IHL and Islamic Law 2

IHL

AND

Muhammad Mushtaq Ahmad

ISLAMIC LAW

♥

 The main object of International Humanitarian Law (IHL) is to limit suffering during war. The rules of IHL, according to the International Court of Justice, are “elementary considerations of humanity”. 1 The fund fundam amen enta tall ru rule less and and pr prin inci cipl ples es of IHL IHL can can be summa summari rize zedd as follows: Restrictions on the means and methods of warfare;  The principle of proportionate use of force; Invi Inviol olab abililit ityy of civi civililian an and and nonnon-co comb mbat atan antt popu popula lati tion on and and property; and Prot Protec ecti tion on of the the woun wounde ded, d, sick, sick, amel amelio iorat rated ed and and capt captur ured ed combatants.2 In this paper a brief description of the rules of Islamic Law about these issues has been given.   

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PART I: JIHAD – ITS MEANING

AND

SCOPE

  The word “ Jihad   Jihad ” is derived from the basic root of  j-h-d , which means struggle or endeavour endeavour3.  Jihad , in turn, means to strive hard; to forbear hardships for a great cause. In the legal lexicon of Islam, the term Jihad has two meanings, one narrower and the other wider. In wider sense, it covers every activity and struggle for making the Lecturer, Faculty of Shariah and Law, International Islamic University, Islamabad The Corfu Channel Case, 1949 ICJ Rep 4 2 See for details: Best, Geoffrey, Humanity in Warfare (Melthve & Co. Ltd. London, 1983); Claude, R. and Weston, B., “Human Human Rights Rights in the World World Commun Community  ity ” (University of Pennsylvania Press, 1992); Roberts, Q. & Gueff R., Documents on (Oxford, d, 198 1982); 2); Manner Manner,, George George,, “The the the Laws Laws of War  War  (Oxfor The Lega Legall Natu Nature re and  and  ”, 27 AJIL Punishments of Criminal Acts of Violence Contrary to the Laws of War ”,  July 1943; Wells, Donald, War Crimes and the Laws of War  (University Press of  America, 1984); Muhammad Munir, Non-Combatant Immunity in Islamic Law and  Public International Law (Unpublished LL.M. Thesis, Faculty of Shariah and Law, International Islamic University, Islamabad, 1996). 3 Ibn Manzur, Lisan al-‘Arab, (Cairo: Dar al Hadith, 2003), vol. 2, p. 24o-41; Hans Wehr, A Dictionary of Modern Written Arabic, (London: Macdonald and Evens Ltd., 1974) p 233 

1

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Word of God supreme. It even includes one’s efforts for purification of his soul, mujahadah. In this sense, it also includes Ijtihad  i.e. striving hard to find out and ascertain the intent of the Lawgiver. 4 In its narrower sense, Jihad is used in the meaning of  Qital (war) i.e. war for the purpose of making the Word of God supreme. 5 In the Qur’an we find both usages of the term. In the chapters (suwar ) of the the Qu Qur’ r’an an that that were were reve reveal aled ed be befo fore re the the Prop Prophe het’ t’ss migration to Madinah, the root  J-h-d  is used in its wider sense.6 The word ‘Jihad’ is used even to denote the overall missionary struggle. 7 In the chapters of the Qur’an that were revealed after the Prophet’s migration migration to Madinah, Madinah, the root  J-h-d  more often than not is used to denote Qital.8 Muslim scholars through the ages have maintained by consensus that Jihad is not confined to armed struggle. There is no notable scholar who denies this. Even scholars who are generally considered ‘rad ‘radic ical al’’ su such ch as Ibn Ibn Taym Taymiy iyah ah have have ackn acknow owled ledge gedd this this wide widerr doctrine of Jihad. Elaborating the meaning of Jihad Ibn Taymiyah states: “Jihad is either performed by heart, such as the intention to offer every sacrifice; or through preaching and calling towards the religion of Islam; or maki making ng the the Trut Truthh clea clearr to the the wrong wrongdo doer erss and and answ answeri ering ng their their object objection ionss and questi questions ons;; or planni planning ng and devisi devising ng means means for the benefits of Islam and Muslims; or by taking part in actual combat. So,  Jihad is obligatory through any possible means.”9

It is also evident that Muslims scholars have been using Jihad as equivalent to Qital. So, for instance, in classical works on Hadith and Fiqh “Kitab al-Jihad ” means the Chapter that deals with the  jus ad  Khudrawi Deeb,   A Dictionary of Islamic Terms, (Beirut: Al-Yamanah Publishing, 1995), p.74-75 5 Ibid. 6 See, for instance, Qur’an, 29:69 7 Qur’an, 25: 52 8 Qur’an, 9:86 9 Ibn Taymiyah, Taqi al-Din Ahmad, al-Siyasah al-Shar‘iyah, (Beirut: Dar al-Fikr, 1983), p 238 4

2

and jus in bello of Islam. Some books (such as al-Jami‘ alSahih of Bukhari) use the phrase “ Kitab al-Maghazi” or the Book of  Wars. It is also well known that the term Maghazi or Ghazwah denoted the wars in which the Prophet personally took part. Another related term is “ al-Siyar ” (such as al-Siyar al-Saghir and alSiyar al-Kabir  of Muhammad b. al-Hasan al-Shaybani). Siyar  is the plural of  Sirah, which literally means conduct, but technically denotes biography of the Prophet or his conduct. The books that dealt with the Islamic  jus ad bellum and  jus in bello were given the name of  Siyar  because these rules were based on the Prophet’s conduct during his wars against his opponents. 10 It is also well known that the earlier treatises on the Sirah of the Prophet were called Maghazi (such as Maghazi Ibn Ishaq). Like every obligatory act in Islamic Law, Qital becomes obligatory when the “cause” (‘illah ) of obligation is found, all the prerequisites (shurut ) are fulfilled and there remains no legal obstacle ( mani‘).11 For instance, when Muslim population of a non-Muslim state is target of religious persecution the cause of obligation is found. However, Qital will become obligatory on Muslims living in Islamic State only when all the prerequisites are fulfilled such as having fulfilled some minimum standard of capability ( istita‘ah). Not only that, there must not be any legal obstacle such as having a peace treaty with the concerned non-Muslim state. 12 bellum

