Chairperson's Message

GAZA GENOCIDE CASE IN INTERNATIONAL COURTS:

The past eight months have witnessed a devastating cycle of violence in Gaza, as Israel's invasion has left a trail of death and destruction, following Hamas' attack on October 7th, 2023. The ensuing events in the Gaza Strip, justified by Israel as self-defense, have been brutal and harrowing to an extent of prompting international condemnation as a textbook example of genocide. Despite overwhelming evidence, Israel continues to receive support from several nations, shielding it from worldwide sanctions. This hypocrisy is a stark reminder of the West's double standards, where the fate of a decapitated baby is ignored, while the mere suspicion of weapons of mass destruction can lead to the destruction of an entire nation.

In contrast, Palestine lacks such an international support, with numerous nations failing to even acknowledge its sovereignty - a reality that would have been unimaginable less than a century ago. However, South Africa has emerged as an only nation that has taken a significant step beyond mere votes in Security Council’s resolutions for the Palestinian people. The country has brought a landmark case against Israel before the International Court of Justice (ICJ), accusing it of violating international humanitarian law and perpetrating crimes against humanity.

As the case unfolds, significant legal developments and awareness have emerged, with several nations, including Pakistan, joining the case. This article examines the intricacies of South Africa's case, the decisions made thus far, and the plausible outcome of this historic legal battle.

South Africa’s Case against Israel in International Court of Justice

The International Court of Justice (ICJ), established under the United Nations (UN) Charter in June 1945, functions as the primary judicial body of the UN. Article 92 of the UN Charter designates the ICJ as the principal judicial organ of the United Nations, operating according to the Statute of the International Court of Justice. While South Africa’s case against Israel marks a significant legal proceeding, it is not the first time that the ICJ is addressing matters related to the Convention on the Prevention and Punishment of the Crime of Genocide. However, it represents the first occasion on which the ICJ has been tasked with determining whether Israel is breaching this convention.

At the core of the ICJ's deliberation lies the pivotal inquiry into whether Israel’s actions in Gaza constitute violations of its commitments under the Genocide Convention. In its petition to initiate proceedings, South Africa specifically urged the court to grant specified interim measures aimed at preventing further, severe, and irreversible harm to the rights of the Palestinian people under the Genocide Convention. Additionally, South Africa sought measures to ensure Israel’s adherence to its obligations under the Genocide Convention, which encompass refraining from engaging in genocide and undertaking measures to prevent and punish genocide.

Cases brought to the ICJ take years to come to judgement. However, parties involved can request interim relief, known as provisional measures, while the case is ongoing. One such interim ruling was issued by the Court on January 26, 2024. Firstly, it determined that it had jurisdiction to hear the case under Article IX of the Genocide Convention. Secondly, the Court decided that South Africa had prima facie standing to bring the case. The Court emphasized that the obligations enshrined in the Genocide Convention are erga omnes, meaning they are owed to the international community as a whole, and thus any state party to the Convention has a legitimate interest in enforcing them.

Most significantly, the court ordered several provisional measures. These included instructing Israel:

1)      By a vote of fifteen to two, to take all necessary steps to prevent acts falling within the scope of Article II of the Genocide Convention, particularly: (a) the killing of members of the group; (b) inflicting serious physical or mental harm on members of the group; (c) deliberately imposing conditions of life aimed at wholly or partially destroying the group; and (d) implementing measures intended to prevent births within the group.

2)      By a vote of fifteen to two, to ensure that its military refrains from committing any acts covered by Article II of the Genocide Convention immediately.

3)      By a vote of sixteen to one, to prevent and punish any direct and public incitement to commit genocide against members of the Palestinian group in the Gaza Strip.

4)      By a vote of sixteen to one, to take prompt and effective measures to facilitate the provision of urgently needed basic services and humanitarian aid to alleviate the harsh living conditions faced by Palestinians in the Gaza Strip.

5)      By a vote of fifteen to two, to take effective measures to prevent the destruction of evidence and ensure the preservation of evidence related to allegations of acts covered by both Article II and Article III of the Genocide Convention against members of the Palestinian group in the Gaza Strip.

The ICJ's judgments are absolute and binding, according to Article 60 of its Statute. This means Israel cannot appeal or reverse the court's January 26 directive, regardless of its desires. Moreover, the UN Security Council lacks the power to overturn or veto ICJ decisions. While this interim ruling holds significant weight, it is important to note that it is not the final decision. Under Article 94(1) of the UN Charter, all UN member states are obligated to comply with ICJ rulings in cases where they are a party. However, it is important to acknowledge that despite its decisions being binding the ICJ lacks the means to enforce and monitor its rulings, relying on the cooperation of member states for implementation.

