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Islamic military jurisprudence

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[clarification needed] Template:Fiqh-Mil Islamic military jurisprudence consists of the basic laws governing the conduct of the military aspects of jihad (also known as "lesser jihad"). These laws govern actions pertaining to diplomacy and warfare, in accordance with the traditional Islamic code. Military rulings in Islam are derived from interpretations of the Qur'an and the traditions of Muhammad, and vary slightly amongst the different schools of thought.[1]

Islamic military jurisprudence refer to what has been accepted in Fiqh by Ulama as the correct Islamic manner which expected to be obeyed by Muslims, but it may differ with what has been done in Muslim military history.

Development of rulings

See also: Jihad, Muhammad as a general, and Muhammad as a diplomat

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 Quran (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.[2]

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).[2]

Military jurisprudence, over time, has been affected by other factors as well. Hamidullah lists the practices of early caliphs (revered as righteous), consensus amongst Muslim jurists (ijma) and norms established by treaties, pacts and conventions as sources for Islamic military law.[3]

According to Shaheen Sardar Ali and Javaid Rehman, the Islamic military laws are in line with rules of modern international law, although not entirely synonymous. Ali and Rehman also reject the notion that Islamic laws fall short of modern standards and argue that Islamic legal principles can be applied to modern law to build a better order. They point to the dual commitment of Organisation of Islamic Conference (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.[3]

Ethics of warfare

The basic principle in fighting in the Quran 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.[4][5][6][7] Although the language can be considered militant, the principle of forgiveness is reiterated in between the assertions of the right to self-defence.[4]

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 successor and close companion, Abu Bakr, in the form of ten rules for the Muslim army:[8]

Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.

These injunctions were honored by the second caliph Umar, during whose reign (584 – 644) important Muslim conquests took place.[9]

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.[10]

Traditionally, "adults" have been defined as post-pubescent individuals above the age of 15. Due to expediency during the Iran-Iraq war, however, Ruhollah Khomeini (Iran's then supreme political and Islamic leader) issued a fatwa lowering the age of the combatants as well as waiving the family's permission as a condition to enlist.[10]

Legitimacy of war

See also: Defensive jihad and Offensive jihad

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 enemy hostile behavior cease, then the reason for engaging such enemy also lapses.[11]

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 nation's religion. 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.[11]

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.[12][13][14]

Abdulaziz Sachedina argues that the original jihad 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. The Qur'an also requires Muslims to establish just public order, increasing the influence of Islam, allowing public Islamic worship. Although this can be said to be "offensive" jihad it has been complicated by early wars of expansion. Although viewed by Sunni scholars as jihad, under closer scrutiny the hostilities were political in nature. Moreover, the offensive jihad points more to the complex relationship with the "People of the book" than their conversion.[15]

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.[16]

International conflict

International conflicts are armed strifes conducted by one state against another, and are distinguished from civil wars or armed strife within a state.[17] Some classical Islamic scholars, like 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.[11]

Declaration of war

The Quran 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 Quran 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.[18] This rule, however, is not binding if the adversary has already started the war.[19] Forcible prevention of religious practice is considered an act of war.[20]

Sunni jurists believe that jihad can be declared by a political leader with the sanction of religious Islamic authorities. The Shia jurists, however, hold that only a just spiritual leader can declare jihad and ensure that it is conducted in accordance with the principles of justice. Historically, the lack of a central religious authority has created problems with the general acceptance of these declarations. Rulers and other individuals have on occasion declared jihad even when Islamic clerics have refused to categorize the conflict as such. An example of such a declaration was made by the Ottoman Sultan during World War I.[21]

Conduct of armed forces

The Quran discourages Muslim combatants from displaying pomp and unnecessary boasting when setting out for battle.[22]

In combat

During battle the Quran 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.[23] The mutilation of dead bodies is also prohibited.[24]

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 recognized. 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.[25]

Civilian areas

Islam expressly prohibits the killing of those who have not participated in the war.[26] Javed Ghamidi argues that this principle is not just based on the Islamic faith but also founded in customs and reason.[27] Shia scholar Ayatollah Mohammad Taqi Mesbah-Yazdi holds a similar position regarding non-combatants.[28]

Harming civilian areas and pillaging residential areas is also forbidden,[29] as is the destruction of trees, crops, livestock and farmlands.[30][31] The Muslim forces may not loot travellers, as doing so is contrary to the spirit of jihad.[32] 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][34]

Negotiations

Commentators of the Quran agree that Muslims should always be willing and ready to negotiate peace with the other party without any hesitation.Islam does not permit Muslims to reject peace and continue bloodshed.[35]

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.[36]

Ceasefire

In the context of seventh century Arabia, the Quran 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.[37]

If, however, non-Muslims commit acts of aggression, Muslims are free to retaliate, though in a manner that is equal to the original transgression.[38] 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.[4][6] Ibn Kathir states that the verse implies a hastymission of besieging and gathering intelligence about the enemy, resulting in either death or repentance by the enemy.[39] Crone continues that there is only one verse in the Qur'an which seems to endorse war of aggression. However, if read as a continuation of previous verses, it would be concerned with the same oath-breaking of "polytheists".[4]

Prisoners of War

Main article: Prisoners of war in Islam
See also: Islam and slavery

The legal principles governing the treatment of prisoners of war are outlined in the Islamic law (in the traditional schools of Islamic jurisprudence). These principles closely mirror the pre-Islamic norms of society during Muhammad's time.

