Islamic Shari’a in Theory and Practice

>Excerpts of the lecture on “Islamic Shari’a in Theory and Practice” presented to the College at Florham Library and PubliMind Poll of Fairleigh Dickinson University, April 5, 2010. The speaker was Professor Gabriel Sawma.. You may see the lecture in its entirety at the following link:
http://youtu.be/XUKcsCAiDbE

In 1979, the Soviet Union invaded Afghanistan for the purpose of establishing a communist regime in that country. The following ten years witnessed the death of close to one million people. As a result there were tens of thousands of children who have lost their parents.

The United States, being an adversary to the Soviet Union back then, along with Saudi Arabia, initiated an effort to establish schools for those children in Pakistan. The schools came to be known as “madrassa” an Arabic term, means ‘school’; the etymology of the word is Aramaic “D R SH“; Syriac “madrashto“. The students came to be known as “Taliban” from Arabic ‘talib’, meaning student.

You would think those “Taliban” will study math, physics, geometry, history, etc. None of that happened; instead they were taught how to memorize the Quran. In Islam, there is more emphasis on memorizing the text of the Quran than understanding its meaning. Understanding the meaning of the Quran in Arabic is not an easy task.

The Soviet Union Withdraws from Afghanistan
In 1989, the Soviet Union withdrew its forces. The “Taliban” returned to their country. Another civil war erupted. In 1994, the “Taliban” started their occupation of the the major cities. They commanded, under the leadership of Mulla Umar, that Islamic Shari’a should be the law of the land.

In 1996, the general presidency of Amr Bil Maruf, issued a series of ordinances. Among those are the following:

1- To prevent music.
2- To prevent beard shaving and its cutting. After one and a half months, if anyone observed who has shaved his beard, he will be put under arrest.
3- To prevent keeping pigeons and “playing with birds”.
4- To prevent kite-flying. The kite shops were order to close down.
5- To prevent idolatry by removing any picture displayed. Displaying pictures under the Taliban was prohibited.
6- To prevent gambling.
7- To prevent “the British and American hairstyles.”
8- To prevent the “riba” (i.e. interest rate on loans.)
9- To prevent “washing cloth by young ladies along the water streams in the city. Violators ladies should be picked up with respectful Islamic manner, taken to their houses and their husbands severely punished.”
10- To prevent music and dances in wedding parties. “In the case of violation the head of the family will be arrested and punished.”
11- To prevent “sewing ladies cloth and taking female body measures by tailor. If women or fashion magazines are seen in the shop, the tailor should be imprisoned.”
12- To prevent sorcery. All the related books “should be burnt and the magician should be imprisoned until his repentance.”

The Taliban issued further rules regarding work in the hospitals and clinics. This includes:
1- Female physicians can see female patients. In case a male physician is needed, the female patient should be accompanied by her close relative.
2- Male physicians can check the “affected part of her body” only.
3- Waiting room for female patients should be “safely covered”.
4- At night, male doctors are not allowed to visit female patients, unless the patients request that.
5- Male physicians are not allowed to communicate with female physicians without a “hijab.”
6- Female doctors should wear simple clothes; they are not allowed to wear stylish clothes or use cosmetics or make-up.
7- Female physicians and nurses are not allowed to enter the rooms where male patients are hospitalized.
8- Hospital staff should pray in mosques on time.

All of these rules and regulations were instituted in the name of Islamic Shari’a.

Today, there are several countries whose laws are bound by Islamic Shari’a; they are: Pakistan, Iran, Saudi Arabia and Sudan. In recent years, Nigeria and Somalia started implementing Islamic Shari’a as well.

What is Islamic Shari’a?
Shari’a is defined by Muslim scholars as “the way” Muslims should live by. It is a “path” like “shiraa'” (i.e. sailing ship.) It is derived from the sacred texts of Islam: The Quran and the Sunnah.

1- The Quran, which is composed of the Revelations descended on the Prophet of Islam begining in 610 AD until his death in 632AD.

2- The Sunnah, which includes the saying and deeds attributed to the Prophet of Islam.

In Sunni Islam, there are 4 Schools of jurisprudence, they are: Hanbali (precursor of the Wahabi), Hanafi, Shafii, and Maliki.

I- The Quran
The etymology of the term is Eastern Syriac “Qiryana“, or Western Syriac “Qiryono” meaning “a reading”, or “call”. The Syriac Orthodox Church still uses the term “qiryono” in its liturgy.

The Quran contains the revelations, which descended on the Prophet of Islam, when he was 40 years old. The revelations descended from Allah (God) through the angel Gabriel (Arabic Jibreel.)

The Quran states that the Prophet of Islam was “ummi” (unlettered.)The final compilation of the Quran occurred under the auspices of the 3rd. caliph, Uthman. This compilation is known as “Musshaf Uthman.”

Muslim scholars believe that the Quran is miraculous because it was revealed to the Prophet who is called “ummi”. The text consists of 114 chapters, each known as “sura”. Some of its chapters were revealed in Mecca, others in Medina. Each “sura” or chapter is formed from several “ayat” (i.e. verses). The number of verses differs from one chapter to another. The script of the modern text differs from the earlier Kufi and Ma’eel scripts, which did not contain the diacriticals or the vowel signs.

The Quran calls for warship of Allah alone, with no partner and no companion and no son. This runs contrary to the Christian belief in the Holy Trinity.

The Quran claims that Christians and Jews have corrupted the texts of the New Testament and the Old Testament without offering evidence to that effect.

The Quran states that those who reject its teachings, will face torment for their disbelief.

It lays down the commands that every Muslim must abide by. It sets obligations on the believers for what to do and what not to do.

The Quran commands the believers to believe in “The Day of Judgment.” It also talks about the tales of previous nations.

It talks about the dress code for women and contains penalties (hudud) for violation of certain norms such as adultery and theft.

It describes the life in Paradise and Hell and sets out conditions for the marriage contracts and divorce.

It prohibits interest rate on loans “riba” and regulates commerce and trade among people.

It abolishes certain trends that were current in the Prophet’s environment in Arabia, such as the burying of infant girls alive.

It abolishes the worship of deities. The worship should be to Allah alone.

It gives specific details on inheritance share among Muslims.

The Quran is considered to be the first source of the Islamic Shari’a. Every single verse constitutes the supreme authority and commandment.

Shi’a Islam

Shi’a Islam on the other hand believe in the Quran and the teachings of the Prophet of Islam and his family, and sometimes, it is referred to as the “School of Ahlul Bayt” (the family of the Prophet, or “Shi’a Ali”. They spread into several branches, prominent among them are:

1- The Twelvers; they believe in the lineage of the Twelve Imams. They believe that the descendants of Muhammad through his daughter Fatima Zahra and his son-in-law Ali are the best source of knowledge about the Quran and Islam. The Twelvers recognize the succession of Ali, Muhammad’s cousin and son-in-law and the first man to accept Islam (second only to Muhammad’s wife, Khadija), the male head of the Ahlul Bayt as opposed that of the caliphate recognized by Sunni Muslims. The Twelvers believe that Ali was appointed successor by Muhammad’s direct order on many occasions, and that he is therefore the rightful leader of the Muslim faith. The Twelvers constitute 85% of the Shi’a population. They are mainly in Iran and Lebanon.

2- Zaidi, mainly found in Yemen.

3- Isma’ili, they are found in Kufah (Iraq), Afghanistan, Pakistan, Uzbekistan, India, Yemen, China and Saudi Arabia.

II- The Sunnah
The Sunnah constitutes the sayings and practices attributed to the Prophet of Islam. Those sayings and deeds are recorded in the volumes of Hadith literature. It includes everything the Prophet of Islam said, did, or agreed to.

During his ministry, the Prophet of Islam, his family and companions observed him and shared with others what they had seen in his words, deeds and behaviors. People asked him directly for rulings on various matters, and he would pronounce his judgment.
His sayings and deeds were passed on and recorded in the Hadith literature, which is called the Sunnah. It constitutes the second sacred source of the Islamic Shari’a.

III- Non-Sacred Sources, the Ijma’
Ijma’ is defined as the consensus among Muslim jurists on a particular legal issue. This constitutes the third non-sacred source of the Islamic Shari’a. It has been considered a third source because the Prophet of Islam says in the Sunnah: “My followers will never agree upon an error or what is wrong.”

Sunni jurists consider ijma’ as a source, in matters of legislation, as important as the Quran and Sunnah. While Shi’a jurists, consider ijma’ as source of secondary importance, and a source that is not free from error.


Who is Eligible to Participate in Ijma’ in Sunni Islam?

Hanafi: public agreements of Islamic jurists; Shafii: the agreement of the entire community and public at large; Maliki: the agreement among the residents of Medinat Rassul Allah (i.e. Medina); Hanbali: agreement and practice of Muhammad’s Companions.

