Outlawed Methods of Warfare: The Distinction between IHL and IWL

Introduction

War is a known concept to all religions and in Islamic history the first recorded war can be dated back to the Battle of Badr in 624 CE or 2 AH.1W. Montgomery Watt (1956), Muhammad at Medina Oxford: Clarendon Press, p. 12. Watt notes that the date for the battle is also recorded as the 19th or the 21st of Ramadan (15 or 17 March 624). The laws and regulations on the means and methods of war have changed over time. From the use of swords in 3300 BC2Frangipane, M. et.al. 2010: The collapse of the 4th millennium centralised system at Arslantepe and the far-reaching changes in 3rd millennium societies. ORIGINI XXXIV, 2012: 237–60. to the use of Unmanned Aerial Vehicles today, technology and morality has changed the ways in which conflict is waged, resulting in the prohibition of certain tactics of armed conflict. While International Humanitarian Law (IHL) has a continuing process of assessing the methods and means of war through national reviews, Islamic War Law (IWL) has outlawed certain tactics used during war in the Holy Qu’ran which have been elaborated by other sources of Islamic law such as the Hadith and Sunnah. For the purposes of this article, we shall not explore other sources of Islamic law such as Ijma, Qiyas and Fatwa. This article shall compare the rulings of IWL and IHL on three methods of war: human shielding, perfidy and night attacks. These have been chosen as they are specifically outlawed in IWL and have some correlated prohibitions under IHL. This article shall analyse the rationale behind their declared illegality and the extent to which both regimes are in line in their view of these tactics.

IHL and IWL on Methods of warfare

IHL has provided the right of choosing a method and means of warfare to the parties participating in the conflict, however, it does place some rules on what may or may not be allowed as such means and methods. For instance, IHL prohibits any method or tactic of warfare that may cause “unnecessary suffering” or “superfluous injury”.3Article 35 (1) and (2) of the 1977 Additional Protocol I It also prohibits pillage, the starvation of civilians, the use of perfidy, and declaring that no quarter is to be given.  Rules 52 and 122 of the ICRC’s Customary International Law Study prohibit the practice of pillage in that both the property and personal belongings of legitimate owners must not be taken without consent. Article 23(d) of the Hague Convention 1907 has prohibited the declaration that no quarter shall be given and thus allows all combatants the right to surrender. Primarily, the reason for outlawing such methods of warfare is to avoid unnecessary suffering in war and to preserve the integrity of the regime as a whole.

IWL has also placed some restrictions on what may or may not be committed in war as a method of war. For instance, in the extension of Surah 2:190 in the Quran where Allah permits Muslims to fight against transgressors, the Holy Prophet declared that there are five categories of persons who are protected from such war – mainly civilians who are non-combatants in war. Similarly, the concept of Amān in IWL the declaration of no quarter is not permissible in Islam. “Amān has the same objective, in some respects, as the hors de combat status: in the words of the classical jurists, this is ḥaqn al-damm (prevention of the shedding of blood, protection of life).”4Ahmed Al-Dawoody, “IHL and Islam: An Overview” (Humanitarian Law & Policy BlogSeptember 7, 2021) <https://blogs.icrc.org/law-and-policy/2017/03/14/ihl-islam-overview/>

While there exist certain prohibitions in both IWL and IHL on methods of warfare, even commonalities in prohibiting declarations of no quarter, the jurisprudence on human shielding, perfidy and night attacks varies.

Perfidy

Perfidy is best defined in the Article 37 of Additional Protocol I of the Geneva Conventions as “deceptions designed to invite the confidence of the enemy to lead him to believe that he is entitled to, or is obliged to accord, protected status under the law of armed conflict, with the intent to betray that confidence.”5“Rule 65. Perfidy” (Customary IHL – Rule 65. Perfidy) <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule65#Fn_4C6B6F6B_00031> It is also part of customary IHL according to the ICRC under Rule 65. The key requirement of perfidy is that the confidence of the enemy must be taken in any scenario wherein law of armed conflict affords them such protection. For example, pretending to be injured and sick to gain the advantage of being placed hors de combat and hence obtaining confidence but then attacking the enemy. The idea of Perfidy is incomplete if there is no intention of the party obtaining such confidence to betray – perfidy will only be considered a crime if the intention to betray confidence exists.6“Rule 65. Perfidy” (Customary IHL – Rule 65. Perfidy) <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule65#Fn_4C6B6F6B_00031>

