Islamic law and the rules of war
By Heba Aly
With the majority of today’s conflicts taking place in Muslim countries or involving Muslim combatants, aid agencies are operating - arguably more than ever before - in situations where Islamic norms govern the terrain in which they work.
Islamic law contains a rich but complex set of rules on the protection of civilians. But can that centuries-old canon be reconciled with modern international humanitarian norms?
This report explores the tension (and overlap) between Islamic jurisprudence and international humanitarian law: reporting on how jihadists are interpreting Islamic edicts, and how humanitarians are using those same principles to further access.
Do humanitarian norms exist in Islamic law?
As one expert of international humanitarian law (IHL) and Islamic law put it: “Islam has always handcuffed its fighters’ hands.”
Islamic norms emphasize restraint and stress the importance of not doing more harm than is necessary to accomplish the goal at hand.
“While according sanction to fighting in self-defence…[the Koran] enjoins concurrently, humanitarian rules of warfare to mitigate the human suffering it inflicts,” writes former Pakistani Foreign Minister Agha Shahi in his book The Role of Islam in Contemporary International Relations.
“Fight in the way of Allah with those who fight with you, and do not exceed the limits,” says the Muslim holy book, the Koran, “surely Allah [God] does not love those who exceed the limits”.
Much like in IHL, “Muslim jurists balanced practical interests against various imperatives,” writes Khaled Abou El Fadl, a professor of Islamic jurisprudence at the University of California, Los Angeles (UCLA). “Muslim juristic discourses were neither purely functional nor moralistic. Even more, they were far from dogmatic or essentialist in nature.”
The actions and statements of the Prophet Muhammad and of the early Caliphs of Islam point to strong humanitarian considerations.
In a famous decree, Abu Bakr al-Siddiq, the first Caliph, told his military commander: “Stop, O people, that I may give you ten rules for guidance on the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies; do not kill a woman, a child, or an aged man; do not cut down fruitful trees; do not destroy inhabited areas; do not slaughter any of the enemies’ sheep, cow or camel except for food; do not burn date palms, nor inundate them; do not embezzle (eg, no misappropriation of booty or spoils of war) nor be guilty of cowardliness…You are likely to pass by people who have devoted their lives to monastic services; leave them alone."
According to Islamic tradition, Muslim rulers have the right and even obligation to suspend the law in the interest of justice. In addition, the evidentiary standards of many Islamic laws are so high that they should, in principle, rarely be implemented.
Still, for Mohammad Fadel, associate professor of law at the University of Toronto, tension sometimes exists between morality and legality; in other words, between “religious values - which tend to be on the more humanitarian side and that’s reflected in popular Muslim discourse - and technical, juridical discourse - which tends to be a lot more abstract and a lot more concerned with philosophical problems”.
Is Islamic law reconcilable with IHL?
It depends on who you speak to. Many scholars, especially those with a contemporary view of Islamic law, see in early Islamic rules of war many roots of modern IHL.
“By affirming the principle of humanity in the midst of war, al-Shaybani and [Imam] al-Awza’I helped pioneer the modern law of armed conflict,” writes the International Committee of the Red Cross, mandated by the Geneva Conventions as the guardian of IHL, referring to early codifiers of Islamic rules of war.
The limits placed on Muslims in the conduct of war “gives to jihad [ holy struggle or war ] an ideological-cum-ethical dimension that is obviously missing from the pre-Islamic practice of war,” writes Kanina Bennoune in the Michigan Journal of International Law. “More than a millennium before the codification of the Geneva Conventions, most of the fundamental categories of protection which the Conventions offer could be found, in a basic form, in Islamic teachings.”
In fact, many of the restrictions placed on combatants by Islamic law go far beyond what is required by IHL, especially in the arena of non-international armed conflict. When Human Rights Watch organized meetings with civil society leaders in the Muslim world to discuss the protection of civilians, “we were not encountering arguments that Islamic law had different standards,” says Joe Stork, deputy director of the Middle East and North Africa division. “If anything, people would stress the congruence of IHL and Islamic law, and perhaps even overstate that congruence.”
