Islamic military jurisprudence
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Islamic military jurisprudence refers to what has been accepted in Sharia (Islamic law) and Fiqh (Islamic jurisprudence) by Ulama (Islamic scholars) as the correct Islamic manner which is expected to be obeyed by Muslims in times of war.
- 1 Development of rulings
- 2 Ethics of warfare
- 3 Criteria for soldiering
- 4 Legitimacy of war
- 5 International conflict
- 6 Internal conflict
- 7 See also
- 8 Notes
- 9 References
- 10 Further reading
- 11 External links
Development of rulings
The first military rulings were formulated during the first century after Muhammad established an Islamic state in Medina. These rulings evolved in accordance with the interpretations of the Qur'an (the Muslim Holy scriptures) and Hadith (the recorded traditions of Muhammad). The key themes in these rulings were the justness of war, and the injunction to jihad. The rulings do not cover feuds and armed conflicts in general.
Jihad (Arabic for "struggle") was given a military dimension after the oppressive practices of the Meccan Quraish against Muslims. It was interpreted as the struggle in God's cause to be conducted by the Muslim community. Injunctions relating to jihad have been characterized as individual as well as collective duties of the Muslim community. Hence, the nature of attack is important in the interpretation—if the Muslim community as a whole is attacked jihad becomes incumbent on all Muslims. Jihad is differentiated further in respect to the requirements within Muslim-governed lands (Dar al-Islam) and non-Muslim lands (Dar al-Harb).
According to Shaheen Sardar Ali and Javaid Rehman, both professors of law, the Islamic military jurisprudence are in line with rules of modern international law. They point to the dual commitment of Organisation of Islamic Cooperation (OIC) member states (representing most of the Muslim world) to Islamic law and the United Nations Charter, as evidence of compatibility of both legal systems.
Ethics of warfare
The basic principle in fighting in the Qur'an is that other communities should be treated as one's own. Fighting is justified for legitimate self-defense, to aid other Muslims and after a violation in the terms of a treaty, but should be stopped if these circumstances cease to exist. The principle of forgiveness is reiterated in between the assertions of the right to self-defense.
During his life, Muhammad gave various injunctions to his forces and adopted practices toward the conduct of war. The most important of these were summarized by Muhammad's companion and first Caliph, Abu Bakr, in the form of ten rules for the Muslim army:
|“||O people! I charge you with ten rules; learn them well!
According to Tabari, the ten bits of "advise" that Abu Bakr gave was during the Expedition of Usama bin Zayd. Imam Shaffi (founder of the Shaffi school of thought) reportedly did not consider the tradition, about the 10 rules of Abu Bakr as authentic. Abu Yusuf also countered the tradition about the instructions of Abu Bakr with hadith which claimed Abu Bakr ordered his commanders to lay waste to every village where he did not hear the call to prayer. During the Battle of Siffin, the Caliph Ali stated that Islam does not permit Muslims to stop the supply of water to their enemy. In addition to the Rashidun Caliphs, hadiths attributed to Muhammad himself suggest that he stated the following regarding the Muslim conquest of Egypt that eventually took place after his death:
|“||You are going to enter Egypt a land where qirat (money unit) is used. Be extremely good to them as they have with us close ties and marriage relationships. When you enter Egypt after my death, recruit many soldiers from among the Egyptians because they are the best soldiers on earth, as they and their wives are permanently on duty until the Day of Resurrection. Be good to the Copts of Egypt; you shall take them over, but they shall be your instrument and help. Be Righteous to God about the Copts.||”|
These principles were upheld by 'Amr ibn al-'As during his conquest of Egypt. A Christian contemporary in the 7th century, John of Nikiû, stated the following regarding the conquest of Alexandria by 'Amr:
