Islamic military jurisprudence
Part of a series on |
Islamic jurisprudence (fiqh) |
---|
Islamic studies |
Islamic military jurisprudence refers to what has been accepted in
Development of rulings
The first military rulings were formulated during the first century after Muhammad
Jihad (Arabic for "struggle") was given a military dimension after the oppressive practices of the
According to Shaheen Sardar Ali and Javaid Rehman, both professors of law, the Islamic military jurisprudence are in line with rules of modern international law. They point to the dual commitment of Organisation of Islamic Cooperation (OIC) member states (representing most of the Muslim world) to Islamic law and the United Nations Charter, as evidence of compatibility of both legal systems.[2]
Ethics of warfare
Fighting is justified for legitimate self-defense, to aid other Muslims and after a violation in the terms of a treaty, but should be stopped if these circumstances cease to exist.[3][4][5][6] War should be conducted in a disciplined way, to avoid injuring non-combatants, with the minimum necessary force, without anger and with humane treatment towards prisoners of war.[7]
During his life, Muhammad gave various injunctions to his forces and adopted practices toward the conduct of war. The most important of these were summarized by Muhammad's companion and first
O people! I charge you with ten rules; learn them well! 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.[8]
According to
You are going to enter Egypt a land where qirat (money unit) is used. Be extremely good to them as they have with us close ties and marriage relationships. When you enter Egypt after my death, recruit many soldiers from among the Egyptians because they are the best soldiers on earth, as they and their wives are permanently on duty until the Day of Resurrection. Be good to the Copts of Egypt; you shall take them over, but they shall be your instrument and help. Be Righteous to God about the Copts.
These principles were upheld by
On the twentieth of Maskaram, Theodore and all his troops and officers set out and proceeded to the island of Cyprus, and abandoned the city of Alexandria. And thereupon 'Amr the chief of the Moslem made his entry without effort into the city of Alexandria. And the inhabitants received him with respect; for they were in great tribulation and affliction. And Abba Benjamin, the patriarch of the Egyptians, returned to the city of Alexandria in the thirteenth year after his flight from the Romans, and he went to the Churches, and inspected all of them. And every one said: 'This expulsion (of the Romans) and victory of the Moslem is due to the wickedness of the emperor Heraclius and his persecution of the Orthodox through the patriarch Cyrus. This was the cause of the ruin of the Romans and the subjugation of Egypt by the Moslem. And 'Amr became stronger every day in every field of his activity. And he exacted the taxes which had been determined upon, but he took none of the property of the Churches, and he committed no act of spoliation or plunder, and he preserved them throughout all his days.[12]
The principles established by the early Caliphs were also honoured during the
Who could doubt that such goodness, friendship and charity come from God? Men whose parents, sons and daughters, brothers and sisters, had died in agony at our hands, whose lands we took, whom we drove naked from their homes, revived us with their own food when we were dying of hunger and showered us with kindness even when we were in their power.[14]
The early Islamic treatises on
Criteria for soldiering
Muslim jurists agree that Muslim armed forces must consist of debt-free adults who possess a sound mind and body. In addition, the combatants must not be conscripted, but rather enlist of their free will, and with the permission of their family.[16]
Legitimacy of war
Muslims have struggled to differentiate between legitimate and illegitimate wars. Fighting in self-defense is not only legitimate but considered obligatory upon Muslims, according to the Qur'an. The Qur'an, however, says that should the enemy's hostile behavior cease, then the reason for engaging the enemy also lapses.[17]
Defensive conflict
According to the majority of jurists, the Qur'anic casus belli (justification of war) are restricted to aggression against Muslims and fitna—persecution of Muslims because of their religious belief.[18] They hold that unbelief in itself is not the justification for war. These jurists therefore maintain that only combatants are to be fought; noncombatants such as women, children, clergy, the aged, the insane, farmers, serfs, the blind, and so on are not to be killed in war.[18] Thus, the Hanafī Ibn Najīm states: "the reason for jihād in our [the Hanafīs] view is kawnuhum harbā ‛alaynā [literally, their being at war against us]."[18][19] The Hanafī jurists al-Shaybānī and al-Sarakhsī state that "although kufr [unbelief in God] is one of the greatest sins, it is between the individual and his God the Almighty and the punishment for this sin is to be postponed to the dār al-jazā’, (the abode of reckoning, the Hereafter)."[18][20] War, according to the Hanafis, can't simply be made on the account of a nation's religion.[17] Abdulaziz Sachedina argues that the original jihad according to his version of Shi'ism was permission to fight back against those who broke their pledges. Thus the Qur'an justified defensive jihad by allowing Muslims to fight back against hostile and dangerous forces.[21]
Offensive conflict
According to
Some major modern scholars who have rejected the idea of "offensive jihad" include the founder of the
International conflict
International conflicts are armed strifes conducted by one state against another, and are distinguished from civil wars or armed strife within a state.
