Islamic military jurisprudence
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Islamic military jurisprudence consists of the basic religious laws governing warfare and the military conduct of those who participate in it. 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.[citation needed]
For comparison, the article laws of war discusses modern international conventions on the conduct of war.
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[edit] Development of military 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]
- Justness of War (in accordance with God's will)
- 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]
Military rulings regarding war relate to the concept of Jihad, which literally means struggle. When used primarily in the military sense it refers 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]
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
Muhammad gave various injunctions to his forces during his time and adopted attidudes toward the conduct of war. The major ones include the prohibition of killing of non-combatants, the immoral or unjust destruction of livestock, animals, orchards, trees and wells.[1]
[edit] Injunctions by Abu Bakr
Abu Bakr was the first of the Rashidun caliphs who succeeded 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."
These injunctions were honored by Umar as well, during whose reign the Muslims conquered Persian and much of the Byzantine empires.[2]
[edit] Ethics of warfare in the Qur'an
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Patricia Crone states that the basic principle in fighting in Islam is that one should treat other communities as they treat one's own is stated in the Quran.[3] The Quran also declares fighting as legitimate self-defense, by the way of "preemption,[4] for the rescue of fellow believers[5] and for the rightings of wrongs, including punishment of wrongdoers[6]" (those who violate their oath)[7][8][9][10]The Qur'an stresses the need to stop warfare when the circumstances outlined above cease to exist.[11] Although the language can be considered militant, the principle of forgiveness is reiterated in between the assertions of the right to self-defence.[7]
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.[7][9] Ibn Kathir states in his tafsir the following reguarding the sword verse: "Do not wait until you find them. Rather, seek and besiege them in their areas and forts, gather intelligence about them in the various roads and fairways so that what is made wide looks ever smaller to them. This way, they will have no choice, but to die or embrace Islam."[12]
Crone continues that there is only one verse in the Qur'an which seems to endorse war of aggression.[13] However, if read as a continuation of previous verses,[14] it would be concerned with the same oath-breaking of "polytheists".[15][7]
[edit] Commencing hostilities
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Islamic jurisprudence prohibits surprise attacks and invasions. The Quran[16] commands Muslims to make a proper declaration of war prior to taking military action against trangressing enemies. However, this rule is not binding if the adversary has already started the war.[17]
The Quran had similarly commanded Muhammad to give his enemies, who had violated the Treaty of Hudaibiyah, a time period of four months to reconsider their position and negotiate.[18]
Javed Ahmad 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[19] with at least half the power of the enemy.[20][21][22] Some Islamic scholars consider the latter command only for a particular time.[23]
[edit] Ethics of the armed forces
Muslim scholars agree that in order to join Muslim armed forces one must: be an adult, posses a sound mind and body and have no debts. The traditional definition of being an "adult" was puberty or 15 years of age. Furthermore, the individual must enlist of his/her own free will.[1] Scholars are divided on whether women or non-Muslims are eligible to participate as soldiers.
The Quran discourages Muslim armies from displaying pomp and unnecessary boasting when setting out for battle.[24]
During the 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.[25] The mutliation of dead bodies is also prohibited.[26]
[edit] Treatment of non-combatants
Islam expressly prohibits the killing of non-combatant persons during war. These people include those who have not participated in the war.[27], per the statement of Quran,
| “ | So if they withdraw from you, and fight not against you, and offer you peace, then Allah does not give you permission to take any action against them. | ” |
Javed Ghamidi argues that this principle is not just based on the Islamic faith but also founded in customs and reason.[28] Shia scholar Ayatollah Mohammad Taqi Mesbah-Yazdi holds a similar position regarding non-combatants.[29]
[edit] Pillaging and looting
Islam forbids Muslims to harm civilian areas of conquered lands. Islamic law prohibits Muslims from pillaging residential areas, harming the property of non-combatants.[30] The Quran prohibits the destruction of trees, crops, livestock and farmlands.[31][32]
Upon conquest, Islamic law places restrictions upon the financial relationship of the Muslim army and the civilian areas it occupies. The Muslim forces may not loot travellers, doing so is contrary to the spirit of Jihad.[33] Nor do they have the right to use the local facilities of a conquered people without their consent. If such a consent is obtained, the Muslim army is still under the obligation to pay for 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.[34][35]
[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, ransomed, exchanged for Muslim prisoners, or kept in bondage.[36] 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.[37] Some Muslim scholars hold that a prisoner may not be ransomed for gold or silver, but may be exchanged for Muslim prisoners.[38]
Muslim scholars hold that women and children prisoners of war cannot be killed under any circumstances, regardless of their faith,[39] but that 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 Maududi.[40]
[edit] Sexual intercourse with female captives
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Under Sharia law, female captives are allowed and required to have sex with their Muslim captors. This is based in part on the following ayat from the Qur'an:
Yusuf Ali translation: O Prophet! We have made lawful to thee thy wives to whom thou hast paid their dowers; and those whom thy right hand possesses out of the prisoners of war whom Allah has assigned to thee; and daughters of thy paternal uncles and aunts, and daughters of thy maternal uncles and aunts, who migrated (from Makka) with thee; and any believing woman who dedicates her soul to the Prophet if the Prophet wishes to wed her;- this only for thee, and not for the Believers (at large); We know what We have appointed for them as to their wives and the captives whom their right hands possess;- in order that there should be no difficulty for thee. And Allah is Oft-Forgiving, Most Merciful. Qur'an 33:50
Also there is no mention of requiring consent of the female in the Koran [1]