One of the basic tenets of Islamic law is that treaties must be respected. As such, some scholars argue that combatants in Muslim countries are religiously bound by the Geneva Conventions signed by their governments. Mainstream Muslim theologians and authorities, including al-Azhar, Saudi Arabia, Iran and Pakistan, all accept the principle of Muslim states and sovereign authorities signing international agreements.
However, neo-classical Muslim scholars - now the minority - who interpret Islam to be fundamentally at war with the non-Muslim world, see Islamic law and international law as inherently irreconcilable.
When is the use of force permissible under Islamic law?
This is perhaps the biggest point of debate in Islamic jurisprudence on the laws of war.
The term jihad, often translated as “holy war”, actually means struggle or exertion. The Prophet Muhammad referred to battle as a “minor jihad” in comparison to the struggle against the evil of one’s soul - self-exertion in personal compliance with the dictates of Islam - which he describes as the “superior jihad”.
Military jihad is the only form of acceptable war in Islam, which prohibits the use of force for material gain or revenge. As such, in the 7th century, the very concept of jihad acted as a primary limitation on the use of violence.
But under which conditions is jihad permissible in Islam?
During the formative period of Islamic law in the 7th and 8th centuries, early Muslim jurists - referred to as the classical scholars - argued that Islam was in a default state of war with the non-Muslim world.
As such, classical scholars argued, if polytheists refused to either convert to Islam or sign a peace treaty with Muslims, the use of force against them was authorized.
While jihad for the purpose of spreading Islam is considered an obligation, collectively, on Muslims, many scholars say in the modern world, this can be done through peaceful means, namely da’wa, or missionary work. Yusuf al-Qaradawi, an influential - though controversial - Muslim
Brotherhood scholar, argues Muslims have many means at their disposal to counter wrongdoing in their own societies, other than war.
As such, the more common contemporary interpretation is that offensive jihad is not legitimate, except in a few circumstances: aggression against Muslims, assistance for victims of injustice (akin to humanitarian intervention), defence of the homeland (including pre-emptive attacks), and guaranteeing security for Islamic missionary activities.
Many chapters of the Koran support this more limited interpretation of the use of force: “If they withdraw from you but fight you not, and (instead) send you (guarantees of) peace, then God hath opened no way for you (to war against them)” (4:90); “But if they (the enemy) incline towards peace, do thou (also) incline towards peace, and trust in God: for He is the One that heareth and knoweth (all things)” (8:61).
The Henry Jackson Society, a UK-based think tank, recently published a handbook of theological refutations of militancy in which it claims there is no religious duty to re-establish an expansionist Islamic state.
Accordingly, non-Muslims should not be attacked simply because of their disbelief - “Let there be no compulsion in religion,” the Koran says - but rather only if they pose a threat to Muslims. Advocates of this interpretation point to Koranic references to fighting in self-defence only.
In his book, Fiqh al-Jihad (the Jurisprudence of War), one of the most seminal texts of modern interpretations of the Islamic laws of war, al-Qaradawi argues jihad cannot be waged to eliminate disbelievers from the earth or force people to convert. Instead, he has a narrower definition of acceptable jihad: “Islam has only justified fighting those who fight them, or aggress against their honor, or seek to disrupt and divide them in religion, or repel them from their homes, or block the path of the Islamic mission (da’wa) and violate their right to spread Islam through proof, argument and clarification or kill their missionaries.”
Upon his return from the last known raid in Islamic history, Prophet Muhammad said: “We have returned from the lesser jihad to embark on the greater jihad,” describing the latter as the fight against inner demons controlling one’s ego.
Can civilians be targeted?
Specific prohibitions on the methods of warfare were given by the Prophet and the first Caliphs (rulers of the Muslim community) to Muslim warriors as they went into battle.
