a firm Islamic jurisprudential and legal basis for declaring that slavery in Islam can and should be abolished, even under a government bound by the Sharīʿah. It asserts that Muslims and scholars of Islam around the world must engage the partisans, jurists, and ideologues of these insurgencies in dialogue on this point, questioning both their view of the historical facts supporting their claims and their understanding of the role of Islamic law in contemporary Muslim communities. The Article closes with a pessimistic assessment of the future of Islamic law in its relationship with international humanitarian law and in its ability to improve the 1. In international law, the right to be free from slavery is part of the cluster of rights arising out of the familiar jus cogens set of peremptory norms. LOUIS HENKIN, RICHARD CRAWFORD PUGH, OSCAR SCHACTER AND HANS
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