Despite this standing fact of lacking an international police force to enforce its rulings, the court, by a vote of fifteen to two, mandated Israel to furnish a report detailing the measures taken to comply with its order within one month from the date of the directive. Israel submitted the report as required, but with the stipulation that its contents be kept secret, for reasons that have not been disclosed.

Had Israel failed to fulfil the order, recourse would have inevitably lead back to the Security Council. As per Article 94(2) of the UN Charter, if a party to a case neglects its obligations under an ICJ judgement, the other party may refer the matter to the Security Council. The Security Council, under Article 41(2) of the ICJ's statute, will be formally notified of the court's decision and may, if deemed necessary, make recommendations or decide on measures to enforce the judgement.

South Africa has gone back to the Court two times since then (on February 12 and on March 6) arguing that the humanitarian situation has worsened and additional provisional orders were required. On 6 March 2024, South Africa returned to the ICJ to request the ICJ for further provisional measures given the worsening situation in Palestine and Israel’s intervention in Rafah. The Court accepted the second request and gave additional provisional measures on March 28, 2024. South Africa has since approached the Court again on 10th May for additional provisional measures in light of the even worsening humanitarian situation.

Overall there has not been notable compliance with ICJ’s provisional measures in South Africa v Israel. Technically Israel complied with measure (6) from the Order of 26 January 2024 by submitting a report to the ICJ but the report whose purpose is to demonstrate Israel’s efforts in complying with the provisional measures loses its significance if the conflict is ongoing with worsening humanitarian crises. This is an issue with the ICJ because there is not a definitive guideline or process which suggests what happens if this report does not hold truth or is not adequately reflecting the actions of a state, nor is it open for public access.

Furthermore, the ICJ did conclude in the Order of 28 March 2024 that ‘the catastrophic situation in the Gaza Strip confirms the need for immediate and effective implementation of the measures indicated in its Order of 26 January 2024’. The ICJ’s reaffirmation of the situation in Gaza was indicative that partial compliance is not the solution to prevent genocide.

ICC and Arrest Warrants for Israeli Officials

Besides ICJ, The International Criminal Court (ICC) also deals with international cases but its jurisdiction is limited to the cases of criminal nature. ICC applies definitions of international crimes outlined in its foundational treaty, the Rome Statute. These core crimes include genocide, war crimes, and crimes against humanity. Genocide necessitates the specific intent to destroy a protected group, either wholly or partially. Crimes against humanity occur within the context of a widespread or systematic attack against a civilian population, while war crimes are serious violations of international humanitarian law during armed conflicts. The Office of the Prosecutor (OTP) investigates "situations" referred to by state parties, the U.N. Security Council, or initiate proprio motu under specific conditions.

Recently, ICC Prosecutor Karim Khan applied for an arrest warrant for Israeli Prime Minister Benjamin Netanyahu, based on a probe initiated in 2021. The prosecutor announced "reasonable grounds" to believe Netanyahu and Defense Minister Yoav Gallant bear "criminal responsibility" for war crimes and crimes against humanity under article 8(2)(b)(xxv) of the ICC Statute. The applications allege war crimes such as starvation of civilians, attacks on civilians, and willful killing, along with crimes against humanity including extermination and persecution, among others, committed in the Gaza Strip from at least October 8, 2023.

These applications await review and approval by a Pre-Trial Chamber of the Court before arrest warrants can be issued. For warrants to be issued, the chamber must find "reasonable grounds to believe" the named individuals committed the alleged crimes, based on evidence presented by the prosecutor. Should the Pre-Trial Chamber grant these requests, any state party to the Rome Statute would be obligated to arrest and surrender these individuals to the ICC for trial.

It is pertinent to note that the ICC's jurisdiction over alleged international crimes in Palestinian territories stems from Palestine's accession to the court's treaty in 2015, following the U.N. General Assembly's decision granting Palestine "non-member observer state" status.

International Humanitarian Law Violations by Israel following ICJ’s interim ruling

Despite ICJ’s provisional rulings, Amnesty International's evidence illustrates ongoing violations of international humanitarian law by Israeli forces, including indiscriminate or direct attacks on civilians and civilian infrastructure in the occupied Gaza Strip since October 7, 2023. These actions constitute potential war crimes and warrant investigation. Israeli authorities have also been criticized for failing to adhere to measures mandated by the International Court of Justice to prevent genocide, including deliberately obstructing access to adequate humanitarian aid. Similar violations have been documented by Amnesty International during previous conflicts in Gaza in 2008-9, 2014, and 2021.