Before departing for the conquest of the Levant, Caliph Abu Bakr told his warriors: “When you meet your enemies in the fight, behave yourself as befits good Muslims…. If Allah gives you victory, do not abuse your advantages and beware not to stain your swords with the blood of one who yields, neither you touch the children, the women, nor the infirm, also men, whom you may find among your enemies.”
However, as mentioned above, scholars disagreed over whether disbelievers could be killed simply for their disbelief or only if they posed a danger to Muslims.
Followers of the former school of thought justified the killing even of women and children disbelievers who refused to either convert to Islam or live under Muslim rule and pay a tax, citing a verse from the Koran: “When the sacred months have passed, slay the idolaters wherever you find them” (9:5). The Prophet is also reported to have said: “I have been commanded to fight mankind until they say ‘There is no God but Allah’.”
But Abdelhamid Kishek, a prominent Sufi sheikh during the jihadist attacks on nightclubs and bars in Egypt in the late 1980s and 1990s, argued this ‘Kill the infidel’ mentality had no basis in Islamic logic: Satan, he told Salafists at the time, promised God that if he was kept alive, he would send Adam, the first Prophet, to Hell. Islam’s purpose was to show people the light. By killing the so-called ‘infidels’ and sending them to Hell, Salafists were not helping God; they were helping Satan.
By the 10th century, according Abou El Fadl, the predominant view was that only those who fought could be killed.
“God does not forbid you to show kindness to unbelievers who do not fight you because of your faith or drive you from your homes,” the Koran says (60:8-9). “Do not promote disorder in the earth after peace has been established” (7:56).
In a 2009 study published in an attempt to “correct” the wrongful ways of some of its adherents, al-Qaeda member Fadil Harun wrote: “I wish to make clear to those who choose random targets purposely causing [innocent] casualties, be they Muslims or non-Muslims: this is not our method.”
One major exception to the general prohibition against targeting civilians is defensive jihad, at which time illegal acts become permissible out of the necessity of protecting Islam from destruction. This parallels the notion of “supreme emergency” put forward by some secular philosophers to justify killings of civilians in order for a society to save itself from the “ultimate threat” of annihilation.
Who is considered a civilian?
Generally speaking, even in the neo-classical interpretation, women, children, peasants, and religious or medical personnel cannot be targeted.
However, civilians can lose their protected status if they take part in the fighting. As in IHL, the definition of direct participation in hostilities (DPH) is hazy.
“Once they carry weapons for fighting, or contribute intelligence, war strategies or suggestions to the army, their status changes from civilians to combatants,” says a 2011 article by Malaysian professors, published in the International Journal of Humanities and Social Science.
According to more extreme interpretations, supporting the enemy even by opinion, propaganda or moral support makes someone a combatant.
In a situation of invasion or occupation, all those associated with the effort, even if not carrying arms, are considered legitimate targets and all Muslim civilians are under obligation to fight to defend the homeland.
Muslims versus non-Muslims
Islamic law distinguishes not only based on status - combatant vs. non-combatant - but also based on identity - Muslim vs. non-Muslim. In some cases, it distinguishes further between fellow “scriptuaries” – Jews and Christians - and other non-Muslims, such as pagans.
Muslims are not supposed to fight other Muslims unless they oppose Muslim rulers because of a diverging, but plausible, interpretation of religious texts.
Just as IHL has a different set of rules for international armed conflicts and non-international armed conflicts, Islamic law differentiates between war among Muslims (non-international armed conflict) and war between the Islamic state and the non-Islamic world (international armed conflict).
Unlike IHL, the rules of war governing conflict between Muslims (internal armed conflict) are stricter than those between Muslims and non-Muslims.
“If Muslims fight one another, the fugitive and wounded may not be dispatched. Muslim prisoners may not be executed or enslaved, and children and women may not be intentionally killed or imprisoned. Imprisoned male Muslims must be released once the fighting, or the danger of continued fighting, ends,” writes Abou El Fadl.
If the Muslim is considered an apostate, as many Muslim governments are labelled by rebels in today’s conflicts, none of these exceptions apply.
