CONCEPT OF REPRISAL AND ITS LEGAL QUALITY IN MODERN LAW AND IN ISLAMIC STATE LAW / MODERN HUKUKTA VE İSLÂM DEVLETLER HUKUKUNDA MUKABELE BİLMİSİL KAVRAMI VE HUKUKÎ NİTELİĞİ

In international relations, it is a fact that, until the stage of establishing peace and safety, states use, besides war itself, different ways of forcing as instrument. Although the traditional ones of these are the ways of counter measure as retorsion and reprisal applied just by the states, even in peace time states have retorted on the basis of “reciprocity” in the fields of economy, trade, and diplomacy. Accordingly, it can be said that the improvement process of the concept of reprisal goes back to time immemorial. Since the early ages it has been applied by individuals in different special meanings; in later periods, states started to take measures in place and on behalf of individuals and since the nineteenth century, in parallel with the development of state law, it has been adopted in international relations. Because the concept of reprisal, used in the literature of Islamic state law, has not been handled within a differentiating terminological frame as in modern state law, formed in a long legal process, the concepts expressing requital have been used in place of each other (interchangeably); and this is true for the present studies as well. However, these concepts in Islamic law comprise the concepts of requital which exist with different names and qualities in modern law. This concept, which takes its legality from “equal treatment in return” (reprisal) statements in Quran's various parts and the Prophet's implementations in that direction, has not been applied in absolute terms but subjected to some human, moral (ethical) and legal confinements. Therefore, in the implementations of requital it is accepted as a fundamental principle that the parties must adhere to the mutual understanding of human rights and justice, must not exercise any kind of exorbitant injustice, must not give harm to innocent individuals in compliance with the principle of private crimes, and requital must be in conformity with the harm.