Al-Sarakhsi, Muhammad b. Abi Sahl, Sharh al-Siyar al-Kabir , (Lahore: Maktabah Madaniyah, 1987), vol. 1, p 16 11 John Austin conceived law as “the command of sovereign”. H.L.A. Hart, on the other hand, stressed upon the union of primary and secondary rules. Primary rules are obligation-creating rules, while secondary rules are “right-conferring” rules. These secondary rules include the ‘rules of recognition’, ‘rules of change’ and ‘rules of adjudication’. Professor Imran Ahsan Khan Nyazee sees something similar in Islamic Law. He says that wujub (obligation), nadb (recommendation), karahah (disapproval) and tahrim (prohibtion) are primary rules. Ibahah (permissibility) is a right-conferring rule. Shart  (condition), sabab (cause) and mani‘ (obstacle) are secondary rules that facilitate the working of  ahkam taklifiyah or the primary rules. Law about an obligation can only be understood if  these primary and secondary rules are considered together. (See for details: Nyazee, Theories of Islamic Law , Islamabad: Islamic Research Institute, 1994, pp 103-08) 12 See for details: Muhammad Mushtaq Ahmad, Use of Force for the Right of Selfdetermination in Shari‘ah and International Law – A Comparative Study , Unpublished LLM Thesis, Faculty of Shariah and Law, International Islamic 10

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Majority of the Muslim jurists was of the opinion that the cause of   Jihad is not kufr (disbelief) but muharabah (aggression).13 Burhan alDin al-Marghinani, the author of the famous Hanafi text al-Hidayah, states: “Mere disbelief [in Islam] does not of itself legalise killing. Rather, it is muharabah (aggression) that makes it permissible to kill the muharib (aggressor). That is why, it is not allowed to kill women, children, people of old age, handicapped and others who do not have capability to fight.”14

Moreover, if  kufr were the cause of  Qital then Islamic Law would not have given protection to non-Muslim citizens of Islamic State. And above all, if  kufr  is considered the casue of war, it leads to compulsion in matters of religion and it thus violates the basic Qur’anic dictum “There is no compuslion in matters of religion.” 15 So, Muslims should fight only with those who commit aggression against them. Sarakhsi, one of the greatest jurists of all times 16, states: “The purpose [of the obligation of Jihad] is to protect Muslims [from their opponents] so that they may be able to live good worldly life in accordance with their religion.”17 University, Islamabad, 2006, pp 200-206. 13 Ibn al-Humam, Fath al-Qadir , vol. 4, p 291; Sahnun, ‘Abd al-Salam b. Sa‘id al Tanukhi, al-Mudawwanah al-Kubra, (Damascus: Dar al-Fikr, 1966) vol. 3, p 6; Ibn  Taymiyah, Risalat al-Qital, p 116. Some of the Shafi‘is and Hanbalis considered kufr  (disbelief in Islam) to be the cause of Jihad. (Ibn Rushd, Abu al-Walid Muhammad b. Ahmad, Bidayat al-Mujtahid , vol. 1, p 371) 14 Al-Marghinani Burhan al-Din ‘Ali b. Abi Bakr, al-Hidayah fi Sharh Bidayat alMubtadi, (Beirut: Dar Ihya’ al-Turath al-‘Arabi), vol. 2, p 380 15 Qur’an 2: 256 See for a scholarly analysis of this issue: Muhammad Munir, Public International Law and Islamic International Law: Identical Expressions of  World Order , Islamabad Law Review, 1: 3 & 4, Faculty of Shariah and Law,

Inetrnational Islamic University Islamabad, 372. 16 Abu Bakr Muhammad b. Abi Sahl al-Sarakhsi was one of the most renowned Hanafi jurists. He wrote an outstanding commentary, al-Mabsut , on al-Kafi of alHakim al-Shahid.   Al- Kafi is the summary of the six basic texts of the Hanafi School written by Muhammad bin al-Hasan al-Shaybani. Sarakhsi also wrote a commentary on Shaybani’s al-Siyar al-Kabir . 17 Sarakhsi, Al-Mabsut , (Beirut: Dar al-Ma‘rifah, 1978), vol. 10, p 28 4