Perfidy in IHL has made its way to most places for being an outlawed method of warfare. Article 23(b) of the Hague Convention prohibits that one must not kill or wound “treacherously”. It was then further elaborated in Article 37(1) of the Additional Protocol I that one must not kill or wound an adversary by resorting to perfidy. Many other codes of IHL such as Lieber Code or the Brussels Declaration use the term treachery but the meaning of it is the same as perfidy. Perfidy is distinguished from lawful ruses of war which are not prohibited under IHL.7https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule57 Ruses are acts which are intended to confuse the enemy but are common in an armed conflict, for instance, feigning an attack, retreat or flight, sending bonus messages, constructing dummy tanks, or conducting fake military exercises on a wireless.8https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule57

IWL similarly does allow for ruses during an armed conflict yet prohibits perfidy. The Holy Prophet (PBUH) was quoted as saying, “war is ruse”9Ahmed Al-Dawoody, “IHL and Islam: An Overview” (Humanitarian Law & Policy BlogSeptember 7, 2021) <https://blogs.icrc.org/law-and-policy/2017/03/14/ihl-islam-overview/> and ruses are permitted. Even more so, it has been an accepted fact by historians that Muhammad (PBUH) had used ruse as a war tactic in many battles.10Hayward J, “War Is Deceit – the Royal Islamic Strategic Studies Centre” <https://rissc.jo/books/en/War%20is%20Deceit%20e-book.pdf> Shaybani states that while ruses are allowed in IWL, perfidy is not as it results in actual harm or intention to harm, whereas the intention of a ruse is to confuse the enemy.11Hamidullah D, “Amān and International Humanitarian Law Concerning Quarter, Perfidy and Ruses of War: A Comparative Study” (Malakand University Research Journal of Islamic Studies (MURJIS) ISSN: 2708-6577) <https://journals.uom.edu.pk/murjis/article/view/190> In IWL, Muslims usually award what is called aman to the belligerents which may include a right of passage or any other such promise under a contract, and Muslims are then to be bound by it. If they transgress or violate the promise of aman, it would amount to perfidy which is a sin. As a result, the notion of aman in IWL and perfidy under IHL can be equated as both involve an invitation of trust and confidence between both sides, the breaching of which is a violation under both regimes.12Hamidullah D, “Amān and International Humanitarian Law Concerning Quarter, Perfidy and Ruses of War: A Comparative Study” (Malakand University Research Journal of Islamic Studies (MURJIS) ISSN: 2708-6577) <https://journals.uom.edu.pk/murjis/article/view/190>

Human Shielding

The use of human shields is prohibited under IHL. Article 23 of the Third Geneva Convention and Article 28 of the Fourth Geneva Convention prohibit using prisoners of war or protected persons to render certain points or areas immune from military operations. The International Criminal Court (ICC) Statute under Article 8(2)(b)(xxiii) makes the use of human shields a war crime in international armed conflicts. The International Criminal Tribunal for the Former Yugoslavia in the case of  Karadžić and Mladić13IT-95-5/18 held that, “physically securing or otherwise holding peacekeeping forces against their will at potential NATO air targets, including ammunition bunkers, a radar site and a communications centre”14IT-95-5/18, ICTY qualified as human shielding. In a literal sense, it is a technique that is used to avoid harm to one’s own forces or structures in a war  and it is outlawed under IHL.15“Rule 97. Human Shields” (Customary IHL – Rule 97. Human Shields) <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule97> However, while the use of human shields are prohibited, the decision to attack a military objective surrounded by human shields is dictated by the principle of proportionality. Nonetheless, those who are being used involuntarily as human shields cannot be targeted.

In Islamic law, similarly, there are  prohibitions on using al-tatarus (human shields) in armed conflict. Muslims in IWL are not allowed to attack civilians or begin hostilities as mentioned in Surah Baqarah16Surah 2:190 or even as quoted by the first caliph – Hazrat Abu Bakr  who said, “beware not to stain your swords with the blood of one who yields, neither you touch the children, the women, nor the infirm.”17Aly H, “Islamic Law and the Rules of War” (The New HumanitarianMay 26, 2021) <https://www.thenewhumanitarian.org/2014/04/24/islamic-law-and-rules-war> Similarly to IHL also, Islamic law allows for the attacking of enemy combatants and military objectives in the presence of human shields, provided that “Muslims aim to direct their attack at the combatants and avoid hitting non-combatants as far as possible”.18Al-Dawoody A, “Islamic Law and International Humanitarian Law: An Introduction to the Main Principles” (2017) 99 International Review of the Red Cross 995

