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Islamic military jurisprudence refers to what has been accepted in Fiqh (Islamic jurisprudence) by ulema (Islamic scholars) as the correct Islamic manner which is expected to be obeyed by Muslims, though it may differ with what has been done in Muslim history.

Development of rulings

The first military rulings were formulated during the first century after Muhammad established an Islamic state in Medina. These rulings evolved in accordance with the interpretations of the Quran (the Muslim Holy scriptures) and Hadith (the recorded traditions of Muhammad). The key themes in these rulings were the justness of war, and the injunction 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 Meccanmarker Quraish against Muslims. It was interpreted as the struggle in God's cause 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 is important in the interpretation — 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-governed lands (Dar al-Islam) and non-Muslim lands (Dar al-Harb).

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 the Islamic Conference (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.

Ethics of warfare

The basic principle in fighting in the Quran is that other communities should be treated as one's own. 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. The principle of forgiveness is reiterated in between the assertions of the right to self-defence.

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, Abu Bakr, in the form of ten rules for the Muslim army:

These injunctions were honored by the second Caliph, Umar, during whose reign (634–644) important Muslim conquests took place. These principles were also honoured during the Crusades, as exemplified by sultans such as Saladin and al-Kamil. For example, after al-Kamil defeated the Franks during the Crusades, Oliverus Scholasticus praised the Islamic laws of war, commenting on how al-Kamil supplied the defeated Frankish army with food:

During the Battle of Siffin, the Caliph Ali stated that Islam does not permit Muslims to stop the supply of water to their enemy. In addition to the Rashidun Caliphs, hadiths attributed to Muhammad himself suggest that he stated the following regarding the Muslim conquest of Egypt:

The early Islamic treatises on international law from the 9th century onwards covered the application of Islamic ethics, Islamic economic jurisprudence and Islamic military jurisprudence to international law, and were concerned with a number of modern international law topics, including the law of treaties; the treatment of diplomats, hostages, refugees and prisoners of war; the right of asylum; conduct on the battlefield; protection of women, children and non-combatant civilians; contracts across the lines of battle; the use of poisonous weapons; and devastation of enemy territory.

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.

Traditionally, "adults" have been defined as post-pubescent individuals above the age of 15.

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 enemy hostile behavior cease, then the reason for engaging such enemy also lapses.

Some scholars argue that war may only be legitimate if Muslims have at least half the power of the enemy (and thus capable of winning it). Other Islamic scholars consider this command only for a particular time.

Defensive conflict

The Hanafi school of thought holds that war can only be launched against a state that had resorted to armed conflict against the Muslims. War, according to the Hanafis, can't simply be made on the account of nation's religion. Sheikh Abdullah Azzam considers the defense by Muslims of their territory as one of the foremost obligations after faith. 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.

Offensive conflict

Muhammad ibn Idris ash-Shafi`i (d. 820), founder of the Shafi'i school of thought, was the first to permit offensive jihad. He limited this warfare against pagan Arabs only, not permitting it against non-Arab non-Muslims.

Javed Ahmad Ghamidi believes 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 military jihad is to end oppression when all other measures have failed. Islam only allows jihad to be conducted by a government.

According to Abdulaziz Sachedina, offensive jihad raises questions about whether jihad is justifiable on moral grounds. He states that the Qur'an requires Muslims to establish just public order, increasing the influence of Islam, allowing public Islamic worship, through offensive measures. To this end, the Quranic verses revealed in the latter part of Muhammad's career require Muslims to wage jihad against unbelievers. This has been complicated by the early Muslim wars of expansion, which he argues were although considered jihad by Sunni scholars, but under close scrutiny can be determined to be political. Moreover, the offensive jihad points more to the complex relationship with the "People of the book".

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. Some classical Islamic scholars, like Shafi'i classified territories into broad categories: dar al-islam ("abode of Islam"), dar al-harb ("abode of war), dar al-ahd ("abode of treaty"), and dar al-sulh ("abode of reconciliation"). Such categorizations of states, according to Asma Afsaruddin, are not mentioned in the Qur'an and Islamic tradition.

Declaration of war

The Quran commands Muslims to make a proper declaration of war prior to the commencement of military operations. Thus, surprise attack are illegal under the Islamic jurisprudence. The Quran had similarly commanded Muhammad to give his enemies, who had violated the Treaty of Hudaybiyyah, a time period of four months to reconsider their position and negotiate. This rule, however, is not binding if the adversary has already started the war. Forcible prevention of religious practice is considered an act of war.

Conduct of armed forces

During 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 mutilation of dead bodies is also prohibited. The Quran also discourages Muslim combatants from displaying pomp and unnecessary boasting when setting out for battle.

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 recognized. 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.

Civilian areas

Islam expressly prohibits the killing of non-combatants. 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 and pillaging residential areas is also forbidden, as is the destruction of trees, crops, livestock and farmlands. The Muslim forces may not loot travellers, as 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 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.

Negotiations

Commentators of the Quran agree that Muslims should always be willing and ready to negotiate peace with the other party without any hesitation. According to Maududi, 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 achieve a just resolution of the dispute.Abu-Nimer(2000-2001), p. 246.