IV- Qiyass
This is defined as the analogical deduction. It is the fourth source of Islamic Shari’a in Sunni Islam.

Shi’a jurisprudence do not accept the qiyass; they replace it with reasoning “aql” or “ijtihad.”

When a jurist is confronted with an unprecedented case, he bases his argument on the logic used in the Quran and Sunnah. Jurist’s ruling is not based on arbitrary judgment, but rather the primary sources of the first two elements. Supporters of this 4th element often point to passages in the Quran that describe an application of a similar process by past Islamic communities. In one Hadith, the Prophet is reported as saying: “Where there is no revealed injunction, I will judge amongst you according to reason.”

The qiyass is sanctioned by the ijma’, or consensus, and among the companions of the Prophet of Islam. But Sunni Schools of jurisprudence differ on the importance attached to the qiyass. They express the following opinions: the Hanafi school of thought supports qiyass very strongly; the Shafii accepts qiyass as a valid but weak source of Islamic Shari’a; the Maliki accepts qiyass as a valid source of legislation and added “public good” to the determination.

V- ‘Urf
Referred to as the customs and practices of a given society. ‘Urf is not recognized officially as source of Islamic Shari’a.

Customs that were prevailed during the time of the Prophet of Islam were recognized as source of Islamic Shari’a, provided that Islam did not abrogate those traditions.

‘Urf holds as much authority as ijma’ (consensus) and more than qiyass as long as it does not violate provisions from the Quran or the Sunnah.

Application of the ‘urf is recognized in the Sunni jurisprudence if the tradition under consideration commonly prevails in the region in which it is implemented. Traditions of foreign jurisdictions can not be accepted as ‘urf in aother jurisdictions.

If the ‘urf contradicts Islamic divine texts, the customs are considered illegal and should be disregarded. If ‘urf contradicts a qiyass (analogical deduction), then it is given a preference and must supersede the qiyass.

Shi’a do not consider ‘urf as source of jurisprudence.

Gabriel Sawma, adjunct Professor at Fairleigh Dickinson University, admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Author of “The Qur’an: Misinterpreted, Mistranslated, and Misread. The Aramaic Language of the Qur’an.” Expert Consultant on Islamic Shari’a in US Courts in matters related to Islamic divorce, Islamic banking and finance.

Email: gabrielsawma@yahoo.com ; Tel. (609) 915-2237

The khul’ divorce in Egypt

>

‘Let’s talk about sex, divorce’ in Egypt

By Olivia Sterns for CNN

 

Egyptian couples arrive at a Cairo stadium for a collective wedding organised by Karme el-Islam association in 2007.
Egyptian couples arrive at a Cairo stadium for a collective wedding organised by Karme el-Islam association in 2007.
STORY HIGHLIGHTS
  • Once taboo, sex and divorce are now popular topics in Egyptian media
  • Women are voicing these issues on blogs, talkshows and the radio
  • Divorce rates are surging in Egypt as women’s rights improve

London, England (CNN) — A growing number of Egyptian women are demanding a divorce and seeking counsel for their marriages, as the social stigma against it weakens and talking about relationship problems becomes more popular in the media.

Once considered taboo to discuss in public, private relationships between men and women are now the hot topic of television talk shows, radio programs and blogs. Mahasen Saber, host of Divorce Radio, says that her program is helping to break the stigma.

“People are shocked at first, but after they read and listen to what we write and present, they like what we talk about…they are happy because I am talking about something they are dealing with” Saber told CNN.

Earlier this year she launched the radio show to complement her blog called “I Want A Divorce.”

In 2008 the number of Egyptian couples who divorced increased 8.4 percent over the previous year, according to the Central Agency for Public Mobilization and Statistics (CAPMAS).

In most cases couples simply don’t know how to deal sexually with their partner
–Dr Heba Kotb, Egyptian sexologist

Nearly 40 percent of marriages in Egypt now end in divorce, making it the highest rate in the Arab world. Egypt is also one of the few countries in the region where the topic is discussed so freely, thanks largely to the initiative of outspoken women.

“Women are taking advantage of new media outlets to voice their concern,” said Nadya Khalife, a Human Rights Watch researcher focused on women’s issues in the Middle East. “They are talking more openly about these issues. They are becoming less shameful in Egyptian society.”

Those issues include sex. Dr. Heba Kotb is a leading sexologist in Cairo who appears regularly on TV. She has two PHD’s, one in sexuality from the University of Florida, and she considers herself a conservative Muslim. Dr. Kotb attributes 80 percent of divorce in Egypt to sexual problems.

“In most cases couples simply don’t know how to deal sexually with their partner,” she told CNN. “I provide the information — this is right, this is wrong, you should do this.”

“Often it is just miscommunication. The psychology of men is not understood by women and vice versa.”

When Dr. Kotb started her practice eight years ago, she saw only a handful of patients per week. Today she is booked months in advance. “People now think it does not have to be the end of the marriage when they have problems. [They think] it’s worth it to give counseling a try.”

For Egyptian women, getting divorced has traditionally carried with it a severe stigma. “The main perception of a woman who is divorced in Egypt, or in any Arab country, is that she is evil or something is not right … that she has done something wrong” said Saber. “I started Divorce Radio to change that view.”

“The stigma has nothing to do with religion. It’s culture,” said Madiha el Safty, professor of sociology at the American University in Cairo. “Egypt is a patriarchic society, very male-dominated. Men always blame women for all their problems, but the stigma [against divorced women] has eased”

“It has to do with the the rights of women. Now we have more rights — in education, employment, we have more economic independence. So [women] are less willing to accept an unhappy marriage,” Dr. Kotb told CNN.

Dr. Kotb also blamed the high rate of divorce on the fact that “a relationship equals marriage” in Egypt. “In the West, it’s a matter of breaking up. Here there is no living together.”

Saber agreed: “In Egypt, there is no space to have a relationship without marriage. It’s the dream of every girl in Egypt to get married,” she said.

In Egypt marriage falls under family law, which is based on Shari’a, Islamic religious law, and which gives men and women unequal rights to a divorce.

“In Islamic Shari’a, a man can divorce his wife at any time, in any place, and for any or no reason by simply uttering the following words: “I divorce you, I divorce you, I divorce you,” explained Gabriel Sawma, an attorney specializing in Muslim divorce law and professor at Farleigh Dickinson University.

Women, on the other hand, can get a divorce only through court action, in a much more formal legal process.

In 2000, Egypt liberalized their laws, granting women the right to initiate a “no-fault” divorce (khula). Though this is considered a step forward, women are still required through khula to relinquish any claim to alimony or their dowry.

“There was an effort to modernize divorce,” said Prof. Sawma. “Before, the man was not obligated to agree to a divorce.”

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

(609) 915-2237

 

>Islamic Marriage Contract in the Hanafi Jurisprudence

>The Hanafi School of Jurisprudence is one of the four Schools in Sunni Islam. It was founded by Nu’man abu Hanifa (d. 767) in Kufa in modern Iraq. Abu Hanifa (father of Hanifa) is considered one of the “tabieen” (followers) of the companions of the Prophet Muhammad. He had the good fortune to have lived during a time when some of the companions of the Prophet were still alive
The Hanfi School became prominent under the Abbasid Dynaty and later under the Ottoman Empire, during which the Hanafi “madhhab” (school of jurisprudence) became the only authoritative code of law in the public life and official administration of justice in all the vast territories of the Ottoman Empire.
Today, the Hanafi School of thought has followers among Muslim population in Turkey, Albania, the Balkans, Central Asia, Afghanistan, Pakistan, China, India, Iraq, Egypt and Lebanon.

Marriage Contract in the Hanafi Jurisprudence
According to this School, the “nikah” (marriage) is a contract by which the husband gets “the intended sexual relation” from the woman. This School believes that, the husband enjoys the “bid’” (body of the woman) and all of the “badan” (organs) for the purpose of “taladhudh” (enjoyment). The right to “sexual enjoyment” is given to the man only. This “enjoyment” does not extend to the woman. According to this School, the man may force his wife to exercise his “haqq al-isstimta’a” (the right to enjoy sex), while the woman may do so “one time only.” (See Al-Jazeery, Kitab al-Fiqh, vol.4, p. 2. Dar al-Irshad lil-tibaa’a wal-nashr, Egypt ).
The marriage contract can be in writing or orally, and could also be done by correspondence.

