This month at the Diplomacy, Law and Policy Forum we are looking at a historic regime of law, Islamic law, and contemporary IHL to gauge where they overlap and diverge. This study has been deemed more and more necessary lately given heightened interest in Islamic law after 9/11 due to the increase in conflicts which involve or take place in Muslim majority states. Moreover, the use of Islam as a reason for the waging of war by some non-state actors has encouraged scholars to look at whether the Islamic laws of war actually condone such heinous acts. Indeed, Islam has been seen as synonymous with violence in the post-9/11 era, with its adherents rendered incapable of complying with the existing laws of war given the acts of terrorism conducted in its name.1Shaheen Whyte, ‘The Foundations of International Humanitarian Law in Islamic Tradition’ (2014) 10 J Islamic St Prac Int’l L 7 All of these factors lend credence to the need to analyse and dissect both regimes of law. The study of Islamic law and its regulation of conflict is also otherwise useful given the number of states which have Islamic law or sharia as a constitutionally enshrined source of law. For example, Saudi Arabia, Pakistan, and Iran all directly apply Islamic law as a primary source of law while Egypt and Syria consider Islamic law as one of other sources of law.
At the same time, while such study is useful it is not entirely fair – comparing early Islamic practices from the seventh century to the contemporary law of warfare comes with its own issues. Islamic laws do contain progressive norms which were exceptionally humanitarian for its time, however, it goes without saying that IHL as we know it is far broader and more protective. Looking at both regimes through a lens of not replacement, but as supplementary means is perhaps a better model – where IHL is silent, Islamic law could fill the gap and vice versa.2Patrick B. Grant, ‘Islamic Law, International Law, and Non-International Armed Conflict in Syria’ (2017) 35 BU Int’l LJ 1 As a result, this month we are looking at cardinal principles of the laws of war, obligations of humanitarian access, and acceptable means and methods of war, and mapping their application in both regimes. This editorial analyses the fundamental ways in which both regimes are similar and the also significant ways in which their applications diverge.
As with all international law, the sources for IHL come from one of the four forms codified in Article 38(1) of the Statute for the International Court of Justice; namely, treaties, custom, judicial principles and subsidiary means. IHL is conventional, in the form of the Geneva Conventions, Additional Protocols, and treaties regulating the conduct of hostilities, as well as customary. The Islamic Law of War is known as siyar and similarly includes primary and supplemental sources; the Qur’an and the Sunnah constitute primary sources and are considered eternal, immutable, and unchanging revolving as they do around God’s divine nature and revelation.3Whyte, ‘The Foundations of International Humanitarian Law in Islamic Tradition’ (supra n 1) The secondary sources are based on opinion (raye) and are ijma (scholarly consensus) and qiyas (analogy). Similarly to Article 38(1)(d) of the ICJ statute which includes the teachings and writings of publicists, the opinions of caliphs and jurists, based on deduction and analogy, can form these supplementary sources.4Mohamed M. El Zeidy & Ray Murphy, ‘Islamic Law on Prisoners of War and Its Relationships with International Humanitarian law’ (2004) 14 Italian YB Int’l L 53 These sources will be used in discussing and deliberating upon the norms which exist under the Islamic law of war.
