FOREWORD
Dear Readers, I am greatly pleased that the International Committee of the Red Cross (ICRC) and the Faculty of Islamic Studies of the University of Sarajevo are able to offer you these proceedings dedicated to Islamic law of armed conflict and international humanitarian law (IHL). The proceedings are a result of the scientific conference jointly organized by the Faculty of Islamic Studies and the ICRC in cooperation with the Military Muftiship of the Islamic community in Bosnia-Herzegovina on 26 and 27 September 2018, in Sarajevo. The conference was an opportunity to discuss numerous issues related to armed conflict from two perspectives, that of secular humanitarian law and of the Islamic law of armed conflict.
I see the participation of teachers, associates and doctoral students at the Faculty of Islamic Studies (University of Sarajevo) as an expression of awareness of our obligation as those who are aware of God, one of whose beautiful names is Selam (peace), to constantly seek and persistently try to establish peace, primarily in us, in our souls, and then in our communities and society around us.
To achieve this goal, the University of Sarajevo, as an institution of higher education of the Islamic community, launched a joint study programme in 201718 with the other two theological faculties, the Faculty of Catholic Theology in Sarajevo and the Faculty of Orthodox Theology of St Vasilije Ostroski in Foča. The programme was entitled Inter-Religious Studies and Peacebuilding.
Due to their unprecedented powers, religious feelings and beliefs are often abused in our region. Some of the cruellest crimes have been committed in the name of religion and under religious symbols. We considered it a social responsibility that the study programme point out a legitimate, authentic and meritorious understanding of the issues of peace and armed conflict in basic religious sources and emphasize that one cannot truly love God while hating His creation.
True religion goes beyond all the misunderstandings and cultural or social prejudices of a limited human mind. We want to build lasting peace in this region through authentic spirituality, a correct understanding of faith and its consistent living, changing both man and the world for the better.
Although there are animal instincts in man that cause him to subjugate others, seize someone else’s property, shed blood and indulge in many other evils, what makes him human are his spirit, morality and intellect. These develop in him a consciousness of God, human dignity and the necessity of equal rights for every human being across the globe.
A healthy spirit, strong morals and an indomitable intellect open a person to other people, to other living beings, to the world around him. They create in him the need to establish connections and bridges, which imply the desire of people to be together and connected, because then they can do anything.
If they are separated and move away from each other, the obstacles will overcome them and they will be defeated. So, bridges, wherever they are, whether material, cultural, scientific or ideological, remain to express a human desire for community and union and to fight conflict and separation. It is extremely important to talk about armed conflicts from an Islamic perspective, especially today, because of the overbearing, offensive and completely unfounded linking of militancy and violent extremism with Islam.
It is necessary to emphasize constantly and persistently that Islam advocates love and obedience to God above all, followed by love, understanding and appreciation of His creatures, especially His most well-chosen creation, man. Through the Quran, Allah condemns not only the unlawful taking of life by another human being, but also the excessive use of force in response to violence. “If you [believers] have to respond to an attack, make your response proportionate, but it is best to stand fast.” (Al-Nahl 126).
How much wisdom this verse holds! Much later, this principle of reciprocal force was applied in humanitarian law as the principle of proportional use of force in defence. For even when one defends himself against an attack his defence can only be commensurate with the attack, never so much as to develop into a new attack.
I am glad that the papers of meritorious authors such as Dr Ahmed al-Dawoody, Prof. (Dr) Mustafa Hasani, Associate Professor (Dr) Nedim Begović, Associate Professor (Dr) Zehra Alispahić, Dr Senad Ćeman and Amir Mahić (MSc) are included in this volume. It is a privilege that you, dear readers, will be able to read about armed conflicts from the perspective of secular humanitarian law and Islamic law of armed conflict, seeing the similarities between the two approaches, but also the clear differences between them.
Finally, I once again thank the representatives of the ICRC in Bosnia-Herzegovina and all the participants of the two-day scientific conference in Sarajevo. My special thanks also to the authors, who have conveyed to us the very strong message that a Muslim is conscious of God during war and armed conflict and strictly adheres to the norms of warfare, respecting human dignity. And if he has this consciousness during war, how can he not have so during peace?
Dr Zuhdija Hasanović,
Dean, Faculty of Islamic Studies, University of Sarajevo
INTRODUCTION
Even wars have limits. They are defined by International Humanitarian Law which obliges protection of all people not taking part in the conflict, as well as limiting the means and methods of warfare. These boundaries must be known and respected to ensure human dignity and alleviate human suffering in armed conflict.
The International Committee of the Red Cross (ICRC) is a neutral and independent organization operating for over 150 years, and our main humanitarian mission is to protect the lives and dignity of victims of armed conflict around the world. The ICRC is also the initiator of the idea of the Geneva Conventions, which are the basis of today’s International Humanitarian Law. For this reason, the ICRC is often called its guardian. By advocating the respect of IHL and strengthening universal humanitarian principles, we seek to prevent human suffering.
