I didn’t know what to expect when we landed in Athens. I knew we were going to be meeting with refugees and hearing their stories, but I did not expect what I saw and heard. For one thing, I may have expected a strong narrative of unbearable suffering that ran through every one of these meetings. A narrative of victimhood and helplessness. A narrative which wanted so badly to be heard and listened to so that it could expose its most tragic and historic aspects to create greater awareness and anger for it. I may have expected helpless, uncontrollable tears rolling down my cheeks in response to harrowing tales of torture, imprisonment, of separation – mother from child, husband from wife, brother from sister.

What happened, instead, has left me incredibly perplexed. I heard the harrowing tales of torture, imprisonment, separation, familial betrayal, the difficulties of escaping a brutal crackdown, and of near-death situations. But an almost unexplainable sense of calm ran through these people as they told their stories. A calm motivated by faith and the belief that God is with the Hizmet, or “service,” Movement and has already manifested His mercy by preserving the movement despite these hardships. These atrocities did not destroy the Movement or break its spirit; they look more united than ever.

The narrative that believers suffer at the hands of unjust oppressors, as many prophets did under the tyranny of various pharaohs, is all too common in the Abrahamic texts. But it is an entirely different experience to physically see and talk with someone who has gone through these kinds of traumatic experiences, who is still in the thick of trying to find a home for themselves and their family, to be able to tell their story while showing the utmost reliance on God’s plan. They were also weary of putting their experiences in the context of other refugees, as they understood that others suffered even more.

I believe that their reliance upon God, and their calm approach to faith in the midst of such turmoil, is real. And the reality is clear for all of us to see and hear. Reading about their stories through an article such as this one, or even hearing them speak on the news, pales in comparison to actually being with them during their greatest hour of need. I feel that my mind is not the same as before. I am not claiming that the refugees, the heroes who were persecuted and driven from their homes for crimes they never committed, are completely okay with their situation. What I am pointing out is that, even in the midst of their losses and suffering, they thank God and are not hopeless.

The hospitality with which they welcome guests is astonishing. Considering the fact that they were refugees, they still took the time to host us and make us feel attended to.

Shaken by trauma, the brothers we spoke to find assurance by making dark jokes about their time in prison, or the difficulties they experienced while crossing over to Greece and other countries. Hours were spent strategizing ways to escape Turkey and flee to other countries or to reunite with family members that had already escaped. Their hopes hinged on the kindness of border police and passport patrol. There was rarely enough time to grieve about a father who might still be suffering in prison, or think about those in prison that were without medical attention, or the difficulty of having to share a single toilet among 50 people at a time. There was rarely enough time to grieve about the discrimination that they endured at the hands of their cruel jailors, who tortured and beat many of them until they went blind. I almost felt ashamed that I did not cry in front of them, however I did not feel that it would be respectful to show my pain in front of them when their suffering had outmatched mine so much more. So I sat there, listening quietly, waiting for their words to unfold into long complicated stories of imprisonment, release, escape, survival (or drowning to death), landing in Greece (or being caught), staying in a refugee camp, and then ending up with fellow refugees from Turkey.

The lessons that this experience taught me are too stark to ignore. It showed me that Hizmet is a movement that brings power into question. Every effort is made to mitigate whatever suffering and loss might come from the jihad of speaking out against injustice. But when it strikes, the experiences of those that are suffering, and have suffered, as a result of doing what is good remind us once again that to be comfortable, and to put all of our eggs in one basket, is not the way to live. We should not just strive to be productive people, and the best citizens we can be, even though this is incredibly important. We should also work within the social sphere to make active change to the way people think, and to the ways in which people oppress themselves and other people. And we must be prepared, as opposed to being scared, for a time in which we might need to make drastic changes to our lives. We might even be forced to do so. To work towards active change does not fit comfortably with people who are happy with oppression. As the common maxim goes, “silence is violence.”

Being as comfortable and privileged as we are in the United Kingdom, we need to remember that, even here, people are suffering. We must stand up for them.

I am still shocked that I had the honor of hearing these most intimate stories. I am also honored that Allah has given me the chance to see what real faith looks like. I say to myself that, if I cry, it should not just be because their suffering is too much to bear (not to say that we should not cry at all about this). But it should be because I have a long way to go to meet their level of faith and commitment to Hizmet and their service to humanity.