PART II: GENERAL PRINCIPLES

FOR THE

CONDUCT

OF

JIHAD

Islamic Law acknowledges the principle of reciprocity. Thus, for instance, fighting in the Inviolable Place ( al-Masjid al-Haram) is initially prohibited. But Qur’an allows it in reciprocity and within the limits of necessity.18 In the same way, fighting in the Sacred Months (al-Ashhur al-Hurum) was initially prohibited but Muslims were allowed to take up arms in self-defence if the opponents attack them violating the sanctity of the Sacred Months. 19 The fuqaha’ have used the principle of reciprocity on a much larger scale. So, even the rates of tarrif and custom duties were determined on the basis of reciprocity.20 But reciprocity alone cannot justify deviation from the norms of the Shari‘ah.21 It is only under the doctrine of necessity that deviation from the norms of the Shari‘ah becomes permissible. Hence, the doctrine of necessity goes hand in hand with that of reciprocity. Necessity is also an acknowledged principle of the Shari‘ah. For instance, eating carrion is generally prohibited. But it becomes permissible in necessity.22 There are several sub-principles related to this general principle. For instance, “Necessity should be kept within its limits.”23 It means that what became permissible due to necessity remains so only up to the limit of necessity. Some other related principles are: Qur’an 2:191 Qur’an 2:194 There are other verses as well that acknowledge this principle. (Qur’an 2:190-91 and 9:36) 20 Sarakhsi while commenting on the rates of custom duties and tariffs on borders remarked: “The matter between us and the non-Muslims is based upon reciprocity. So much so that if they take from us 1/5 th we will also take 1/5 th, and if  they take 1/10th we will take 1/10th.” (Sharh al-Siyar al-Kabir , vol. 3, p 134) 21 Professor Imran Ahsan Khan Nyzaee, an authority on the classical Hanafi texts, states: “[A]lthough reciprocity is an acknowledged principle of Islamic law, no rule of reciprocity can set aside, suspend, or permanently remove a fundamental rule of the Shari‘ah.” (Islamic Law and Human rights, Islamabad Law Review, Faculty of Shariah and Law, International Islamic University Islamabad, Spring/Summer 2003, Vol. 1:1 & 2, p 30) 22 Qur’an 2: 173 23 Commission of Ottoman Jurists, Majallat al-Ahkam al-‘Adliyah, (Lahore: Idarah Islamyat, 1981), Maxim no. 22 18 19

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“A wrong is not avoided by another of the same kind.”24 “What becomes lawful for a reason becomes unlawful when such reason disappears”.25

 These along with the principle of necessity give rise to the principle of proportionality. Moreover, the jurists allow the parties to the conflict to agree on certain rules for the conduct of warfare. Shaybani, the father of  Muslims International Law, mentions many fictitious cases of this kind,26 which shows that it was a common practice in those days to agree what not to do in the conduct of war. 27 Acts prohibited under treaties are forbidden only so long as the treaties are in force, except where the Shari‘ah also prohibits them. This forms the basis for making the provisions of the IHL binding on Muslims.  These general principles run throughout Islamic Law of conduct of  war (adab al-qital).

Part III: THE JUS 3.1

IN

BELLO RESTRAINTS

Inviolability of the

Civilian

IN

ISLAM

Population

and

Property

 The starting point for the anlysis of Islamic injunctions about noncombatant immunity is verse 2:90 of the Qur’an: “Fight in the way of Allah against those who fight against you, but do not commit transgression. Lo! Allah loveth not transgressors.”28

Some Muslim jurists believe that the command “do not commit transgression” implies that Muslims should not initiate hostilities. 29 24 25

Ibid., Maxim no. 25 Ibid., Maxim no. 23

1, pp 200-05 Geneva Conventions and Additional Protocols thereto are modern-day examples of such treaties. 28 Qur’an, 2:190. 29 This interpretation is upheld by Sa‘id b. Jubayr, Abu al-‘Aliyah and Abu al-Hasan al-Basri. (Munir, Non-combatant Immunity, p. 12) 26 27

Sharh al-Siyar al-Kabir , vol.

6

According to other jurists, this command also includes prohibition of  mutilation of the dead bodies of the enemy soldiers and maltreatment of the prisoners of war. 30 Another group of Muslim jurists believes that this command also implies that Muslims must refrain from killing those who are not capable of fighting such as women, children, old people, monks and other non-combatants. 31 They rely on two grounds for their argument. Firstly, the word that occurs in the verse is qatilu (fight), which implies conflict between two people who actively engage in strife and not between one who is a combatant and the other who is a non-combatant.32 Secondly, there are several Prophetic traditions that prohibit killing non-combatants. Bukhari reports on the authority of Ibn ‘Umar that at the time of the conquest of Makkah when the Prophet found deadbody of a woman in the battlefield he exclaimed, “Why was she killed? She was not fighting!” Then he prohibited the killing of women and children. 33 Several other companions reported that the Prophet would not kill women and children in wars and that he prohibited his companions from killing women and children. Muslim reports this prohibition from Ibn ‘Abbas 34, Abu Dawud from Rabah 35 and Ibn Majah from Hanzalah36. Then, there is the famous tradition about the Prophet’s commandments to his commanders. This tradition has been Ibid. These include Abdullah b. ‘Abbas, the Prophet’s cousin whom the Prophet gave the title of  Interpreter of the Qur’an, his decsiple Mujahid and ‘Umar b. ‘Abd alAziz, “the fifth rightly-guided caliph”. See below for details. 32 The basic root od the word is q-t-l ‫ ﻝ ﻝ ﻝ‬from which is the word ‫ ﻘﺎﺘﻝ‬qatala on the meter of  ‫ ﻓﺎﻋﻝ‬fa‘la which is from the group (bab) of  ‫ ﻤﻓﺎﻋﻟﺔ‬mufa‘lah. It is the characteristic of the verbs of this group, according to the Arabic grammar rules, that it always shows participation from two parties. From that group also come mushatamah ‫ ﻝﻝﻝﻝﻝﻝ‬, mukhasamah ‫ ﻝﻝﻝﻝﻝﻝ‬and muqatalah ‫ ﻤﻘﺎﺘﻠﺔ‬. (E. W. Lane,  An Arabic English Lexicon, (Lahore: Suhail Academy, 2003), vol. II, P.2984) 33 Bukhari, Kitab al-Jihad , Hadith no. 2791 34 Ibid., Hadith no. 3377 35 Ibid., Hadith no.2295 36 Ibid., Hadith no. 2832 30 31

