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Islamic military jurisprudence

Topic: Religion

 From HandWiki - Reading time: 15 min
Short description: Islamic laws of war
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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, expected to be obeyed by Muslims, in times of war. Some scholars and Muslim religious figures describe armed struggle based on Islamic principles as the Lesser jihad.

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 Islamic Holy scriptures) and Hadith (the recorded traditions, actions (behaviors), sayings and consents of Muhammad). The key themes in these rulings were the justness of war (Harb), 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

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] War should be conducted in a disciplined way, to avoid injuring non-combatants, with the minimum necessary force, without anger and with humane treatment towards prisoners of war.[7]

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:[8]

O people! I charge you with ten rules; learn them well! 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.[8]

According to Tabari, the ten bits of "advice" that Abu Bakr gave was during the Expedition of Usama bin Zayd.[9] During the Battle of Siffin, the Caliph Ali stated that Islam does not permit Muslims to stop the supply of water to their enemy.[10] 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:[11]

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.[12]

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:[13]

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.[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,[15] 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.[13]

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.[16]

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.[17]

Defensive conflict

According to the majority of jurists, the Qur'anic casus belli (justification of war) are restricted to aggression against Muslims and fitna—persecution of Muslims because of their religious belief.[18] They hold that unbelief in itself is not the justification for war. These jurists therefore maintain that only combatants are to be fought; noncombatants such as women, children, clergy, the aged, the insane, farmers, serfs, the blind, and so on are not to be killed in war.[18] Thus, the Hanafī Ibn Najīm states: "the reason for jihād in our [the Hanafīs] view is kawnuhum harbā ‛alaynā [literally, their being at war against us]."[18][19] The Hanafī jurists al-Shaybānī and al-Sarakhsī state that "although kufr [unbelief in God] is one of the greatest sins, it is between the individual and his God the Almighty and the punishment for this sin is to be postponed to the dār al-jazā’, (the abode of reckoning, the Hereafter)."[18][20] War, according to the Hanafis, can't simply be made on the account of a nation's religion.[17] 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

Muhammad ibn Idris ash-Shafi`i (d. 820), founder of the Shafi'i school of thought, was the first to permit offensive jihad, limiting this warfare against pagan Arabs only, not permitting it against non-Arab non-Muslims.[17] This view of al-Shafi'i is mitigated by the fact that an opposite view, in agreement with the majority, is also attributed to al-Shafi'i.[22]

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 conquests, 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]

Some major modern scholars who have rejected the idea of "offensive jihad" include the founder of the Muslim Brotherhood, Hasan al-Banna (1906–1949), the Al-Azhar scholar Muhammad Abu Zahra (1898–1974) who thought that "military jihad is permitted only to remove aggression ('udwân) and religious persecution (fitnah) against Muslims", as well as Syrian scholars Mohamed Said Ramadan Al-Bouti (1929–2013) and Wahbah al-Zuhayli (1932-2015), the latter saying that "peace is the underlying principle of relations between Muslims and non-Muslims. al-Zuhayli maintains that this view is supported by 8:61, as well as 2:208 and 4:94 that establish the principle of international peace. For him, Muslims should be committed to peace and security (on the basis of 4:90 and 60:8)."[23]

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.[24] 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.[17]

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 prior to such a declaration are illegal under the Islamic jurisprudence.[citation needed] 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.[25] This rule, however, is not binding if the adversary has already started the war.[26] Forcible prevention of religious practice is considered an act of war.[27]

Conduct of armed forces

During battle the Qur'an commands Muslims to fight against the enemy. However, there are restrictions to such combat. Burning or drowning the enemy is allowed only if it is impossible to achieve victory by other means.[28] The mutilation of dead bodies is prohibited.[29] The Qur'an also discourages Muslim combatants from displaying pomp and unnecessary boasting when setting out for battle.[30]

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.[31]

Civilian areas

According to all madhhabs, it is not permissible to kill women or children unless they are fighting against the Muslims.[32] The Hanafi, Hanbali, Maliki, and Shafi'i schools forbid killing of those who are not able to fight, including monks, farmers, and serfs, as well as mentally and physically disabled.[32]