Israel's response to the World Court's order has been vehement, rejecting accusations of genocide in Gaza and continuing military operations, such as the deadly assault on Rafah. This assault has led to significant casualties, including the bombing of a tent camp in a designated safe zone, resulting in the deaths of numerous civilians, predominantly women and children. The attack on Rafah has prompted widespread condemnation and calls for a ceasefire, especially considering its impact on vital infrastructure like the Kuwaiti Hospital, which has been forced to close due to Israeli attacks. The displacement of over 900,000 Palestinians within a short span has exacerbated the humanitarian crisis, leaving many without shelter, food, water, or medical assistance. Israeli military actions, including the advancement of tanks and troops into densely populated areas like western Rafah, have further escalated tensions and raised concerns about civilian safety. The staggering toll of casualties, with thousands killed and wounded since October 7, underscores the urgency of addressing the situation and working towards a peaceful resolution to the conflict.

Will International Law eventually provide adequate relief to Gaza

The international law scholars do not have any definitive answer to the question whether the international law will provide adequate relief to Gaza. The UN Security Council Resolutions against Israel are being vetoed by the USA and the genocide case against Israel in ICJ would take years before the judges come to the final judgement. The interim measures ordered by ICJ are blatantly being violated by Israel. The United Nations Security Council (UNSC) finally passed a United States-backed ceasefire resolution on 10th June to end eight months of Israel’s devastating military offensive in the Gaza Strip. Before that, the USA blocked at least three UNSC resolutions to end the war that has killed more than 37,000 Palestinians and injured about 85,000. But hours after the UNSC vote, Israel carried out deadly attacks across the Palestinian enclave, raising questions about whether the latest resolution will lead to a permanent ceasefire. Even if the ICC grants arrest warrants for Israeli officials, the international law depends on the international community for its enforcement. Considering the support Israel currently enjoys from the international community despite its violations of various provisions of international laws, including United Nations Resolutions and the Laws of War and Occupation, paints a really grim picture. There have been calls for reforms in international law to strengthen the rule-based world order but it may take decades to actualise.

https://www.amnesty.org/en/latest/news/2024/05/israel-opt-icc-applications-for-arrest-warrants-for-netanyahu-sinwar-and-other-senior-israeli-and-hamas-officials-crucial-step-towards-justice/

https://www.jurist.org/features/2024/02/02/explainer-the-legal-and-practical-impacts-of-the-icj-genocide-case-against-israel/

https://rsilpak.org/2024/assessing-compliance-with-provisional-measures-in-genocide-cases-the-good-and-the-bad/

https://www.lawfaremedia.org/article/understanding-the-icc-prosecutor-s-request-for-arrest-warrants

How can the law be abused when it is so strongly regulated by the statutes? That’s the question we all have, and I’m going to unfold it for you how.

In different countries we have seen how the law is still there, then maybe a case is even filed but the case does not reach its conclusion. Let us take a significant example in Africa, where many cabinet members will be seen to be involved in a case of fraud, but only a few will face the repercussions, and this is a different from the behaviour of ordinary people who, when faced with fraud, will face the law and get considerable punishment for it. You may ask, how this is possible? It is only possible because these people have strong connections with the government authorities, mostly the well-known political bodies.

This raises another question? Is it possible for cases to be dropped simply because the person in question holds a government position such as vice president, cabinet member and so on? The answer is yes, I know many will disagree with me but in reality, it is possible and the most prominent example is Kenya where a court dropped a £60 million corruption case against the Vice President. I think that’s absurd because if he was an ordinary person, these charges wouldn’t have just been dropped and all the evidence would have been there to prove that he was guilty enough to be charged with the crime.

In Uganda, the cases are there, but due to an inadequate justice system and lack of influence, these perpetrators of many crimes, such as cyber-crimes, violence against women, corruption etc., haven’t been able to reach their desired place because of the privileged protection afforded to them by their titles and power The government is aware of this, but remains largely unprepared to deal with such cases due to the pressure. In South Africa and many African countries, human rights cases are also numerous but seem impossible to resolve.

What does this say about the African system of government and the laws that are supposed to protect its people, also the judicial system in Africa needs a lot of change in the way it handles cases and not to be influenced by government officials?