Ceasefire

In the context of seventh century Arabia, the Quran ordained Muslims must restrain themselves from fighting in the months when fighting was prohibited by Arab pagans. The Qur'an also required the respect of this 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 "sword verse", which has attracted attention, 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 hasty mission of besieging and gathering intelligence about the enemy, resulting in either death or repentance by the enemy. It is read as a continuation of previous verses, it would be concerned with the same oath-breaking of "polytheists".

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, freed, ransomed, exchanged for Muslim prisoners, or kept as slaves. 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.

Women and children prisoners of war cannot be killed under any circumstances, regardless of their religious convictions, but 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 the Islamic scholar Maududi.

Internal conflict

Internal conflicts include "civil wars", launched against rebels, and "wars for welfare" launched against bandits.

During their first civil war, Muslims fought at the Battle of Bassorah. In this engagement, Ali (the caliph), set the precedent for war against other Muslims, which most later Muslims have accepted. According to Ali's rules, wounded or captured enemies should not be killed, those throwing away their arms should not be fought, and those fleeing from the battleground should not be pursued. Only captured weapons and animals (horses and camels which have been used in the war) are to be considered war booty. No war prisoners, women or children are to be enslaved and the property of the slain enemies are to go their legal Muslim heirs.

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.

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. Further, rebels who committed acts of terrorism were granted no quarter.

See also



Notes

  1. Aboul-Enein and Zuhur (2004), p. 3-4
  2. 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.
  3. Patricia Crone, Encyclopedia of the Qur'an, War article, p.456. Brill Publishers
  4. Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era, University of California Press, p.45
  5. Sohail H. Hashmi, David Miller, Boundaries and Justice: diverse ethical perspectives, Princeton University Press, p.197
  6. Douglas M. Johnston, Faith-Based Diplomacy: Trumping Realpolitik, Oxford University Press, p.48
  7. Al-Tabari The History of the Prophets and Kings I.1850, in Bernard Lewis, ed., Islam from the Prophet Muhammad to the Capture of Constantinople, v. 1: Politics and War (New York: Walker and Company, 1974), p. 213
  8. Nadvi(2000), pg. 519
  9. Encyclopaedia of Islam (2005), p.204
  10. Aboul-Enein and Zuhur, p. 12-13
  11. Afsaruddin, Asma (2007). Views of Jihad Throughout History. Religion Compass 1 (1), 165–169.
  12. Sayyid Abul Ala Maududi, Tafhim al-Qur'an.[1]
  13. Azzam, Abdullah. " DEFENCE OF THE MUSLIM LANDS".
  14. Sahih Bukhari, 2957, A Muslim ruler is the shield [of his people]. An armed struggle can only be carried out under him and people should seek his shelter [in war].
  15. Ghamidi, Mizan.
  16. Misplaced Directives, Renaissance, Al-Mawrid Institute, Vol. 12, No. 3, March 2002.[2]
  17. Dāmād (2003), p.261
  18. Maududi (1967), p. 177, vol. 2
  19. Maududi (1998), p. 36
  20. Ali ibn al-Athir, Al-Kamil fi al-Tarikh, Vol.3, p.227
  21. Ghamid (2001), referring to Sahih Bukhari 3016, and Sahih Bukhari 2613
  22. Ghamidi (2001), referring to
  23. Dāmād(2003), p. 266
  24. USC-MSA Compendium of Muslim Texts
  25. Ghamidi (2001), quoting ||}}
  26. Ghamidi (2001), refers to Sahih Bukhari 3015
  27. Maududi (1998), p. 35
  28. Ali (1991), p. 79, quoting
  29. Ghamidi (2006), refers to Sahih Bukhari 2629
  30. Ghamidi (2001), refers to a hadith "plundered [food] is not better than dead meat [forbidden in Islam]" Sahih Bukhari 2705
  31. Maududi (1967), p. 151-4, vol.2
  32. Ali (1991), p. 81
  33. This is the Ayah of the Sword by Ibn Kathir
  34. Tafsir of the Qur'an by Ibn Kathir [3]
  35. Brunschvig. 'Abd; Encyclopedia of Islam
  36. Ibrahim Syed, Education of Muslims in Kentucky Prisons. Louisville: Islamic Research Foundation International
  37. '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)
  38. Patricia Crone (2004), pp. 371-72
  39. Tafsir of the Qur'an by Maulana Maududi, Vol. IV, exegesis of verse 33:52
  40. Madelung (1997), p.179
  41. 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 1428910395
  • 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.
  • Dāmād, Sayyid Mustafa Muhaqqiq et al. (2003). Islamic views on Human Rights. Tehranmarker: Center for Cultural-International Studies.
  • Crone, Patricia (2004). God’s Rule: Government and Islam. New Yorkmarker: Columbia University Press.
  • Javed Ahmad Ghamidi, Mizan (2001). The Islamic Law of Jihad, Dar ul-Ishraq.
  • Nicola Melis, Trattato sulla guerra. Il Kitāb al-ğihād di Molla Hüsrev, Aipsa, Cagliari 2002.


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