However, this is not a universally accepted position and some jurists in fact argue that the targeting of human shields is allowed. Their arguments are supported by reports of incidents such as that of Taif where Muhammad (PBUH) allegedly used mangonel on human shields or Ibn Qudama Al-Mughni’s opinion that, “And if they shield (themselves) in war with their women and their children, it is permitted to fire upon them and (to fire upon them) with the intention of killing; for the Prophet (PBUH) fired on them (at Ta’if).”19Buchholz MB, “The Human Shield in Islamic Jurisprudence” [2013] Military Review | US 48 This debate also plays out under IHL wherein there is significant contention over whether voluntary human shields can be considered as civilians who directly participate in hostilities and are therefore targetable. It is interesting to note that the debates over this subject, namely what protections should be given to voluntary or involuntary human shields, have persisted over the centuries and remain contentious.

Night Attacks

Night attacks or night combat basically implies any war or combat that happens during the hours of darkness. Night attacks are not expressly mentioned in IHL and are permitted so long as the rules applicable in armed conflict are complied with. These include the principles of distinction, proportionality and precaution. So long as military objectives and combatants are visibly identifiable, it does not matter whether an attack was conducted by night or day. Given modern technology, it often remains the case that they can be distinguished. This may have been an issue prior to such technology having been invented. For instance, Articles 3 and 5(2) of the ILA Draft Convention for the Protection of Civilian Populations against New Engines of War 1938 states, “The bombardment by whatever means of towns, ports, villages or buildings which are defended is prohibited at any time (whether at night or day) when objects of military character cannot be clearly recognized.”20“Practice Relating to Rule 11. Indiscriminate Attacks” (Customary IHL – Practice Relating to Rule 11. Indiscriminate Attacks) <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule11> The 1938 Draft Convention is neither a part of Additional Protocol I, nor the Hague Conventions nor the Customary International Law which offers an indication of the fact that this is no longer a pressing issue.21“Practice Relating to Rule 11. Indiscriminate Attacks” (Customary IHL – Practice Relating to Rule 11. Indiscriminate Attacks) <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule11>

IWL, however, was formed in the sixth century, and therefore does include prohibitions on night attacks which are referred to as “al-bayat.”22Al-Dawoody A, “Islamic Law and International Humanitarian Law: An Introduction to the Main Principles” (2017) 99 International Review of the Red Cross 995 The reason for declaring al-bayat outlawed was that because men could not engage in hand or sword fight at night and hence had to resort to indiscriminate methods of warfare such as the mangonel. However, again there remains some debate on whether these attacks are prohibited entirely. One hadith by Anas Ibn Malik declares that the Prophet avoided such night attacks whereas one hadith by al-Sa’b ibn jaththamah declares that the Prophet did not declare it as prohibited.23Al-Dawoody A, “Islamic Law and International Humanitarian Law: An Introduction to the Main Principles” (2017) 99 International Review of the Red Cross 995

In any case, majority Muslim jurists have agreed that because Islam emphasises the protection of non-combatants and not using indiscriminate weapons of warfare – night attacks is not permissible in IWL. The distinction to draw here is of time. IWL was laid out way earlier than the IHL was and because the world had not necessarily progressed to sources of creating light at night – enough to see the enemy in war – IWL’s ban on night attack seems justified. In the same line, any attack at night where the enemy is not visible and any attack that shall become indiscriminate due to the time of the day would equally not be permissible in IHL.

Conclusions

This article has examined three tactics of warfare which feature in IWL and/or IHL, namely perfidy, human shielding, and night attacks. The focus on these methods of warfare reveal the time in which both were in effect, indeed one regime is contemporary, and one is from the sixth century. Nevertheless, it is interesting to note how some debates remain and how some prohibitions have persisted. For instance, to act treacherously during battle was always seen as problematic, whereas ruses were again always seen as a necessary part of warfare to confuse the enemy. Where one draws the line between a permissible ruse and perfidious conduct, however, may not be clear cut. Similarly, the rules regarding human shields and the debate about their targetability remains a heated one. It seems that while both regimes of law were concluded in very different times, reflected in some tactics, in other ways their handling of the issues remains very much the same.

Muhammad Rafeh

Muhammad Rafeh is a fifth-year law student at Lahore University of Management Sciences. He has worked in the fields of constitutional litigation and human rights law before. He has keen interests in International Human Rights Law and Arbitration Law.