Harming civilian areas and pillaging residential areas is also forbidden,[33] as is the destruction of trees, crops, livestock and farmlands.[34][35] The Muslim forces may not loot travelers, as doing so is contrary to the spirit of jihad.[36] 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][37]

Negotiations

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.[38]

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.[39]

Ceasefire

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.[26]

If, however, non-Muslims commit acts of aggression, Muslims are free to retaliate, though in a manner that is equal to the original transgression.[40] 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.[41] It is read as a continuation of previous verses, it would be concerned with the same oath-breaking of "polytheists".[3]

Prisoners of war

Main page: Religion:Prisoners of war in Islam

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, executed, freed, ransomed, exchanged for Muslim prisoners,[42][43] 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.[44] Some Muslim scholars hold that a prisoner may not be ransomed for gold or silver, but may be exchanged for Muslim prisoners.[45]

Women and children prisoners of war cannot be killed under any circumstances, regardless of their religious convictions,[46] but they may be freed or ransomed. Women who are neither freed nor ransomed by their people were to be kept in bondage - also referred to as malakah, however dispute exists among scholars on the term's interpretation. Islamic law does not put an exact limit on the number that can be kept in bondage.[citation needed]

Internal conflict

Internal conflicts include "civil wars", launched against rebels, and "wars for welfare" launched against bandits.[24]

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 to their legal Muslim heirs.[47]

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.[48]

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.

Some modern commentators have argued that the classical precedent of harsh punishments for rebels engaging in attacks that harmed civilian populations can be taken as evidence that the religious justifications used by Islamist groups such as al Qaeda and ISIL are not, in fact, grounded in the Islamic tradition.[48]

See also

  • Islam and war
  • Geneva Conventions
  • Hague conventions
  • Rule of Law in Armed Conflicts Project (RULAC)
  • Itmaam-i-hujjat
  • Laws of war
  • Opinion of Islamic scholars on Jihad
  • Islamic Military Counter Terrorism Coalition

