Islamic military jurisprudence

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This is a sub-article to Islamic jurisprudence and Laws of war.

The rules of war in Islam are the basic religious laws of war governing the military conduct of the mujahideen [those who engage in Islamic holy war–jihad ("struggle")]. These rules are part of a broader Islamic military doctrine encompassed by what some Muslims call "Lesser Jihad." Jihad literally means struggle, and in the context of military conflict is commonly translated as holy war. This article concerns the rules governing military conduct during both defensive Jihad and offensive Jihad. These religious laws are a part of the traditional Islamic code, shar'iah, which is based on traditional interpretations of the Qur'an and the hadith (traditions of Muhammad). Not all Muslims follow the traditional interpretations, and there has been some disagreement between various Islamic authorities about certain details.

For comparison, the article laws of war discusses modern international conventions on the conduct of war.

Contents

[edit] Types of War

  1. Harb is a general Arabic term for war.
  2. Jihad which literally means struggle. When used primarily in the military sense it refer to the fight against unbelievers and requires an official declaration typified by the first struggle in the way of God (Allah) of the Muslim community (Ummah) against oppression from the Meccan Quraish as well as in the subsequent wars of expansion. General armed conflicts and feuds are not covered by the term.[1]

[edit] Development of the Islamic rulings

The official "rulings" about war came into being in the first century and slowly evolved through corrective interpretations of the Quran and Hadith. The key themes were:[1]

  1. Justness of War (in accordance with God's will)
  2. Nature of the Injunction to Jihad

The second theme deals with whom it is binding upon, as "ulema" have categorized Islamic injunctions as indivual as well as collective duties of the Ummah. Hence, the nature of attack becomes important for if the Muslim community is attacked Jihad and becomes incumbent on all Muslims.[1]

Further this law differentiated in respect to the requirements within Muslim goverened lands (Dar al-Islam) and non-muslim lands (Dar al-Harb).[1]

Sunni muslims believe that jihad can be declared by a political leader with the sanction of religious authorities, however the lack of such a central authority has created problems with the general acceptance of these declarations. The Shia hold that only a just Imam can declare jihad because he is infallible and will properly guide and ensure it's justness.[1]

Rulers and other indivuals have on occasion declared jihad even when clerics have refused to categorize the conflict as such, for example the Ottoman Sultan during World War I.[1]

[edit] Code of Conduct under Muhammad

Main article: Muhammad as a general

Muhammad gave various injunctions to his forces during his time and adopted attidudes toward the conduct of war which can be summarized as:[1]

  • No killing of innocents (Non-combatants i.e. Women, children, monks)
  • No wanton destruction of livestock, animals, orchards, trees and wells.

[edit] Injunctions by Abu Bakr

Abu Bakr was the first of the Rashidun caliphs who succeded Muhammad, and he formulated the following policy in the form of 10 rules for the Muslim army setting out to conquer Syria from the Byzantines:[1]

"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."

[edit] Those eligible to fight

Muslim scholars are divided on whether women or non-muslims are eligible to participate as soldiers however the following are agreed upon criteria of eligibility for soldiering:

  1. Adults. Traditionally identified as puberty or by scholars as 15 citing a hadith about Ibn' Umar being barred from the Battle of Uhud when 14 but allowed later when he was 15.[1]
  2. Be of sound mind and body.
  3. Posses a free will to choose to enlist.
  4. Have the permission of their parents.
  5. Be debt free.

It is noted however, that during the Iran-Iraq war, Ruhollah Khomeini issued a fatwa allowing children to participate in the war at a younger age as well as without their parents' permission. This is a feature of Shi'ite jurisprudence where greater scope is given to ijtihad. In Sunni Islam, the above conditions are generally regarded as fixed irrespective of particular circumstances.