Conditions of the Marriage Contract
A marriage contract is valid, according to the Hanafi School, if the following conditions are met: (1) “Ijab” (propose to marry) and “qubul” (accept to marry) by both parties or their “wali” (guardians). Both “ijab” and “qubul” must be expressed clearly; the term “nikah” or “zawaj” (i.e marriage) must be pronounced during the negotiations of the marriage agreement. (2) “Ijab” and “qubul” must occur in one meeting. If for example the father of the girl offers her for marriage “ijab” by saying: “I give you my daughter for marriage”, the “qubul” (acceptance of the groom or his guardian) must be pronounced in the same session. In other words, if the groom, or his guardian, responds at a later time, his response does not meet the requirements of the Hanafi; thus the marriage does not occur. (3) Bothe “ijab” and “qubul” must be in total agreement on the specifics; if, for example the father of the bride offers her for marriage demanding $200 for “mahr”, the groom agrees to the marriage but does not agree to the amount of “mahr”, then the terms of the contract is not agreed upon, and there is no marriage. (4) Both “ihab” and “qubul” must be heard clearly by the parties involved in the discussion. (5) There must be no time limitation for the period of the marriage. A marriage done for a specific period of time is called “mut’ah” (marriage for pleasure only) and is considered illegal in the Hanafi School.

Gabriel Sawma is Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. A lawyer with Middle East background; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar and the American Bar Associations. Expert Consultant on Islamic divorce in US courts, Islamic banking and finance. Editor of International Law website at http://www.gabrielsawma.blogspot.com

Email gabrielsawma@yahoo.com

Email gabygms@gmail.com

Te. (609) 915-2237

>The Jihaz in Islamic marriages

>Jihaz (dowry) or trousseau is the amount of clothes, household linen, furniture and other belongings contributed by the bride and/or her family to the marriage. It has to be distinguished from the mahr, which is an agreement between the wali (guardian) of the bride and her future husband by which the groom pays certain sum of money or its equivalent to the bride at the signing of the marriage agreement. The mahr is an obligation on the groom, stipulated by the Quran, to be given to the future wife, while the jihaz is not an obligation on the part of the bride or her family. (For more information on the mahr agreement, see our article on http://www.gabrielsawma.blogspot.com.

The Jihaz is not nafaqa (support) either, because nafaqa is the material support given by the husband to his wife as soon as the marriage is consummated. The nafaqa covers clothing, food and shelter for the wife. (For more on the nafaqa, see our article on http://www.gabrielsawma.blogspot.com

In the Middle East, as elsewhere, the brides are often given house furnishings and clothing by their parents or family members when embarking on marriage. There is no obligation in the Islamic Shari’a to fulfill the jihaz, however, in most cases, brides bring such jihaz to their houses once they are married.

Consequently, the groom cannot force his future wife to bring the jihaz as part of the household, and if her family is asked to contribute such jihaz, they may decline the demand.

Once the jihaz is given to the bride, it becomes her own property. Her family cannot claim it as part of their estate unless the jihaz was given as a loan agreement. Under such circumstances, they may demand the return of the jihaz.

The groom cannot have claim on the jihaz, unless it was purchased by the bride or her family, with monies given by the groom as part of the mahr agreement, where the jihaz becomes a mahr and therefore belongs to the groom.

The bride’s father may have a legal agreement with his daughter stating that certain pieces of the jihaz she took with her upon marriage were in fact a loan, and therefore revert to her family upon death. Otherwise the jihaz is considered a private property of the bride and becomes part of her estate.

The jihaz contributed by the bride and /or her family endorses the idea that she enters into marriage as an empowered individual. The marriage arrangements in the Middle East involving jihaz, predate the rise of Islam.

There is no provision in Islamic Shari’a that forbids the exercise of women’s right to contribute jihaz to their marriages. In fact, under Islamic law, married women have legal rights to share in family estate. They may own properties, or be named as beneficiaries of religious waqf (endowment) assets.

Gabriel Sawma is a lawyer with Middle East background, professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant in matters related to recognition and enforcement of Islamic divorce, child custody, banking and finance in US courts. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor in chief:

http://www.gabrielsawma.blogspot.com
Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

>The Nafaqa in Islamic Marriage

>Under Islamic Shari’a, a man is obligated to support his wife with food, clothing, and shelter. His obligation starts as soon as the marriage is consummated. This article discusses the issue of nafaqa in the Islamic marriage.

In Islamic Shari’a, nafaqa is defined as an obligation of material support for the wife and children. This is a gendered entity in Islamic marriage, as long as the marriage has been consummated. When the marriage is consummated, the husband becomes responsible for providing his wife and children born of the marriage with food, clothing, and shelter regardless of the wife’s own resources. This obligation is stated in the Qur’an; it reads the following: “Men are protectors and maintainers of women because God has given them the one more than the other, and because they support them from their means [their money]” (Qur’an 4: 34). Failure of the husband to provide the nafaqa may result in a jail sentence.

If the husband leaves his house to undisclosed location, the qadi (religious judge) is authorized to locate the husband’s assets to recover the unpaid nafaqa. If the husband is beneficiary of any revenues, or has any outstanding debts owed to him, the qadi could assign the proceeds equivalent to the amount of nafaqa to the wife.

The nafaqa is determined at a level appropriate to the wife’s social standing and background; the qadi may determine the amount of nafaqa in accordance with the style to which the wife is accustomed. Thus, a poor woman may get a bread and cheese for her lunch; a middle class wife would expect to receive grain and animal fat, while a rich wife may get wheaten bread and meat.

As a general rule, the husband has an obligation to support nafaqa to his wife or wives until such time as the marriage is terminated by divorce or death.

In the event of divorce, the former husband must continue to support his wife for the following three months of her ‘iddah, a waiting period after divorce, during which a woman may not marry another man. At the end of her ‘iddah, the wife is legally free to remarry. If the wife should die during that period, the husband is responsible for the burial costs. The ‘iddah is extended, for a pregnant woman, until after the birth of her child.

There should be a clear distinction between mahr and nafaqa; the legal discourse in Islamic marriage contracts is that the husband pays the muqaddam (immediate) mahr at the time of signing the contract. (For more on the mahr agreement, see The Mahr Provision in Islamic Marriage Contracts at http://www.gabrielsawma.blogspot.com. The nafaqa is the amount of money spent by the husband to support his wife on food, clothing and shelter; it is triggered when the marriage is consummated.

A woman, who is married according to the Islamic Shari’a, can refuse to consummate the marriage with her husband if he failed to pay the mahr. But once the mahr issue is settled, she has to be available to her husband. If she continues to refuse him, the husband will be absolved of any responsibility for providing the nafaqa.

A woman is entitled to receive the nafaqa even if she gets mentally or physically ill. The nafaqa is obligatory on the husband in the case he becomes ill. No nafaqa is due if the husband repudiates his wife because she has been guilty of apostasy. Changing once religion from Islam to any other religion is considered a blasphemy and subject to strict penalty ultimating to death.

The husband may stop providing for nafaqa if the wife commits nushuz, a term used to designate the rebellion of a woman against her husband, by disobeying him and causing him anger.

If the husband is traveling and could not be reached, the wife who has been granted nafaqa by the qadi (religious judge), is authorized to borrow money equivalent to the amount assigned, and the absent husband is responsible for paying off the debt once he became available.

If the husband should die, the nafaqa support will be terminated, except for a pregnant woman who could still claim it, through to delivery of her child, from her husband’s estate. She must request the nafaqa during the period of the marriage or the ‘iddah.

Muslim couples may name an amount of the nafaqa support as part of the marriage contract, although such a clause is not required by the Islamic Shari’a; but once made, it can be enforced by the religious court.

Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. He is an expert consultant on International Law, mainly Islamic divorce, inheritance, child custody, banking and finance. Admitted to the Lebanese Bar Association ; Associate Member of the New York State Bar Association and the American Bar Association. Editor of International Law Website:

http://www.gabrielsawma.blogspot.com

Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com

Tel. (609) 915-2237

>The Mahr Provision in Islamic Marriage Contracts

>In recent years, many Islamic divorce cases were litigated in the United States family courts. The issue of mahr in the Islamic marriage contracts became subject of debate among lawyers and scholars. This article sheds lights on the Islamic mahr in USA.