Notes

  1. ↑ 1.0 1.1 Aboul-Enein and Zuhur (2004), pp. 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. ↑ 3.0 3.1 3.2 Patricia Crone, Encyclopedia of the Qur'an, "War". Brill Publishers, p. 456.
  4. ↑ Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era, University of California Press, p. 45
  5. ↑ 5.0 5.1 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. ↑ https://www.bbc.co.uk/religion/religions/islam/islamethics/war.shtml
  8. ↑ 8.0 8.1 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
  9. ↑ Tabari, Al (1993). The conquest of Arabia. State University of New York Press. p. 16. ISBN 978-0-7914-1071-4. https://books.google.com/books?id=VA5Uke7IpHkC&pg=PA16. 
  10. ↑ Encyclopaedia of Islam (2005), p. 204
  11. ↑ El Daly, Okasha (2004). Egyptology: The Missing Millennium : Ancient Egypt in Medieval Arabic Writings. Routledge. p. 18. ISBN 1-84472-063-2. 
  12. ↑ John of Nikiû (c. 600s). "CXX.72-CXXI.3". Chronicle. http://www.tertullian.org/fathers/nikiu2_chronicle.htm. Retrieved 2010-03-31. 
  13. ↑ 13.0 13.1 Judge Weeramantry, Christopher G. (1997). Justice Without Frontiers. Brill Publishers. p. 136. ISBN 90-411-0241-8. 
  14. ↑ Judge Weeramantry, Christopher G. (1997). Justice Without Frontiers. Brill Publishers. pp. 136–37. ISBN 90-411-0241-8. 
  15. ↑ 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. 
  16. ↑ Aboul-Enein and Zuhur, pp. 12-13
  17. ↑ 17.0 17.1 17.2 17.3 Afsaruddin, Asma (2007). Views of Jihad Throughout History. Religion Compass 1 (1), pp. 165–69.
  18. ↑ 18.0 18.1 18.2 18.3 Ahmed Al-Dawoody (2011), The Islamic Law of War: Justifications and Regulations, pp. 78–9. Palgrave Macmillan. ISBN:9780230111608.
  19. ↑ Ibn Najīm, Al-Bahr al-Rā’iq, Vol. 5, p. 76.
  20. ↑ Khaled Abou El Fadl, The Rules of Killing at War: An Inquiry into Classical Sources, p. 152. The Muslim World. Volume 89, Issue 2, April 1999. doi: 10.1111/j.1478-1913.1999.tb03675.x
  21. ↑ 21.0 21.1 Sachedina, Abdulaziz (1988). The Just Ruler In Shi'ite Islam. Oxford University Press US. p. 106. ISBN 0-19-511915-0. 
  22. ↑ H.R.H. Prince, Ghazi Muhammad; Ibrahim, Kalin; Mohammad Hashim, Kamali (2013). War and Peace in Islam: The Uses and Abuses of Jihad. The Islamic Texts Society Cambridge. p. 76. ISBN 978-1-903682-83-8. http://rissc.jo/books/War-Peace-Islam.pdf. 
  23. ↑ ElSayed Amin, Reclaiming Jihad: A Qur'anic Critique of Terrorism, Kube Publishing (2015), pp. 104-106
  24. ↑ 24.0 24.1 Dāmād (2003), p.261
  25. ↑ Maududi (1967), p. 177, vol. 2
  26. ↑ 26.0 26.1 Maududi (1998), p. 36
  27. ↑ 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. 
  28. ↑ Peters, Rudolph (2015). Islam and Colonialism: The Doctrine of Jihad in Modern History. DE GRUYTER MOUTON. p. 20. ISBN 9783110824858. https://www.degruyter.com/view/product/6260. 
  29. ↑ Ghamid (2001), referring to Sahih Bukhari 3016, and Sahih Bukhari 2613
  30. ↑ Ghamidi (2001), referring to Quran 8:47
  31. ↑ Dāmād (2003), p. 266
  32. ↑ 32.0 32.1 Peters, Rudolph (2015). Islam and Colonialism: The Doctrine of Jihad in Modern History. DE GRUYTER MOUTON. p. 21. ISBN 9783110824858. https://www.degruyter.com/view/product/6260. 
  33. ↑ 33.0 33.1 Maududi (1998), p. 35
  34. ↑ Ali ibn al-Athir, Al-Kamil fi al-Tarikh, Vol. 3, p. 227
  35. ↑ Ali (1991), p. 79, quoting Quran 2:190
  36. ↑ Ghamidi (2006), refers to Sahih Bukhari 2629
  37. ↑ Ghamidi (2001), refers to a hadith "plundered [food] is not better than dead meat [forbidden in Islam]" Sahih Bukhari 2705
  38. ↑ Maududi (1967), p. 151–14, vol. 2
  39. ↑ Abu-Nimer(2000-2001), p. 246.
  40. ↑ Ali (1991), p. 81
  41. ↑ This is the Ayah of the Sword by Ibn Kathir
  42. ↑ Tafsir of the Qur'an by Ibn Kathir [1]
  43. ↑ Brunschvig. 'Abd; Encyclopedia of Islam
  44. ↑ Ibrahim Syed, Education of Muslims in Kentucky Prisons. Louisville: Islamic Research Foundation International
  45. ↑ '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)
  46. ↑ Patricia Crone (2004), pp. 371-72
  47. ↑ Madelung (1997), p.179
  48. ↑ 48.0 48.1 Abou El Fadl, Khaled. [Commentary: Terrorism Is at Odds With Islamic Tradition]. Muslim Lawyers

References

  • 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. 
  • Charles, Robert H. (2007). The Chronicle of John, Bishop of Nikiu: Translated from Zotenberg's Ethiopic Text. Merchantville, NJ: Evolution Publishing. ISBN 9781889758879. https://books.google.com/books?id=KgZ-DOr77OQC. 
  • 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 City : 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: Introduction to Islam". Encyclopaedia of Islam. Anmol Publications PVT. LTD.. ISBN 81-261-2339-7. 
  • Islam Question and Answer, "[2]", Ruling on having intercourse with a slave woman when one has a wife
  • Islam Question and Answer, "[3]", Husband forcing his wife to have intercourse

Further reading

External links




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