[edit] The Permission for war

Javed Ahmed Ghamidi writes in his book Mizan 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 Jihad through arms is to end oppression when all other measures have failed. Islam only allows Jihad to be conducted by a Government[2] with at least half the power of the enemy.[3][4][5] Some Islamic scholars consider the later command only for a particular time.[6]

[edit] Declaration of war

Islam prohibits surprise attacks and invasions. The Quran states,

If thou fearest treachery from any group, throw back (their covenant) to them, (so as to be) on equal terms: for Allah loveth not the treacherous. 8:58

This verse is interpreted to mean that Muslims must make a proper declaration of war prior to taking military action against trangressing enemies. This rule is not binding if the adversary has already started the war.[7]

Furthermore, the Quran recounts the declaration of war of Muhammad to the pagans,

(This is a declaration of) immunity by Allah and His Messenger towards those of the idolaters with whom you made an agreement.

So go about in the land for four months and know that you cannot weaken Allah and that Allah will bring disgrace to the unbelievers. (Quran 9:1-2)

Muslim scholars note that this verse expressly gives the enemies of Muhammad the time period of four months to reconsider their position and negotiate. Muslims are prohibited from opening hostilities without exhausting possibilites for peace.[8]

[edit] Civilians

Islam expressly prohibits the killing of non-combatants, civilian women, children and the elderly, during war. The Quran states "make (them) prisoners, and afterwards either set them free as a favor or let them ransom (themselves) until the war terminates" (Qur'an 47:4). A discussion of the Islamic treatment of enemy prisoners of war can be found below.

[edit] Prisoners of War

The historical legal principles governing the treatment of prisoners of war, in shar'iah, Islamic law, (in the traditional madhabs schools of Islamic jurisprudence), closely mirror the pre-existing norms of society during Muhammad's time[citation needed]. 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, enslaved for the purposes of labor, or sold on the slave market. Female prisoners may be enslaved as Ma malakat aymanukum. 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.

Muslim scholars have traditionally held that women and children prisoners of war cannot be killed under any circumstances, but that they may be freed, ransomed, or enslaved. However, there has been disagreement whether adult male prisoners of war must be executed, must not be executed, or may be executed at the discretion of the appropriate authority:

One traditional opinion holds that executing prisoners of war is strictly forbidden; this is the most-widely accepted view, and one upheld by the Hanafi Maddhab. However, the opinion of the Maliki, Shafi'i, Hanbali and Jafari Maddhabs is that adult male prisoners of war may be executed at the discretion of the Islamic supreme leader, or those legally deputized by him.[citation needed] Conventionally, execution was conditional on the reasonable belief that male prisoners would pose a genuine and immediate threat to the Muslim community if allowed to live. This opinion was also upheld by the medieval Muslim judge, Sa'id bin Jubair (665-714 AD). Taken together, these two views account for virtually all reputable Islamic scholarship that has consider the issue.

The above facts are attested to by a number of scholarly sources coming from medieval and modern, Muslim and non-Muslim sources:

Imam Shafi, said the Imam (supreme leader of the Muslims) is given the choice of killing the prisoners, showing them mercy, ransoming them or keeping them in bondage. This issue has been confirmed and has been proven in our book 'Al Ahkam.' (Tafsir of the Qur'an by Ibn Kathir [4])

Slavery was not abolished by the Koran, but ... only children of slaves or non-Muslim prisoners of war can become slaves, never a freeborn Muslim. (Annemarie Schimmel. Islam: An Introduction. Albani: State University of New York Press, 1992, p. 67)

Male captives might be killed or enslaved, whatever their religious affiliation. (People of the Book were not protected by Islamic law until they had accepted dhimma.) Captives might also be given the choice between Islam and death, or they might pronounce the confession of faith of their own accord to avoid execution: jurists ruled that their change of status was to be accepted even though they had only converted out of fear. Women and children captured in the course of the campaigns were usually enslaved, again regardless of their faith. Nor should the importance of captives be underestimated. Muslim warriors routinely took large numbers of them. Leaving aside those who converted to avoid execution, some were ransomed and the rest enslaved, usually for domestic use. (Patricia Crone. God’s Rule: Government and Islam. New York: Columbia University Press, 2004, pp. 371-72)