Declaration of war
The
Conduct of armed forces
During battle the Qur'an commands Muslims to fight against the enemy. However, there are restrictions to such combat. Burning or drowning the enemy is allowed only if it is impossible to achieve victory by other means.[28] The mutilation of dead bodies is prohibited.[29] The Qur'an also discourages Muslim combatants from displaying pomp and unnecessary boasting when setting out for battle.[30]
According to professor Sayyid Dāmād, no explicit injunctions against use of chemical or biological warfare were developed by medieval Islamic jurists as these threats were not existent then. However, Khalil al-Maliki's Book on jihad states that combatants are forbidden to employ weapons that cause unnecessary injury to the enemy, except under dire circumstances. The book, as an example, forbids the use of poisonous spears, since it inflicts unnecessary pain.[31]
Civilian areas
According to all madhhabs, it is not permissible to kill women or children unless they are fighting against the Muslims.
Harming civilian areas and pillaging residential areas is also forbidden,[34] as is the destruction of trees, crops, livestock and farmlands.[35][36] The Muslim forces may not loot travelers, as doing so is contrary to the spirit of jihad.[37] 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 the people financially 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.[34][38]
However, 14th century
It is permissible to set fire to the lands of the enemy, his stores of grain, his beasts of burden—if it is not possible for the Muslims to take possession of them—as well as to cut down his trees, to raze his cities, in a word, to do everything that might ruin and discourage him, provided that the imam deems these measures appropriate, suited to hastening the Islamization of that enemy or to weakening him. Indeed, all this contributes to a military triumph over him or to forcing him to capitulate.
Negotiations
Commentators of the Qur'an agree that Muslims should always be willing and ready to negotiate peace with the other party without any hesitation. According to
Islamic jurisprudence calls for third party interventions as another means of ending conflicts. Such interventions are to establish mediation between the two parties to achieve a just resolution of the dispute.[42]
Ceasefire
In the context of seventh century
If, however, non-Muslims commit acts of aggression, Muslims are free to retaliate, though in a manner that is equal to the original transgression.
Prisoners of war
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, executed, freed, ransomed, exchanged for Muslim prisoners,
Permission to interrogate & torture
However, there are special condition regarding the allowance the conduct of using torture as method of interrogation,
- Ibn Taymiyyah, Hanbalite scholar who has been praised as Mujaddid,Abd al-Aziz Bin Baz, late 19th AD Grand Mufti of Saudi also supported Ibn Taymiyyah fatwa and issued his own fatwa with similar ruling on the basis Zubayr conduct of interrogating Kenana.[54] Ibn Baz highlighted Zubayr conduct were acknowledged and permitted by Muhammad, as Kenana was one of Jewish conspirator in Khaybar.[54] This criminal interrogation procedure exacted by Zubayr towards Kinana were also highlighted by other prominent scholars, such as Ahmad ibn Muhammad al-Thalabi in his work, Tafsir al-Tha'labi[55]
- Shafiʽi school madhhab highlighted another case that were used in Ijma (consensus among scholars) to permit the interrogations towards enemy of the state were including the case when Ali ibn Abi Talib and Zubayr once threaten a polytheist informant spy who are being caught by the 2 Sahabah during the spy journey to inform Mecca about Muslims secret military operation.[56][57][58][59]
This ruling of torturing testified and accepted by Islamic researcher as particular affirmative proposition in certain case against war criminal, which modern time Islamic jurisprudence law theorists agreed on by viewing the measure as the necessity of law upholding, rather than degradation of the rights of the prisoner as human.[56]
Internal conflict
Internal conflicts include "civil wars", launched against rebels, and "wars for welfare" launched against bandits.[24]
During their first civil war, Muslims fought at the
Different views regarding armed 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.[61]
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 travellers, 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.