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

Women and children prisoners of war cannot be killed under any circumstances, regardless of their religious convictions,[44] 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 ma malakat aymanukum. Islamic law does not put an exact limit on the number that can be kept in bondage. It strictly forbids keeping female slaves as a means of sexual enjoyment and luxury according to the Islamic scholar Maududi.[45]

Internal conflict

Internal conflicts include "civil wars", launched against rebels, and "wars for welfare" launched against bandits.[17]

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.[46]

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.[46]

Modern Interpretations

In modern times, Yousef al-Qaradhawi has suggested the legitimate use of suicide bombings against enemy combatants if the defending combatants had no other means of self-defense.[47]

In the context of Israeli-Palestinian conflict, al-Qaradhawi has argued that killing innocent Muslims, being used as human shields by the enemy, is permissible. He considers the sacrifice of a few Muslims, in order to save the entire Muslim community, as a legitimate tactic.[48]

See also

Notes

  1. ^ Aboul-Enein and Zuhur, p. 1-2
  2. ^ a b Aboul-Enein and Zuhur (2004), p. 3-4
  3. ^ a b 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.
  4. ^ a b c d Patricia Crone, Encyclopedia of the Qur'an, War article, p.456. Brill Publishers
  5. ^ Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era, University of California Press, p.45
  6. ^ a b Sohail H. Hashmi, David Miller, Boundaries and Justice: diverse ethical perspectives, Princeton University Press, p.197
  7. ^ Douglas M. Johnston, Faith-Based Diplomacy: Trumping Realpolitik, Oxford University Press, p.48
  8. ^ Aboul-Enein and Zuhur, p. 22
  9. ^ Nadvi(2000), pg. 519
  10. ^ a b Aboul-Enein and Zuhur, p. 12-13
  11. ^ a b c Afsaruddin, Asma (2007). Views of Jihad Throughout History. Religion Compass 1 (1), 165–169.
  12. ^ 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].
  13. ^ Ghamidi, Mizan.
  14. ^ Misplaced Directives, Renaissance, Al-Mawrid Institute, Vol. 12, No. 3, March 2002.[1]
  15. ^ Sachedina, Abdulaziz (1988). The Just Ruler In Shi'ite Islam. Oxford University Press US. p. 106. ISBN 0195119150. {{cite book}}: Cite has empty unknown parameter: |coauthors= (help); line feed character in |publisher= at position 24 (help)
  16. ^ Sayyid Abul Ala Maududi, Tafhim al-Qur'an.[2]
  17. ^ a b Dāmād (2003), p.261
  18. ^ Maududi (1967), p. 177, vol. 2
  19. ^ Maududi (1998), p. 36
  20. ^ Mohammad, Noor (1985). "The Doctrine of Jihad: An Introduction". Journal of Law and Religion. 3 (2). St. Paul: Journal of Law and Religion, Inc.: 387. {{cite journal}}: |access-date= requires |url= (help); Check date values in: |accessdate= (help)CS1 maint: location (link)
  21. ^ Aboul-Enein and Zuhur, p. 5
  22. ^ Ghamidi (2001), referring to Quran 8:47
  23. ^ Ali ibn al-Athir, Al-Kamil fi al-Tarikh, Vol.3, p.227
  24. ^ Ghamid (2001), referring to Sahih Bukhari 3016, and Sahih Bukhari 2613
  25. ^ Dāmād(2003), p. 266
  26. ^ Ghamidi (2001), quoting Quran 4:90||}}
  27. ^ Ghamidi (2001), refers to Sahih Bukhari 3015
  28. ^ http://www.mesbahyazdi.org/english/contact-us/afq/contact4.htm#عمليات%20شهادت%20طلبانه
  29. ^ Maududi (1998), p. 35
  30. ^ Ali (1991), p. 79, quoting Quran 2:190
  31. ^ Ali ibn al-Athir, Al-Kamil fi al-Tarikh, Vol.3, p.227
  32. ^ Ghamidi (2006), refers to Sahih Bukhari 2629
  33. ^ Maududi (1998), p. 35
  34. ^ Ghamidi (2001), refers to a hadith "plundered [food] is not better than dead meat [forbidden in Islam]" Sahih Bukhari 2705
  35. ^ Maududi (1967), p. 151-4, vol.2
  36. ^ Abu-Nimer(2000-2001), p. 246.
  37. ^ Maududi (1998), p.36
  38. ^ Ali (1991), p. 81
  39. ^ This is the Ayah of the Sword by Ibn Kathir
  40. ^ Tafsir of the Qur'an by Ibn Kathir [3]
  41. ^ Brunschvig. 'Abd; Encyclopedia of Islam
  42. ^ Ibrahim Syed, Education of Muslims in Kentucky Prisons. Louisville: Islamic Research Foundation International
  43. ^ '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)
  44. ^ Patricia Crone (2004), pp. 371-72
  45. ^ Tafsir of the Qur'an by Maulana Maududi, Vol. IV, exegesis of verse 33:52
  46. ^ a b Abou El Fadl, Khaled. [Commentary: Terrorism Is at Odds With Islamic Tradition]. Muslim Lawyers
  47. ^ Abdelhadi, Magdi (July 7, 2004). "Controversial preacher with 'star status'". BBC News. Retrieved 2007-05-13. {{cite news}}: Check date values in: |date= (help); Cite has empty unknown parameter: |coauthors= (help)
  48. ^ Yousef al-Qaradhawi, “Al-Qaradhawi Speaks in Favor of Suicide Operations at an Islamic Conference in Sweden,” Middle East Media Research Institute, July 24, 2003.

References

  • Aboul-Enein, H. Yousuf; Zuhur, Sherifa, "Islamic Rulings on Warfare", Strategic Studies Institute, US Army War College, Diane Publishing Co., Darby PA, ISBN 1428910395
  • 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. {{cite book}}: Check |first= value (help)
  • 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
  • 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.
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