| Views On The Rules Of War In Islamic Law |
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| Written by Dr. Ahmet Günes | |
| Sunday, 08 January 2006 | |
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Terror is a social phenomenon that unfortunately is still on the agenda. As is known, social phenomena cannot be explained with a single reason. The psychology of terrorism, its historical background, its political, economic, and sociological reasons, and the suggestions for solutions are subjects of the relevant disciplines. And it is a serious shortcoming on the part of the discipline of law that the content and the boundaries of the definition of the term "terrorism" have still not been specified. Nevertheless, it is only common sense to depict events that target the lives of innocent people as terrorism. Another major problem is that terrorist events are being mentioned conjointly with the religion of Islam. The basis of this problem is grounded on incorrect and biased interpretations. Biased interpretations are the subject of another discussion; but the incorrect interpretations that have arisen due to variations in the understanding of the moods of the verbs to fight (qital) and to kill (qatl) that appear in the verses of the Koran will be dealt with here. It is the basic principle in Islam that the right to life, honor, and property of a person are inalienable. Thus, any crime that violate the sanctity of the life, honor, and property of a person is punished by the sanctions of this world or of those in the hereafter. It is clearly stated in the Koran that murdering a person is the same as murdering all of humanity, and that enabling a person to live, correspondingly, is the same as giving life to all people. The importance of human life in Islam has been emphasized in all its different dimensions (Ma'ida 5:32). Moreover, the penalty for killing people who belong to a group which is a party with an agreement with the Muslims has been specifically determined in the Koran (Nisa 4:92). This has been extended to cover people who do not belong to the tribe bound by the agreement (Yazır, 2/1420-1421). According to Abu Hanifa, if a Muslim kills a non-Muslim, then the same penal procedure is applied (Kasani 1986, 7/252). Since the main priorities of the Islamic system is to protect public security, law and order, the security of property and lives, and freedom of mobility, then crimes violating the security of life and the property of people (khiraba) are regarded within the framework of the Islamic penal code of Hadd (crimes that are subject to capital punishment). The Koran orders that the perpetrators of such crimes should be sentenced to heavy sanctions in this world, while it is declared that their punishment in the hereafter will be even more dreadful (Ma'ida 5:33). In Islamic law, wars are regarded differently. Even rebellions are considered to fall within the category of war. In the Koran, even though the words harb and ghaza exist, the word most frequently used to denote war is qital. The Koran tells of historical wars, wars between two Muslim groups, and more frequently, wars between Muslims and non-Muslims. War in Islamic Law Muslim scholars of law have engaged in collecting and ordering judicial decisions related to the state of war, starting from the earliest times of Islamic history. Compilations of certain kinds of books under the name of seerah date back to AH 2 (623). These books are the first examples of a unique type in the world literature which studies war in judicial terms. Imam Muhammad wrote Kitab al-Seerah al-Saghir which includes the views of Abu Hanifa on the subject. Awzai criticized some of the views recorded in this book. And Abu Yusuf went on to answer these criticisms in his work entitled Ar-Raddu ala Seerah al-Awzai. Later on, Imam Muhammad composed his more detailed work Kitab al-Seerah al-Kabir (Yaman 1998, 38). There have been many commentaries written on both of the books by Imam Muhammad, as these were the main references for the Hanafi school of thought. During the Ottoman era, the commentary by Sarahsi, Kitab al-Seerah al-Kabir was translated into Turkish and was included in curriculum for the military schools (Bursalı 1972, 1/407). The Islamic laws relating to the state of war and peace have been systematized into special sections, namely seerah in the fiqh (Islamic law) literature, which is based on the laws contained in the Koran and how our Prophet implemented these, i.e., hadiths. In these sections, the religious and judicial issues of pre-war and post-war are detailed. Important elements are discussed, for example, the contract of Zimmat between non-Muslims and the consequences, the institution of eman, international agreements, and even trade relations with non-Muslim states. The battles of Ridda, and the judicial decisions relating to the Khawarij Rebellion of Baghy are among the chapters that make up these books (Semerkandi 1984, 3/293). In Islamic law, war is examined in terms of its basic tenets and separately in terms of its subdivisions. In the methodology of Islamic