Mediation of international dispute The Islamic perspective
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MEDIATION OF INTERNATIONAL DISPUTE THE ISLAMIC PERSPICTIVE BY NASIR AHMAD YOUSEFI (G1419223) COURSE: INTERNATIONAL DISPUTE RESOLUTION (LAW) LL.M IN INTERNATIONAL LAW LECTURER: PROF. DR. ASHGAR ALI ALI MOHAMED
Mediation of international dispute The Islamic perspective
1. MEDIATION OF INTERNATIONAL DISPUTE THE ISLAMIC PERSPICTIVE
BY NASIR AHMAD YOUSEFI (G1419223) COURSE: INTERNATIONAL DISPUTE
RESOLUTION (LAW) LL.M IN INTERNATIONAL LAW LECTURER: PROF. DR.
ASHGAR ALI ALI MOHAMED
2. CONTECTS: - INTERNATIONAL DISPUTES - THE CONCEPT OF ADR -
TYPES OF ADR - MEDIATON IN INTERNATION CONFLICS - ISLAMIC MEDIATION
- CONCLUSION
3. INTRODUCTION As humans are social beings, disputes among
them are inevitable. The first conflict between humans back to the
time of QABIL and HABIL . From time to time differences arise on
various questions between the people living together as individual,
organization or state. There are many ways to resolve disputes on
the international stage in the framework of general international
law. Settlement of disputes has been addressed in Islamic culture.
Peace and reconciliation in Islamic learning was emphasized by many
religious scholars. Nevertheless Islamic law provides for
settlement of disputes by many ways of Sulh including
mediation.
4. THE CONCEPT OF (ADR) Alternative Dispute Resolution (ADR) is
a collection of processes used for the purpose of resolving
conflict or disputes informally and confidentially. Since the early
1980's, alternative methods have been developed to help people
resolve legal problems fairly, less expensively, and earlier. ADR
provides alternatives to traditional processes, such as grievances
and complaints; however, it does not displace those traditional
processes. Some reasons for using ADR are that it is faster, less
costly, and easier, less formality involved, less confrontational
or adversarial, it encourages creativity and searching for
practical solutions. YOU HAVE NOTHING TO LOSE by using ADR since
all statutory entitlements remain intact.
5. Types of ADR 1. Negotiation, 2. Conciliation, 3.
Arbitration, And the most important form of the ADR is: 4.
Mediation. The term mediation is defined as a confidential
facilitated negotiation, substantially controlled by parties,
procedurally controlled by neutral third parties but with no
authority to impose an out come. Mediation is a conflict resolution
method in which a mediator helps two people negotiate a voluntary
solution to their dispute. The 1856 Declaration of Paris was one of
the early international agreements that encouraged member States to
settle their maritime disputes by mediation. The Second Hague
Conference of 1907 recognized the right of neutral states to acts
as mediators in international disputes. What is the mediation?
6. Elements of mediation Mediation, as an affordable and
accessible means of alternative dispute resolution, has the
following five elements: 1. The presence of the parties; 2.
Willingness of the parties to act in good faith; 3. An impartial
third party facilitator; 4. An appropriate site and 5.
Confidentiality.
7. MEDIATION IN INTERNATIONAL CONFLICTS International mediation
may involve private individuals, academic scholars, official
government representatives, regional organisations, small or large
states, transnational and international organisations. The UN
Charter in its Article 33 (1) lists mediation as a peaceful method
of resolving international disputes. The Agreement Establishing the
World Trade Organization (WTO) that established the WTO Dispute
Settlement Understanding (DSU) persuades the disputants to settle
their disputes through consultation and mediation without recourse
to Panels and the Appellate Body. The DSU provides for good
offices, conciliation and mediation on a voluntary basis if the
parties to the dispute agree. Iran/USA hostage dispute mediation
pursued by Algeria, a move that averted a potential war. Falkland
Islands dispute in 1982 mediation by US followed by UN Secretary
General Breakup of Yugoslavia (1991-1995) mediated by EU, UN (with
EU and US) In 2008, the former UN Secretary- General Kofi Annan was
involved in resolving presidential elections dispute in Kenya -
President Mwai Kibaki was declared the winner of the presidential
election held on December 27, 2007. Raila Odinga of the Orange
Democratic Movement alleged electoral manipulation.
8. ISLAMIC MEDIATION
9. Islamic mediation Role of Religion in Conflict Resolution
One of the most important findings of cross-cultural conflict
resolution research is that religion is a perennial and perhaps
inevitable factor in both conflict and conflict resolution.
Religion, after all, is a powerful constituent of cultural norms
and values, and because it addresses the most profound existential
issues of human life (e.g., freedom and inevitability, fear and
faith, security and insecurity, right and wrong, sacred and
profane), religion is deeply implicated in individual and social
conceptions of peace. Dispute management techniques such as
mediation is not a modern phenomenon, but instead a concept which
permeates the Bible and Quran. Conflict Resolution in Islam Islam
defines and regulates the relationship between man and God. That
relationship, together with man's duties to God, is clearly set out
in the Qur'an and has been further elaborated and clarified in the
Sunna. However, Islam also articulates and regulates man's
relationship with his fellow men both individually and
collectively. It must therefore also comprehend a legal and ethical
system, as well as principles of social behaviour. Within the
context of dispute resolution, Islam provides general principles
and an authoritative set of rules and regulations. It both guides
and defines, and provides the environment for dispute
resolution.