As an aspiring future lawyer who wants to be involved in ensuring that at least the people who need to know the law can be helped and that the availability of the law is not only limited to the influential people but also should also serve the purpose of affluent people, people with less resources and power seem to be afraid of the government bodies and therefore tend not to report them to the concerned authorities. Very significant examples of the few lawyers who didn’t work for the government but rather preferred to work on their own for the welfare and betterment of the people, include advocate Male Mabirizi Kiwanuka Kassim and many others from Uganda, and were arrested for doing so. 

Before the advent of Islam, women in Arab were not given basic rights including the right to education and economic freedom. It was a common practice in the Arab society to inhumanely bury their female infants. Since the advent of Islam in the Arab society, women have been treated with respect and accorded basic privileges. It is a common misperception that Islam is a predominantly patriarchal religion. The reason for this is misinterpretation of Quranic texts and Hadith. To understand the significance of these texts and Hadith, one must comprehend the context and the circumstances under which it was revealed. There are numerous verses in the Holy Quran which on the surface ascertain the superiority of men over women. The interpreters overlook the context of such verses and hadith when attempting to establish its meaning.

 Islam is the most vocal religion when it comes to women's rights, with the ability to vote being an example. After a series of protest and uprisings, American women were given the right to vote in 1920. It was granted by the 19th amendment of the American Constitution. However, the women in Islam were given this right in the 14th century. The Arab women were given the ability to run business prior to when it was common in the west. They were allowed to engage in trades as well as in warfare and it was quite common for women to adopt unconventional professions. Women were popular in the education sector as well. For example, the most prominent and oldest university, Al-Qarawiyin Mosque and University, was founded in Morocco in 859 C.E. by a woman named Fatima al Fihri. During the times of warfare, women regularly performed nursing tasks, used to take care of the injured and sick during battles, and some of them even served as soldiers.

Aisha R.A, the wife of the Holy Prophet (Peace be upon him), was one of the most influential scholars and famous narrators of the Hadith. People came to learn from her since she was a renowned scholar. It was quite common for the women to trade in a market place, to the point where the second caliph Umar R.A, appointed a women named Shaffa bint Abdullah as a supervisor of the Bazar. Women were often involved in public affairs, lawmaking, scholarship, and teaching in the government sectors. Women were encouraged to participate in all sectors of society. Before Islam, women were deprived of the right to hold property. The male descendants of the family would inherit the share of women in the property. Islam gave women the right to inherit. In Islam, women are not burdened with financial responsibilities of household management. The man of the family bears that burden. Even if the woman earns after marriage, the husband is not entitled to her property. Islam granted women the right to accept or reject the marriage proposals; she has the right to enter into a marriage contract of her own free will, without being forced by anyone. Prophet Muhammad (Peace be upon Him) had many wives, all of whom he treated with kindness and respect. Narrated in one of the Hadiths, He (peace be upon him) said; “The best of you are those who are best to women.”

In conclusion, Islam has an extensive tradition of preserving the civil liberties of women based on the guidelines set forth by Allah and His Prophet (peace be upon him). Under Islamic law, women are empowered with numerous rights and privileges along with a dignified social status.

Prevailing Misconceptions in Pakistan Regarding Women's Rights in Islam

For a longtime, there have been misconceptions regarding women’s rights in Islam in Pakistan. These misconceptions explicitly neglect women, dishonor, and discriminate against them. Some people practice these misperceptions in the name of Islam due to lack of sufficient religious knowledge, with the intent to subjugate women and deprive them of their rights. However, Islam does not support these objectives because they contradict Islamic rules and principles. Some of these misconceptions include: 

1. “Islam deprived women as they are getting half a share that of a man in inheritance”.

As most people do not realize the role of women in Islam, there is a misconception that Islam denies women the right to inherit. When in truth, a woman is entitled to ½ of her parents’ property as opposed to her brother given that she has no financial liability towards the family. Moreover, she is entitled to her dower, to receive gifts during her marriage, and she is not forced to spend her income to bear the expenses of her family. Before marriage, the burden of expense lies on father, and after marriage, the husband bears all expenses. Besides these, she has the right of inheritance in the property of her husband and also in the property of her children.

2. “Unconditionally, a man can take four wives at the same time”.

Another misconception prevailing in Pakistan is Polygamy. According to the rules of Islam, a man can accept up to four wives at the same time, but only if he has the character strength to deal justly with them. The Holy Quran says:

“If you fear that you will not be able to deal justly with the orphans, marry women of your choice, two or three or four; but if you fear that you will not be able to deal justly with them, then only one.”