Jus ad Bellum and Jus in Bello
Unlike IHL and the international law on the use of force, Islamic law does not distinguish between the jus ad bellum or the jus in bello connecting both regimes under the Islamic laws of war. Whyte states that “Muslim scholars assert that an Islamic just war implies satisfying both the criteria for going to war as well as conducting it in accordance with the regulatory principles enshrined in the shari’a.”5Whyte, ‘The Foundations of International Humanitarian Law in Islamic Tradition’ (supra n 1) This is supported by a Qur’anic verse which states “fight in God’s cause against those who fight you: but do not overstep the limits; God does not love those who overstep the limits”.6Qur’an 2:190 She argues that this incorporates both regimes as it states that wars should be fought in self-defence and should not involve wanton civilian killing (i.e. should be conducted lawfully).7Whyte, ‘The Foundations of International Humanitarian Law in Islamic Tradition’ (supra n 1)
Classification of Conflicts
IHL applies once there is an armed conflict which can be international or non-international. An international armed conflict occurs when there is a difference between states which leads to the intervention of their armed forces.8Common Article 2 to the Geneva Conventions 1949 A non-international armed conflict occurs when there is protracted armed violence between an organised armed group and a state or another armed group.9Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999 The classification for international and non-international armed conflicts under the Islamic laws of war are religious – non-international armed conflicts occur between groups of Muslims whereas international conflict occur between Muslims and non-Muslims.10Grant, ‘Islamic Law, International Law, and Non-International Armed Conflict in Syria’ (supra n 2) It seems that the threshold for the application of the Islamic Laws of War in an international armed conflict is once weapons have been used and armed forces have been deployed.11El Zeidy & Murphy, ‘Islamic Law on Prisoners of War and Its Relationships with International Humanitarian law’ (supra n 4) Meanwhile, for NIACs, once it rises to the level of a belligerency, the Islamic laws of war apply, this is after reconciliation is sought as the Qur’an states that “[a]ll believers are but brothers; therefore [Muslims should] seek reconciliation between themselves”.12Grant, ‘Islamic Law, International Law, and Non-International Armed Conflict in Syria’ (supra n 2) However, Islamic law does not allow for the punishment of rebels unlike IHL as it does not consider participation in a rebellion to be a criminal act.13ibid. Therefore, rebels can only be prosecuted for crimes that were not necessary for the belligerency.14ibid. There is significant variance in the threshold for application for IHL and the Islamic laws of war but as we will see, many principles remain the same.
Principle of Distinction
Under IHL, the principle of distinction obligates parties to the conflict to not target civilians or civilian objects and to limit attacks to combatants and military objectives.15Article 48, Additional Protocol I Civilians may be incidentally harmed during a conflict but must not be deliberately targeted unless and for so long as they directly participate in hostilities.16Article 51(3), Additional Protocol I Similarly, the Qur’an requires that during hostilities, attacks only be conducted against enemy combatants; “Fight in the cause of Allah those who fight you, but do not transgress limits; for Allah loveth not transgressors.”17Qur’an 2:190 These stipulations are also found in the sunnah wherein the killing of innocents was prohibited: Do not kill any old person, any child or any woman…Do not kill the monks in monasteries…Do not kill the people who are sitting in places of worship…nor obliterate a stream, nor cut a tree. Moreover, these injunctions were followed in practice after the death of the Prophet (pbuh), with the caliph Abu Bakr addressing a Muslim army saying the following:
I instruct you in ten matters: Do not kill women or children, nor the old and infirm; do not cut fruit bearing trees; do not destroy any town; do not cut the gums of sheep or camels except for purposes of eating; do not burn date-trees nor submerge them; do not steal from booty and do not be cowardly.
This statement goes beyond the principle of distinction to include other protections found in IHL, namely a prohibition of pillaging, protection of the environment, and perhaps prohibits starving the enemy as a means of warfare.18Omar Yousaf, ‘IHL as Islamic Humanitarian Law: A Comparative Analysis of International Humanitarian Law & Islamic Military Jurisprudence amidst Changing Historical Contexts’ (2012) 24 Fla J Int’l L 439 Furthermore, where non-combatants were killed either intentionally or accidentally, compensation was given to their families or those conducting such attacks were punished.19Niaz A. Shah, Islamic Law and the Law of Armed Conflict: The Armed Conflict in Pakistan (London; New York: Routledge, 2011) This is similar to the obligation to provide reparation found in Article 3 of the Hague Regulations 1907. Combatants were also supposed to distinguish themselves from non-combatants as in the Battle of Badr, Muslim fighters were told to wear distinctive signs or uniforms, such as woollen cloaks.20Matthias Vanhullebusch, ‘General Principles of Islamic Law of War: A Reassessment’ (2006-2007) 13 YB Islamic & Middle E L 37 This was to tell them apart from the enemy but also so they could receive the help of angels standing on the side.21ibid.