Mahr is the amount of money, or its equivalent, paid by the husband to his future wife. Contrary to the popular notion that mahr is dowry, it is not. A dowry is what the wife contributes to her marriage while mahr is an obligation on the husband to pay his future wife. Others call the mahr a ‘gift’ given by the husband; it is not a ‘gift’ either, because it is an obligation mandated by the Qur’an. The Qur’an calls it sadaq; it reads: “Wa aatoo ann-nissaa’ saduqaatihinna nihlatan” (and give the women their mahr with a good heart.) Qur’an 4: 4
The mahr is an obligation required by Islamic law from the husband to be paid to his future wife. Thus, it must be stipulated in the Islamic marriage contract. If no stipulation is recorded in the contract, the qadi (or religious judge) will assign the amount of mahr. The amount of mahr becomes a property of the wife alone.
Muslim schools of jurisprudence in the Sunni traditions, differ on the definition of the mahr. The Hanafi School defines mahr as “the added money given by the husband to his [future] wife for iza’a ihtibassiha, keep her in his house (see al-Sarkassi, the Mabssut, vol. 5, pp 62-63, Arabic Version). Another author of the Hanafi School defines the mahr as “the money, which is obligatory on the husband in ikd al-nikah (the marriage contract) for manafi’ al-bid’ (sexual pleasure). (See ibn al-Hamam, Sharih Fath al-Qadeer, vol. 3, p. 304, Arabic version).
The Hanbali School of jurisprudence defines mahr as “the money paid by the husband for the purpose of nikah (marriage). (See ibn Kadamah, Al-Mughni, vol. 6, p. 679, Arabic version).
The Malike and Shafi’i Schools defines the mahr as “the money due to the future wife in return for [the husband’s] haqq al-isstimta’ (sexual pleasure) in the marriage contract”. (See al-Hattab Muhammad bin Abdel Rahman al-Mughrabi, Mawahib al-Jalil li-Sharh Mukhtassar Khalil, vol. 5, p. 172-Maliki Jurisprudence). For Shafi’i School see al-Nawawi, Kitab al-Majmu’, vol. 18 p. 605). All these references are cited by Sheikh Mahmud Muhammad al-Sheikh, Al-Mahr fi Al-Islam bayna al-madi wal-hadir, published by al-Maktaba al-Assriyya liltibaa’a wal nashr, Beirut, Lebanon, 2003, Arabic version.
The Maliki and Shafi’i Schools of jurisprudence regard the mahr as “the money paid for the future wife in return for sexual pleasure is an integral part of the Islamic marriage contract and its source is prescribed in the Qur’an. Sura al-Nissaa reads the following:
“Fa ma isstamta’tum bihi minhunn fa aatoohunna ujoorahunna” (So for that pleasure which you have enjoyed from them, give them their prescribed compensation). Qur’an 4: 25
Numerous Hadith (sayings attributed to the Prophet of Islam) provisions refer to the obligatory nature of the mahr in Islamic marriage contracts. (See for example Ans bin Malik bin Damdam; Al-Bukhari, Sa’ad bin al-Rabi’ bin Khazraj. They are all cited by Al-Sheikh Mahmud Muhammad al-Sheik, Al-mahr.)
Traditionally, Islamic marriage contracts lists two types of mahr; one is called muqaddam (upfront, or immediate at the signing of the contract), or mu’akhar (deferred to be paid in the event of divorce or death of the husband.)

The Amount of Mahr
Neither the Qur’an, nor the Hadith stipulates the maximum amount of mahr to be paid by the husband. As to the lower amount of mahr, Islamic scholars differed on this. The Hanafi School regarded the lower amount to be not less than ten Dirahms (around ten US Dollars). The Maliki School considers the lower mahr to be not less than three Dirhams (or three US Dollars.)
The Hanbali and Shafi’i Schools do not put a limit to the lower amount of mahr; both schools agree that the lower amount could be “a ring made out of iron” or “pair of shoes”, or a few ounces of “wheat, or dates”, or “teaching the future wife verses from the Qur’an”. In all of these, the future wife has to express her acceptance to whatever the amount is.
Modern Islamic marriage contracts are pre-printed forms, filled by the ‘imam/qadi’ (religious leader or religious judge). The form has empty space to fill the name and address of the husband and the name and address of the bride. The contract must include the names and addresses of two adult male witnesses. And the place and address where the marriage contract is signed
Both parties to the marriage contract must express their consent to the marriage, verbally and in writing. This is done through a formal proposal of ijab (an offer to marry) and qubul (an acceptance to marry), in the presence of a wali, a male guardian who looks out for the best interest of the bride. It must include the amount of muqaddam/mu’ajjal mahr, and the amount of the mu’akhar (deferred).
After the contract is signed, the couple is recognized as legally married and enjoy the rights and obligations stipulated by the Islamic Shari’a (law). The marriage contract may be solemnized in a mosque and usually signed in triplicate: one copy should be given to the bride, one to the bridegroom, and the third must remain deposited with the Registrar, imam/qadi (religious leader or religious judge).

The Absence of Mahr Provision in the Marriage Contract
If the marriage does not include a provision for the mahr, the contract is considered to be legal. The three Schools of jurisprudence: Hanafi, Shafi’i and Hanbali recognize the fact that the mahr provision is not a main factor, nor a condition for the marriage. These three Schools believe that the mahr is an obligation on the husband regardless of whether it is written in the marriage contract or not (see Mahmud Muhammad al-Sheikh, al-Mahr, published by al-Maktabah al-Assriyya, Beirut, 2003, Arabic version). Accordingly, if the marriage contract is signed by the parties without a provision of the mahr, or if they assign a mahr, which is considered to be illegal under Islamic Shari’a, or if the parties agree not to include a mahr provision, in all these cases the conditions are null, the contract is legal and the husband has to pay a mahr equivalent to a mahr given to another women of the same status as that of his wife.
The Maliki School rejected this interpretation and considered the mahr provision in the contract, necessary. However, this School regards such a marriage to be legal if it was consummated. If the marriage was not consummated, then the marriage is mafsookh (a reason for separation); if he divorces his wife without any agreement on the mahr issue, then he has to pay her mut’ah (money paid to her in return for the sexual pleasure he had with her). But if he dies before any agreement reached between the couple, then the wife is entitled to inherit her share from his estate.
Finally, the mahr must be legal. Thus, alcoholic beverages and the meat of the swine or pig cannot be given to the future wife as mahr because, under Islamic law, it is unlawful to transact these items. If such illegal items were listed in the marriage contract, the imam/qadi may substitute those by legal items.

Should there be any questions regarding this topic or any topic that deals with Islamic Shari’a in the United States or in Europe, please email the author at gabrielsawma@yahoo.com or gabygms@gmail.com

Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. He is an expert consultant on International Law, mainly Islamic divorce, inheritance, child custody, banking and finance. Admitted to the Lebanese Bar Association ; Associate Member of the New York State Bar Association and the American Bar Association. Editor of International Law Website: http://www.gabrielsawma.blogspot.com and author of the Aramaic language of the Qur’an: http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com

>Indian Divorce in U.S. Courts

>


Many Indian nationals had their marriage in India and domicile in the United States. They travel back to India for the purpose of obtaining divorce certificates. The issue of jurisdiction becomes important factor for the recognition of their foreign divorce judgments in the United States. This article analyzes this issue.

In most circumstances, a judgment of divorce of a foreign national court has no independent force outside the forum’s territory. Thus courts will enforce their own judgments within their own national boundary.

As a general rule, a judgment of a court of one nation may be recognized and enforced in another nation if the courts of that nation are willing to accept the decree of the nation where the judgment was issued.

Recognition and enforcement of foreign judgments occur when a U.S. court relies upon foreign divorce ruling, on the ground that it has been previously litigated abroad. Thus recognition of foreign divorce judgments is akin to the domestic U.S. doctrines of res judicat (or claim preclusion, prevents parties of a claim from re-litigating the same claim), and collateral estoppel (or preclusion which extends the preclusive effort of a judgment to re-litigation of issues that were decided in a prior action.) The enforcement of foreign divorce judgment is typically sought by a plaintiff who has obtained a judgment in a foreign country.

In the United States, the judgments of one state’s court are routinely enforced in another state. Article IV, Sec. 1 of the U.S. Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other state.” Congress has implemented the full faith and credit clause by statutory enactment providing that judicial proceedings “shall have the same full faith and credit in every court within the United States…as they have by law or usage in the courts of such State…from which they are taken.” (28 U.S.C. Sec. 1738. 1982).

The Doctrine of Comity

Presently, in the United States, there is no federal standard governing the enforcement of divorce judgments rendered by foreign courts. Unlike state judgments, foreign judgments are not covered by the full faith and credit clause of the U.S. Constitution and other statutes. Nor are there any federal statutes to enforce foreign divorce judgments in U.S. courts. The United States is not party to any international agreement regarding the mutual recognition of divorce judgments.

With the absence of a treaty or statute upon this subject, the duty rests upon the judicial tribunals to determine the rights of the parties in divorce suits brought before them. In doing this, the courts obtain such aid for their judicial decision, from the works of jurists, commentators and academic scholars, and from the acts of civilized nations. Thus U.S. courts may give recognition to the judgments of a foreign nation as a matter of “comity.”

The “doctrine of comity,” in the legal sense, is not an absolute obligation; it is a courtesy, where the court may recognize a foreign court order, but is not compelled to do so. This extension or denial of comity is discretionary to the U.S. court

Indian nationals domiciled in the United States, initiate divorce in India. Many of them have dual US-Indian nationalities. They travel to India for the sole purpose of obtaining divorce judgments from Indian courts. Then they travel back to the United States and serve the other spouses with divorce papers. Do the U.S. courts extend comity and recognize the enforceability of those divorce judgments? Or do the U.S. courts assert their own jurisdiction on the divorce cases? The key concepts in this “conflict of law” in the United States are two: subject matter jurisdiction (or competence), and personal jurisdiction.