But Usama Hasan, a senior researcher in Islamic studies at the Quilliam Foundation, which works to counter extremism, says these restrictions were relevant in ancient and medieval Islamic jurisprudence. “Modern Islamic law would make no distinction between Muslim and non-Muslim: the overriding principles are those of justice and public welfare.”
Destruction of civilian property
In his address to warriors, Caliph Abu-Bakr added: “In your march through the enemy territory, do not cut down the palm, or other fruit-trees, destroy not the products of the earth, ravage no fields, burn no houses…Let no destruction be made without necessity.”
He reportedly went so far as to say that when Muslim armies ran out of food, they should only take food from civilians in enemy territory enough for one meal.
Interpretations shifted over time, with Abu Hanifa, founder of the Hanafi school of Sunni Islam, concluding in the 8th century that everything which fighters could not conquer should be destroyed, including homes, churches, trees, and livestock.
But the overwhelming majority of scholars argued against destruction of property.
Prisoners of war
There is a wide range of opinions on permissible treatment of prisoners of war, with most scholars concluding it is up to the imam or Muslim ruler to decide whether to execute, enslave, exchange, ransom or release them, based on what is in the best welfare of the Muslims. A minority argue killing prisoners is prohibited unless it is impossible to give them safe passage without harming Muslims.
However, one of the Prophet’s hadiths (traditions) was to treat captives well and there are a number of verses in the Koran sending the same message, including Chapter 76, verse 8, which says: “And they feed, for the love of God, the indigent, the orphan and the captive” and Chapter 47, verse 4, which says: “So when you meet in battle those who disbelieve, then smite the necks until when you have overcome them, then make [them] prisoners, and afterwards either set them free as a favor or let them ransom [themselves] until the war terminates.”
Caliph Abu Bakr said: “Treat the prisoners and he who renders himself to your mercy with pity, as Allah shall do to you in your need; but trample down the proud and those who rebel.”
Prohibition against torture
Torture and mutilation are strictly forbidden under Islamic law, regardless of the enemy. The Prophet is reported to have said: “God will torture those who torture people on earth.”
According to Bennoune, except in cases of necessity, the Prophet prohibited killing enemies by burning or drowning, as these methods inflicted unnecessary suffering. But some scholars say that while he opposed “treacherous killing and mutilation”, he allowed Muslims to retaliate in kind against such practices.
In Islam, defensive jihad is considered a collective obligation on all adult men (past the age of puberty). The Taliban’s Code of Conduct, for example, explicitly says: “The deployment of children in Jihadi ranks has its own moral disadvantages which are legally forbidden.” However, in January, a girl less than 10 years old was caught wearing an explosive vest in Afghanistan’s Helmand Province. According to media reports, her brother, a Taliban commander, had forced her to wear it.
Particularly in the context of internal armed conflict (rebellion by Muslims against a Muslim ruler), “Muslim jurists advocate a type of balancing test according to which the possible evils are weighted against the potential good,” writes Abou El Fadl. “This is similar to the notion of proportionality in the Western jus ad bellum tradition, by which the act of resorting to force might be justified if the total good outweighs the total anticipated evil.”
The scholar al-Qaradawi also argues that the harm caused by war must be less than the harm war tries to correct.
Accountability for war crimes
According to Bennoune, Islamic tradition outlines clear standards of responsibility and accountability.
The following hadith encourages fighters to refuse to commit war crimes on the battlefield: “It is obligatory for one to listen to and obey a Muslim ruler’s orders, unless these orders involve disobedience to God; but if an act of disobedience to God is commanded, it is not listened to or obeyed.”
In one example, the Prophet’s companion, Abdullah bin Umar, refused to comply with an alleged order from his commander Khalid bin Walid, one of Islam’s greatest generals, to kill all prisoners since bin Umar saw it as unjust. His decision was later vindicated by the Prophet.
In addition, Bennoune says, fighters who committed “war crimes” during the Prophet’s time were subject to punishment.
