Islamic military jurisprudence

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

Development of rulings

See also: Jihad and Muhammad as a general

The first military rulings were formulated during the first century (according to the Hijri calendar). These rulings evolved in accordance with the interpretations of the Quran and recorded traditions of Muhammad. The key themes in these rulings were the justness of war, and the injuction to jihad. The rulings do not cover feuds and armed conflicts in general.

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 the way of Allah 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 becomes important — 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-goverened lands (Dar al-Islam) and non-Muslim lands (Dar al-Harb).

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

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 to Islamic law and the United Nations Charter, as evidence of compatability of both legal systems.

Ethics of warfare

The basic principle in fighting in the Quran is that other communities should be treated like one's own. (Quran 42:41, Quran 22:60, 42:39–42, Quran 2:190, Quran 2:194, Quran 9:36) Fighting is justified for legitimate self-defense, to aid other Muslims (Quran 4:75) and after a violation in the terms of a treaty, (9:13–14) but should be stopped (Quran 2:193, Quran 4:90, Quran 8:39, Quran 9:3) if these circumstances cease to exist. Although the language can be considered militant, the principle of forgiveness is reiterated in between the assertions of the right to self-defence.

Muhammad gave various injunctions to his forces during his time and adopted attidudes toward the conduct of war. His major ones were summarized by Abu Bakr in the form of 10 rules for the Muslim army:

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 during the early expansion of Islam.

Criteria for soldiering

Muslim jurists are in consensus that Muslim armed forces must consist of debt-free adults who posses a sound mind and body. In addition, the combatants must not be conscripted, but rather enlist on their free will, and with the permission of their family. Jurists are divided on whether women or non-Muslims are eligible to participate as soldiers.

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 issued a fatwa lowering the age of the combatants as well as waiving the family's permission as a condition to enlist.

Hostilities

Declaration of war

The Quran (Quran 8:58) 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. This rule, however, is not binding if the adversary has already started the war. 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.

Sunni jurists believe that jihad can be declared by a political leader with the sanction of religious authorities, whereas Shia jurists hold that only a just Imam 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 clerics have refused to categorize the conflict as such, for example the Ottoman Sultan during World War I.

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 with at least half the power of the enemy. (Quran 8:66) Some Islamic scholars consider the latter command only for a particular time.

Conduct of armed forces

The Quran discourages Muslim combatants from displaying pomp and unnecessary boasting when setting out for battle. (Quran 8:47)

In combat

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. The mutliation of dead bodies is also prohibited.

In modern times, Yousef al-Qaradhawi has legitimized the use of suicide bombings if the combatants had no other means of self-defence.

Civilian areas

According to Javed Ghamidi, Islam expressly prohibits the killing of those who have not participated in the war. (Quran 4:90) Javed Ghamidi argues that this principle is not just based on the Islamic faith but also founded in customs and reason. Shia scholar Ayatollah Mohammad Taqi Mesbah-Yazdi holds a similar position regarding non-combatants.

Harming civilian areas, pillaging residential areas is also forbidden, as is the destruction of trees, crops, livestock and farmlands. (Quran 2:190) The Muslim forces may not loot travellers, doing so is contrary to the spirit of Jihad. 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 finanically 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.

Yousef al-Qaradhawi, argues that killing (or suicide bombing) is acceptable if the goal is to repel the invaders of muslim lands. Innocent Muslim civilian deaths, he argues, are unfortunate but permitted in war. He says such killings are martyrdom, and thus acceptable, since they sacrifice themselves for the sake of a higher goal, and that is to please Allah.

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.

Islamic jurisprudence calls for third party interventions as another means of ending conflicts. Such interventions are to establish mediation between the two parties to chieve a just resolution of the dispute.

Ceasefire

In the context of Arabia, the Quran ordained Muslims must restrain themselves from fighting in the months prohibited by pagans and should respect the cease-fire, prohibiting its violation.

If, however, non-Muslims commit acts of aggression, Muslims are free to retaliate, though in a manner that is equal to the original transgression. The famous "sword verse" (Quran 9:5), 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. Ibn Kathir states that the verse implies a hastymission of besieging and gathering intelligence about the enemy, resulting in either death or repentence by the enemy. Crone continues that there is only one verse in the Qur'an which seems to endorse war of aggression. (Quran 9:29) According to Clone, if read as a continuation of previous verses, (9:1–23) it would be concerned with the same oath-breaking of "polytheists". (Quran 9:30}

Prisoners of War

Main article: Prisoners of war in Islam

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. 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. 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. Some Muslim scholars hold that a prisoner may not be ransomed for gold or silver, but may be exchanged for Muslim prisoners.

Muslim scholars hold that women and children prisoners of war cannot be killed under any circumstances, regardless of their faith, 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.

Rebellion

Different views regarding 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. 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 travelers, 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.

See also

• Jihad
• Militant Islam
• Itmaam-i-hujjat
• Laws of war

References

• Ali, Abdullah Yusuf (1991). The Holy Quran. Medina: King Fahd Holy Qur-an Printing Complex. {{cite book}}: Check |first= value (help)
• Ghamidi, Javed (2001). "The Islamic Law of Jihad". Mizan. Dar ul-Ishraq. {{cite book}}: External link in |chapter= (help); Text "OCLC 52901690" ignored (help)
• 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.

External links

• islam Q&A: Treatment of prisoners-of-war in Islam
• Islamtoday.net: Islamic Law and Prisoners of War
• Directives of Islam Regarding Jihad
• hWeb: The Rules of War According to Islam