Some modern commentators have argued that the classical precedent of harsh punishments for rebels engaging in attacks that harmed civilian populations can be taken as evidence that the religious justifications used by
See also
- Islam and war
- Geneva Conventions
- Hague conventions
- Rule of Law in Armed Conflicts Project (RULAC)
- Itmaam-i-hujjat
- Laws of war
- Opinion of Islamic scholars on Jihad
- Islamic Military Counter Terrorism Coalition
Notes
- ^ a b Aboul-Enein and Zuhur (2004), pp. 3–4
- ^ Ali, Shaheen Sardar; Rehman, Javaid. (Winter, 2005) "The Concept of Jihad in Islamic International Law". Journal of Conflict & Security Law. 10 (3) pp. 321–43.
- ^ Encyclopedia of the Qur'an, "War". Brill Publishers, p. 456.
- ^ Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era, University of California Press, p. 45
- ^ a b Sohail H. Hashmi, David Miller, Boundaries and Justice: diverse ethical perspectives, Princeton University Press, p. 197
- ^ Douglas M. Johnston, Faith-Based Diplomacy: Trumping Realpolitik, Oxford University Press, p. 48
- ^ "BBC - Religions - Islam: War".
- ^ ISBN 1-4289-1039-5
- ISBN 978-0-7914-1071-4.
- ^ Encyclopaedia of Islam (2005), p. 204
- ISBN 1-84472-063-2.
- ^ John of Nikiû (c. 600s). "CXX.72-CXXI.3". Chronicle. Retrieved 2010-03-31.
- ^ ISBN 90-411-0241-8.
- ISBN 90-411-0241-8.
- S2CID 143975172.
- ^ Aboul-Enein and Zuhur, pp. 12-13
- ^ a b c d Afsaruddin, Asma (2007). Views of Jihad Throughout History. Religion Compass 1 (1), pp. 165–69.
- ^ ISBN 9780230111608.
- ^ Ibn Najīm, Al-Bahr al-Rā’iq, Vol. 5, p. 76.
- ^ Khaled Abou El Fadl, The Rules of Killing at War: An Inquiry into Classical Sources, p. 152. The Muslim World. Volume 89, Issue 2, April 1999. doi: 10.1111/j.1478-1913.1999.tb03675.x
- ^ ISBN 0-19-511915-0.
- ISBN 978-1-903682-83-8. Archived from the original(PDF) on 2017-07-09. Retrieved 2016-04-21.
- ^ ElSayed Amin, Reclaiming Jihad: A Qur'anic Critique of Terrorism, Kube Publishing (2015), pp. 104-106
- ^ a b Dāmād (2003), p.261
- ^ Maududi (1967), p. 177, vol. 2
- ^ a b Maududi (1998), p. 36
- S2CID 159793899.
- ISBN 9783110824858 – via De Gruyter.
- Sahih Bukhari2613
- ^ Ghamidi (2001), referring to Quran 8:47
- ^ Dāmād (2003), p. 266
- ^ ISBN 9783110824858 – via De Gruyter.
- ISSN 1478-1913.
In classical Muslim doctrine on war, likewise, genuine non-combatants are not to be harmed. These include women, minors, servants and slaves who do not take part in the fighting, the blind, monks, hermits, the aged, those physically unable to fight, the insane, the delirious, farmers who do not fight, traders, merchants, and contractors. The main criterion distinguishing combatants from non-combatants is that the latter do not fight and do not contribute to the war effort.
- ^ a b Maududi (1998), p. 35
- Al-Kamil fi al-Tarikh, Vol. 3, p. 227
- ^ Ali (1991), p. 79, quoting Quran 2:190
- Sahih Bukhari2629
- Sahih Bukhari2705
- ISBN 978-1-59102-587-0.
- ^ L'ornement des âmes et la devise des habitants d'el Andalus: traité de guerre sainte islamique. 1939. p. 195.
- ^ Maududi (1967), p. 151–14, vol. 2
- ^ Abu-Nimer(2000-2001), p. 246.
- ^ Ali (1991), p. 81
- ^ This is the Ayah of the Sword Archived 2007-02-06 at the Wayback Machine by Ibn Kathir
- ^ Brunschvig. 'Abd; Encyclopedia of Islam
- ^ Ibrahim Syed, Education of Muslims in Kentucky Prisons. Louisville: Islamic Research Foundation International
- ^ 'Abu Yusuf Ya'qub Le Livre de l'impot foncier,' translated from Arabic and annotated by Edmond Fagnan, Paris, Paul Geuthner, 1991, pages 301–302. Abu Yusuf (d. 798 CE)
- ^ Patricia Crone (2004), pp. 371-72
- ^ ISBN 9786232790087. Retrieved 16 December 2021.