Direct Participation in Hostilities
At the same time, while such categories of civilians were protected from attack during conflict, jurists were divided as to whether they lose such protection when they directly participate in hostilities. Practice indicated that while women were also prohibited from fighting in combat, they were also noted for their participation.22Yousaf, ‘IHL as Islamic Humanitarian Law: A Comparative Analysis of International Humanitarian Law & Islamic Military Jurisprudence amidst Changing Historical Contexts’ (supra n 18) In fact, the Prophet (pbuh) praised a woman combatant and prayed to God to protect her and to grant her victory and success.23ibid. Al-Dawoody notes that “jurists discussed the permissibility of killing a woman if she kills Muslim soldiers, throws stones at them to kill them or stands guard over enemy armies or strongholds, or if she is queen of her country or a wealthy woman and spends her money to incite the army to fight on the battlefield, and similarly if a child is king or queen of his or her country and does the same. On this issue the jurists disagreed, with some authorizing the targeting of women and children in the aforementioned cases, and others classifying it as undesirable. They also disagreed on whether or not an aged person could be targeted if they entered the battlefield to support the enemy in planning war operations.”24Ahmed Al-Dawoody, ‘Islamic Law and International Humanitarian Law: An Introduction to the Main Principles’ (2017) 99 Int’l Rev Red Cross 995 However, an aged man was killed in the presence of the Prophet (pbuh) during the battle of Hunayn as he was providing intelligence to the enemy.25Abdulrashid Lawan Haruna & U.S. Abbo Jimeta, ‘Similarities of International Humanitarian Law and Islamic Law of Warfare: An Appraisal of the Principle of Distinction during Armed Conflict’ (2015) 42 JMCL 1 Therefore, it has been argued that Islam does allow for protected categories of civilians to be targeted if they are directly participating in hostilities so long as this is not based on a simple suspicion or likelihood but actual participation.26ibid.
Principle of Proportionality
The principle of proportionality is also arguably found in the Islamic laws of war as well given rules of warfare at the time stated that armies were to only meet force with equal force27Whyte, ‘The Foundations of International Humanitarian Law in Islamic Tradition’ (supra n 1): ‘And if you were to harm them in retaliation, harm them to the measure you were harmed. And if you opt for patience, it is definitely much better for those who are patient’.28Qu’ran 16:126 As a result, they are to cease hostilities once military objectives have been achieved. However, this verse also reflects the conflation between the jus ad bellum and jus in bello inherent in Islamic law. Therefore, it is not easy to fit it neatly into the notion of proportionality under IHL.
An indication of the extent to which Islamic law does protect civilians in a progressive way for its time is its treatment of human shields. It is said that: “If they [the disbelievers] use Muslim or non-Muslim young boys as [human] shields while the Muslims are engaged in battle, it is permissible to shoot the enemy combatants but not the Muslims or the young boys; and if they are not engaged in battle, I would prefer them to stop [the warfare] until they are able to fight them without using [them] as [protective] shields.” Not only does IHL also forbid the use of human shields, it nevertheless requires that they not be deliberately targeted, and be taken into account in a proportionality assessment. Islamic law undertakes the same prohibitions and obligations with regards to those involuntarily hostage on the battlefield.