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reported by several traditionists from a number of companions that include ‘Abdullah b. Mas‘ud, Anas b. Malik, Samurah, Ya‘la, Buraydah, Shaddad, ‘Imran and Abu Ayyub. 37 This tradition forms the basis of Islamic  jus in bello and that is why Shaybani, the father of Muslims International Law ( siyar ), begins his al-Siyar al-Saghir  with this tradition.38 He also begins with it the chapter on Siyar  in Kitab al-Asl, which is his magnum opus and the primary text of the Hanafi School.39 Among other commandments it includes: “Do not break your pledge, do not mutilate [the dead bodies] and do not kill the children…”

We may also mention the commandments of the successors of the Prophet because for the fuqaha’, especially those of the mainstream Muslims, they form the one of the basic sources of Islamic Law. 40  Thus, Abu Bakr is reported to have instructed the commander of his troops in the following manner: “I enjoin upon you ten injunctions. Remember them: Do not embezzle. Do not cheat. Do not break trust. Do not mutilate. Do not kill a child or an old man or a woman. Do not hew down a date-palm nor burn it. Do not cut down a fruit tree. Do not slaughter a goat or cow or camel except for food… May be, you will pass near

Muslim, Kitab al-Jihad wa al-Siyar , Hadith no. 3261; Tirmidhi, Kitab al-Siyar , Hadith no. 1542; Abu Dawud, Kitab al-Jihad , Hadith no. 2246; Ibn Majah, Kitab al Jihad , Hadith no. 2848 38 Ghazi, Mahmood Ahmad, (tr.) Shorter book on Muslim International Law, with original text of  al-Siyar al-Saghir , (Islamabad: Islamic Research Institute, 1998), p 1 of the Arabic text and p 43 of the English translation. 39 Majid Khaduri, (ed) Kitab al-Siyar wa al-Kharaj wa al-‘Ushr min Kitab al-Asl , (Karachi: Idarat al-Qur’an, 1996), p 93 40 The fuqaha’ differed on the authority of the opinion of a companion. The Shafi‘is did not consider it important and the Hanafis considered it important in the sense that in their opinion it was a valid commentary on the true purport of  Sunnah. However, they unanimously upheld that the consensus of the companions was a binding source of Islamic Law. The commandments of Abu Bakr were strengthened by the consensus of the companions. (See for details: Nyazee, Imran Ahsan Khan, Theories of Islamic Law, pp 147-88) 37

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a people who have secluded themselves in convents; leave them and their seclusion.”41

 The same used to be the instructions of ‘Umar, ‘Uthman, and ‘Ali. Khalid b. al-Walid, the famous general of Islam is also reported to have given the same instruction to his subordinates. 42  The reason for excluding women, children, peasants and tradesmen was their non-combatant status. This underlying cause ( ‘illah) of the rule has been explicitly mentioned by the Prophet’s when he exclaimed, “Why was she killed? She was not fighting!” According to the highly developed method of  qiyas (analogy) in Islamic   jurisprudence the rule can be extended to all classes of noncombatants on the basis of this underlying cause. 43 In Islamic law we do not confine ourselves to enumerating the kinds of noncombatants who are immune, but by analogy this will apply to everyone who do not take part in war. 44 As most of the traditions about the immunity of the non-combatants were authentic and narrated by trustworthy narrators in accordance with the principles of  ‘ilm al-riwayah, all of them accepted these traditions. They differed, however, on the implications of these traditions and the extent to which they qualify the apparently general command in the 9:5: “Then, when the sacred months have passed, slay the idolaters wherever ye find them, and take them [captive], and besiege them, and prepare for them each ambush.”45

So, according to the  Zahiri (Literalist) School, the command in the 9:5 is general that includes each and every non-Muslim; only women and children are exceptions because they have been excluded from Al-Tabari, Ta’rikh al-Umam wa al-Muluk , (Beirut: Dar ‘Ihya’ al-Turath al-‘Arabi, 1994) vol. 3, pp 849-50; al-Shawkani Muhammad b. ‘Ali, Nayl al-Awtar , (Beirut: Dar al-Fikr, 1994), vol. 7, p 249 42 Munir, Non-combatant Immunity, p. 16 43 See for details: Al-Juwayni, ‘Abd al-Malik b. ‘Abdullah (d. 478 H), al-Burhan fi ‘Usul al-Fiqh, (Beirut: Dar ‘Ihya’ al-Turath al-‘Arabi, 2002), vol. 2, pp 28-76. 44 Al-Zuhayli, Wahbah, Athar al-Harb, p 74 45 Qur’an, 9:5 41

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the implications of this general command by the authentic traditions of the Prophet. 46 It may be recalled here that the Zahiri School represented a microscopic minority of Muslims and it is almost extinct now. This school did not believe in extending the rule on the basis of underlying cause. They denied qiyas (analogy) as valid source of law. Moreover, they did not use the opinions of the companions in deriving and extending the law. Almost the same opinion has also been ascribed to al-Shafi‘i. 47 But even al-Shafi‘i is classified among the literalists on the basis of his original strict theory of interpretation. 48  The majority of the jurists believes in the immunity of all those who do not take part in combat ( ghayr muqatilin).49 But they prove this immunity in different ways on the basis of their theories of  interpretation. So, in the opinion of the fuqaha’, other than the Hanafi fuqaha’, the general word ( ‘amm) in the Qur’an is probable from the aspect of meaning ( zanni al-dalalah). In their opinion, even a probable source such as khabar wahid  (narration of one or a few narrators in a generation) or qiyas (analogy) can qualify it. The traditions about the immunity of women and children are khabar  wahid  but they can qualify the general command mentioned in the 9:5. Further qualification can be made through qiyas.