For a foreign court to have authority to adjudicate a dispute involving divorce, it must have jurisdiction over divorce issues. A divorce can be granted only in a court designated to hear matrimonial cases. It is well settled that U.S. courts will not enforce foreign judgments unless foreign courts possessed “competence” or subject matter jurisdiction under foreign law. Consequently, lack of subject matter jurisdiction is a basis for non-recognition.

Personal jurisdiction, known also as “personam” is the power of a court “to hear and determine a lawsuit involving a defendant by virtue of the defendant having some contact with the place where the court is located.” (See http://legal-dictionary.thefreedictionay.com/Personal-Jurisdiction). Personal jurisdiction is a basic pre-requisite for the enforcement of a foreign judgment. The foreign court issuing the judgment must possess personal jurisdiction and authority over persons within its territory. This includes: domiciliary, citizenship, place of marriage, etc.

U.S. courts generally, are able to decide divorce cases based on at least one of the spouses being domiciled or maintaining a habitual residence within the geographic jurisdiction of the court. Domicile is defined as physical presence and an intention to live permanently in a location. Such intentions are determined by where a person is registered to vote, filing state tax return, state issued driving license, which school the children go to, does he or she join a gym in the area of residence and where the home is located, etc.

Divorce cases involving multinational jurisdictions are complex. Foreign divorces may involve immigration matters, child custody, division of marital assets and support orders, which have their own specialized enforcement issues. In most cases attorneys and litigants consult with experts in foreign laws before determination.

Gabriel Sawma is Professor of Middle Constitutional Law, Islamic Shari’a, and Arabic. He is considered an authority on Private International Law involving foreign divorce issues, Islamic banking and finance. Admitted to the Lebanese Bar Association in 1970; Associate Member of the New York State Bar and American Bar Associations. Editor of International Law Website: http://www.gabrielsawma.blogspot.com

Email: gabrielsawma@yahoo.com

>Islamic Divorce in U.S. Courts

>

Islamic Divorce Obtained in a Foreign Country

U.S. Courts do not apply Islamic Shari’a law because it violates the Establishment Clause set in the United States Constitution; American Courts do apply foreign law in certain cases involving international principle known as “conflict of Laws,” or “Private International Law.” This is referred to in U.S. courts as the doctrine of comity“.

In the area of Private International Law, Comity is a courtesy, amity, and reciprocity by U.S. courts towards court decision issued in other nations. Such a consideration by U.S. courts does not entail an obligation to agree with the rulings of foreign judgments. There is therefore a distinction between the doctrine of comity and law.

Public International Law can become part of the national law when the country has its signature on that law, Private international Law, however, does not have the same level of recognition by U.S. Courts. The issue of comity is raised in Islamic divorce cases when a person who resides legally in the United States travels to a foreign country and obtain a certificate of divorce from a religious court.

The intent is to obtain an instant divorce by pronouncing triple talaq (divorcing his wife three times in a few minutes.) Such an action leaves the wife with nothing more than a nominal deferred mahr, and takes advantage of the child custody, which discriminates against the women and to label the wife as bad Muslim.

The man then returns to the United States and serves his wife with divorce papers demanding the implementation of the divorce according to the Islamic Shari’a, claiming that the “doctrine of comity” applies to his case.

American courts do not apply Islamic laws because it violates the Establishment Clause of the United States Constitution; they apply foreign law at their discretion. To determine whether to apply a foreign law, U.S. courts turn to Private International Law, including the “doctrine of comity.” Thus the application of the principle of comity is not mandatory, but is rather a matter of custom. They may deny the application of comity if the judges deem the foreign laws is “repugnant” to U.S. principle of law.

Generally, a judgment of divorce for example issued in a foreign country is recognized in the U.S. on the basis of comity, provided both parties to the divorce received adequate notice, i.e. service of process and, generally, provided one of the parties has a domicile in the foreign nation at the time of divorce, and the foreign court has given opportunity to both parties to present their case, and the trial was conducted upon regular proceedings after due citation or voluntary appearance of the litigants, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country, and those of other countries, an no prejudice towards either party and should not violate a strong U.S. principle of law, and the parties were present in court.

An Islamic triple talaq differs substantially with respect to property division. Under Islamic Shari’a, wives may be entitled to a deferred mahr, which is, in most cases, much less than what U.S. courts order; above all, U.S. courts will not accept an Islamic divorce certificate obtained in a foreign country if the cause of action on which the divorce is based is “repugnant” to the public policy of the State in which the case is litigated.

Gabriel Sawma is Professor of Middle East Constitutional Law and Islamic Shari’a. He is an expert on Islamic marriage contracts and Islamic divorce. Editor of an International Law website: http://www.gabrielsawma.blogspot.com. Author of “The Qur’an: Misinterpreted, Mistranslated and Misread. The Aramaic Language of the Qur’an.” http://www.syriacaramaicquran.com. Author of an upcoming book on Islamic Divorce in US Courts. Email: gabrielsawma@yahoo.com; gabygms@gmail.com; tel. (609) 915-2237.

>Application of Islamic Shari’a in US Courts

>


In 2004 a crash of Blackwater Flight 61 occurred in the rugged mountains of central Afghanistan, killing three soldiers and three-man crew. The widows of the soldiers sued Presidential Airways, Blackwater’s sister company, which was under contract with the U.S. military to fly cargo and personnel around Afghanistan.

Lawyers for the company has asked a federal court to decide the case using provisions from the Islamic Shari’a, not the U.S. laws. They argue that the Shari’a “does not hold a company responsible for the actions of employees performed within the course of their work.” http://www.newsobserver.com/917/story/1113022.html

The Vicarious Liability

In the American legal system the term ‘vicarious liability’ is used to indicate the responsibility of the employer for the acts of his employee provided that the employee is doing his job within the scope of his employment. Thus if a driver of a company car hits someone on the road, during the course of his employment, he and the company may be liable for the damages. To establish the employee’s conduct was within the scope of employment, certain conditions must be met, these are: (1) the conduct must have occurred substantially within the time and space limits authorized by the employment; (2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and (3) the act must have been of a kind that the employee was hired to perform. In this example, if the driver is driving the same car to see his girlfriend without authorization of his employer and an accident occurs during this trip, he alone, not the employer may be responsible for the accident.

In the Islamic Shari’a (law), the closest example that may shed light on this subject is the mutual help in relation to the custom of blood money (diyya) under the Arab tribal custom. This is a compensation paid to the heirs of a victim of murder.

According to Islamic Shari’a, the penalty applied for causing death to someone is based on the principle of an eye for an eye and a nose for a nose. However, the hadith, a second source of shari’a, allows the payment of diyya in terms of cash to the heirs of the victim, regardless as to whether the crime was pre-meditated or not.

In the majority of cases, when the person cannot afford to pay the diyya, his family and clan come up with the money accepted by the family of the victim. This tradition, which has been in existence before the rise of Islam, has been endorsed by the four Islamic schools of thought in the Sunni sect of Islam: Shafi’i, Maliki, Hanafi and Hanbali.

The principle of compensation and group responsibility was accepted by the Prophet of Islam. The system of collective responsibility was practiced in Medina in what is known as “The Constitution of The Medina”. It occurred after the Hijra (the migration of the Prophet from Mecca to Medina in 622) and was recorded by the biographer of the Prohet, Ibn Ishaq, who authored the first book on the life of Muhammad; his book is titled: “Al-Sira al-Nabawiyya”.

The amount of diyya in the Sunni traditions depends on the gender and religion of the victim. According to the Shafi’i and Hanafi schools, the family of a murdered Muslim woman gets half the diyya given to the family of a murdered Muslim man. If the murdered person is Jew or Christian, the family gets 1/3 of the amount given to the family of a murdered Muslim man according to the Shafi’i school. The Maliki states that the families of a murdered woman, or murdered Jew or murdered Christian, get half of the diyya paid to the family of a murdered Muslim man. The Hanbali differentiate between pre-meditated and un-premeditated murder. If the killing is pre-meditated committed by a Muslim against Christian or Jew, the families of the victims get a diyya equivalent to that given to the family of a Muslim victim; but if the killing of Christian or Jew by a Muslim is un-premeditated, then the families get half of the diyya given to a Muslim family.

In Islamic countries, the vicarious liability applies to the insurance company to pay for the damages incurred to the insured. Insurance is regarded as a system of mutual help in relation to the custom of blood money that is practiced in the Muslim world.

Jurisdiction and Application of Law

As far as the jurisdiction of US courts is concerned, the following principles have to be taken into consideration: (1) American courts do not recognize the Islamic law; judging a case in an American court on a religious law is unconstitutional. The courts do recognize however the law that is tied to specific nation, such as the laws of Saudi Arabia and Iran; American judges make every effort to understand how the principles of Islamic Shari’a relate to the law of the nations involved in the case. (2) To have a better understanding of the Islamic Shari’a, the judges usually hold evidentiary hearing eliciting expert testimony from both sides.