It was the custom to enslave prisoners of war and the Islamic state would have put itself at a grave disadvantage vis-a-vis its enemies had it not reciprocated to some extent. By guaranteeing them [male POWs] humane treatment, and various possibilities of subsequently releasing themselves, it ensured that a good number of combatants in the opposing armies preferred captivity at the hands of Muslims to death on the field of battle. (Roger DuPasquier. Unveiling Islam. Islamic Texts Society, 1992, p. 104)

According to the Qur'an a woman who has been captured by force falls in the category of a slave girl (kaniz). And because the Qur'an confines the use of force to the fighting (qital) in the way of God, thus according to the Qur'an a slave girl is that woman who falls in the hands of Muslims as a prisoner during the course of war waged in the way of God. (Maulana Maududi, Rasa'il wa Masa'il 3rd edition, Vol. III, p.102).

"There is no limit to their [slave-girls under custody of one person] numbers...This, however, does not mean that the Divine Law has provided the rich an opportunity to purchase as many slave-girls as they like for their carnal indulgence...the Shariah has allowed only that the women captured in war and whose people do not exchange them for Muslim prisoners or do not ransom them, may be kept as slave-girls...If these have been made a means of sexual enjoyment and luxury by the rich, it is they who are to blame and not the Shariah. (Tafsir of the Qur'an by Maulana Maududi, Vol. IV, exegesis of verse 33:52).

...that one can even...finish off the wounded, or kill prisoners who might prove dangerous to the Muslims...As for the prisoners who are led before the imam, the latter has the choice, as he pleases, of executing them, or making them pay a ransom, for the most advantageous choice for the Muslims and the wisest of Islam. The ransom imposed upon them is not to consist either of gold, silver, or wares, but is only in exchange for Muslim captives... As for the captives, the amir [ruler] has the choice of taking the most beneficial action of four possibilities: the first to put them to death by cutting their necks; the second, to enslave them and apply the laws of slavery regarding their sale and manumission; the third, to ransom them in exchange for goods or prisoners; and fourth, to show favor to them and pardon them. ('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) was a classical jurists from the Hanafi school of jurispudence).

The above discussion on the matter of prisoners of war in Islam concerns the traditional practices and opinions of Muslim warriors and Muslim scholars. Certain Muslims, such as those who reject the hadith literature in its entirely (e.g. Qur'an Aloners) or liberal Muslims may not necessarily agree with the traditional interpretations of Islamic law in general, and Islamic laws concerning prisoners of war in particular. It should furthermore be noted that some militant Islamist movements do in fact agree with the traditional interpretations. For such mujahideen movements, the execution of prisoners of war is a powerful political weapon (particularly in asymmetric warfare), while the ransoming and enslaving of prisoners of wars is a lucrative source of funding for their militant movements as well as a source of personal pleasure. Armed Islamic conflicts in Chechnya and the Sudan, in particular, have in recent times gained international condemnation for kidnapping and ransom schemes and for the international crime of human trafficking.

According to accounts written by Muhammad's followers, after the Battle of Badr, some prisoners were executed for their earlier crimes in Mecca, but the rest were given options: They could convert to Islam and thus win their freedom; they could pay ransom and win their freedom; they could teach 10 Muslims to read and write and thus win their freedom [5]. William Muir wrote of this period:

"In pursuance of Mahomet's commands the citizens of Medina and such of the refugees as possessed houses received the prisoners and treated them with much consideration. 'Blessings be on the men of Medina', said one of these prisoners in later days, 'they made us ride while they themselves walked; they gave us wheaten bread to eat when there was little of it, contenting themselves with dates." [6]

[edit] Modern rules

The 20th Century Muslim scholar, Sayyid Abul Ala Maududi writes,

"...the exegetists and jurists have drawn the principle that those who are non-combatants should not be killed during or after a war."

"'No prisoner should be put to the sword' is a very clear and unequivocal instruction given by the Prophet...'The Prophet has prohibited the killing of anyone who is tied or is in captivity.'"[9]

In regards to the property of the enemy, he writes,

Muslims have been instructed by the Prophet not to pillage or plunder or destroy residential areas, nor harm the property of anyone not fighting. It has been narrated in the Hadith: "The Prophet has prohibited the Believers from loot and plunder" (Bukhari, Abu Dawood)...Booty of war from the battleground is altogether different. It consists of the wealth, provisions and equipment captured from the camps and military headquarters of the combatant armies and may legitimately be appropriated.

