THE COMPATIBILITY OF INTERNATIONAL LAW AND ISLAMIC LAW (SHARI ’ A): A CASE STUDY OF INDONESIA

Tulisan ini menganalisa apakah ada persamaan antara hukum internasional yang bersumber dari Barat dan hukum Islam (Syariah) yang banyak diterapkan di negara-negara dengan mayoritas penduduk beragama Islam antara lain Negara-negara di Timur Tengah, sebagian Afrika (Negaranegara Magribi), dan sebagian negara di Asia Tenggara antara lain Indonesia, Malaysia dan Brunei Darussalam. Hukum internasional dan Hukum Islam (Shari’a) memiliki persamaan mendasar dalam hal hak asasi manusia terutama jika dikaitkan dengan perlakuan yang sama apapun jenis kelaminnya. Tulisan ini mencoba menganalisa persamaan antara hukum internasional dan hukum Islam terkait hak-hak perempuan dalam pernikahan. Propinsi Aceh, Propinsi Sulawesi Selatan dan Propinsi Jawa Barat adalah 3 (tiga) propinsi di Indonesia yang menjadi studi kasus dari tulisan ini.


Introduction
International law is imbued with western-led values, highly concerned on human rights and humanism issues. The purpose of this paper is to analyze and examine whether there is a compatibility of international law and shari'a. If so, why and how the international law and Shari'a will be compatible? The paper will argue that the international law and shari'a law is compatible, especially in the recognition of certain basic human rights, such as in the equality between all human beings regardless of their gender.
The examination is on the area of how Islamic law affects women's rights in Indonesia, in this case rights in marital life for women in Indonesia. This paper will analyze whether Shari'a is compatible with international law in terms of women's rights. The analysis is based on the implementation of sharia in Indonesia, in which I will elaborate the case study of Shari'a implementation in the Aceh province, South Sulawesi province and West Java province.
In the first section, the paper will analyze theoretical ground on the explanation of International law and Islamic law. The intersection and compatibility of International Law and Islamic Law will be the highlight of this section. The second section will discuss the condition of Indonesia, as the most populous Muslim in the world. Indonesia was chosen because it is the largest Moslem country in the world that also upholds democracy values, so it represents the intersection of the International law and Islamic law. The recognition of women rights in Indonesia is the main concern in this essay; elaboration on the marriage law and its impact on women's welfare in those three provinces will be analyzed. The last section will be a conclusion

International law and Islamic Law
The International Law discussed throughout this paper is defined as of the growing concern on the application of Islamic law as perceives not to be in compliance with the international law.
International law and Islamic law are not necessarily stand between opposite site in practices. Take an example in matter of violence. An-Naim mentioned that "from a formal point of view, it can be said that Islamic law prohibits all violence except in cases of official punishment for crime, strict private self -defense, or formally declared legitimate war as regulated by law" (An Na'im, 2010, p.35). Violence as an official punishment and as an act of self-defense can be categorized as a necessary to protect individual or society from further harm. Harm here refers to the criminal and outlaws conducts by those who deserves to be punished with violence.
However, excessive violence and abuse of power are strictly forbidden in settling disputes. International law also forbids the use of excessive forces since one of its goals is to maintain peace.
In the context of Islamic law, Kamali explained that one need to understand the Usul al-fiqh as it 'concerned with the sources of Islamic law, their order of priority, and the methods by which legal rules may be deduced from the source materials of the shari'ah' (An Na'im, 2011, p.11). Usul al-fiqh itself refers to the methodology to gain specific knowledge on forming law based on the sources of Shari'a, Al Qur'an and Sunnah.
There are other Islamic scholar such as Kamaruzzaman Bustamam-Ahmad that goes into detailed explanation on the difference between fiqh, shari'a and qannun, where those  , 2007). For the purpose of this paper, the Islamic law discussed here refers to the Shari'a. The implementation of Shari'a itself cannot be separated from other factors such as: history, sociology, cultural values and socioeconomic in a specific nation state. An Naim explained, "Other aspects of Islamic consciousness, such as perceptions and experiences of piety and spirituality, as well as socioeconomic and political factors, are always integral to an understanding of Muslim beliefs and behavior" ( An-Na'im, 2011, p.144). The statement implies that generalization in Shari'a implementation's research is hazardous; it can lead to over simplification on the research results.
The     Katz & Katz, 1975. p. In those three provinces, researches showed that in the matter of marriage and public affairs, the Shari'a serves to protect the interest of women and children, albeit some perversion from its original intentions. The marital status of women and men is important in those three provinces, because it correlates with fulfillment of women and children rights, especially their economy and social rights.
There are no specific records on restrictions imposing on women in the public sphere.
Women and men are having equal opportunity to participate in the public offices in Indonesia.
The case studies prove that the international law and Shari'a law serve as guidance for the attainment of human rights.