The lead article in this edition describes how a believer is expected to respond in difficult times. Storms are temporal and breezes are eternal in Gulen’s worldview, so thus believers “are neither shaken by the noise and clamor that is being intentionally made around” them, nor do they “panic in the face of the dust that envelopes us.” And for him, believers should trust in God, equip themselves with wisdom, and try to live up to their beliefs, God’s good pleasure, and distinct cultural values.

What would you do if terrorists installed a bomb somewhere in your city and they do not tell you how to defuse it? This is what is called “the ticking time-bomb scenario” and some people believe that under such circumstances torture is legitimate, if as a result the terrorist is forced to speak. Drawing on this scenario, Ayse Meva Nur provides an interesting discussion in this issue and she touches on human rights conventions and what Islam says about torture.

The intense rivalry between the magicians in the movie The Prestige was fatal. For Veli Keskin, the rivalry in the world stage between various power centers is as tragic as that which existed between the magicians; however, the global one has cost millions of lives. Keskin’s analogy has produced an eye-opening essay in which we find both the magicians on the stage in theatre and those on the political scene using similar techniques in shaping the perceptions of their audience.

Imagine you find a gift in your mail box one morning. It is a beautiful shirt perfectly suited to your taste. But who sent you this shirt? How did he or she know what your preferences were? Was the sender a man or a woman? With limited information it is not possible to discover the relationship between the sender and the receiver. But one can easily infer that the sender is someone who loves the receiver and wants to please the receiver. The former perspective, which is positivist, is not sufficient for explaining many things in our lives; but with qualitative inference we can reach some conclusions. Huseyin Coskun gives this and many other examples and explains how “qualitative inference allows one to address the non-physical or metaphysical aspects of the physical phenomena by freeing all of our cognitive faculties.”

Article 1 of the United Nations Convention against Torture defines torture as:

… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind.

There is also a myriad of laws and conventions prohibiting the use of torture. In the oft-repeated words of the European Convention of Human Rights, Article 3 states that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A large number of international laws have been adopted to combat torture from Article 5 of the 1948 Universal Declaration of Human Rights to the four 1949 Geneva Conventions, the 1966 UN International Covenant on Civil and Political Rights, Article 7 of the 1984 UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) , and the 1987 European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment.

The ticking time-bomb scenario

In spite of torture being almost universally condemned, some have sought to justify the use of it in the “ticking time-bomb” scenario. While some versions of the scenario are more or less elaborate, the basic idea is that a terrorist has placed a bomb in a public place; if it is detonated many innocent lives will be lost. The authorities have detained a terrorist and are certain that the terrorist has relevant information as to the whereabouts of the bomb. The terrorist knows details that could lead to its defusing, however without the terrorist’s confession there is no other way to defuse the bomb. If the information is provided, the bomb will be diffused and the terrorist will not be tortured. But if the terrorist does not reveal the relevant details, he will be tortured until he does so.

The question posed in this situation is whether the torture of the person is permissible, impermissible or obligatory. Defenders of torture argue that it is permissible, and in some cases even obligatory; the right of the person with information not to be tortured is outweighed by the right of potential bomb victims not to be killed or injured. Given the choice between inflicting a small level of harm on a wrongdoer and saving the lives of many innocent people, is it morally indecent to prefer the interest of the wrongdoer?

The problem with the ticking time-bomb scenario is that it is impossible to know in advance how much pain would be caused by the bomb exploding and how much pain would be caused by the torture. Morally, it does not matter who experiences the pain or how intense it is. No one should go through such pain.

A critique of the ticking time-bomb scenario as a defense of torture

There are many reasons why torture is impermissible. Even if we accept it as a necessary evil, torture is an unreliable way to obtain information and evidence, especially when terrorist organizations know about torture and prepare for it by ensuring that no individual knows all the facts of any one operation. A person being tortured will say almost anything the torturers want to hear, even if it is false, so that their pain and suffering will come to an end. Another reason why torture should be prohibited is the fact that every society detests the violation of common morals; torture is a way of destroying the existing moral fabric of societies.