After the conquest of Egypt, the son of governor General Amr ibn al-‘As beat an Egyptian Copt without legal justification. Caliph Omar, the Muslim ruler at the time, whipped ibn al-‘As’s son as punishment.
However, according to Fadel, criminal and civil liability only applies if a Muslim power violates the rules of conduct against other Muslims. “Islamic law does not provide any remedial regime for violations of those restraints against non-Muslims. There could be moral blame, but there is no legal liability as such.”
Are aid workers protected?
Humanitarian work in general is validated within Islamic law: the Koran affirms that the needy have a right to aid and that believers must give to the poor, the orphans and the captives “for the countenance of Allah” (76:8-9). For some analysts, this places an obligation on Muslim fighters to either provide aid themselves or allow others to do so.
Under Islamic law, one way to ensure safe passage for aid workers is through a concept known as aman, a pledge of security. Respecting promises made or contracts signed is a very important principle within Islam.
“Both moderates and salafists agree that the concept is valid, but it is a question of negotiating it and making sure that other groups know you are protected by it,” says Andrew March, associate professor of Islamic law at Yale University.
Practically speaking, when groups like Médecins Sans Frontières and the International Committee of the Red Cross negotiate with armed groups for safe access to conflict zones, they are negotiating an aman, even if the specific terminology is not used.
However, different groups may not respect the amans signed by others. As such, aid workers have to ensure they understand what each aman means in each context.
The justification for targeting humanitarian workers, says Fadel, of the University of Toronto, is that “these are just another part of an invading army. They haven’t come here with our permission. They haven’t gotten any sort of formal protection from us.”
What are the sources of Islamic law?
The primary sources of Islamic law are the holy book, the Koran ; the teachings and practices of Prophet Muhammad, the Sunnah; and the military conduct of the Caliphs and military commanders of the time.
However, at times, these sources can be seen to contradict each other. As such, “Islamic law is a jurist’s law,” says Andrew March, associate professor of Islamic law at Yale University. “It is determined by scholars.”
Scholars have translated these sources into a legal system through two recognized methods - Ijma Ulama, the unanimous consensus of scholars, and qiyas, analogical or deductive reasoning – which have themselves become sources of law. Islamic law is also shaped by commentaries and rulings, known as fatwas, by Muslim scholars.
Jurists developed the Islamic law of nations – known as the siyar – to regulate the conduct with non-Muslim states during the rise of Islam. This is the basis of the rules of war, which were first codified by Muslim jurist Mohammad Ibn al-Hassan al-Shaybani in the eight century AD.
How is Islamic law interpreted?
“Islamic law should be understood as a field of debate and disagreement,” says March. “There is usually no single Islamic position on a question.” Rather, the reasoning provided to justify one answer among the range of answers is what gives it more or less credibility, as judged by the Ummah, or Muslim community. The process of interpretation of these sources is called fiqh, or Islamic jurisprudence.
Still, many Muslim fighters misinterpret the Koran, says one Palestinian aid worker who has trained armed groups across the Muslim world on international humanitarian law (IHL), because they do not understand the context in which a particular verse was revealed or because they adopt only the parts of it that suit them.
Interpretations also differ over time. “The way the world was conceived in classical times is very different than the way modern jurists frame it,” says Mohammad Fadel of the University of Toronto’s Faculty of Law. As such, there is debate between those who stick to medieval, literalist interpretations of the jurisprudence, and those who aim to re-interpret it in line with the Islamic scholarly tradition of renewal.
There is much theological debate over whether specific verses of the Koran apply to the Prophet’s time only or to all Muslims forever; and whether they are meant literally or figuratively.
But for many scholars, medieval Islamic jurisprudence has been made obsolete by the Geneva Conventions, which Muslim countries have ratified.
Still, even when legal norms are fairly undisputed, exceptions exist. For example, an illegal act can be permissible under necessity or if it is in the public benefit. Muslims are permitted to eat pork, for example, if dying of starvation.
Finally, there is also a regional dimension - some areas are simply more conservative than others. With states licensing imams, governments are also dabbling in jurisprudence and asserting political control.