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.

Development of rulings[edit]

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.[1]

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).[1]

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.[2]

Ethics of warfare[edit]

See also: Islamic ethics

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.[3][4][5][6] The principle of forgiveness is reiterated in between the assertions of the right to self-defense.[3]

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:[7]

According to Tabari, the ten bits of "advise" that Abu Bakr gave was during the Expedition of Usama bin Zayd.[8] Imam Shaffi (founder of the Shaffi school of thought) reportedly did not consider the tradition, about the 10 rules of Abu Bakr as authentic.[9] 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.[10] During the Battle of Siffin, the Caliph Ali stated that Islam does not permit Muslims to stop the supply of water to their enemy.[11] 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:[12]

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:

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:[14]

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,[16] 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.[14]

Criteria for soldiering[edit]

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.[17]

Traditionally, "adults" have been defined as post-pubescent individuals above the age of 15.

Legitimacy of war[edit]

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.[18]

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.[19]

Defensive conflict[edit]

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.[18] Sheikh Abdullah Azzam considers the defense by Muslims of their territory as one of the foremost obligations after faith.[20] 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.[21]

Offensive conflict[edit]

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.[18]

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.[22][23][24]

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".[21]

International conflict[edit]

International conflicts are armed strifes conducted by one state against another, and are distinguished from civil wars or armed strife within a state.[25] 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.[18]

Declaration of war[edit]

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.[26] This rule, however, is not binding if the adversary has already started the war.[27] Forcible prevention of religious practice is considered an act of war.[28]

Conduct of armed forces[edit]

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.[29] The mutilation of dead bodies is also prohibited.[30] The Qur'an also discourages Muslim combatants from displaying pomp and unnecessary boasting when setting out for battle.[31]

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.[32]

Civilian areas[edit]

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,[33] as is the destruction of trees, crops, livestock and farmlands.[29][34] The Muslim forces may not loot travelers, as doing so is contrary to the spirit of jihad.[35] 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.[33][36]

Negotiations[edit]

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.[37]

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.[38]

Ceasefire[edit]

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.[27]

If, however, non-Muslims commit acts of aggression, Muslims are free to retaliate, though in a manner that is equal to the original transgression.[39] 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.[3][5] 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.[40] It is read as a continuation of previous verses, it would be concerned with the same oath-breaking of "polytheists".[3]

Prisoners of War[edit]

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,[41][42] 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.[43] Some Muslim scholars hold that a prisoner may not be ransomed for gold or silver, but may be exchanged for Muslim prisoners.[44]

Women and children prisoners of war cannot be killed under any circumstances, regardless of their religious convictions,[45] 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.

Internal conflict[edit]

Internal conflicts include "civil wars", launched against rebels, and "wars for welfare" launched against bandits.[25]

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.[46]

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.[47]

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.[47]

See also[edit]

Notes[edit]