The ticking time-bomb misrepresents the real world. It is a simplification of reality in order to persuade people that torture can be permissible under certain circumstances. The torturer, for instance, is not portrayed as cruel and insensitive to the victims’ pleas, but rather as a heroic and conscientious public helper desperate to save the lives of innocent people that are weighing on his conscience. If one was to take this scenario hypothetically, it is worth asking how long a suspect should be tortured. How much should he be tortured? Should the frequency increase if he doesn’t talk, or as time runs out?

Secondly, if an official is willing to torture a person to extract information, why should he stop there? If the terrorist does not crack under pressure and pain, why not move on to torturing his family and friends in front of him? Seeing loved ones hurt is another form of torture that may be viewed as potentially useful as actual torture. Who is to guarantee that in order to extract information from a possible suspect, all probable measures, such as hurting loved ones, should not take place? In a world where the truth is unclear and where the existence of information held by a suspect remains ambiguous, the ticking time-bomb scenario should not be a valid point of reference.

Another way of looking at the ticking time-bomb scenario is the argument that it can help prevent future terrorist acts and act as a warning for others. If torture is permitted, it might be argued that it can help stop crimes. This cannot be the case in a society where right and wrong is judged upon what the behavioral norms of people are. If torture is permitted even in exceptional circumstances, then we run the risk of violence becoming tolerated and accepted in society as a normal response.

Contrastingly, it can be argued that even though in theory the requirements of the ticking time-bomb scenario can be met, in practice it is very difficult. Firstly, there is no guarantee that the suspects being interrogated are in fact terrorists, or, even if they are involved with a terrorist group, it cannot be certain or probable that they in fact have any information. Secondly, torture is not guaranteed to work if the assumption is based on mere possibility, as opposed to the certainty, that torture will make anyone talk. Thirdly, there is very little evidence suggesting that torture obtains results within a short time and in the most effective way.

Torture in Islamic jurisprudence

In Islam, human beings are considered as being the most exalted of all creation, created in the finest manner, adorned with rights and freedoms that cannot be undermined. Consequently, torture and inhuman practices inflicted on human life are strictly forbidden. An authority or state body whose aim is to restore justice cannot go outside the sphere of what is just and apply torture-this is haram, forbidden, in Islamic jurisprudence. The Qur’an explains the concept of justice in the following verse:

O you who believe! Be upholders and standard-bearers of right for God’s sake, being witnesses for (the establishment of) absolute justice. And by no means let your detestation for a people (or their detestation for you) move you to (commit the sin of) deviating from justice. Be just: this is nearer and more suited to righteousness and piety. Seek righteousness and piety, and always act in reverence for God. Surely God is fully aware of all that you do. (Al-Maidah 5:8)

In Islamic jurisprudence, a guilty person cannot be forced into confession through torture. If such a case arises, a person cannot be punished for the information they provide as a result of such force. This is because the most important right of an individual under Islamic law is the principle presumption that a person is innocent until proven guilty. In Islamic jurisprudence, a conviction has to be based on sound proof and certainty and not on mere probability, like the ticking time-bomb scenario. If there is reasonable doubt, it is seen as being in favor of the accused, not against. This principle is based on the saying of Prophet Muhammad: “Prevent punishment in case of doubt. Release the accused if possible, for it is better that the ruler be wrong in forgiving than wrong in punishing.”

Said Nursi, a twentieth century Islamic scholar, refers to the strict prohibition of torture in Islam as “pure justice” as opposed to “relative justice,” which is taking on the lesser of two evils. He makes reference to the Qur’anic verse “He who kills a soul unless it be (in legal punishment) for murder or for causing disorder and corruption on the earth will be as if he had killed all humankind; and he who saves a life will be as if he had saved the lives of all humankind” (al-Maidah 5:32). Nursi further explains his ideas in light of the Qur’anic verse above.

“[N]o innocent person can be deprived of his or her right to life or sacrificed for the community’s sake. Any right is a right in God’s sight, and thus cannot be abolished for one considered just as great or fundamental.”

When a relative justice approach is taken, the right of an individual is overlooked in favor of the rights of the community. Nursi argues that attempts made to apply relative justice are wrong if it is possible to apply pure justice.