law, the term hasen (good) is examined as part of the discussion of the hasen-kubh (good-bad) issue in two categories: hasen ilaynihi (essentially good) and hasen ligayrihî (good owing to other factors/good because of the end result). In this classification, wars are considered to be hasen ligayrihi: in other words, wars are not essentially good, because they are the cause of things that are not good, such as the taking of lives and the destructions of countries; however, wars are considered to be good owing to their role in the protection of religion, the security of lives, property, and physical and mental health, and progeny (Kasani 1986, 7/100; Bilmen 3/380). In the doctrine of Islamic law, there are various views concerning the issue of war as it relates to international relations. While from one perspective, all international relations with non-Muslim states seem to be based on war, there are others—especially according to the scholars of the Hanafi school—who consider anything to do with infidelity (kufr) to be among the "Rights of God" (issues between God and the person). Therefore the judgment of such situations is left to be judged in the Hereafter, as this is essentially a matter between God and the individual (Sarahsi 1997, 4/186). Essentially, international relations are based on peace. This principle is codified as to you your religion and to me mine (Kafirun 109:6), and to us our deeds and to you yours (Baqara 2:139; Qasas 28:55; Shura 42:15). Even though there is no negative element in the fundamentals of Islamic belief, in its ethical code or in its social manifestations, the Koran poses questions in some places concerning accusations made against the Prophets; while at other times it inquires what the crimes of Muslims were. For instance, while the story of an anonymous man is narrated—a man who had chosen to keep his faith secret until a point came when he blurted it out—the verse reads will you slay a man because he says 'my Lord is God'?" (Ghafir 40:28). Abu Bakr once, used the same verse against the pagans (Ibn Hisham 1/290). From the same standpoint, the case of Muslims is described in the following verses:
As Sarahsi has pointed out, the statements of reasons for going to war are either explicitly illustrated, or implicitly referred to (Sarahsi 1986, 10/110). The Koran tells of a great number of enemies coming on you from above and from below you (Ahzab 33:10). Our Prophet also employed such expressions as "all of the Arabs have made you the target of an alliance." In another instance, in the event of ila,[1] the expression "is it the Ghassanids who attacked?" was used by 'Umar. The fact that the leader of the Ghassanids considered Madina to be dar-ı hawan (a despicable place) even after Tabuk expedition illustrates the nature of such relations.[2] However, a healthier evaluation of this matter demands information on the positions of the Sassanids and the Byzantium against Madina (the Muslim State). The Prophet and Diplomatic Solutions When the Prophet, peace and blessings be upon him, came to Madina, the first thing he did was to sign a treaty with the Jewish inhabitants of the city (Waqidi 1966, 184). History books recorded many agreements—relating to religion or politics—that the Prophet made with many tribes. The scholar Muhammad Hamidullah established that "the Messenger of God had already formed an alliance with a branch of the Juhayni Tribe in the first year of the Emigration, and historical records show that he signed alliance treaties with the Bani Demre, the Bani Mudlij, the Bani Zur'a and the Bani Rab'a within the second year" (Hamidullah 1987, 75). The same author, in his work Majmu'a al-Wasaik al-Siyasiyya, has records of agreements the Prophet made with hundreds of tribes. The Prophet, before signing the Hudaybiya Treaty, said that "Pity on that Quraysh! The war has ruined them. What if they had not become between me and the rest of the Arabs! If they win, that is what they want; but if God makes me dominate over them, they will submit to Islam altogether. Even if they are strong now, how long will they continue to fight?" (Abu Yusuf 1910, 208). During the signing of the Hudaybiya Treaty, even though the dramatic case of Abu Jandal, who was tortured because he had converted to Islam, took place before everybody's eyes, and even though all of the Prophet's companions objected to this (i.e., leaving Abu Jandal being outside the protection of the Muslims), the Prophet signed the treaty (Waqidi 1966, 2/612). Subsequently, after signing this treaty, chapter Fath (Conquest) was revealed. And the Companions of the Prophet recorded that many people chose Islam as they now had an opportunity to meet one another as a result of this treaty. This happened to such an extent that the new converts to Islam after this treaty outnumbered the number of people who became Muslim before the treaty (Waqidi 1966, 2/607-610). There were occasions when the Prophet was obliged to fight in wars. The reasons why these wars occurred are detailed in history books. According to historical accounts, the reason for a war was