The preceding polygamy rule is conditional. The verse particularly refers to the just treatment towards orphans. It was revealed shortly after the Battle of Uhud when the Muslim community was left with several orphans and widows, as well as some war captives. The treatment was to be governed by the most humane and egalitarian principles. If a man wishes to take more than one wife, he must have sufficient financial resources to meet the needs of the additional wives, and he must treat them equally with justice regarding the fulfillment of their conjugal and additional rights. The argument behind polygamy is that it prevents divorce of the sick, elderly, and barren wife, refrains men from extra-marital affairs and eliminates social hypocrisy.

3. “The bride’s consent is not as important in marriage”.

Male-dominated society of Pakistan does not value the consent of the bride as much as it values groom’s consent in marriage. They believe that consent of the father or guardian is sufficient for a girl’s marriage, although Islam does not endorse it. In Islam, the free consent of the bride and groom is required for a legitimate marriage. A woman has the right to choose her spouse in Islam.

4. “There can be no marriage without dowry”.

Dowry is the most horrible practice in Pakistan that is condemned by Islam. A marriage without dowry has become socially unacceptable in today’s world. A greedy system is established in the society that requires the wife to bring wealth from her parents. If the dowry is denied by girl’s family, the girl becomes the victim of physical and mental abuse.

5. “Women have no right to divorce in Islam”.

Though the husband in Islam has absolute right to divorce, he may delegate this power to the wife. According to Islam, both husband and wife can choose to separate by mutual understanding. Besides this, a woman may demand separation by relinquishing all claims to the husband.

The main reasons for prevailing misconceptions in Pakistan regarding women's rights in Islam are due to lack of Islamic knowledge regarding its rules and regulations in different aspects of life. Another cause of these misperceptions is the lack of awareness among women about their rights and privileges in Islam, as well as the desire of the religious male interpreters to neglect women, to dishonour, and to discriminate against them, causes a great deal of inconvenience for women in society.

Bibliography

'19Th Amendment to The U.S. Constitution: Women's Right to Vote (1920)' (National Archives, 2022) <https://www.archives.gov/milestone-documents/19th-amendment> accessed 21 June 2022

'Women In Islam' (ISLAMIC SOCIETY OF GREATER LANSING, 2022) <https://www.lansingislam.com/women-in-islam.html> accessed 21 June 2022\

Patoari MH, “The Rights of Women in Islam and Some Misconceptions: An Analysis from Bangladesh Perspective” (Beijing Law ReviewOctober 12, 2019) <https://www.scirp.org/journal/paperinformation.aspx?paperid=96850> accessed June 21, 2022

Ahmed, G. (1997). Women’s Rights and Family Values: Islamic and Modern Perspective. Dhaka: Era Enterprise

Marcotte, R. D. (2003). How Far Have Reforms Gone in Islam? Women’s Studies International Forum, 26, 153-166. https://doi.org/10.1016/S0277-5395(03)00017-7

Doi, A. R. (1992). Women in Shari’ah (Islamic Law) (4th Ed.). Kula Lumpur: A. S. Noordeen

Orakzai, S. B. (2014). The Rights of Women in Islam: The Question of “Public” and “Private” Spheres for Women’s Rights and Empowerment in Muslim Societies. Journal of Human Rights in the Commonwealth, 2, 42-51. https://doi.org/10.14296/jhrc.v2i1.2100

Islam is unquestionably a way of life that offers a thorough guide for how humans are expected to live their lives, not merely a religion or a belief system. Particularly, the Shari'ah and the Fiqh provide excellent insight into all facets of daily life.

In the same context, the matter of child labour is recognized by Shari'ah, and guidelines have been established under Islamic laws to evaluate whether child labour is acceptable and, if so, with what restrictions.

Who is a Child in Islam?

         The first facet of the conundrum pertains to whom Islam recognizes as a child. The Muslim jurists who include the Shafi’i and the Hanafi generally define a child as a person who is under the age of puberty.[1] The Shafi’is also defines a mukallaf person as a person who is sane and attains the age of puberty. This, therefore, indicates that a mukallaf person is not a child.[2] According to Maliki jurists, a child means a person who has no capability for his interests including of his expenses and his meals.[3] The Muslim jurists from the four Sunni school of law unanimously agree that the puberty of a child is attained when there is a manifestation of certain natural symptoms or in the absence of natural symptoms, age can be considered as puberty indication.