10. ISLAMIC MEDIATION Definition of mediation (Wassatah)
Wasatah is the common term for mediation, and is used in Islamic
law. the common word for mediation in Islamic law is (Al-Mashyu
Bayna Al-Mutanaqisah); walking between the disputants. As for the
definition of mediation (wasatah), it is a benevolent and
non-binding procedure to end a dispute. It is characterized by one
or more persons intervening in a dispute either of their own
initiative or at the request of one of the parties. The independent
mediator must then seek to achieve an amicable settlement by
proposing solutions to the parties Quranic verses: The Holy Quran
lauds all type of peaceful conflict settlement as long as they do
not contravene Islamic teachings. 1 Allah says in Surat Al-Nisaa:
In most of their secret talks there is no good; but if one exhorts
to a deed of charity or justice or conciliation between men,
(secrecy is permissible): to him who does this, seeking the
pleasure of Allah, We shall soon give a reward of the highest
(value). (An-Nisaa: 114)
11. QURANIC VERSES 2 An-Nisaa:35: If you fear a breach between
a man and his wife, appoint an arbiter from his people and another
from hers. If they wish to be reconciled God will bring them
together again. God is all-knowing and wise. (An-Nisaa:35) " " 3
An-Nisaa:128 If a wife fears cruelty or desertion on her husband's
part, there is no blame on them if they arrange an amicable
settlement between themselves; and such settlement is best; even
though human inner-selves are swayed by greed. But if ye do good
and practise self-restraint, Allah is well-acquainted with all that
ye do. (An-Nisaa: 128) " " 4 Al-Hujurat: 9 And if two parties among
the Believers fall into a quarrel, make ye peace between them: but
if one of them transgresses beyond bounds against the other, then
fight ye (all) against the one that transgresses until it complies
with the Command of Allah; but if it complies, then make peace
between them with justice, and be fair: for Allah loves those who
are fair (and just). (Al-Hujuraat: (Al-Hujurat: 9). " "
12. MEDIATION BY PROPHET MUHAMMAD Some narratives: Beside these
verses Hadiths of the Prophet (SAAS) are loud in supporting
peaceful settlement. The Prophet says: 1. Should I inform you of
something that is higher in virtue than fasting, praying and
charity? They said, Yes O Messenger of God. Then the Prophet said
To make reconciliation between peoples that are in conflict: Enmity
and malice tear up heavenly rewards by the roots. " " He says in
another hadith: 2. Conciliation between Muslims is permissible,
except for a conciliation that makes lawful unlawful and unlawful
lawful. Some practices : the reconstruction of the Kaba. the
placing of the Black Stone (Hajar al- aswad) into the building. the
Treaty of Hudaibiyah. The Madinah Constitution which was enacted by
Prophet (peace be on him), included in it provisions on
conciliation to settle any disputes emanating from the groups of
people in Madinah.
13. FORMS OF ISLAMIC MEDIATION: Islamic mediation itself
commonly takes three forms. First, each conflicting party may
select a mediator to effect an agreement in their stead.
Essentially, this model allows for each side to employ a presumably
more professional, clearheaded negotiator to reach an agreement.
Although this kind of mediation is most common for marriage
contracts, it is not unknown in commercial dispute resolution.
Second, conflicting parties may select a single mediator to engage
in a more conventional mediation process by western standards.
Traditionally, this kind of mediation was considered a judicial
function and so Muslims tended to select judges as their mediators.
However, the overriding reason for the predominance of judges in
mediation was not their official position but rather their
recognized ability to successfully resolve disputes. Third,
conflicting parties may seek an opinion on their issue from a
respected legal expert (mufti). After hearing a controversy, this
expert engages in a process (ifta) of in- depth legal research to
find all the applicable substantive legal rules on the subject. The
muftiis then expected to present a report detailing their research
and its application to the conflict. Although a muftis opinion is
not legally binding, it has substantial weight in
14. LIMITATIONS ON MEDIATION: Mediation is not available in
cases where the law is clear and explicit e.g. Rasullulahs
rejection of the mediation of Usamah Ibn Zaid, whose honorific was
the loved one of Allah's Messenger, in the case of the Makhzumi
women to avoid the punishment of theft. Rasulullahs reply to the
request of Usamah Ibn Zayed was stern: Do you intercede regarding
one of the punishments prescribed by Allah? He then stood up and
addressed the people: O people, those who have gone before you were
destroyed, because if any one of high rank committed theft amongst
them, they spared him; and if anyone of low rank committed theft,
they inflicted the prescribed punishment upon him
15. Conclusion Islam as an everlasting religion applicable for
all mankind and suitable to all times and places has two important
characteristics absorbing and solving all incidents that may
encounter Muslims Ummah: the first on is comprehensiveness; and the
second one is flexibility. As such all types of mediation and all
procedures applied by the mediators to end a dispute and reach a
fair settlement of conflicts are welcomed as long they do not
contravene Islamic principles and fundamentals. Islam did not
merely encouraged peaceful conflict settlement, but introduced a
systematic and time-space consideration approach to end conflicts,
however, Islam while preserving the openness of Shariah law to the
impact of time and space dimension, also protects it from the
influence of contradictory norms and laws of non Islamic
provenance, or from the renunciation of fundamental of Islamic Law
under the justification of time and space factor, or the pressure
of globalization and international law. It is this concept of Islam
which has been widely practiced in the Islamic world all along has
percolated to the western continent for effective disputes
resolution and to maintain peace in the society.