never solely a difference in belief, nor was it ever the sole reason for any expedition that the Prophet undertook (for details, see Waqidi, Maghazi; Hamidullah, Battlefields of the Prophet Muhammad). As it is commonly known, there are two types of solutions for international conflicts; the first is a political solution, while the second is the deployment of power. The utilization of power is the last resort to be used, and this only in case all diplomatic solutions fail. The Prophet tried to find diplomatic solutions—to whatever extent possible—when relations became hostile. During the time he spent in Makka, the Muslims were under constant assault by the Quraysh pagans. To escape from torture some Muslims emigrated to Abyssinia (modern day Ethiopia), while the pagans attempted to sabotage this move. Because of this, the Prophet and most of his Companions were obliged to emigrate to Madina. With this background, the relations between the Muslims in Madina and the Quraysh in Makka can be considered as having become hostile due to the behavior of the Makkan pagans. It was because of this de facto situation that the Prophet sent out expedition groups to gather intelligence and to insure security. The Prophet wanted to blockade the Makkan caravan under the leadership of Abu Sufyan who was returning from Syria, due to the fact that the caravan was, for the most part, made up of possessions plundered from the Muslims. However, Abu Sufyan, having been informed of this, took the caravan to Makka via an alternate route, following the coastline. Nevertheless, having received this information, the Quraysh made preparations for war, and set out. The two groups (the Muslims who were waiting for the return of the caravan, and the Quraysh) unexpectedly met at the conjunction of the Makka-Syrian caravan route and the Madina route. The Koran clearly states that the intention of the Muslims was only to attack the caravan (Anfal 8:7). The fact that the Prophet met with the leaders of the tribes to discuss the possibility of war also proves that the intention was not to wage a war. In the end, the Prophet sent 'Umar out to deliver a proposal of peace, but this was not enough to change the result (Waqidi 1966, 1/61). It is internationally acknowledged that an attack on one party of an alliance is considered to be an attack on all the members of an alliance. The Arab tribes freely formed alliances with either the Muslims or with the pagans of Makka, as stipulated in the Hudaybiya Treaty. The Bani Bakr tribe became an ally of the Quraysh and the Huzaa Tribe, yet later formed an alliance with the Muslims. However, with the help of the Quraysh, some people from Bani Bakr killed some Muslims from the Huzaa Tribe in a nighttime attack. When this incidence was reported to the Prophet, he immediately investigated the matter. Once the involvement of the Quraysh had been established, the Prophet sent a Companion named Damra as an envoy to present various alternatives: either the head money for those who had been killed from Huzaa would be paid, or the alliance agreement with the tribe in question (i.e., Bani Bakr) would be revoked. If either of these conditions were not met this would mean that the Quraysh had annulled the Hudaybiya Treaty. The Quraysh did not accept either of these alternatives, and the envoy returned to Madina empty-handed. Subsequently, the Quraysh sent Abu Sufyan to renew the treaty, however, this attempt was also unsuccessful and the Treaty was annulled (Waqidi 1966, 2/783-844). The Rules for War in Action In the dictionary, the word qital (war) is derived from the root qatl (to kill). Thus, war requires killing and being killed. The Koran uses the word qatl to denote both killing and being killed, with regard to both Muslims and enemies alike (Tawba 9:111). Nevertheless, killing is not something a Muslim can be proud of. It is for this reason that it is a religious duty for a Muslim to adhere to certain rules and regulations that are used to establish whether or not there is an active war. These rules can be summarized as follows:
Chapter Tawba has a special importance, for it was the last chapter to come that dealt with decisions related to war. In this chapter of the Koran, while it is stated that some of the agreements made with some of the tribes have ended, it is ordered that the agreements which had not been invalidated by other tribes should be abided by. It is important to note that in this context both groups of tribes (those who rebuked the agreements and those who adhered to them) are described as pagans (Tawba 9:1-4). Additionally, it is decreed in the verse that those pagans who ask for protection should be given the same (Tawba 9:6). The second rule in Islamic law concerning war is that the enemy has to be a combatant. Those who are not combatants are regarded as innocent. Under this criterion of innocence, priests and monks cannot be assaulted, civilians cannot be harmed, children cannot be hurt, and women, even those who are serving the combatants behind the lines by cooking or nursing the wounded, cannot be killed, even if