Ibn Hazm, ‘Ali b. Ahmad,  Al-Muhalla bi al-Athar , (Cairo: Idarat al-Taba’ah al Muniriyah, 1934), vol. 7, p. 296-97 47 Al-Ramli, Shams al-Din Muhammad, Nihayat al-Muhtaj li-Sharh al-Minhaj, (Cairo: Dar al-Kutub al-‘Arabiyah, 1967), vol. 7, p 205 48 It has been suggested that the only difference between al-Shafi‘i’s theory and that of the Zahiris is that the former acknowledged the validity of  qiyas and the later denied it. But this difference may be a superficial one because all the examples of  qiyas mentioned in al-Risalah of al-Shafi‘i are those of  qiyas al-ma‘na (analogy on the basis of the meaning of the text, also called dalalat al-nass), which is included in literal methods of extending the rule and the Zahiris accept it to be valid. There is no example in al- Risalah of al-Shafi‘i, which is based on qiyas al-’illah (analogy on the basis of the underlying cause). Nyazee suggests that the later Shafi‘i jurists, particularly Juwayni the master of the famous philosophercum-jurist Ghazali, developed an extended theory of  qiyas that resembled the theory of the majority schools more than it resembled that of al-Shafi‘i himself. See for details: Nyazee, Theories of Islamic Law, pp 177-78. 49 Al-Sarakhsi, al-Mabsut , vol. 10, p 29; Ibn Qudamah, Muwaffaq al-Din,  Al-Mughni fi Fiqh Imam al-Sunnah Ahmad ibn Hanbal al-Shaybani, (Cairo: Dar al-Kutub al-‘Arabiyah, 1962), vol. 8, p 477; Al-Shawkani, Nayl al-Awtar , vol. 7, p. 201 46

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 The Hanafi jurists believed that a general word conveys its meaning (generality) in definitve way. So, specification of a general word can be done only by definitive evidence such as a verse of the Qur’an or a khabar mutawatir  (narration that has been narrated by so many people in each generation that it seems impossible to conceive that so many people may have agreed to fabricate a false report). Once, the general word is qualified by defintive evidence it becomes probable from the aspect of meaning. In other words, further qualification of this word through khabar wahid  or qiyas becomes possible. Now, the general command of 9: 5 has been qualified by the very next verse: “And if anyone of the idolaters seeketh thy protection, then protect him so that he may hear the word of Allah; and afterward convey him to his place of safety. That is because they are a folk who know not.”50

 This verse has qualified the general command mentioned in 9: 5 and gave immuity to a class of non-Muslims, those who seek protection from Muslims ( musta’minin ). Hence, the command in 9: 5 is not defintive. It can be further qualified by khabar wahid  and qiyas. It may be noted here that the rules about Jihad were revealed gradually, which is why the later revelations were more severe and strict in tone. But it in no way suggests that the later revelations abrogated the earlier ones. What it simply means is that initially Muslims were not allowed to take up arms against their oppressors. Later, they were allowed to fight against them. When as a result of  several encounters Muslims were able to destroy the force of the enemies they got into a position where the initiative was in their hands. Now, they were allowed to give the final fatal blow to the enemies. It is important to note that even when Muslims were 50

Qur’an 9: 6 11

allowed to initiate a military campaign it was, in fact, a continuation of the previous hostilities, which were imposed upon Muslims by their opponents.51 After the conquest of Makkah the final verdict about the opponents was declared in 9:5. It must also be appriciated that 9:5 is absolute ( mutlaq) and 2: 190 is conditional ( muqayyad ). Hence, there is no conflict between these verses. The Muslim jurists unanimously hold that if two texts relate to one subject and they explain one rule the absolute will be interpreted in the light of the conditional, i.e., the absolute will also be considered conditional (haml al-mutlaq ‘ala al-muqayyad ). In other words, the command in 9:5 is apprently absolute; but in fact it is conditional; it pertains to those non-believers who impose war on Muslims.  The conclusion is that in the opinion of the overwhelming majority of  the fuqaha’ all calsses of non-combatants enjoy immunity from the effects of war. 3.2 Exceptional Cases

As discussed earlier, non-combatant immunity stems from the fact that the cause for war is aggression ( muharabah) and not disbelief  in Islam (kufr ). When they take part or assist in actual combat they lose the status of being non-combatant and become one of the aggressors. Hence, it becomes legitimate to kill them during combat. In an age when there were no organized armies, every adult male member of the commuity would take part in combat and hence would be considered a potential, if not actual, combatant. On the other hand, women, children and the old would be presumed potential non-combatants. They would be considered combatants only when they would take part in actual combat. In modern time, however, every state has an organised and well-trained army.

51

The Muslim Conduct of State,

p 153 and 182 12

Hence, the presumption about all civilians, male and female, is that they do not take part in combat. 52   The second case in which civilians and non-combatants lose immunity is that of  idtirar  (duress). Thus, the Prophet allowed the night raid (igharah) on enemy even if there was a possibility that women and children could become targeted because they were in close vicinity to the combatants. 53 But again, ‘necessity should be kept within its limits’. So, it will be a prerequisite to establish the absolute necessity of the attack and that the object of attack was a military one and not civilian. Muslim jurists have generally agreed on the issue that if the enemy uses non-combatants as a human shield to protect themselves and attack Muslims then the non-combatants can be killed with combatants, even though there are the Muslim women, children and prisoners of war. Their killing is allowed under necessity. But again necessity has its own limitations.54 Muslim jurists further unanimously agree that there will be no compensation in material terms for the killing of non-combatants in such a situation. 55 3.3 Weapons of Mass Destruction