The majority of Muslim jurists, including the Shafi'i, the Hanbali, Abu Yusuf and Muhammad of the Hanafi, one report attributed to Imam Abu Hanifah, and some of the Maliki, hold that the age of puberty for both boys and girls is upon the completion of his/her fifteen years of lunar year[4], provided that natural symptoms do not appear.[5]

Contrarily, Imam Abu Hanifah maintains that a boy reaches puberty at the age of eighteen and a girl reaches puberty at the age of seventeen.[6]His argument is based on the Qur'anic verse, "And come not near the property of the orphan save to develop it till he attains the age of full strength..." [7]According to Ibn 'Abbas' testimony, the boy is eighteen years old at full strength. Since a girl develops and understands concepts more quickly than a boy, there is a one-year difference between them.[8] This disparity is lessened by a boy by one year.

Islamic law operates on the principle of public interest (maslahah) as well. In the absence of provisions in the Qur'an and Sunnah of the Prophet (S.A.W), the law can be founded on maslahah and is directed by the Shari'ah's broad purposes, namely to achieve benefit for the people and to repel ill that may befall them. It is to defend the interests of children in the context of child labour because the employment may cause them harm.

Regardless, the proper treatment of children is emphasised sufficiently in Islam. Islam protects children's rights related to (1) "health and life," (2) "family, kindred, name, property, and inheritance," (3) "healthcare and proper nutrition," (4) "education and acquisition of talents," and (5) "live in security and peace and enjoy human dignity, and protection under the responsibility of parents," per UNICEF and International Islamic Center for Population Studies and Research[9]. Therefore, any profession or employment that infringes these rights is said to be prohibited.

Islam places strong emphasis on treating a child fairly and puts the parents and the guardians under strict duty to fulfill all the needs that a child might have.

On the other hand, the question that may be important to child labour is whether the child is physically fit to work and what the financial status of his caregivers is.

The Concept of Aahliyyah:

The principle of Aahliyyah is the legal capacity of a child to receive rights and perform obligations in Islamic law. This is to represent the human potential and fitness to carry out and maintain specific social and religious commitments. Literally, Aahliyyah means aptitude, fitness, competence, validity, authority, and qualification, all of which refer to a person's capacity and quality to fulfil particular obligations diligently.[10]

The Hanafi jurists divide Aahliyyah into two kinds: the capacity for the inherency of rights and obligations (Aahliyyah al-wujub) and capacity for the exercise of rights and the discharge of obligation (Aahliyyah al-ada’).[11]

Under Islamic law, a child under the age of puberty undergoes two different stages; undiscerning child from birth until the age of discernment (mumayyiz) and discerning child, from the age of discernment until the age of puberty. Al-Sarakhsi from the Hanafi school has fixed the age of seven years as the age of discernment.[12] This is also supported by Muslim scholars who have fixed certain periods for the undiscerning child that begins as soon as the child is born and ends when he reaches the age of seven.[13] [14]

Muslim jurists agree that a discerning kid possesses perfect receptive legal ability (ahliyyat al-wujub al-kamilah). This is because the existence of this legal ability is founded on life itself.[15] As a result, an undiscerning youngster can obtain all of the rights to which he is entitled.

Ahliyyah al-ada' al-kamilah is the ultimate stage in which the child attains his intellectual faculties and becomes an adult. He is capable of handling duties and obligations at this age. A person with this capacity can also undertake any jobs that a minor cannot do and can be held accountable for his actions. At this point, Islamic law imposes specific Islamic requirements on him, including as prayer, fasting, almsgiving, pilgrimage, and other religious obligations.[16]

Child Labour in the Quran and the Sunnah

The main sources of Islamic law, the Qur'an and hadith, do not clearly give regulations on child labour or child employment, as well as any prohibition on child employment that does not impact their welfare. Nonetheless, there are some hadith of the Prophet (S.A.W.) that appear to indicate that a child, particularly a discerning child, may give a service to his needy parents.

According to one hadith, the Prophet (S.A.W) had a bruising (hijam) surgery with a youngster, after which the Prophet paid the child.[17] Nonetheless, when analysing the hadith, a Muslim jurists stated that the wage that the Prophet gave to that youngster was because the child was very destitute.[18]

Regardless, Islamic law allows a youngster to work to help his family and due to poverty or destitution. This type of profession appears to be realistic for sustaining the child's own life and assisting the family. This approach appears to be consistent with the International definition of child labour, which only prohibits employment that is detrimental to the kid's welfare and interests.