By looking at Islamic principles on torture and the ticking time-bomb scenario as a whole, it can be said that because torture is strictly prohibited in Islam, it cannot be used to attain a confession from a terrorist. As a result, there would be uncertainty and doubt as to the guilt of that individual. In such cases, punishment needs to be prevented on the presumption that the suspect is innocent until proven guilty.

How to prevent both terrorism and torture

In order to eradicate terror and terrorists, we need to be able to go deeper into the core of the problem and ask ourselves this simple question: would a reasonable person go and threaten to kill thousands just for the sake of killing? There has to be a reason behind such an act. If we cannot discover what is bothering one individual, we cannot solve such a problem. If such problems are not listened to and dealt with in a proper humane manner then one side will continue to torture and the other side will continue to threaten to kill, but for how long? In the end, what we need to realize is that we are dealing with a human being who is facing torture, not an animal.

As long as there is not full certainty that the terrorist is guilty, there has to be another way to deal with situations like the ticking time-bomb without having to resort to torture. There has to be an alternative, one that does not discriminate against an individual on the basis of race or religion, without segregation, belittlement or force. One alternative could be interrogation and reasoning with the terrorist, discovering the reason why they have such a person who poses a threat. The interrogators must ask themselves what has made the suspect what he is, what has triggered him to take such a drastic action, and try to discover what he wants. If voices are being heard and individual problems are being dealt with, why is there still such rebellion and terror in our society? If there is terrorism in a society, there must be injustices. In a society where justice is being served, there cannot be terrorism.

Another solution to terrorism lies in the religious foundations and moral upbringing that should be grounded in every individual and society to prevent such scenarios like the ticking time-bomb from arising in the first place. If every society is sustained by religious, moral and human values, then would, without a doubt, be peace. This moral framework is most effective when it is established early on in life through educational upbringing so that later on such concerns do not develop.

Fethullah Gulen, a modern day scholar and thinker, acknowledges that it is through religion that such a moral framework can be instilled within people.

Humankind, since the beginning of time, has found true peace and happiness in religion. As it is impossible to talk of morality and virtue where people do not practice the true religion, it is also difficult to imagine real happiness. For morality and virtue originate in good, clear conscience and what makes conscience good and clear is religion, which is the connection between humanity and God.

It is extremely important for individuals to realize that when dealing with such scenarios as the ticking time-bomb, no religion supports such behavior. In the Qur’an it is stated that “… those who affront believing men and believing women without their having done any wrong to deserve it, they have surely burdened themselves with calumny and a blatant sin” (al-Ahzab 33:58).

Similarly the Bible states “Do not murder, and anyone who murders will be subject to judgment” (Matthew 5:21). Also, in Jewish scriptures, there is reference to Hillel who says in the Talmud, Shabbat 31a “That which is despicable to you, do not do to your fellow.”

If religion and moral values are instilled within individuals effectively, even when there is no one present, the fear of God and the love for God will prevail to prevent such treacherous acts like torture and killing from taking place. Those individuals who fear God are less likely to break the rules if they believe that they are being watched and that any action they do will have a consequence. It can also be said that those individuals who love God in His goodness, compassion and mercy will be more likely to do virtuous acts, above and beyond simple duty. It is when society is filled with such conscious people that crime rates can drop and the door to torture and terror can remain closed. There will neither be terrorist’s withholding information regarding the whereabouts of a bomb nor law enforcement agents waiting to torture possible suspects.

In a nutshell, there are numerous arguments for and against the use of torture in exceptional circumstances like in the ticking time-bomb scenario. However, such circumstances cannot justify the breaching of one human’s right in place of another’s, regardless of the quantity of lives involved on either side of the spectrum. Everyone must have an absolute right to life. It is the lack of prohibition of torture by various states that enable such unnecessary exceptions like the ticking time-bomb to arise. There can be no legitimate basis for the limiting of this human right, because a human right to be free of torture is absolute.

Note

1. Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, adopted 10 Dec. 1984, entered into force 26 June 1987, 1467 UNTS 85 (1985), available at http://www.ohchr.org/english/law/cat.htm

2. European Convention for the Protection of Human Rights and Fundamental Freedoms, signed 4 November. 1950, entered into force 3 Sept. 1953

3. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A, 3 UN GAOR, UN Doc. A/810, at71 (1948), available at http://www.un.org/documents/ga/res/3/ares3.htm

4. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, entered into force 23 March 1976, 999 UNTS 171, reprinted in 6 ILM 368 (1967), available at http://www.ohchr.org/english/law/ccpr.htm

5. M. A. Abdel Haleem, Adil Umar Sharif and Kate Daniels. Criminal Justice in Islam: Judicial Procedure in the Sharī’a , UK: I.B.Tauris, 2003, p. 48.