It is reported that the Prophet used mangonel during the siege of  city of Ta’if, and that he knew that there were women, children and others like them inside the city 56. Hence, according to the majority Munir, Non-combatant Immunity, p. 48 Muslim, Kitab al-Jihad , Hadith no. 4321 54 Mushtaq, Use of Force for the Right of Self-determination, p. 179 Dr. Hamidullah says: “It appears that in classical times of Islam, it was a prevalent practice among non-Muslim to take shelter behind enemy prisoners. I have not found a single instance where Muslims were accused of this cowardly act when they forced their prisoners to fight against their own nation.” ( The Muslim Conduct of  State, p 213) 55 Al-Zuhayli, Wahbah, al-Fiqh al-Islami wa Addilatuhu, (Damascus: Dar al Fikr, 1984), vol. 6, p. 424 See also Art. 51 (7) of Additional Protocol 1 to the Geneva Convention relating to the Protection of victims of International Armed conflicts, 1977) 56 The reason for disagreement is that within the chain of narrators of the above tradition is Abdullah bin Kharash, and it is said about him that his narratioin was not acceptable to the scholars of Hadith. Technically, he was termed as Munkar  (Munir, Nonal-Hadith, i.e., the one whose narration has been rejected. combatant Immunity, p. 57) 52 53

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of jurists the use of mangonel is allowed in war. 57 The reason they provide is that of necessity. Thus, Sarakhsi states that attacking the enemy fort is allowed even if a Muslim captive is there in the fort who may be injured or killed during the attack. His line of argument is: “If we prohibit Muslim army from attacking the fort the result would be that attacking the enemy and dominating them will become impossible because the enemy forts more often than not have some Muslim captives. Moreover, the prohibition of killing a captive is similiar to the prohibition of killing women and children of the enemy. But it is allowed to burn the enemy forts even if it may result in killing women and children. The same is the rule when there is a Muslim captive in the fort.”58

  The use of nuclear weapons, particularly, violates certain basic norms of Islamic and international humanitarian law. 59 These norms are: • Inviolability of civilians and other non-combatants; • Prohibition of indiscriminate attacks; • Prohibition of unnecessary injury to combatants; •  The principle of proportionality; • Inviolability of the territory of neutral states; • Prohibition of long term and widespread damage to environment; and last but not least • Prohibition of the use of poisonous substances. 60 One may add here that, from the perspective of the Shari‘ah, the same holds true of other WMD’s, such as biological and chemical weapons as well as conventional weapons like missiles and bombs. Ibid, p.57-58  Al-Mabsut , vol. 10, p 33 59 Mushtaq, Use of Force for the Right of Self-determination, p. 179 60 See for details:  Advisory Opinion on the Legality of the Use of Nuclear Weapons (WHO Case), ICJ 1996 Rep 66 57 58

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But, as noted above, the principles of reciprocity, necessity and proportionality may allow the use of these weapons. 61 3.4 War Captives 3.4.1 Either Grace or Exchange

Before analysing the rules of Islamic Law regarding the POWs, we will briefly mention the classification of the war captives in the manuals of  Fiqh. Muslim jurists have classified the war captives into three kinds: 1.  Asra (POWs): People captured while they were taking part in actual combat. In other words, they are enemy combatants. 2. Saby : Women and children of the enemy. Older and disabled people. Hermits, monks and 3. ‘Ajazah: priests are also included in this category.   The general rule about war captives is to treat them humanely.  Thus, the Qur’an states the qualities of righteous Muslims as follows: “And [they] feed with food the needy wretch, the orphan and the captive, for love of Him, [Saying]: We feed you, for the sake of Allah only. We wish for no reward nor thanks from you; Lo! We fear from our Lord a day of frowning and of fate”. 62  The Prophet gave the following imperatives on the day of victory of  Makkah:

Mushtaq, Use of Force for the Right of Self-determination, p. 180 Whether or not there may arise a situation where the use of nuclear weapons becomes necessary is doubtful, as indicated by the controversial opinion of the International Court of   Justice (ICJ) on the issue. One thing is certain though: Muslims must strive to possess these weapons if their opponents have them. Defence of  din and ummah is after all a communal obligation ( fard kifayah) of the ummah. The Qur’an is explicit in this regard: “Make ready for them all thou canst of [armed] force and of  horses tethered, that thereby ye may dismay the enemy of Allah and your enemy, and others beside them whom ye know not. Allah knoweth them. Whatsoever ye spend in the way of Allah it will be repaid to you in full, and ye will not be wronged. And if they incline to peace, incline thou also to it, and trust in Allah. Lo! He is the Hearer, the Knower.” (Qur’an, 8: 60-61) 62 Qur’an, 76:8-10. 61

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“Do not attack an injured person; do not follow the one who leaves the battlefield; and do not kill anyone who is captured.’63 Scores of other Prophetic traditions emphasize good treatment of  the POWs.64   The holy Qur’an gives only two options about the war captives: either grace or ransom. “Now when ye meet in battle those who disbelieve, then it is smiting of the necks until, when ye have routed them, then making fast of bonds; and afterward either grace or exchange till the war lay down its burdens.” 65 ‘Grace’ may take the form of gratuitous release. Hence, the Prophet is reported to have released lots of captives gratuitously. 66 This may also take the form of making them citizens of Islamic State. 67 Thus, the Prophet imposed upon the Jews of Khaybar a tax – kharaj – and thereby they became citizens of Islamic State. 68 Similarly, ‘exchange’ may take several forms. It includes exchange of prisoners and release after accepting ransom as well as release for any any other consideration. The Prophet exchanged some of  the prisoners with the opponents. 69 He also accepted ransom for Al-Baladhuri, Futuh al-Buldan, (Cairo: Maktabat al-Nahdah al-Misriyah, 1957) p. 47 One must bear in mind, as Munir says, that these were the rules of war fourteen hundred years ago when revenge was the custom of the day and the victorious people were free to do what they wanted with the conquered subjects. (See Munir, Non-combatant Immunity , p. 3) 64 Muslim, Kitab al-Nadhr , Hadith no. 3099 See also: Ibn Hisham, ‘Abd al-Malik, alSirah al-Nabawiyah, (Beirut: Dar al-Kutub al-Islamiyah, 1994), vol. 2, p 215-17. 65 Qur’an 47:4 66 Eighty POWs were released gratuitously at the eve of the conquest of Makkah. (Muslim, Kitab al-Jihad  Hadith no. 3373; Tirmidhi, Kitab al-Tafsir , Hadith no. 3187; Abu Dawud, Kitab al-Jihad  Hadith no. 2313) Similarly, all of the captives in the Battle of Hawazin as well as Banu al-Mustaliq were freed gratuitously. ( Al-Sirah alNabawiyah, vol. 3, p 231ff and 453ff) 67 It is to be noted that under Islamic Law dhimmi is a free (hurr ) citizen of Islamic State enjoying its protection. 68  Al-Mabsut , vol. 10, p 29 69 Tirmidhi, Kitab al-Siyar , Hadith no. 1493 63