found in the field of war. When the Prophet saw a woman lying dead in the field of war, he protested: "But she was not a combatant" (Sarahsi 1997, 1/32). However, if these groups actively participate in the war as soldiers, then they are outside the scope of this general protection (Sarahsi 1986, 10/110). The third rule of war in Islamic law is the existence of actual harm inflicted by the enemy. According to this rule, those combatants who do not inflict any harm on the Muslims cannot be killed, even in the field of war. As is known, those enemies who do not cause any harm in the field of war are taken as prisoners of war. The Koran offers the alternatives of setting the captives free in exchange for something or even with nothing in return (Muhammad 47:4). The Prophet always treated prisoners of war fairly, making sure that they were provided with food and water, and he usually preferred setting them free. It is narrated in the Koran that, despite their high level of destitution, the Muslims fed the captives, no matter what their belief, without expecting any worldly recompense, without even expecting any gratitude from them; rather they did all this only for the sake of God (Insan 76:8-9). The Prophet never cursed his greatest enemies, even in a time of war. He prayed for those who were determined to kill him and all Muslims, saying, "O God, they are your servants as well; just like us, your servants" (Sarahsi 1997, 1/56). It is not only humans that the Koran shows concern for. The Koran relates a story concerning a queen ant in the context of the story of the Prophet Solomon. The ants were instructed to enter their home by the queen as precaution against the possibility of being trampled unwittingly by Solomon and his army (Naml 27:18). It certainly is possible to consider all living creatures in the same category: not only animals, but also vegetation is included. It was clearly declared by the Prophet and by the first four caliphs of Islam in their instructions for warfare that the natural vegetation and fruit trees were not to be harmed (Waqidi 1966, 3/1117). The Prophet, peace and blessings be upon him, prohibited the mutilation of the bodies of slain enemies, such as the cutting off of their ears or noses, or the removal of their eyes (musla).[3] He, as he valued humans merely for being human, also instructed the Muslims that they should not speak unfavorably about the deaths of the enemy, therefore preventing their relatives who were still alive from being insulted.[4] Muhammad Hamidullah noted that—including the time when Prophet Muhammad, peace and blessings be upon him, was at the height of his power—all the casualties from the wars in which the Prophet participated in the total was about 150 martyrs from the Muslim side, and about 250 people from the enemy's side (Hamidullah 1981, 21). The main factor behind the fact that Islam became a power that drew people by winning their hearts over a period of 10 years and over a vast geography should be sought within the fundamentals of Islamic beliefs and thoughts, and the philosophy of life that it represented, from the intelligence of the Prophet and his being the Prophet of mercy, and from the atmosphere of trust he established. Conclusion The principle in Islam is peace. Differences in faith are never a good reason for war. The reasons that make war inevitable always arise due to the violation of some principles. There are certain rules and regulations for taking the life of an enemy, even in wartime. These rules have been established by the Koran and the Prophet; these are rules that were meticulously adhered to during the reign of the first caliphs, and which later became the code of the rules of war found in the Islamic law. According to the law, the permission to kill—no matter what faith a person believes in—is restricted to combatants actively participating in an active war, to combatants who are determined to inflict harm (Merginani 1986, 2/138). Those who do not fulfill these conditions are considered innocent, and their life should be secure. Thus, assaults on civilian targets are not in agreement with the principles of Islam, even during wartime, and this includes suicide attacks. Legitimate goals cannot be reached by illegitimate means. Dr. Ahmet Güneş – PhD on Islamic Law and currently teaching at Atatürk University, Erzurum. References
[1] Ila: (Literally, a form of divorce) The Prophet deserted his wives for a month after they asked to be subsided more as they were living under dire conditions. Then, the verses Ahzab 33:28, 29 were revealed where his wives were given two options, whether to choose the present life and its finery, or God and His Messenger. As the Companion guarding the Prophet's house rushed to 'Umar in panic to inform about this extraordinary event of ila, 'Umar inquired whether Ghassinids attacked, as Muslims were always under the threat of a possible attack from other tribes. [2] Bukhari, Maghazi, 79; Muslim, Tawba, 53. [3] Bukhari, Maghazi, 36. [4] Tirmidhi, Birr, 51. Related Items: |
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