In this case, the legal team for the defendant requests the Federal Court in Florida to apply the Islamic law of Afghanistan. They argue the lawsuit “is governed by the law of Afghanistan…”

Lawyers familiar with Middle East legal systems know that Islamic Shari’a is applied in matters related to marriage, divorce, inheritance and custody of children. Even countries which adhere strictly to Islamic law, have modernized their civil codes.

Afghanistan adheres strictly to the Hanafi madhab (school of thought in Sunni Islam), its 1976 Civil Law does not require the application of Islamic shari’a in a matter like this; to the contrary, the Civil Law of Afghanistan asserts that the obligations stemming from contracts “must adhere to the laws of the state where the contract was signed”. Article 27 reads the following:

“in regard to obligations arising from contracts, the law of the state where parties to the contract reside, shall be applicable, in case they do not reside in the same country, the law of the state where the contract is completed, shall be applicable provided the parties to the contract have not agreed on application of specific law, or evidence do not point to the fact that the parties to the contract did not think of application of another law.”

As to the conditions related to the “form of contracts”, article 28 of the Civil Law states the following:

“Provisions of the law of the state where the contract is completed shall be applicable.”

Subsequently, if the contract was signed in the United States, then it is obvious that that jurisdiction is here in the US and US laws are applicable.


Gabriel Sawma, a lawyer dealing with International Law, mainly the European Union Law, the Middle East Law and Islamic Shari’a law. Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic languages. Expert witness on Islamic marriage contracts, including the mahr; expert witness on U.S.-Middle East commercial contracts. Member of the Beirut Bar Association in Lebanon; The New York State Bar Association; Associate member of the American Bar Association. Author of an upcoming book on “Islamic marriage Contracts in U.S. Courts and the Mahr.” Author of an upcoming book on conflicts in U.S. Middle East Commercial Contracts. Editor of International Law website: http://www.gabrielsawma.blogspot.com, Email: gabrielsawma@yahoo.com

http://gabrielsawma.blogspot.com


>The Shebaa Farms Under International Law

>By

Gabriel Sawma Esq.

Background

Following World War I and the fall of the Ottoman Empire, the territories of Lebanon and Syria, which were considered one single political unit prior to the War, were mandated by the League of Nations to France. The principle underlying the Mandate was expressed in Article 22 of the Covenant of the League of Nations.

The Mandate proceeded until November 26, 1941, when General Georges Catroux, de Gaule’s choice for governing the mandated territory, proclaimed in the name of his government and its ally the termination of the mandate and the establishment of “sovereignty and independence” of Lebanon and Syria. Lebanon became a constitutional republic in 1943.

The internationally recognized borders between Israel, Egypt, Jordan, Lebanon, and Syria are governed by the 1949 Armistice Agreements. Those agreements ended the 1948 Arab-Israeli War, and established the armistice lines between Israel and the West Bank, also known as the Green Line, until the 1967 Six-Day War between the Arab States of Jordan, Egypt and Syria on one side and Israel on the other side.

The Armistice Agreement between Israel and Lebanon was signed on March 23, 1949. It points the following

• The Armistice Line (“The Blue Line”) was drawn along the international border.
• The international border between Lebanon and Israel are considered to be a de jure international border (i.e. by law).
• Israel withdrew its forces from 13 villages in Lebanese territory, which were occupied during the war.

With the exception of the Lebanon-Israel Armistice Agreement, the other agreements were clear (at Arab insistence) that they were not creating a permanent or du jure borders.

The Israeli-Syrian Invasion of Lebanon

On March 15, 1978, Israel launched a major military incursion into South Lebanon, called the Litani River Operation, and struck at PLO bases and staging areas south of the Litani River, up to 10 kilometers deep inside the country. The operation prompted a formal statement of “United States Concern with the Territorial Integrity of Lebanon,” calling for Israeli withdrawal and discussing a United Nations role in Lebanon. On March 19, 1978, the United Nations Security Council adopted Resolution 425 calling for Israeli withdrawal and establishing an international peace-keeping force for South Lebanon, the United Nations Interim Force in Lebanon (UNIFIL), to enable establishing of a buffer zone in southern Lebanon free of PLO bases.

By June, 1978, Prime Minister Begin, under intense American pressure, withdrew Israeli forces, which were replaced by UNIFIL. The withdrawal of Israeli troops without having removed the PLO from its bases in southern Lebanon became a major embarrassment to the Begin government. The cross-border cycle of attack and retaliation continued, and the PLO expanded its bases, forces, and armaments in Lebanon. Finally, Israel responded with its 1982 invasion and occupation of southern Lebanon. The UNIFIL force is still deployed in 2006.

UNIFIL was unable to prevent terrorists from infiltrating the region. Cross-border conflict between Israel and various forces in southern Lebanon continued to intensify. Civilians on both sides, and UNIFIL peacekeepers, were killed as the fighting continued to escalate, and Palestinians were shelling the northern Israel. In June 3, 1982, the Defense Minister Ariel Sharon ordered the invasion of Lebanon with a massive force in an operation called Peace for the Galilee. Israeli forces drove all the way to Beirut. The PLO’s leadership was forced to move to Tunis. This military operation, although planned for limited duration, became bogged down and continued far longer than expected. The army lost 650 soldiers. For three years the Israel Defense Force (IDF) remained deep in Lebanon, until it withdrew, in 1985, to the international border. Some territory in south Lebanon was retained as a security zone. The area was monitored jointly by Israeli Army (IDF) and its Southern Lebanese Army (SLA) ally.

The Lebanese Civil War, which started in April, 1975, provided the pretext for Syrian Military intervention in Lebanon. Alleging the fear of a Christian-Muslim partition of the country and/or a PLO takeover, Hafez Assad of Syria sent, on June 1, 1976, 12,000 regular Syrian troops to Lebanon. By September of that year the number reached approximately 25,000 men. The Syrian force was operating under what came to be known as the Arab Deterrent Force authorized by the Riyadh Summit held in October 1976. Syrian troops acted to disarm some Lebanese militias at the same time that the national army of Lebanon disintegrated. By 1977, the number of Syrian troops exceeded 30,000, with over 200 tanks. On October 13, 1990, Syrian forces captured the presidential palace at Ba’abda, southeast of Beirut, and defeated the Lebanese Army units, which were under the command of General Michel Aoun, who declared ‘a war of liberation” against Syria. Syrian military occupation of Lebanon incorporated the entire country with the exception of southern Lebanon, which was under the control of the Israeli Army and the Southern Lebanese Army.

On May 23, 2000, the Israeli military carried out a unilateral withdrawal from the south and the Bekaa Valley, ending 22 years of occupation causing the collapse of the 6,000 SLA members. With the withdrawal of Israeli forces, many Lebanese began calling for a review of the continued Syrian presence in their country.

On June 16, 2000, the United Nations Security Council adopted the report of the Secretary General verifying Israel’s compliance with UNSCR 425 and the withdrawal of Israeli troops to their side of the demarcated Lebanese-Israeli line of separation (The “Blue Line”) mapped out by UN cartographers. In August, 2000, with the permission of Syria, the Lebanese Government ordered the deployment of 500 police and 500 soldiers to areas of south Lebanon evacuated by the Israelis. This force was not allowed to disarm Hizbullah guerrillas or to take up positions along the blue lines. Hizbullah maintained observation posts and conducted patrols along the Blue Line.

In the summer of 2004, Syria pressured the country’s cabinet into endorsing a constitutional change designed to let President Emile Lahoud extend his expiring six-year term for three more years. Prime Minister Rafik Hariri had for years been a fierce foe of Mr. Lahoud and had strongly opposed amending the Constitution. But suddenly he changed his mind after a night meeting with the Syrian chief of military intelligence.

On September 2, 2004, the UN Security Council adopted Resolution 1559, coauthored by France and the United States. The Resolution “calls upon all remaining foreign forces to withdraw from Lebanon” and “for the disbanding and disarmament of all Lebanese and non-Lebanese militias.” Syria made few moves to comply with the Resolution until the assassination of Rafik Hariri, the former Prime Minister of Lebanon, on February 14, 2005. International pressure and mass demonstrations that were labeled ‘the Cedar Revolution’ prompted President Bashar Assad of Syria to announce on March 5, 2005, his plan to “bring his forces home.” On April 26, 2005, after 29 years of occupation of Lebanon, the last Syrian troops left the country

The Shebaa Farms Issue

Shortly after the Israeli withdrawal from Lebanon, The UN Secretary General, Kofi Annan, dispatched his special Middle East envoy, Terje Roed-Larsen, and a team of experts to meet with Israeli and Lebanese officials and verify that both sides were in agreement on the conditions required by Resolution 425. The UN team reported that the Lebanese Government “informed the United Nations of its new position regarding the definition of its territory.” The claim included that Israeli forces seized a piece of Lebanese territory during the Six-Day War, called Shebaa Farms, located on the western slopes of Mount Hermon in the Golan Heights, and has been occupied by Israel since the 1967 Six-Day War with Syria, Egypt, and Jordan.