  1. ^ a b Aboul-Enein and Zuhur (2004), p. 3-4
  2. ^ 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.
  3. ^ a b c d Patricia Crone, Encyclopedia of the Qur'an, War article, p.456. Brill Publishers
  4. ^ Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era, University of California Press, p.45
  5. ^ a b Sohail H. Hashmi, David Miller, Boundaries and Justice: diverse ethical perspectives, Princeton University Press, p.197
  6. ^ Douglas M. Johnston, Faith-Based Diplomacy: Trumping Realpolitik, Oxford University Press, p.48
  7. ^ a b Aboul-Enein, H. Yousuf and Zuhur, Sherifa, Islamic Rulings on Warfare, p. 22, Strategic Studies Institute, US Army War College, Diane Publishing Co., Darby PA, ISBN 1-4289-1039-5
  8. ^ Tabari, Al (1993). The conquest of Arabia. State University of New York Press. p. 16. ISBN 978-0-7914-1071-4 
  9. ^ 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
  10. ^ Joseph Schacht (1959). Origins of Muhammadan jurisprudence. Clarendon Press. p. 145. ISBN 978-1-59740-474-7. "Abu Bakr instructed one of his commanders to lay waste every village where he did not hear the call to prayer." 
  11. ^ Encyclopaedia of Islam (2005), p.204
  12. ^ El Daly, Okasha (2004). Egyptology: The Missing Millennium : Ancient Egypt in Medieval Arabic Writings. Routledge. p. 18. ISBN 1-84472-063-2. 
  13. ^ John of Nikiû (7th century). "CXX.72-CXXI.3". Chronicle. Retrieved 2010-03-31. 
  14. ^ a b Judge Weeramantry, Christopher G. (1997). Justice Without Frontiers. Brill Publishers. p. 136. ISBN 90-411-0241-8. 
  15. ^ Judge Weeramantry, Christopher G. (1997). Justice Without Frontiers. Brill Publishers. pp. 136–7. ISBN 90-411-0241-8. 
  16. ^ Kelsay, J. (March 2003). "Al-Shaybani and the Islamic Law of War". Journal of Military Ethics (Routledge) 2 (1): 63–75. doi:10.1080/15027570310000027. 
  17. ^ Aboul-Enein and Zuhur, p. 12-13
  18. ^ a b c d Afsaruddin, Asma (2007). Views of Jihad Throughout History. Religion Compass 1 (1), 165–169.
  19. ^ Sayyid Abul Ala Maududi, Tafhim al-Qur'an.[1]
  20. ^ Azzam, Abdullah. "DEFENCE OF THE MUSLIM LANDS".
  21. ^ a b Sachedina, Abdulaziz (1988). The Just Ruler In Shi'ite Islam. Oxford University Press US. p. 106. ISBN 0-19-511915-0. 
  22. ^ Sahih Bukhari, 2957, A Muslim ruler is the shield [of his people]. An armed struggle can only be carried out under him and people should seek his shelter [in war].
  23. ^ Ghamidi, Mizan.
  24. ^ Misplaced Directives, Renaissance, Al-Mawrid Institute, Vol. 12, No. 3, March 2002.[2]
  25. ^ a b Dāmād (2003), p.261
  26. ^ Maududi (1967), p. 177, vol. 2
  27. ^ a b Maududi (1998), p. 36
  28. ^ Mohammad, Noor (1985). "The Doctrine of Jihad: An Introduction". Journal of Law and Religion (St. Paul: Journal of Law and Religion, Inc.) 3 (2): 387. doi:10.2307/1051182. 
  29. ^ a b Ali ibn al-Athir, Al-Kamil fi al-Tarikh, Vol.3, p.227
  30. ^ Ghamid (2001), referring to Sahih Bukhari 3016, and Sahih Bukhari 2613
  31. ^ Ghamidi (2001), referring to Quran 8:47
  32. ^ Dāmād(2003), p. 266
  33. ^ a b Maududi (1998), p. 35
  34. ^ Ali (1991), p. 79, quoting Quran 2:190
  35. ^ Ghamidi (2006), refers to Sahih Bukhari 2629
  36. ^ Ghamidi (2001), refers to a hadith "plundered [food] is not better than dead meat [forbidden in Islam]" Sahih Bukhari 2705
  37. ^ Maududi (1967), p. 151-4, vol.2
  38. ^ Abu-Nimer(2000-2001), p. 246.
  39. ^ Ali (1991), p. 81
  40. ^ This is the Ayah of the Sword by Ibn Kathir
  41. ^ Tafsir of the Qur'an by Ibn Kathir [3]
  42. ^ Brunschvig. 'Abd; Encyclopedia of Islam
  43. ^ Ibrahim Syed, Education of Muslims in Kentucky Prisons. Louisville: Islamic Research Foundation International
  44. ^ 'Abu Yusuf Ya'qub Le Livre de l'impot foncier,' translated from Arabic and annotated by Edmond Fagnan, Paris, Paul Geuthner, 1991, pages 301-302. Abu Yusuf (d. 798 CE)
  45. ^ Patricia Crone (2004), pp. 371-72
  46. ^ Madelung (1997), p.179
  47. ^ a b Abou El Fadl, Khaled. [Commentary: Terrorism Is at Odds With Islamic Tradition]. Muslim Lawyers

References[edit]

  • Aboul-Enein, H. Yousuf; Zuhur, Sherifa, "Islamic Rulings on Warfare", Strategic Studies Institute, US Army War College, Diane Publishing Co., Darby PA, ISBN 1-4289-1039-5
  • Abu-Nimer, Mohammed (2000–2001). "A Framework for Nonviolence and Peacebuilding in Islam". Journal of Law and Religion 15 (1/2). Retrieved on 2007-08-05.
  • Ali, Abdullah Yusuf (1991). The Holy Quran. Medina: King Fahd Holy Qur-an Printing Complex. 
  • Dāmād, Sayyid Mustafa Muhaqqiq et al. (2003). Islamic views on Human Rights. Tehran: Center for Cultural-International Studies.
  • Crone, Patricia (2004). God's Rule: Government and Islam. New York: Columbia University Press.
  • Javed Ahmad Ghamidi, Mizan (2001). The Islamic Law of Jihad, Dar ul-Ishraq. OCLC 52901690
  • Nicola Melis, Trattato sulla guerra. Il Kitāb al-ğihād di Molla Hüsrev, Aipsa, Cagliari 2002.
  • Madelung, Wilferd (1997). The Succession to Muhammad: A Study of the Early Caliphate. Cambridge University Press. ISBN 0-521-64696-0. 
  • Maududi, Sayyid Abul Ala (1967). The Meaning of the Quran. Lahore: Islamic publications. 
  • Maududi, Sayyid Abul Ala (1998). Human Rights in Islam. Islamabad: Da'wah Academy. 
  • M. Mukarram Ahmed, Muzaffar Husain Syed, ed. (2005). Encyclopaedia of Islam. Anmol Publications PVT. LTD. ISBN 81-261-2339-7. 
  • Islam Question and Answer, "[4]", Ruling on having intercourse with a slave woman when one has a wife
  • Islam Question and Answer, "[5]", Husband forcing his wife to have intercourse

Further reading[edit]

External links[edit]