Ruling of Islam On Child Labour

Islam allows child labour which is termed as “tashghil” as long as it is in line with the teachings and principles of Islam. Several prophetic traditions support this ruling. An authentic hadith is reported by Muslim and narrated from Anas bin Malik (May Allah be pleased with him). Anas bin Malik said: Once the Messenger of Allah (the Prophet) came to me while I was playing with the boys. He greeted us and sent me on an errand.[19]

Another authentic hadith is reported by Bukhari and narrated by Anas. Anas bin Malik said: Whenever the Prophet (peace be upon him) went to the privy, a servant and I used to carry a skin water container and a spear and he would cleanse himself with the water.[20]

These references from Hadith prove that the Prophet (peace be upon him) used to assign the children some works, so according to Islam, in some cases, children can be assigned with some tasks.

Islamic Principles that Protect Children from Hazardous Child Labor

Aside from the few hadith that depict and discuss child labour, there are numerous rules that imply harming children is prohibited. This is in accordance with the goals of Islamic law (maqasid al-shari'ah), which is to protect human advantage and eradicate any hardship that may befall them. This is clearly stated in the Qur’an;

“He has chosen you and has imposed no difficulties on you in religion”.[21]

In another verse, the Qur’an further states that,

“Allah intends every facility for you, He does not want to put you in difficulties (hardships)”[22]

The preceding verses demonstrate clearly that when an obligation is imposed upon the subjects, it is not implicit with creating hardships or difficulty. Consequently, this principle implies that any sort of pain imposed by one human on another is prohibited.[23]

Therefore, it is to be noted that when dealing with child labour, nine critical factors must be addressed. To begin with, the child should not be handed any illegal tasks.

Second, only youngsters with mental maturity and the ability to distinguish between right and wrong can be hired. It should be noted that young children cannot be held responsible for anything.

Third, approval from the parents must be obtained before employing any youngsters. Because parents are accountable for their children's care and education, authorization to work should come from them.

Fourth, it is critical that the tasks assigned to children enrich their knowledge and skills. It should look after their well-being.

Fifth, it is critical to describe the type of employment, work period, and compensation that will be allotted to children. Youngsters are wrongfully exploited in many circumstances due to a lack of adequate regulations and procedures, so these issues should be thoroughly settled before taking any children for any profession.

Sixth, job should not interfere with children's education.

Seventh, the task should not be detrimental to children's manners. It should aid in sustaining Islamic customs.

Eighth, children should be provided ample opportunities to play in order to ensure physical development.

Ninth, children must be treated with compassion and mercy.[24]

Child Labor in Islamic History: Anas Ibn Malik's Case

Anas ibn Malik was the khadim of the final Prophet (peace be upon him). This is an example of how tashghil and khidmah may be used effectively. The life of Anas demonstrates the anticipated nature of child labour. Anas, the Prophet's young companion, used to help him in different duties. Anas served the Prophet of Islam for more than nine years from the Prophet's relocation to Medina (from Makkah) until his death, according to a few reliable Reports (such as al-Bukhari, Book: 78, no. 6038).

According to several reports, the Prophet had a very excellent and amicable connection with Anas. Anas was never chastised by the Prophet for anything. If Anas did not complete a task after being ordered to do so, the Prophet never penalised him for it.  The Prophet was extremely fond of Anas.

Several reports claim that Anas was allocated the simplest feasible chores that were not physically taxing. Anas was found carrying water, miswak (the chew stick), and asaa (the hand stick on which the Prophet relied). He was not permitted to perform dangerous duties. For example, Anas was barred from participating in one of the most significant holy wars for Muslims, the Ghazwat al-Badr.

Comparison with reference to the Employment of Children Act,1991 and the ILO Convention

The Employment of Children Act,1991 as enforced in Pakistan is mostly in conformity with the provision of Shari’ah, with the exception of the fourteen-year-old minimum age for engaging in hazardous labour. According to Shari'ah, puberty is a sign of majority, and most children exhibit indications of puberty between the ages of fourteen and thirteen. The distinction here is that fourteen is a set and non-negotiable number in the Employment of Children Act of 1991. However, while Shari'ah permits hazardous labour for a youngster who has reached puberty, it also indicates another criterion within the confines of Aahliyyah: intellect and prudence. Therefore, regardless of whether a younger child has reached puberty, they cannot work as long as they lack discernment or intellectual aptitude. Furthermore, considering that it is the primary obligation of parents and the state to safeguard the child, Islam typically prohibits any form of labour or endeavour that may infringe on the rights of children.

