Islam, Law and War

SQNLDR (ret) Hyder Gulam Registered Nurse, Mediator, Barrister and Solicitor

BA, BN, LLB, LLM (ANU), LLM (Melb), MBA, FRCNA

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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.

(Caliph Abu Bakr - The 1st Caliph after Prophet Muhammad’s (PBUH) death)

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Aims• Explain Islamic concepts of

War • Rules of Warfare • Comparison with IHL

Chronology• Mecca, Medina and Hijra • The Battle of Badr • The Battle of Uhud • The Battle of al-Khandaq (Al-Ahzab) (the trench) • Peace of Hudaybiyah • Conquest of Mecca. • The Persian and Byzantine Empires • …the Ottoman Empire… • Henry Dunant & the Red Cross

Classic Islamic Scholarship• World divided into two distinct spheres. • Dar al-Harb (abode of war): region where Islam did not

dominate, continuing strife was the norm. • Dar al-Islam (abode of peace): region where submission to

God was observed, peace and tranquillity. • Legal, rather theological foundation - nature of the Government

which had control over territory. • For example, Muslim-majority nation not ruled by Islamic law -

dar al-Harb. • Muslim minority nation ruled by Islamic law - dar al-Islam.

Classic Islamic Scholarship - cont

• Terms not found in the Quran or hadith. • Similar spheres found in Medieval Christian theology -

division of the Earth into two cities: civitas terrenae (order of things to Earth), Civitas dei (ordered to God).

• Third category was dar al-Sulh (house of treaty). • Not under Muslim control, but agreement to practice religion,

and security for believers.

The Quran• Generally two periods of revelation. • Meccan - Verses taught patience, forgiveness and restraint. • Medinan - development of permission to use force in self-

defence, due to hostility against Muslims. • Tensions between the two periods? Abrogation? • God’s words cannot be abrogated. Need to look at the context of

the verse - historically and textually. • Three distinct triggers for the use of force: To stop fighting, protect mission of Islam, and to defend religious

freedom.

In context:• Sura 8.12 “Remember thy lord has inspired the angels with the

message. Give firmness to the believers and instill terror into the hearts of the unbelievers. Smite them above their necks and smite the fingertips of them.”

• Sura 8 is about the Battle of Badr. • Sura 9.5 "When the sacred months have passed, kill the idolaters

where ever you find them.” • Sura 9 - Why leave out verse 4 and 6? Verse 4 says, "But the treaties

are not dissolved with those Pagans with whom you have entered into alliance and who have you subsequently failed you in aught, nor aided anyone against you. So fulfill your engagements with them to the end of their term: for God Loves the righteous."

• Sura 47.4 "When you encounter the unbelievers, Strike off their heads. Until you have made a wide slaughter among them tie up the remaining captives.”

• Sura 47 was revealed during the first year of Hijrah when the Muslims were under threat of invasion from Mecca.

Disingenuous to quote out of contextThe Holy Bible - Matthew 10:34 and Deuteronomy 20:13-16 • Do not suppose that I have come to bring peace to the earth, but a

sword. • 13 - When God your Lord gives it over into your hand, you shall then

strike down its [adult] males by the sword. • 14 - However, the women, children, animals, and all the goods in the

city, you shall take as your spoils. You shall thus consume the spoils that God your Lord gives you from your enemies…

• 16 - However, when dealing with the cities of these nations, which God your Lord is giving you as hereditary territory, you shall not allow any people to remain alive

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Sura Al-Hajj (The Pilgrimage)

• 22:40 Permission to fight is given to those against whom war is made, because they have been wronged - and God indeed has power to help them.

• 22:41 Those who have been driven out from their homes unjustly only because they said, 'Our Lord is Allah' - And if God did not repel some men by means of others, there would surely have been pulled down cloisters and churches and synagogues and mosques, in which the name of God’s is remembered.

Military Discipline• Unlike man-made law, Islamic law is enforced by God’s

sanction in the hereafter. • Belief in the day of judgement, and being accountable for our

actions. • Ultimate ‘court of review’. • Thus, if you ‘fight right’, then you are also worshipping in the

path of God.

Fighting Right• 2:190-194 Al-Baqarah - The Cow. • Fight in the cause of God those who fight you, but do not

transgress limits; for God loveth not transgressors. And slay them wherever ye catch them, and turn them out from where they have turned you out; for tumult and oppression are worse than slaughter; but fight them not at the Sacred Mosque, unless they (first) fight you there; but if they fight you, slay them. Such is the reward of those who suppress faith. And fight them on until there is no more Tumult or oppression, and there prevail justice and faith in God; but if they cease, Let there be no hostility except to those who practise oppression. But if they cease, God is Oft-forgiving, Most Merciful … If then any one transgresses the prohibition against you, transgress ye likewise against him. But fear God, and know that God is with those who restrain themselves.