- ^ The Legal Thought of Jalāl Al-Din Al-Suyūṭī: Authority and Legacy, Page 133 Rebecca Skreslet Hernandez
- Abi Al-Abbas Ahmed Al-Harrani / Ibn Taymiyyah, Taqi Al-Din (2010). Abdel Qader Atta, Muhammad; Abdel Qader Atta, Mustafa (eds.). الفتاوى الكبرى - فتاوى شيخ الإسلام ابن تيمية 1-6 ج3[The Great Fatwas - Fatwas of Sheikh Al-Islam Ibn Taymiyyah 1-6 Part 3] (in Arabic). Dar Al Kotob Al Ilmiyah. p. 521. Retrieved 12 December 2021.
- ^ Mahmud Ibrahim Bakhit, Rajab. تهذيب تاريخ الطبرى [Refining the history of al-Tabari]. ktab INC. p. 213. Retrieved 29 December 2021.
- ^ Ibn Baz, Abd al Aziz. "ما حكم تعذيب المجرم المتهم؟"[What is the ruling on torturing the accused criminal?]. BinBaz.org (in Arabic). Retrieved 11 December 2021.
- ^ al-Tha'labi, Abu Ishaq (2004). Kasrawi Hassan, Sayyid (ed.). Tafsir Al-Thalabi Al-Kashf and Al-Bayan 1-6 Part 5 (in Arabic). Dar al Kotob Ilmiyah. Retrieved 29 December 2021.
- ^ S2CID 159661523. Retrieved 11 December 2021.
- ISBN 9782745101976. Retrieved 29 December 2021.
- ^ Muhammad Qadi, Abd Allah (1989). السياسة الشرعية: مصدر للتقنين بين النظرية والتطبيق : دراسة تأصيلية للوحدة الجامعة بين السياسة والفقه ... [Legitimate politics : a source of codification between theory and practice: A fundamental study of the uniting unity between politics and jurisprudence...] (in Arabic). sn]. p. 90. Retrieved 29 December 2021.
- ISBN 9789793536224. Retrieved 22 December 2021.
20 Kemudian, Imam asy - Syafi'i atas mengemukakan dalilnya , yaitu hadits ' Ali , ujarnya : " Rasulullah telah mengutusku bersama Miqdad dan Zubair . ' Pergilah kalian bertiga dan cegatlah seorang perempuan Setelah kami menjumpai ...
- ^ Madelung (1997), p.179
- ^ a b Abou El Fadl, Khaled. [Commentary: Terrorism Is at Odds With Islamic Tradition]. Muslim Lawyers
References
- Aboul-Enein, H. Yousuf; Zuhur, Sherifa, "Islamic Rulings on Warfare", Strategic Studies Institute, US Army War College, Diane Publishing Co., Darby PA, ISBN 1-4289-1039-5
- Abu-Nimer, Mohammed (2000–2001). "A Framework for Nonviolence and Peacebuilding in Islam". Journal of Law and Religion 15 (1/2). Retrieved on 2007-08-05.
- Ali, Abdullah Yusuf (1991). The Holy Quran. Medina: King Fahd Holy Qur-an Printing Complex.
- ISBN 9781889758879.
- Dāmād, Sayyid Mustafa Muhaqqiq et al. (2003). Islamic views on Human Rights. Tehran: Center for Cultural-International Studies.
- Crone, Patricia (2004). God's Rule: Government and Islam. New York: Columbia University Press.
- OCLC 52901690
- Nicola Melis, Trattato sulla guerra. Il Kitāb al-ğihād di Molla Hüsrev, Aipsa, Cagliari 2002.
- ISBN 0-521-64696-0.
- 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.
- M. Mukarram Ahmed, Muzaffar Husain Syed, ed. (2005). "Encyclopaedia of Islam: Introduction to Islam". Encyclopaedia of Islam. Anmol Publications PVT. LTD. ISBN 81-261-2339-7.
Further reading
- Khadduri, Majid (1955). War and Peace in the Law of Islam. Johns Hopkins Press. ISBN 1-58477-695-1.
- Hashmi, Sohail H., ed. (2002). Islamic Political Ethics: Civil Society, Pluralism, and Conflict. Princeton University Press. ISBN 0-691-11310-6.
- Malik, S. K. (1986). The Quranic Concept of War (PDF). Himalayan Books. ISBN 81-7002-020-4.