The Farms are presumed to be owned by the residents of the nearby Lebanese town of Shebaa. Before the Six-Day War, most Shebaa landowners and farmers lived in a Lebanese village of Shebaa. The Shebaa farms, a separate piece of territory, about 14 kilometers (8.7 mi) in length, and averages 2.5 kilometers (1.6 mi) in width, lie inside Syria. The farmers used to cross the land from Shebaa city in Lebanon to the Shebaa Farms in Syria. Its fertile, well-watered farmland formerly produced barley, fruits, and vegetable for 14 farms, but now desolate.

After Syria lost the land in 1967, the Lebanese farmers of the city of Shebaa were no longer able to commute and to farm the land at Shebaa Farms. Israel maintains that the Shebaa Farms was officially part of Syria when Israel occupied the region. Syria and Lebanon claim that the territory is in fact part of Lebanon, since Lebanon did not play a role in the Six-Day War, they claim, Israel must evacuate the territory in accordance with UN Security Council Resolutions.

It is worth to mention here, that the 1949 Armistice Demarcation Treaty between Lebanon and Israel followed the pattern of demarcation that was instituted by Great Britain and France in 1923. Nevertheless, there was no official border between the two countries. “On maps, the French clearly marked Shebaa Farms as Syrian territory, while marking the village of Shebaa, whose residents owned the farms, as the territory of Lebanon.” In other words, the town of Shebaa is considered to be a Lebanese territory, while the Shebaa Farms is Syrian land.

During the 1950s and early 60s A joint Lebanese Syrian commission was formed to determine the border between the two nations. In 1964 the commission determined that the Farms belong officially to Lebanon. However, maps printed after 1964 did not incorporate the determination of the commission, the maps printer after that period rather shows that the Shebaa Farms are still Syrian territory. And in 1960, Syrian authority ordered the inhabitants of the Shebaa Farms to replace their Lebanese identification cards with Syrian ones.

The Lebanese government showed little interest in the views of the inhabitants. While the commission was conduction its work to determine the border identity, the Syrian Government maintained control over the Farms. In 1955, the Syrian military built an outpost on one of the farms, and military bases in the area.

Those military posts in and around the Farms confirmed the identity of the Shebaa Farms as Syrians. During the Israeli invasion of Syria in 1967, the territory was captured by the Israeli forces and remained occupied until this time. No Lebanese or Syrian newspapers or any other discussion about the identity of the Shabaa Farms as being Lebanese territory, nor was there any hint in the UN Security Council at the time by the Lebanese representative to this effect. At no time, prior to the Israel’s withdrawal from Lebanon in 2000, did the Lebanese Government claim the Shebaa Farms to be Lebanese.

In 1974, the United Nations Disengagement Observer Force (UNDOF) was established at Camp Faouar in Syria. Its mandate includes: (1) to supervise the cease-fire between Israel and Syria; (2) to supervise the disengagement of Israeli and Syrian forces; and (3) to supervise the Areas of Separation and Limitation, as provided in the Agreement of Disengagement between Israel and Syrian forces of May 31, 1974. The UNDOF maintained the border with the Shebaa Farms as part of Syria.

In March 19, 1978, the UN Security Council passed Resolution 426 establishing the United Nations Interim Force in Lebanon (UNIFIL) headquartered in Naqura, Southern Lebanon to oversee the withdrawal of Israeli forces from South Lebanon. The Lebanese Government made no attempt to claim the Shebaa Farms.

On May 4, 2000, three weeks after the withdrawal of the Israeli troops from Lebanon in compliance with Security Council Resolution 425 and 426, 1978, the Lebanese Government officially filed a grievance with Israel to the UN Secretary General Kofi Annan. He called the Lebanese move a “new position”. Lebanese officials claim, without giving an explanation, that in 1951, Syria had given the Shebaa Farms to Lebanon. They claim also that there is no record to such a transfer at the United Nations. In fact one senior Lebanese official stated that the Syrian transfer of Shebaa Farms to Lebanon occurred in the form of “oral agreement” between the two countries and “nothing was documented.” In May 29, 2000, the Lebanese Newspaper, ‘The Daily Star’ described the land deed of one resident of the Shebaa Farms as “handwritten and signed on a yellow piece of paper in pencil and ink.” Furthermore, the Lebanese government presented the a forged land deed to the UN representatives date back to the 1940’s, years before the alleged transfer took place, an indication of inconsistency on the part of the Lebanese Government.

There are documents from the 1920s and 1930s that indicate some local inhabitant in the region who considered themselves to be part of Lebanon. Some have even paid taxes to the Lebanese government. But the demarcations from that period under the French mandate show that the Shebaa Farms lie within the borders of Syria. Detailed maps produced by the French in 1933, and again in 1945 point out to the same conclusion. U.S and French archives leave no doubt that the Shebaa Farms belong to Syria.

All maps belonging to the period before 1967 save one, an apparent forgery, show the land as being on the Shebaa Farms on the Syrian side of the border. In fact, on February 13, 2006, a Lebanese newspaper Beirut Times article quotes a Druze Leader Walid Jumblatt, member of the Lebanese Parliament displayed and map and revealed that it was a “fake map,” with the boundary shifted. In an interview, the Druze leader said the following: “The question of the Shebaa Farms was invented by Syria and Iran using Hizbullah as a pretense to have an armed presence in Lebanon. This must end.”

Lebanese army map published in 1961 and 1966 indicate the Shebaa Farms area, including Zebdine, Fashkoul, Mougr Shebaa, and Ramta as being part of the Syrian territory and lie inside the border of Syria. Every single Syrian map and every single Lebanese Ministry of Tourism map show the Lebanese border runs west of the Shebaa Farms. These maps make it clear that the Shebaa Farms are in fact a Syrian land.

The UN Secretary General issued the following report, disputing the claims of Lebanon on the Shebaa Farms, he states the following:

‘On 15 May 2000, the United Nations received a map, dated 1966 from the Government of Lebanon which reflected the Government’s position that these farmlands were located in Lebanon. However, the United Nations is in possession of 10 other maps issued after 1966 by various Lebanese Government institutions, including the Ministry of Defense and the army, all of which place the farmlands inside the Syrian Arab Republic. The United Nations has also examined six maps issued by the Government of the Syrian Arab Republic, including three maps since 1966, which place the farmlands inside the Syrian Arab Republic…’

Nancy Solderberg, a high-ranking official with the U.S. delegation to the UN, made a similar observation. She said: “When it was clear the Israelis were going to withdraw fully from Lebanon, Syrian and Lebanese officials fabricated the fiction that this small, sparsely populated area was part of Lebanon. They even produced a crudely fabricated map to back up the dubious claim. I and United Nations officials went into the map room in the United Nations and looked at all the maps of the region in the files for decades. All showed the Shebaa Farms clearly in Syria.

Hizbullah’s claim over Shebaa Farms

In June 18, 2000, the UN Security Council issued a statement confirming the identification of Israeli withdrawal, and noting that both sides would respect the Blue Line as identified. Moreover, the Security Council took note, “with serious concern,” of reports of violations by Hizbullah that had occurred since June 16, 2000, and called upon the parties to respect the line drawn by the United Nations.

On October 7 of that year, Hizbullah launched a daring attack into the Shebaa Farms and abducted three Israeli soldiers. In February 16, 2001, another attack was conducted by Hizbullah, it killed an Israeli soldier. In the meantime, the former Lebanese Prime Minister, Hariri was reassuring the world that there will be no more outbreaks of violence in south Lebanon. In an interview, he was quoted as saying: “We have a clear agreement with our Syrian brothers in this matter…There will be no provocations on our part.”

Hizbullah, founded in 1982 with the mission of expelling Israel from all Lebanese occupied land. The organization presents itself as being a charitable organization. It holds several seats in the Lebanese parliament, and two cabinet seats in the current Lebanese government of Prime Minister Fouad Seniora. Hizbullah is mainly funded by Iran and operates under the auspices of Syria.

The Lebanese Government allows Hizbullah’s militia to act despite Security Council Resolutions which call for all militias in Lebanon to be disbanded. In fact the Lebanese Government maintains that Hizbullah is a “national resistance group” and doe not fall under the requests of the Security Council.

