1. 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. 2. CONTECTS: - INTERNATIONAL DISPUTES - THE CONCEPT OF ADR - TYPES OF ADR - MEDIATON IN INTERNATION CONFLICS - ISLAMIC MEDIATION - CONCLUSION
3. 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. 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. 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. 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. 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. 8. ISLAMIC MEDIATION
9. 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. 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. 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. 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. 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. 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. 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.
16. 16. A REAL MEDIATION BY PROPHET MUHAMMAD(PBUH)