Muslims have been prohibited from taking anything from the general public of a conquered country without paying for it. If the Muslim army occupies an area of the enemy country, it does not have the right to use the things belonging to the people without their consent. If the army needs anything, it should purchase it from the local population or should obtain permission from the owners. [10]

Yusuf Ali is another 20th century Muslim scholar, while commenting on verse 2:190, outlines the basic rules of war,

War is permissible in self-defence, and under well-defined limits. When undertaken, it must be pushed with vigour, but not relentlessly, but only to restore peace and freedom for the worship of Allah. In any case strict limits must not be transgressed: women, children, old and infirm men should not be molested, nor trees and crops cut down, nor peace withheld when the enemy comes to terms.[11]

Also, Yusuf Ali writes in commenting verse 9:6 ,

Even those the enemies of Islam, actively fighting against Islam, there may be individuals who may be in a position to require protection. Full asylum is to be given to them, and opportunities provided for hearing the Word of Allah...If they do not see their way to accept Islam, they will require double protection: (1) from the Islamic forces openly fighting against their people, and (2) from their own people, as they detached themselves from them. Both kinds of protection should be ensured for them, and they should be safely escorted to a place where they can be safe. [12]

[edit] Cease-fire

In pre-Islamic Arabia, there were customs in which fighting during several months and places was forbidden. The early Muslims successfully executed a surprise raid on a Meccan caravan during the sacred month of Rajab. Mohammed initially condemned this act, which stirred up much ill will with the indigenous tribes. This is widely accepted as the origin of the Quranic verse 2:217:

They ask you concerning fighting in the Sacred Months. Say, "Fighting therein is a great (transgression) but a greater (transgression) with Allâh is to prevent mankind from following the Way of Allâh, to disbelieve in Him, to prevent access to Al-Masjid-al-Harâm (at Makkah), and to drive out its inhabitants, and Al-Fitnah is worse than killing. (cont.) 2:217

Although this verse recognises that fighting in the Sacred Months is wrong, it places disbelief and Al-Fitnah as graver sins, leaving the issue open to subjective interpretation.

The prohibited month for the prohibited month,- and so for all things prohibited,- there is the law of equality. If then any one transgresses the prohibition against you, Transgress ye likewise against him. But fear Allah, and know that Allah is with those who restrain themselves. Quran 2:194

In commenting on this verse, Yusuf Ali states that Muslims must restrain themselves in prohibited months and should respect the cease-fire. If, however, non-Muslim commit acts of aggression, Muslims are free to retaliate, though in a manner that is equal to the original transgression.[13]

Islam also prohibits treachery (as to break a treaty or to violate a cease-fire).[14]

In his tafsir of the Quran, Maududi writes,

When the enemy desires to have a talk with you for peace, you should be willing and ready to negotiate with the other party without any hesitation. Do not reject the offer on the plea that the other party is not sincere and has treacherous intentions...it will be wrong to reject it [peace offer] and continue bloodshed.[15]

[edit] Ethics of warfare in the Qur'an

Patricia Crone in Encyclopedia of the Qur'an states that the basic principle in fighting in Islam is that one should treat other communities as they treat one's own. (see 42:41, 22:60, 42:39-42, 2:190, 2:194, 9:36). Fighting is declared legitimate in self-defense, by the way of "preemption (9:8;cf 60:2), for the rescue of fellow believers (4:75) and for the rightings of wrongs, including punishment of wrongdoers" (those who violate their oath) (9:13-14) [16] [17] [18] [19]Everywhere in the Qur'an it is stressed that one must stop when they do (see for example 2:193, 4:90, 8:39, 9:3). Although the language is often extremely militant, the principle of forgiveness is reiterated in between the assertions of the right to self-defend. [16]

Crone states that the famous "sword verse" (9:5), is directed against a particular group accused of oath-breaking and aggression and excepts those polytheists who remained faithful. 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. [16] [18]