6. Abu Dawud, Salat, 14; Tirmidhi, Hudud, 2.

7.Said Nursi, The Letters, The Fifteenth letter from the Risale-i Nur Collection, NJ: The Light, Inc., 2007) p. 92.

8. M. Fethullah Gulen, Criteria or the lights of the way, London: Truestar Publications, 1996, p. 5.

My aim here is to describe the legal instruments under international laws and conventions, to see how far they do secure protection of individuals’ rights, and to compare them with corresponding Islamic notions which have been around for 14 centuries. I will focus mainly on the rights and protection available in Europe. Finally, I will compare the different perspectives of an Islamic approach and of modern international law on protecting individuals’ rights from abuse’ by police authorities and agencies. Some of the legal instruments mentioned are non-binding in character -they are nonetheless relevant in establishing the perspective of modern international law.

The Declaration on the Police affirms the necessity of rules of conduct for the police (Preamble para. 2) and condemns any police officers who have violated human rights as unfit to be police officers (Preamble para. 3). The commentary accompanying Article 2 of The Code of Conduct for Law Enforcement Officials (adopted by the United Nations General Assembly in 1979) clarifies the phrase ‘human rights’ as meaning those rights protected by national and international law. Article 3 provides that: ‘Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.’ Article 5 prohibits the use of torture or other cruel, inhuman or degrading treatment. Another instrument, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted by the 7th Congress on the Prevention of Crime and the Treatment of Offenders) recognizes that ‘law enforcement officials’ must include all officials, whether appointed or elected, who exercise police powers (specially powers of arrest and detention), and regardless of whether a country is under civil or military rule. It is obvious from all of these declarations that effective limitations must be placed on arbitrary, lawless behaviour by the police, and that appropriate rules and training procedures be adopted to ensure that police behave professionally and protect individual rights and liberties. They are more likely to do so if the police are themselves well-versed in those basic rights and liberties.

The European Convention on Human Rights (ECHR) seeks to balance individual rights and the public interest. In their case law, the Commission and the Court have sought to define the public interest and indicate the limits which authorities such as the police should not transgress even when obliged to restrict the individual’s rights and liberties. ECHR Article 2 addresses the question of what circumstances justify the use of force, and how much, by law enforcement officials.

In the Stewart case, the Commission stated that the principle that ‘everyone’s right to life shall be protected by law’ obliges governments not merely to refrain from taking life intentionally but also to safeguard life. The Commission further stated that ‘the use of force must be shown to have been absolutely necessary’ and to be ‘reasonable’ in the circumstances. But what is ‘reasonable’? The Commission, though avoiding any statement on the meaning of ‘reasonable’ force in the Stewart case, made it clear that the standard is to be rigorous: an assessment must be made as to whether the interference with the right is proportionate to the legitimate aim pursued.

The Camargo and De Guerrero case is a clear cut instance of disproportionate force. The case was decided under the International Covenant on Civil and Political Rights (ICCPR) by the Human Rights Committee. The Committee found no evidence that the action of the police was necessary in their own defence or that of others, nor that it was necessary in order to effect the arrest or prevent the escape of the persons concerned.

The doctrine of necessity (which can be likened to the concept of the ‘public interest’ in Islamic Law) is of central importance. It sees the restriction of individuals liberties as exceptional, as only justifiable in the wider interest: ‘If the necessity of uncovering the truth and of doing justice requires limiting some or all of these rights, an exception will be recognized to the principle but only if it does not go beyond the dictates of necessity’ (Bassiouni, 1982, p.100). Restriction of individual liberties is checked by restrictions on the authority of those investigating a particular case. Islamic Law does not set out a specific list of rights that may be restricted if necessary nor how far and under what conditions. It delegates the decision to those in government who may decide according to their perception of the public interest (Bassiouni, 1982, p.100).