|“||On the twentieth of Maskaram, Theodore and all his troops and officers set out and proceeded to the island of Cyprus, and abandoned the city of Alexandria. And thereupon 'Amr the chief of the Moslem made his entry without effort into the city of Alexandria. And the inhabitants received him with respect; for they were in great tribulation and affliction. And Abba Benjamin, the patriarch of the Egyptians, returned to the city of Alexandria in the thirteenth year after his flight from the Romans, and he went to the Churches, and inspected all of them. And every one said: 'This expulsion (of the Romans) and victory of the Moslem is due to the wickedness of the emperor Heraclius and his persecution of the Orthodox through the patriarch Cyrus. This was the cause of the ruin of the Romans and the subjugation of Egypt by the Moslem. And 'Amr became stronger every day in every field of his activity. And he exacted the taxes which had been determined upon, but he took none of the property of the Churches, and he committed no act of spoliation or plunder, and he preserved them throughout all his days.||”|
The principles established by the early Caliphs were also honoured during the Crusades, as exemplified by Sultans such as Saladin and Al-Kamil. For example, after Al-Kamil defeated the Franks during the Crusades, Oliverus Scholasticus praised the Islamic laws of war, commenting on how Al-Kamil supplied the defeated Frankish army with food:
|“||Who could doubt that such goodness, friendship and charity come from God? Men whose parents, sons and daughters, brothers and sisters, had died in agony at our hands, whose lands we took, whom we drove naked from their homes, revived us with their own food when we were dying of hunger and showered us with kindness even when we were in their power.||”|
The early Islamic treatises on international law from the 9th century onwards covered the application of Islamic ethics, Islamic economic jurisprudence and Islamic military jurisprudence to international law, and were concerned with a number of modern international law topics, including the law of treaties; the treatment of diplomats, hostages, refugees and prisoners of war; the right of asylum; conduct on the battlefield; protection of women, children and non-combatant civilians; contracts across the lines of battle; the use of poisonous weapons; and devastation of enemy territory.
Criteria for soldiering
Muslim jurists agree that Muslim armed forces must consist of debt-free adults who possess a sound mind and body. In addition, the combatants must not be conscripted, but rather enlist of their free will, and with the permission of their family.
Traditionally, "adults" have been defined as post-pubescent individuals above the age of 15.
Legitimacy of war
Muslims have struggled to differentiate between legitimate and illegitimate wars. Fighting in self-defense is not only legitimate but considered obligatory upon Muslims, according to the Qur'an. The Qur'an, however, says that should the enemy's hostile behavior cease, then the reason for engaging the enemy also lapses.
Some scholars argue that war may only be legitimate if Muslims have at least half the power of the enemy (and thus capable of winning it). Other Islamic scholars consider this command only for a particular time.
The Hanafi school of thought holds that war can only be launched against a state that had resorted to armed conflict against the Muslims. War, according to the Hanafis, can't simply be made on the account of a nation's religion. Sheikh Abdullah Azzam considers the defense by Muslims of their territory as one of the foremost obligations after faith. Abdulaziz Sachedina argues that the original jihad according to his version of Shi'ism was permission to fight back against those who broke their pledges. Thus the Qur'an justified defensive jihad by allowing Muslims to fight back against hostile and dangerous forces.
Muhammad ibn Idris ash-Shafi`i (d. 820), founder of the Shafi'i school of thought, was the first to permit offensive jihad. He limited this warfare against pagan Arabs only, not permitting it against non-Arab non-Muslims.
Javed Ahmad Ghamidi believes that after Muhammad and his companions, there is no concept in Islam obliging Muslims to wage war for propagation or implementation of Islam. The only valid basis for military jihad is to end oppression when all other measures have failed. Islam only allows jihad to be conducted by a government.
According to Abdulaziz Sachedina, offensive jihad raises questions about whether jihad is justifiable on moral grounds. He states that the Qur'an requires Muslims to establish just public order, increasing the influence of Islam, allowing public Islamic worship, through offensive measures. To this end, the Qur'anic verses revealed required Muslims to wage jihad against unbelievers who persecuted them. This has been complicated by the early Muslim wars of expansion, which he argues were although considered jihad by Sunni scholars, but under close scrutiny can be determined to be political. Moreover, the offensive jihad points more to the complex relationship with the "People of the book".