Rules of Warfare• 60:8-9 Al-Mumtahina • God does not forbid you respecting those who have not made

war against you on account of (your) religion, and have not driven you forth from your homes. In fact, God loves those who are equitable.

• God only forbids you respecting those who made war upon you on account of (your) religion, and drove you forth from your homes and backed up (others) in your expulsion, that you make friends with them, and whoever makes friends with them, these are the unjust.

Rules of Warfare• Individuals cannot declare war, neither can a group or

organisation. • War is declared by the state.

Rules of Warfare

• Treating the enemy with mercy. • Ban on torture. • Respecting the enemy’s dead. • Not attacking civilians and targeting the

innocent - example of the way that the Prophet and his companions refrained from such action against those who opposed them from Mecca.

Rules of Warfare• Not targeting fellow Muslims. • Acting within the hierarchy of order and command. • Humanitarian aid to the enemy. • War as the last resort.

Rules of Warfare• Baqara 2:191 “…if they fight you slay them” - permission to

take life is restricted to being in a state of war. • Enemy has to be a combatant - those who are non-combatants

are regarded as innocent. • Those enemies who do not inflict harm cannot be killed. • “…but do not transgress limits; for God loveth not

transgressors”.

Comparison with IHL• International Humanitarian Law are those rules, established by

treaties and customs, intended to solve humanitarian problems directly arising out from international or non-international armed conflicts…limit the right of parties to a conflict to use methods and means of warfare…protect persons and property.

• Goal of IHL is to protect the victims of war, and limit the effects of war.

Comparison with IHL

• The seven fundamental rules which are the basis of the Geneva Conventions and the Additional Protocols:

• Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and their moral and physical integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction.

• It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.

• The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and equipment. The emblem of the Red Cross or the Red Crescent is the sign of such protection and must be respected.

Comparison with IHL• Captured combatants and civilians under the authority of an adverse party are

entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.

• Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.

• Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.

• Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives. (Basic rules of international humanitarian law in armed conflicts, 1998, http://www.icrc.org/web/eng/siteeng0.nsf/html/668BF8)

Comparison with IHL- examples• Crimes - mutilation of the dead prohibited. • Respecting covenants – Never commit a breach of

trust. • Protection of civilians - Never kill a minor, women, the

elderly or monks.

Comparison with IHL- more examples

• Restrictions of the treatment of occupied territory and property • Ruses - Permitted, such as false intelligence or causing

demoralisation in the enemy camp. • Illegal means of war- prohibition on drowning or burning to kill

the enemy, as those methods inflicted unnecessary suffering. • Prisoners of War - Treat PW’s with mercy “they are your

brothers…give food to eat out of what he himself eats and let him give him clothes to wear of what he himself wears…”.

Summary - Theory of War• Peace and peaceful coexistence with people of other faiths is the

rule. • Islam resorts to war only when it is compelled to defend itself from

outside aggression. • Just war when prevented from the right to worship God freely, and

without fear and intimidation. • Absolute quality to humanitarian provisions in the Islamic law of war -

based on divine commands, not reciprocity or expedience.

REFERENCES

• Salim Al-Bahnasawy, Non-Muslims in the Shari’ah of Islam (Cairo, Dar An-Nashr Lil-Jami’at-Egypt, 2004)

• Ergun Capan (ed), An Islamic Perspective: Terror and Suicide Attacks (New Jersey, Light, 2005).

• H. Gulam, ‘Islam, Law & War’, Murdoch University Electronic Journal of Law, Vol 13, No 2, 2006, at https://elaw.murdoch.edu.au/

• Abdur Rahman I. Doi, Shari’ah: The Islamic Law (Kuala Lumpur, A.S Noordeen, 1989)

• C.G Weeramantry, Islamic Jurisprudence: An International Perspective (Kuala Lumpur, The Other Press, 2001)

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Prophet’s instruction to troops:“In avenging the injuries inflicted upon us molest not the harmless inmates of domestic seclusion; spare the weakness of the female sex; injure not the infants at the breast or those who are ill in bed. Refrain from demolishing the houses of the unresisting inhabitants; destroy not the means of their subsistence, nor their fruit-tress and touch not the palm…and do not mutilate bodies and do not kill children”. (Sahih Muslim 2:32)

Questions?

“Verily, God will not change the condition of a people until they change what is in themselves” ~Qur’an 13:11

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