The United Nations Convention against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment of 1984 is binding on the signatories to it. The Convention provides that the signatories shall outlaw torture in their internal laws and explicitly prohibits using ‘higher orders’ or ‘exceptional circumstances’ as excuses for acts of torture (Article 2(2) and 2(3)). The Convention has two new elements. Firstly, it provides for extradition of alleged torturers for trial in any of the signatory states. Secondly, it provides for an international investigation in the state concerned of reports of alleged torture by a Committee against Torture to be established under the Convention. However, the fact that the signatories may withdraw from this latter provision is a weakness.

The Convention requires prohibition of torture to be part of the training of all personnel involved in law enforcement, detention, interrogation or general handling of prisoners or detainees (Article 10(1)). It also provides that the signatories shall ensure legal measures for protection and compensation of torture victims. Individuals are further protected against other forms of cruel, inhuman or degrading treatment, as defined under the Convention.

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment is, by contrast, an instrument of a more preventive nature. It supplements the protection already given by Article 3 of the ECHR, by providing a non-judicial mechanism to investigate the treatment of persons deprived of their liberty in order to secure or reinforce the proper protection of their rights. A committee is established under the Convention for this purpose (Article 1).

Articles 3 and 5 of the ECHR impose particularly rigorous restrictions. Article 3 puts an absolute prohibition on torture, inhuman or degrading treatment or punishment by the police forces, terms defined in the judgement in the Ireland v UK case. Also, the conduct of the victim is not accepted as a justification for derogating from Article 3, however heinous it may be alleged to be.

Islamic Law explicitly outlaws torture, beating, and other cruel and inhumane treatment. The Prophet, upon him be peace, said: ‘God shall torture on the Day of Recompense those who inflict torture on people in this life’. The prohibition can be deduced also from practice of the early Caliphs and other Muslim rulers. Most jurists agree that no prisoner should be insulted, humiliated, beaten, tortured or chained, regardless of the offence. Islamic Law affirms that any confession obtained by coercion, torture or unlawful detention cannot be used to sustain a conviction. The Prophet set a practical example for treating the accused humanely and so enabling him to speak freely, when he addressed a defendant in these gentle words: ‘I do not think you stole. Did you?’

Article 5 of the ECHR, designed to protect individuals against arbitrary treatment, has generated a substantial body of case law. Anyone apprehending or arresting another person must respect due process of law. Not only compliance with national law, but also compliance with the principles of the Convention, as defined in the case law of the Commission and the Court, must be observed. Under Article 5(l), Suspicion must be reasonable to permit an arrest (Article 5(1)); the arrested persons must be told why they have been arrested (5(2)); detention should be of strictly fixed duration (5(3)) and, the detainee brought before a judge or other officer promptly and without having to ask. These provisions obviously have to do with police powers exercised under legal authority. In the Bozana case, the Court concluded that the expulsion of Bozana had turned into a ‘disguised extradition’ measure, designed to circumvent an appeal, and was therefore unlawful within the meaning of Article 5(1).

In the Brogan case, the Commission took the view that the struggle against terrorism may require some sacrifice of individual liberty for collective security ad so justify a flexible approach to the period of detention. The Court did not agree with this line of reasoning. It allowed that bringing to trial ‘promptly’ might be flexibly construed but insisted that there is a maximum period of detention compatible with the Convention. Tanca commented: ‘admitting longer police custody for those suspected of terrorist offences would alter the balance in favour of the police authorities, conferring on them more sweeping powers and the authority to decide when to use them’. The Convention also clearly requires that any officials with power to hold someone in remand must have judicial authority to do so. This position was further clarified in the Schiesser case in which the Court held that those officials must be independent of government and political parties.

Under Islamic Law, preventive detention is considered a serious restrictionof personal liberty and an exception to the general rule that no-one shall be deprived of their liberty except for the enforcement of a lawful sentence. Some Islamic jurists including Abu Yusuf opposed preventive detention on the grounds that neither the Prophet nor his immediate successors maintained a prison. One school of Islamic jurists, however, is of the opinion that it is permissible, under the proper conditions and with safeguards to balance the interests of the defendants and law enforcement authorities. (These jurists base their position on the teaching of the Prophet who detained a man accused of a crime.) But in any case, Islamic jurists were very cautious in its application and laid down very strict conditions as to duration, those authorized to impose detention and in what circumstances (Al-Saleh, 1982, pp.74-5).