Although Syria withdrew its forces from Lebanon in compliance with Security Council Resolution 1559, it still maintains control over Hizbullah. Syria uses the organization to force its will on Lebanon and to keep the Israeli forces engaged until such time comes when Israel ends its occupation of the Syrian territory

Hizbullah’s critics charge it with simply using the issue to justify its existence as an armed force and to continue serving as an outpost of Iran’s Islamic revolution. But would-be peacemakers say that if Israel relinquishes the area, Hizbullah will have no excuse to continue its armed role and could better be pressured to transform itself into a normal political party. This suggestion has been made by the Lebanese Prime Minster Fouad Seniora. In an interview with Aljazeera.net, the Prime Minister of Lebanon said his government “cannot force Hizbullah to disarm as long as Israel continues to occupy the Shebaa Farms.”

For Israel, the Shebaa Farms have little strategic importance and has always been subject to return to Syria in a peace negotiations. Israel might probably accept a pullback from the Farms if Syria formally ceded the area to Lebanon.

So far Syria has been supporting, verbally, Lebanon’s claim to the area, but it has shunned any official redefinition of its borders because it still regards the territory of Lebanon, Jordan and Israel to be part of the Greater Syria that existed before World War One.

The Dispute under International Law

The International Court of Justice is the principal judicial organ of the United Nations. Its prime function is to arbitrate international disputes. The court’s decisions are binding, and its broad jurisdiction encompasses cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. The court may be asked to give advisory opinions at the request of the General Assembly or the Security Council or at the request of other organs and specialized agencies authorized by the General Assembly.

Paragraph 1 of Article 36 of the Statute of the International Court of Justice (ICJ) states the following:

“The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”

In Paragraph 2 of Article 36 of the Statute, the states may at any time “declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all disputes concerning…(b): any question of international law…”

Chapter IV, Article 65 states that “the Court may give an advisory opinion on legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.”

Accordingly, the Lebanese government may request an “advisory opinion” from the ICJ to resolve the dispute over its territorial claims over the Shebaa Farms. Syria could be called on by the ICJ to submit an affidavit supporting Lebanon’s claim to the Shebaa Farms. The United Nations General Assembly and the Security Council may submit a request to the ICJ for an “advisory opinion”. None of that has happened yet.

Since its inception, the ICJ has ruled on many cases regarding the territorial claims. The following is an example:

• In the Case Concerning Sovereignty over Certain Frontier Land (Belgium v. Netherlands), the court traced developments that had begun before the 1839 separation on the Netherlands from Belgium, and in its judgment, on June 20, 1959, it indicated that sovereignty over the disputed plots belonged to Belgium.

• On July 8, 1991, Qatar filed in the Registry of the Court an Application instituting proceedings against Bahrain in respect of certain disputes between the two States relating to “sovereignty over the Hawar Islands, sovereign rights over the shoals of Dibal and Qit’at Jaradah, and the delimitation of the maritime areas of the two States. Bahrain contested the basis of jurisdiction invoked by Qatar. Finally the Court issued its ruling on March 16, 2001.

• On December 1, 1978, the Minister of Foreign Affairs of Tunisia notified the Court of a Special Agreement in the Arabic language signed at Tunis on 10 June 1977 between the Republic of Tunisia and the Socialist People’s Libyan Arab Jamahiriya. The government of Tunisia requested the Court to render its judgment on the principles and rules of international law which may be applied for the delimitation of the area of continental shelf appertaining to the Republic of Tunisia and the area of the continental shelf appertaining to the Socialist People’s Libyan Arab Jamahiriya.

• On November 26, 1957, the ICJ issued its ruling on the case concerning right of passage over Indian Territory between Portugal and India. The Portuguese Government requested the Court to recognize and declare that Portugal was the holder or beneficiary of a right of passage between its territory of Damao and its enclaves of Dadra and Nagar-Aveli and between each of the latter and that this right comprises the faculty of transit for persons and goods, including armed forces, without restrictions or difficulties and in the manner and to the extent required by the effective exercise of Portuguese sovereignty in the said territories, that India has prevented and continues to prevent the exercise of the right in question, thus committing an offense to the detriment of Portuguese Sovereignty over the enclaves and violating its international obligations and to adjudge that India should put an immediate end to this situation by allowing Portugal to exercise the right of passage thus claimed. The application expressly referred to Article 36, Paragraph 2, of the Statute and to the Declarations by which Portugal and India have accepted the compulsory jurisdiction of the Court.

• In its advisory opinion on the question put by the Security Council of the United Nations, “What are the legal consequences for States of the continued presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970)?” On June 21, 1971, the ICJ issued its advisory opinion by stating that “the continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory.”

• In a case between Libya and Chad, the two countries submitted to the Court a territorial dispute relating to the Aozou Strip in the Sahara. Libya’s claim as made in the case extended far to the south of that strip of land. The Court, in a judgment on February 3, 1994, found wholly in favor of Chad. After and agreement on the implementation of the judgment had been concluded between the two nations, Libyan forces, monitored by an observer force deployed by the Security Council, withdrew from the Aozou strip by May 31, 1994.

In the Middle East, as elsewhere in the world, there are territorial disputes including Sudan and Egypt on international boundary around the “Hala’ib Triangle,” a barren area of 20580 sq km. Libya claims about 19,400 sq klm in northern Niger and part of south-eastern Algeria. Kuwait ownership of Quruh and Umm al Maradim islands is disputed by Saudi Arabia. Iran occupies two islands in the Persian Gulf claimed by the United Arab Emirates: Lesser Tunb (called Tunb as Sughra in Arabic by UAE and Jazireh-ye Tonb-e Kuchek in Paersian by Iran) and Greater Tunb (called Tunb al Kubra in Arabic by UAE and Jarireh-ye Tonb-e Bozorg in Persian by Iran); it jointly administers with the UAE an island in the Persian Gulf claimed by the UAE (called Abu Mussa in Arabic by the UAE and Jazireh-ye Abu Mussa in Persian by Iran)-over which Iran has taken steps to exert unilateral control since 1992, including access restrictions and a military build-up on the island; the UAE has garnered significant diplomatic support in the region in protesting these Iranian actions.

Iran and Iraq, after their eight-year war, restored diplomatic relations in 1990 but are still to settle disputes concerning border demarcation, freedom of navigation and sovereignty over the Shatt al Arab waterway. Iraq also disputes over water development plans by Turkey for the Tigris and Euphrates Rivers. And Indonesia is in dispute over two islands with Malaysia, who is in dispute with Singapore over two other islands.

BIBLIOGRAPHY

For an in-depth discussion of this process, see Frederic C. Hoff, Refining Full Withdrawal: Remaking the Lebanese-Israeli Border, Middle East Insight, June 2000.
See Naomi Joy Weinberger, Syrian Intervention in Lebanon: The 1975-76 War, 1986.
See UN Security Council Report of the Secretary-General on the Implementation of Security Council Resolutions 425 (1978) and 425 (1978), Document S/2000/460, 22 May, 2000, p. 3.
Ibid.
http:/www.munic.org/pdfs/SC_B.pdf
See Asher Kaufman, Who Owns the Shebaa Farms? Chronicle of a Territorial Dispute, Middle East Journal, vol. 56 # 4, October 2002.
Ibid.
UN Security Council Resolution 350 (1974)
The Daily Star (Beirut), May 9, 2000.
The Daily Star (Beirut), May 29, 2000.
See Beyrouth 1:200,000 Sheet NI36-XII available in the U.S. Library of Congress.
http://en.wikipedia.org/wiki/Shebaa_Farms
World Net Daily, August 3, 2006.
See Report of the Secretary-General on the implementation of Security Council Resolutios 425 (1978) and 426 (1978).
http://www.jacksonville.com/tu-online/stories/072106/op1_3965102.shtml
Quoted in Nicholas Blanfon, Hizbullah Hoist by Its Own Petand, The Middle East, April 2001
BBC, What Is Hizbullah? http://news.bbc.co.uk/1/hi/world/middle_east/4314423.htm
Security Council, Report of the Secretary-General pursuant to Resolution 1559, 2004.
Aljazeera.net, July 28, 2006.
For a list of the Judgments of the International Court of Justice, visit http:www.icj-cij.org/icjwww/decisions.htm

©Copyright 2006, Gabriel Sawma. ALL RIGHTS RESERVED.

Gabriel Sawma, a lawyer dealing with International Law, mainly the European Union Law, the Middle East Law and Islamic Shari’a law. Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic languages. Expert witness on Islamic marriage contracts, including the mahr; expert witness on U.S.-Middle East commercial contracts. Member of the Beirut Bar Association in Lebanon; The New York State Bar Association; Associate member of the American Bar Association. Author of an upcoming book on “Islamic marriage Contracts in U.S. Courts and the Mahr.” Author of an upcoming book on conflicts in U.S. Middle East Commercial Contracts. Editor of International Law website: http://www.gabrielsawma.blogspot.com, Email: gabrielsawma@yahoo.com

Tel. 609-915-2237