Treatment of Prisoners of War
An important area of convergence between IHL and the Islamic laws of war is in relation to the rules applicable to those combatants held in detention, i.e. prisoners of war (PoWs). All able-bodied men that join the armed forces or engage in hostilities are considered combatants under the Islamic Laws of War and acquire PoW status upon detention.29El Zeidy & Murphy, ‘Islamic Law on Prisoners of War and Its Relationships with International Humanitarian law’ (supra n 4) Taking captives is allowed as the Qur’an says to “[k]ill the unbelievers whenever you find them and seize them and confine them… So when you meet the unbelievers in battle, smite their necks, then, when you have overcome them, take them as prisoners”.30Qur’an, 9:5
Islam obligates that those captured in war be treated well, not be tortured or mutilated,31See Qur’an, 16: 126-127-128 and be fed and given water. The Qur’an states that “And they feed, for the love of Allah, the indigent, the orphan, and the captive”. Under the Sunnah also, the Prophet (pbuh) has said: “I command you to treat captives well,” “take heed of the recommendation to treat the prisoners fairly”, and has ordered that prisoners should be kept away from the hot sun in detention.32El Zeidy & Murphy, ‘Islamic Law on Prisoners of War and Its Relationships with International Humanitarian law’ (supra n 4) Prisoners of War were also to be fed as was stipulated by the following verse: “And they feed, from the food that they most love, the needy, the orphan and the captive”. Omar Ibn Hossayn once stated: “[T]he enemy captured two companions of the Prophet, and one of the enemy soldiers was captured by other companions of the Prophet [… ]. Once the prisoner told the Prophet: O! Mohammad, I am hungry and thirsty. The Prophet replied: ‘Here are your needs”. The word needs has been interpreted to refer to food and water.33ibid.
Moreover, combatant immunity was also a norm under the Islamic laws of war as Muslim scholars state that prisoners were not to be held accountable for the damage to Muslim life of property during battle, unless there were gross violations.34Whyte, ‘The Foundations of International Humanitarian Law in Islamic Tradition’ (supra n 1) The Islamic Laws of War also recommend that POWs be released after the cessation of hostilities, “when you have overcome them, take them as POWs, until the war lays down its burdens, then you may set them free, either by grace or by ransom”.35Qur’an, 47:4 For instance, after the Battle of Badr, around seventy prisoners of war were captured, of which only two were executed, and the rest were set free after ransom was paid.36Yousaf, ‘IHL as Islamic Humanitarian Law: A Comparative Analysis of International Humanitarian Law & Islamic Military Jurisprudence amidst Changing Historical Contexts’ (supra n 18) According to practice, Muslim commanders had a number of choices in how to deal with POWs as they could be “(1) beheaded [executed], (2) enslaved, (3) released by ransom; (4) exchanged for Muslim prisoners; or (5) simply released.” Beheading was for cases where they endangered the security of the state itself.37ibid. All POWs who died in detention were to be honourably buried, as is also the case under IHL.38Qur’an, 5: 30-31
Areas under Dispute
There are some areas of potential divergence, however, as to whether Islamic law requires that all civilians be protected during an armed conflict. For instance, a hadith states that the Prophet (pbuh), when asked about women and children of non-believers being killed during night raids, said: “They are from them.” This was taken to imply that if they were killed in such instances there would be no need to pay compensation for their deaths. However, others argue that these words are not to be taken to mean that distinction between women and children and enemy combatants is not to be undertaken at all but merely that it would be difficult in night raids.39Yousaf, ‘IHL as Islamic Humanitarian Law: A Comparative Analysis of International Humanitarian Law & Islamic Military Jurisprudence amidst Changing Historical Contexts’ (supra n 18)
While some also argue that under Islamic law, any non-Muslim who did not pay the jizyah tax was a legitimate target in war, the majority of jurists state that certain categories of non-combatants were immune from attack, regardless of their payment or otherwise of the jizyah.40ibid. These categories include women, children, the elderly, the blind, the sick, the insane, the clergy, those paid to do services on the battlefield, farmers, craftsmen, and traders.41ibid.
In sum, while the field of application of the Islamic laws of war and IHL may vary as does the threshold for their application, there are many similarities between the two legal regimes. Both of them include variations of the principles of distinction and proportionality which include key protections for civilians and civilian objects. They also provide for the reduction of suffering for those Prisoners of War kept in detention. Islamic law is incredibly progressive for its time in obliging parties which harm civilians to pay compensation and prohibiting the use of human shields but at the same time holding them to be protected from targeting. In addition, there are many areas of Islamic law which would do well to be looked into further, especially those relating to the means and methods of warfare and cultural heritage. This is particularly when it comes to the latter, as non-state groups often destroy cultural heritage on Islamic pretexts. This month’s theme and articles aim to shed some light on these two regimes of law and their intersection in a bid to contribute to encouraging compliance with both.