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some of them.70 Some of the prisoners in the Battle of Badr were released on the condition that they would teach writing and reading to ten children. 71 A poet was released on the condition that in future he would not compose blasphemous poems against the Prophet. 72  There are a few instances of the enslavement of the POWs in the lifetime of the Prophet. For example, the Prophet accepted the decision of the arbitrator regarding the enslavement of the women and children of the Jewish tribe Banu Qurayzah. 73 Similarly, a few POWs were decapitated. For examples, all of the combatants of  Banu Qurayzah were killed in accordance with the decision of the arbitrator.74 Decapitation and enslavement are apparently in conflict with the above-mentioned Qur’anic injunction. This caused disagreement among the classical jurists regarding the options available to the government about the POWs. 75 We will discuss this issue in a bit detail. 3.4.2 Decapitation of the War Captives

Some of the scholars say that 47: 4 is not exclusive. 76 It mentions  just two of the options that are available to the Muslim ruler. But this does not seem correct because the word imma (either… or) in the verse makes it exclusive.77 Some jurists were of the opinion that verse 47: 4 has been abrogated by the later general command to kill the non-believers in verse 9: 5. But abrogation is sought for only when reconciliation Ibn Sa‘d, Muhammad b. ‘├sa, al-Tabaqat al-Kubra, (Lahore: Maqbool Academy, 1978), vol. 2, p 22; al-Sirah al-Nabawiyah, vol. 2, p 221 71 Ibid. 72  Al-Sirah al-Nabawiyah , vol. 2, p 228 73 Qur’an 33:26; Bukhari, Kitab al-Maghazi, Ghazwat al-Ahzab, Hadith no. 3804. See also: al-Sirah al-Nabawiyah, vol. 3, pp 187-88 74 Ibid. 75 Abu ‘Ubayd, al-Qasim b. Sallam, Kitab al-Amwal, (Cairo: ar al-Fikr, 1988) p 121; Nayl al-Awtar , vol. 7, p 306; Sharh al-Siyar al-Kabir , vol. 2, p 261 76  Al-Umm, vol. 4, p 68; al-Muhalla, vol. 7, p 309 Al-Dasuqi, Muhammad b. Ahmad, Hashiyah ‘ala al-Sharh al-Kabir , (Cairo: Dar al-Kutub al-‘Arabiyah, 1984), vol. 2, p 169 77 Ibid. 70

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between two texts is not possible. 78 Here, it is obvious that these verses relate to different stages of warfare. Thus, the 9: 5 relates to those polytheists who are at war with Muslims while 47: 4 relates to treatment of the war captives. 79 Moreover, if the cause of Jihad is not kufr  (disbelief) but muharabah (aggression), then those nonMuslims who surrender and who no more take part in hostilities cannot be killed. It must also be noted that the fuqaha’ unanimously hold that saby  (enemy children and women) cannot be killed after captivity. 80 This is true according to the Hanafis, even when these people take part in combat either physically or through their advices and planning. 81 About ‘ajazah (older and disabled people as well as priests and monks) the jurists maintain that if their role in war planning was important they have the status of  asra or POWs. Otherwise, they cannot be decapitated after the end of hostilities. 82  The instances of decapitation from the Prophet’s life are really very few.   The combatants of the Jewish tribe of Banu Qurayzah were decapitated in accordance with the decision of the arbitrator. It is worth noting that not only the arbitrator who was appointed by the  Jews themselves but also he applied the provisions of the Jewish Law on them. 83 Al-Suyuti, Jalal al-Din,  Al-Itqan fi ‘Ulum al-Qur’an, (Karachi: Dar al-Isha‘at, 1986) vol. 2, pp 21-22 79 Al-Tabari, Jami‘ al-Bayan , vol. 26, p 24 80 Sharh al-Siyar al-Kabir , vol. 3, p 196; al-Mudawwanah, vol.3, p 6 This is because the Prophet prohibited the killing of women and children. (Muslim, Kitab al-Jihad , Hadith no. 3261; Tirmidhi, Kitab al-Siyar , Hadith no. 1532) 81  Al-Mabsut , vol. 10, p 64 The majority jurists consider them like ordinary asra in this situation. (Bidayat al-Mujtahid , vol. 1, p 371; al-Umm, vol. 4, p 157) 82 Kasani, Bada’i‘ al-Sana’i‘, vol. 7, p 101 This is the opinion of overwhelming majority of the jurists. Only the Shafi‘i jurists allow their decapitation for the crimes committed before captivity. (Al-Shirazi, Abu Ishaq, al-Muhadhdhab, (Cairo: Dar al-Fikr, 1981), vol. 2, p 233) 83 The Jewish Law says: “When you draw near a city to fight against it, offer terms of peace to it. And if its answer to you is peace and it opens to you, then all the people who are found in it shall do forced labour for you and shall serve you. But if it makes no peace with you, but makes war against you, then you shall besiege it; and when the LORD your God gives it into your hand you should put all its males to the sword, but the women and the little ones, the cattle and everything else in the city, all its spoils, you shall take as booty for yourselves; and you shall enjoy the spoil of your enemy, which the LORD your God has given you.” (Deuteronomy 78