A broader discrepancy arises from the ILO, which sets the minimum age for engaging in hazardous activities at eighteen years. It's also worth noting that the ILO enables youngsters as young as sixteen to work under the condition that they pose no possibility of harm. Work done by children between the ages of thirteen and fifteen is also authorized as long as it does not compromise their education or wellbeing, the ILO sanctions these provisions on the basis of the status of the state too. This is a divergence from Shari’ah provisions since Shari’ah permits children of majority age with requisite intellect and discretion to participate in hazardous jobs.

Despite this, Shari’ah adheres to the rights of children under the age of majority; as established in the preceding instances, with the ILO. Shari’ah permits labour for children under the age of puberty who have a certain degree of discernment so long as it does not impede their welfare.

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[1] Jalal al-Din 'Abd al-Rahman al-Suyuti, al-Ashbah wa al-naza’ir fi qawa'id wa furu' fiqh al-Shafi'iyyah,

[2] Abu Bakar Mashyur bi al-Bakri Osman bin Muhammad Shata al-Dimyati al-Syafie, I’anah al-Talibin ala Hil Alfaz Fath al-Mu’in, vol. 4 (Beirut: Dar al-Fikrlil Toba’ahwa al-Nasyrwa al-Tauzi’, 1997), 8

[3] Muhammad bin Ahmad bin ‘Urfah al-Dasuqi al-Maliki, Hasyiah al-Dasuqi ‘ala al-Syarh al-Kabir, vol. 4 (Beirut: Dar al-Fikr, n.d), 124.

[4]This position is supported by the Sunnah of the Prophet of Allah (S.A.W. ), according to a tradition related by Ibn 'Umar: When he was fourteen years old, the Messenger of Allah examined him on the day of Uhud and did not permit him to participate in the battle. When he was fifteen years old, the Prophet again examined him and then let him to participate in the battle on the day of Khandaq (the battle of the trench).

[5] Ibn 'Abidin, Vol. 6, 153-154; al-Hattab, Vol. 5, 59; al-Shirazi, Vol. 1, 435; al-Bahuti, Vol. 3, 443-444.

[6] Al-Marghīnānī, Vol. 3, p. 284; al-Zayla'i, Vol. 6, 275-276.

[7] Al-Qur’ān, Sūrah al-An'ām : 152.

[8] See al-Marghīnānī, Vol. 3, pp. 284-285. ; al-Zayla'i, Vol. 6, 277.

[9] See also UNICEF, “Children in Islam - Their Care, Development and Protection,” Al-Azhar University International Islamic Center for Population Studies and Research (2005), 67

[10] 7 Hans Wehr, A Dictionary of Modern Written Arabic -Arabic-English, (London: Macdonald & Evans LTD, 1974), 33.

[11] 'Ali ibn Muhammad al-Bazdawī, Usul al-Bazdawi (Karachi, Pakistan: Mir Muhammad Kutub Khanah, n.d.), 324; M. A. Abdur Rahim, The Principles of Islamic Jurisprudence, 2nd Revised Edition (New Delhi: Kitab Bhavan, 1994), 206.

[12] Al-Sarakhsī, Vol. 24, p. 162.

[13] Al-Khafif, Ahkam al-Mu'amalat al-Shar'iyyah

[14] This is based on the Sunnah of the Prophet (S.A.W): “Command your children to pray when they become seven years old, and beat them for it (prayer) when they become ten years old, and arrange their bed (to sleep) separately”.

[15] Al-Kurdi, 16.; al-Khafif, Ahkam al-Mu'amalat al-Shar'iyyah, 236 & 241.

[16] Abdurezak A. Hashi and Bashiir A, “Human Capital Development from Islamic Perspective,”

[17] Reported by Ibn Majah, no 2164

[18] Syaikh Muwafiquddin Ibnu Qudamah, Al-Mughni, vol. 8

[19] Sahih Muslim, Book 2, Hadith 8

[20] Sahih Muslim, Book 2, Hadith 87

[21] Al-Qur’an, Al-Hajj, 22:78

[22] Al-Qur’an, Al-Baqarah, 2:185.

[23] UNICEF, “Children in Islam - Their Care, Development and Protection,” Al-Azhar University International Islamic Center for Population Studies and Research (2005), 67

[24] Azzaam and al-Muwaajidah (2008)