Another police activity which infringes fundamental human rights is the search of private premises. Article 8 of the Convention guarantees the right to privacy of family life, of home and of correspondence. Any interference with this right must be ‘in accordance with the law’ and ‘necessary in a democratic society’. In an emergency, additional measures derogating from Article 8 may be taken, provided these are strictly required and respect the other procedural and substantive requirements of Article 15.

An individual’s home and private life are regarded as inviolable in Islamic Law, in accordance with the Qur’an (24.27-8) and the instruction of the Prophet, upon him be peace, in his ‘Farewell Sermon’. But that right is conditional on the absence of reasons requiring its restriction or suspension. It is significant that Islamic Law prohibits the search of person or home, and the invasion of privacy for the purpose of verifying the occurrence of a crime unless there is independent corroboration thereof. Any restriction of the right to privacy may not exceed the limits as determined by the purpose for which the exception is being permitted, namely to uncover the truth.

The Islamic perspective

The Qur’anic verse O mankind, worship your Lord who created you from a single soul … (4.1) is the ground rule which determines the Islamic perspective on this issue. It gives ‘Muslims a consciousness of their belonging to a broader, larger and all-encompassing universe, rather than to consider themselves a parochial subdivision of a greater part with which no intercourse is invited’. However, the development of international law remained totally alien to the Islamic Law of nations which preserved the ethical basis and moral source of its norms and statutes. In Europe, as a result of religious wars and distrust of the clergy, religion and morality were replaced by more pragmatic powers and necessities of state, though Christian concepts remained influential. The Treaty of Westphalia of 1648 was based on the concept of cuius regio, eius religio, which sealed the separation further. The Western view is that mechanical conformity to the pattern of conduct, prescribed by the law of the state or by international law, is sufficient to secure public order and universal peace. Western law aims ‘to proceed to influence from outside the inner condition of man and somehow it believes that institutions, social, economic, political etc., have a way of influencing the individual character… Islam, on the other hand, begins by inviting man to accept the paramountcy of the power of the Lord, his own servitude and bondage to the will of his Master who is the Sovereign Ruler of the universe; in the last resort it redeems him by prescribing upon him norms of behaviour by which he is to regulate his life’. The only real sanction for the moral law is, in the last resort, the authority of religion. Morality cannot be effective without religion. Morality tells us what is right and proper to do, while the law enforces those moral principles as have a direct bearing on the regulation of the individual vis A vis his fellow human beings. If the law is secular the enforcement of it can only be on the secular plane, whereas, if the law is religious, its enforcement takes note of deleterious consequences of criminal acts not only in this life but also in the life to come. International law may have come a considerable way towards urging the protection of individual human rights against abuse general. But the reality is that these instruments and mechanisms have not been successful on their own. Therefore, we tend to argue that any attempt or any solution on the protection of the individual against such abuses will only be successful, if there is a religious dimension to it. That is the function of the morality.

Sources

• AL-SALEH, Osman Abd-eI-Malek (1982) ‘The rights of the individual to personal security in Islam’. in Bassioni. M. C. The Islamic Criminal Justice System. Edited by Bassioni, M. C. London: Ocean. Publication, London.
• AWAD, A. M. (1982) ‘The rights of the accused under Islamic criminal procedure’, in The Islamic Criminal Justice System.
• BASSIOUNI, M. C. (1982) ’The rights of the accused under Islamic criminal procedure’, in The Islamic Criminal Justice System. Edited by Bassioni, M.C. London: Ocean. Publication, London.
• BASSIOUNI, M. C. (1982) ‘The Sources of Islamic Law and the Protection of Human Rights’ in The Islamic Criminal Justice System.
• BROHI, A. K. (1982) ‘The Nature of Islamic Law and the concept human rights’, in Human Rights in Islam, International Commission of Justice, Geneva, pp. 55-56.
• ICJ (1982) Human Rights in Islam, International Commission of Justice, Geneva.
• TANCA, A. (1990) “Human rights, terrorism and police custody: the Brogan case”, European Journal of International Law, 1, pp.269-77