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Among the captives of the Battle of Uhud, only one was decapitated.  This was the same poet who was first captured in Badr but was released on the condition that he would not compose blasphemous poems against the Prophet. He broke his promise. It is well known that in the Arabian society poets played very important role in mobilizing the people. So, this time when he was captured he was decapitated. At the time of the conquest of Makkah the Prophet declared general amnesty for all of the Makkans, except six persons. Among those six, only two were killed. One was ‘Abdullah b. Khatal who initially embraced Islam and the Prophet appointed him on  Zakah collection. He killed his servant and fled to Makkah. There, he bought two girls who would sing songs against the Prophet. He along with one of the girls was killed. The rest were again pardoned. Hence, these were exceptions from the rule and the basis for these exceptions was that those who were decapitated deserved this punishment by virtue of their crime, which they committed before their captivity.84 3.4.3 Enslavement of War Captives

Enslavement was not envisaged by the Shari‘ah. It was an institution that pre-existed the advent of the Prophet. The fuqaha’ have declared unequivocally that ‘original rule in human beings is freedom’.85 Hence, the Shari‘ah allowed slavery only as an exception. It did not at once abolish it altogether for several practical reasons. It, however, not only gave a detailed scheme for its gradual abolition but also ensured religious freedom for slaves

20: 10-14 Revised Standard Version) 84   Athar al-Harb, 436-41. Article 85 of the Geneva Convention III Relative to the   Treatment of Prisoners of War gives the Detaining Power the authority to prosecute a POW for acts committed before hi captivity against the law of the Detaining Power. Article 100 mentions the provisions about awarding death penalty to a POW. 85 Sharh al-Siyar al-Kabir , vol. 4, p 71 19

during the transitional period before the complete abolition of this institution.86 Enslavement of the captives was based on the principles of  reciprocity and necessity.87 If the other party was not ready to exchange POWs and instead enslaved Muslim captives, Islamic State could not take the risk of gratuitous release, as it would have strengthened the enemy. So, instead of keeping them in jails or camps Islamic State distributed the war captives among its citizens so that they may take care of them and in response would get benefit from them. Islamic law, however, ensured certain rights for them in this transitional period. Now, as the world has reached a consensus on outlawing this evil there is no room in the scheme of the Shari‘ah for enslavement of  the war captives. As noted earlier, the jurists allow the parties to the conflict to agree on certain norms for the conduct of warfare by concluding treaties. Acts prohibited under such treaties are forbidden so long as the treaties are in force.   To conclude, there are only two options regarding war captives: either grace or exchange.88

Conclusions Following are some of the important findings of the present astudy: 1. The doctrine of Jihad is not confined to armed struggle only.  Jihad is a lifelong struggle against the evil – even against the evil inclination within one’s own self. Armed struggle is just one aspect of Jihad, although sometimes it becomes the most important aspect of Jiahd. For an analysis of the institution of slavery in Islam see:  Athar al-Harb, pp 44147, Mawdudi, Tafhimat , (Lahore: Islamic Publications, 1978), vol. 2, pp 348-84. See also: al-Mahmasani, Subhi, Hikmat al-Tashri‘ wa Falsafatuh (Karachi, Dar alIsha‘at, n.d.), vol. 2, pp 380ff. 87  Athar al-Harb, 441-47; Non-combatant Immunity , pp 110-11 88 This is also the opinion of some of the prominent students of the companions of  the Prophet. These include al-Hasan al-Basri, Hammad b. Salamah, Mujahid and Muhammad b. Sirin. (Kitab al-Amwal, p 121) 86

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2. The cause of war in Islamic Law is muharabah (aggression) from the other side. Mere disbelif in Islam does not justify war. If the opponents commit muharabah against Muslims, Qital becomes obligatory provided the other conditions are fulfilled and no legal obstacle exists. 3. The primary rule for the conduct of war is that the norms of  the Shari‘ah must be complied with. Islamic Law acknowledges the principle of reciprocity but deviation from the norms of Islamic Law on the basis of reciprocity is not allowed except in case of absolute necessity, and that too within the constraints of necessity. So, propotionality is another parallel principle. Islamic State may conclude treaties with other parties to lay down certain binding rules for the conduct of war. 4. According to overwhelming majority of the Muslim jurists, all persons who do not take part in combat have immunity. They lose their immunity when they take part in actual combat or when it is not possible to distinguish them from the combatants (what is known as “collateral damage”). 5. The use of weapons of mass destruction in general and nuclear weapons in particular violates some of the basic norms of the Shari‘ah regarding the consuct of war. It can be allowed only in case of extreme necessity on the basis of  reciprocity and proportionality. 6. Ordinarily war captives cannot be decapitated. In some exceptional cases, a war captive can be awarded death punishment for a crime committed before his captivity against the captors. Enslavement preexisted Islam. Islamic Law, however, gave a detailed scheme for abolition of slavery. It tolerated enslavement of war captives only on the basis of  reciprocity and necessity. The Qur’anic teachings and the Prophetic conduct clearly lay down that generally there are only two options for war captives. They should either be 21

released gratuitously or after taking some consideration. Muslims are allowed to conclude a treaty with others for making gratuitous release of the war captives obligatory. While in custody the prisoners should be treated humanely.

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