International conflicts are armed strifes conducted by one state against another, and are distinguished from civil wars or armed strife within a state. Some classical Islamic scholars, like the Shafi'i, classified territories into broad categories: dar al-islam ("abode of Islam"), dar al-harb ("abode of war), dar al-ahd ("abode of treaty"), and dar al-sulh ("abode of reconciliation"). Such categorizations of states, according to Asma Afsaruddin, are not mentioned in the Qur'an and Islamic tradition.
Declaration of war
The Qur'an commands Muslims to make a proper declaration of war prior to the commencement of military operations. Thus, surprise attacks are illegal under the Islamic jurisprudence. The Qur'an had similarly commanded Muhammad to give his enemies, who had violated the Treaty of Hudaybiyyah, a time period of four months to reconsider their position and negotiate. This rule, however, is not binding if the adversary has already started the war. Forcible prevention of religious practice is considered an act of war.
Conduct of armed forces
During battle the Qur'an commands Muslims to fight against the enemy. However, there are exceptions to such combat. Torturing the enemy, and burning the combatants alive is strictly prohibited. The mutilation of dead bodies is also prohibited. The Qur'an also discourages Muslim combatants from displaying pomp and unnecessary boasting when setting out for battle.
According to professor Sayyid Dāmād, no explicit injunctions against use of chemical or biological warfare were developed by medieval Islamic jurists as these threats were not existent then. However, Khalil al-Maliki's Book on jihad states that combatants are forbidden to employ weapons that cause unnecessary injury to the enemy, except under dire circumstances. The book, as an example, forbids the use of poisonous spears, since it inflicts unnecessary pain.
According to all Muslim scholars it is not permissible to kill women or children unless they are fighting against the Muslims. According to the Shafi'i school it is permissible to kill all types of adult men. According to the Hanafi, Hanbali and Maliki schools it is not permissible to kill old men, monks, peasants, employees and traders (this meaning male non-combatants).
Harming civilian areas and pillaging residential areas is also forbidden, as is the destruction of trees, crops, livestock and farmlands. The Muslim forces may not loot travelers, as doing so is contrary to the spirit of jihad. Nor do they have the right to use the local facilities of the native people without their consent. If such a consent is obtained, the Muslim army is still under the obligation to compensate the people financially for the use of such facilities. However, Islamic law allows the confiscation of military equipment and supplies captured from the camps and military headquarters of the combatant armies.
Commentators of the Qur'an agree that Muslims should always be willing and ready to negotiate peace with the other party without any hesitation. According to Maududi, Islam does not permit Muslims to reject peace and continue bloodshed.
Islamic jurisprudence calls for third party interventions as another means of ending conflicts. Such interventions are to establish mediation between the two parties to achieve a just resolution of the dispute.
In the context of seventh century Arabia, the Qur'an ordained Muslims must restrain themselves from fighting in the months when fighting was prohibited by Arab pagans. The Qur'an also required the respect of this cease-fire, prohibiting its violation.
If, however, non-Muslims commit acts of aggression, Muslims are free to retaliate, though in a manner that is equal to the original transgression. The "sword verse", which has attracted attention, is directed against a particular group who violate the terms of peace and commit aggression (but excepts those who observe the treaty). Crone states that this verse seems to be based on the same above-mentioned rules. Here also it is stressed that one must stop when they do. Ibn Kathir states that the verse implies a hasty mission of besieging and gathering intelligence about the enemy, resulting in either death or repentance by the enemy. It is read as a continuation of previous verses, it would be concerned with the same oath-breaking of "polytheists".