Crone continues that there is only one verse in the Qur'an which seems to endorse war of aggression: See Qur'an 9:29, however if read as a continuation of previous verses (9:1-23), it would be concerned with the same oath-breaking of "polytheists" (cf. Qur'an 9:30). [16]

[edit] Quotes from the Qur'an and Hadith

From the Qur'an:

  • Fight in the cause of Allah those who fight you, but do not transgress limits; for Allah loveth not transgressors. - 2:190
  • O ye who believe! when ye meet the Unbelievers in war, never turn your backs to them. 8:15
  • And fight them on until there is no more tumult or oppression, and there prevails justice and faith in Allah altogether and everywhere. But if they cease, verily Allah doth see all that they do. 8:39
  • But if the enemy incline towards peace, then you (also) incline towards peace, and trust in Allah: for He is One that hears and knows (all things). 8:61
  • ... We ordained for the Children of Israel that if any one slew a person - unless it be for murder or for spreading mischief in the land - it would be as if he slew the whole people: and if any one saved a life, it would be as if he saved the life of the whole people. - 5:32
  • So when the sacred months (of cease-fire) have passed away, then slay the idolaters wherever you find them, and take them captives and besiege them and lie in wait for them in every ambush, then if they repent and keep up prayer and pay the poor-rate, leave their way free to them; surely Allah is Forgiving, Merciful. And if one of the idolaters seek protection from you, grant him protection till he hears the word of Allah, then make him attain his place of safety; this is because they are a people who do not know. 9:5 (The idolaters referred to in this verse is a group among the idolaters in Mecca who had made an agreement of mutual protection with Muslims and then later conspired against Muslims, thus breaking the agreement.)[citation needed]

From the hadith:

  • "You are neither hard-hearted nor of fierce character, nor one who shouts in the markets. You do not return evil for evil, but excuse and forgive." - Bukhari, Volume 6, Book 60, Number 362
  • "Do not kill any old person, any child or any woman" (Abu Dawud).
  • "Do not kill the monks in monasteries" or "Do not kill the people who are sitting in places of worship" (Musnad of Ibn Hanbal).

[edit] See also

[edit] References

  1. ^ a b c d e f g h i Aboul-Enein, H. Yousuf and Zuhur, Sherifa,"Islamic Rulings on Warfare", Strategic Studies Institute, US Army War College, Diane Publishing Co., Darby PA, ISBN 1428910395
  2. ^ 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].
  3. ^ Qur'an 8:66, ...if there are a hundred patient ones of you they shall overcome two hundred, and if there are a thousand they shall overcome two thousand by Allah's permission, and Allah is with the patient.
  4. ^ Javed Ahmed Ghamidi, Mizan, The Islamic Law of Jihad , Dar ul-Ishraq, 2001. OCLC: 52901690 [1]
  5. ^ Misplaced Directives, Renaissance, Al-Mawrid Institute, Vol. 12, No. 3, March 2002.[2]
  6. ^ Sayyid Abul Ala Maududi, Tafhim al-Qur'an.[3]
  7. ^ Maududi (1998), p. 36
  8. ^ Maududi (1967), p. 177, vol. 2
  9. ^ Maududi (1998), p. 34
  10. ^ Maududi (1998), p. 35
  11. ^ Ali (1991), p. 79
  12. ^ Ali (1991), p. 498
  13. ^ Ali (1991), p. 81
  14. ^ Maududi (1998), p.36
  15. ^ Maududi (1967), p. 151-4, vol.2
  16. ^ a b c d Patricia Crone, Encyclopedia of the Qur'an, War article, p.456
  17. ^ Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era, University of California Press, p.45
  18. ^ a b Sohail H. Hashmi, David Miller, Boundaries and Justice: diverse ethical perspectives, Princeton University Press, p.197
  19. ^ Douglas M. Johnston, Faith-Based Diplomacy: Trumping Realpolitik, Oxford University Press, p.48

[edit] References

  • Ali, Abdullah Yusuf (1991). The Holy Quran. Medina: King Fahd Holy Qur-an Printing Complex.
  • 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.

[edit] External links

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