Prisoners of War
Men, women, and children may all be taken as prisoners of war under traditional interpretations of Islamic law. Generally, a prisoner of war could be, at the discretion of the military leader, freed, ransomed, exchanged for Muslim prisoners, or kept as slaves. In earlier times, the ransom sometimes took an educational dimension, where a literate prisoner of war could secure his or her freedom by teaching ten Muslims to read and write. Some Muslim scholars hold that a prisoner may not be ransomed for gold or silver, but may be exchanged for Muslim prisoners.
Women and children prisoners of war cannot be killed under any circumstances, regardless of their religious convictions, but they may be freed or ransomed. Women who are neither freed nor ransomed by their people were to be kept in bondage and referred to as malakah,dispute however exist among scholars on its interpretation. Islamic law does not put an exact limit on the number that can be kept in bondage. According to the Islamic scholar Maududi, Islam forbids keeping female slaves as a means of sexual enjoyment, although other Muslim scholars insist that Islam permits sexual intercourse with female slave/s in or out of marriage, and that the slave woman may not refuse her master's request except in certain circumstances.
Internal conflicts include "civil wars", launched against rebels, and "wars for welfare" launched against bandits.
During their first civil war, Muslims fought at the Battle of Bassorah. In this engagement, Ali (the caliph), set the precedent for war against other Muslims, which most later Muslims have accepted. According to Ali's rules, wounded or captured enemies should not be killed, those throwing away their arms should not be fought, and those fleeing from the battleground should not be pursued. Only captured weapons and animals (horses and camels which have been used in the war) are to be considered war booty. No war prisoners, women or children are to be enslaved and the property of the slain enemies are to go their legal Muslim heirs.
Different views regarding armed rebellion have prevailed in the Muslim world at different times. During the first three centuries of Muslim history, jurists held that a political rebel may not be executed nor his/her property confiscated.
Classical jurists, however, laid down severe penalties for rebels who use "stealth attacks" and "spread terror". In this category, Muslim jurists included abductions, poisoning of water wells, arson, attacks against wayfarers and travellers, assaults under the cover of night and rape. The punishment for such crimes were severe, including death, regardless of the political convictions and religion of the perpetrator. Further, rebels who committed acts of terrorism were granted no quarter.
- Islam and war
- Geneva Conventions
- Hague conventions
- Rule of Law in Armed Conflicts Project (RULAC)
- Laws of war
- Opinion of Islamic scholars on Jihad
- Aboul-Enein and Zuhur (2004), p. 3-4
- Ali, Shaheen Sardar; Rehman, Javaid. (Winter, 2005) "The Concept of Jihad in Islamic International Law". Journal of Conflict & Security Law. 10 (3) pp. 321–43.
- Patricia Crone, Encyclopedia of the Qur'an, War article, p.456. Brill Publishers
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- Tasseron, Ella Landau. "Non-combatants in Muslim Legal Thought". Hudson Institute. p. 6. Retrieved 3 July 2011. "Regarding monks, two contradictory opinions are attributed to ShÁfi‘Ð. On one occasion, he accepts the tradition attributed to AbÙ Bakr prohibiting the killing of monks. Their lives are forfeit only if they actively fight against Muslims; but if they assist the enemy in other ways, they are to be punished but not executed. Elsewhere in the same book, ShÁfi‘Ð states that all infidel men without exception must convert to Islam or be killed; all men of the protected religions (ahl al-kitÁb) must pay jizya or be killed. He emphasizes that this rule applies to monks as well and denies the authenticity of the tradition attributed to AbÙ Bakr, which he himself had accepted on another occasion. Alternatively, he explains that even if the tradition from AbÙ Bakr is authentic, this does not mean that monks may not be killed. AbÙ Bakr’s intention, according to ShÁfi‘Ð, was that monasteries be left aside temporarily in order to concentrate on more important military targets first. ShÁfi‘Ð thus concludes that monks are not included in the lists of “non-combatants,” and they most definitely may be fought and killed." An archive of the page is available here
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