The rules and laws of war undoubtedly have deeper historical roots. They are derived from elementary human values that are an integral part of all the world’s philosophies and religions. Islamic law guarantees victims of armed conflict (for example, the wounded, the sick, prisoners of war, and civilians) the right to protection, respect, and dignified humane treatment. It also calls for the protection of civilian facilities and property. Islamic law limits the methods and means of warfare to the limits of military necessity. All this is in full compliance with the provisions of International Humanitarian Law and the Geneva Conventions. Thus, the similarities between IHL and Islamic law are not coincidental, but evidence that there are values that are universal and an important part of most religious and other worldviews.
The ICRC maintains a regular dialogue with Islamic intellectuals and academics around the world, as we carry out most of our humanitarian activities in Muslimmajority countries. This ongoing dialogue is not only of a theoretical and abstract nature, but it also has concrete results. Its main goal is to emphasize the common principles and values that apply to all humankind. We must emphasize these values in all communities to ensure that they are respected by new generations.
The dialogue also aims to overcome particular prejudices that, unfortunately, we all face at times. It is crucial for the ICRC to be accepted as a neutral and independent humanitarian organization by all parties to armed conflicts, no matter where they are taking place. Only in this way can we ensure secure access to all victims and vulnerable populations and provide them with assistance. In other words, the success of our humanitarian action, but also the security of our workers in the field, is entirely based on the question of whether we are accepted by all parties in our true form: as neutral, impartial and independent humanitarian organization.
The ICRC proved this role and our sincere commitment to these values during the war in Bosnia and Herzegovina, when the center of our global activities was in this region. Given the values represented by the Islamic Community in Bosnia and Herzegovina and the Faculty of Islamic Studies in Sarajevo, their historical significance and reputation enjoyed throughout the Islamic world and beyond, we are convinced that we have found a strong and lasting partner in this global dialogue.
For this reason, in the past two years we have organized several joint events, workshops and seminars on the common values of Islamic, and International Humanitarian Law, but also some specific humanitarian issues related to this topic, such as the issue of missing persons. Representatives of the Islamic Community in Bosnia and Herzegovina and the Faculty of Islamic Studies of the University of Sarajevo regularly attend similar events in Tunisia and Geneva.
This collection contains papers that arose from jointly organized meetings, primarily form the scientific conference held in September 2018 in Sarajevo. We are convinced that the collection will serve as a basis for raising awareness and further exchange on the importance of respecting the universal humanitarian principles that have guided us all so far.
We would like to thank the Faculty of Islamic Studies in Sarajevo for the excellent cooperation, not only in publishing this collection of papers, but also for the sincere will and interest to continue this dialogue.
We are convinced that, by emphasizing the common values of Islamic, and International Humanitarian Law in Bosnia and Herzegovina, we can contribute to our mutual understanding and to improving humanitarian action throughout the world.
Delegation of the International Committee
of Red Cross in Bosnia and Herzegovina
Dr Ahmed Al-Dawoody al-Azhar University Legal Adviser for Islamic Law and Jurisprudence at the International Committee of the Red Cross
Islamic law and international humanitarian law: An introduction to the main principles (1)
Abstract: This article gives an overview of the principles regulating the use of force under the Islamic law of war in the four Sunni schools of Islamic law. By way of introducing the topic, it briefly discusses the origins, sources and characteristics of the Islamic law of war. The discussion reveals the degree of compatibility between these Islamic principles and the modern principles of international humanitarian law, and offers insights into how these Islamic principles can help in limiting the devastation and suffering caused by contemporary armed conflicts in Muslim contexts, particularly those conflicts in which Islamic law is invoked as the source of reference.
Keywords: Islam, Islamic law, Islamic law and IHL, jihad, Islamic law of armed conflict, protection of civilians, PoWs in Islam, human shield, war in Islamic law.
Introduction
The effects of armed conflicts such as those currently raging in Syria and Yemen have been shown to spread beyond the Middle East region and reach over to the West. Moreover, their impact can in fact be greater on countries outside the region where the conflict is taking place than on those within it. What this shows, first of all, is that the impact of armed conflicts, including noninternational armed conflicts (NIACs), is no longer local or regional, but global. Moreover, NIACs, especially those in the Middle East, can signal the outbreak of war on a regional or global scale, or at the very least cause severe damage to the world economy. In that regard, a reported 80% of the humanitarian crises currently afflicting mankind are attributable to armed conflicts.(2) On that basis, greater efforts are needed not only to enforce the provisions of international humanitarian law (IHL) but also to do everything possible to prevent the occurrence of armed conflicts in the first place,
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(1) The views expressed in this article are those of the author and should not be interpreted as official positions of the ICRC. The author would like to thank Ellen Policinski for her meticulous reading, comments and suggestions for this article, as well as the anonymous peer reviewers.
(2) United Nations, “Secretary-General’s Opening Remarks at World Humanitarian Summit”, 23 May 2016, available at: www.un.org/sg/en/content/sg/statement/2016-05-23/secretary-general%E2%80%99sopeningremarks-world-humanitarian-summit, all internet references were accessed in May 2018.
and then, once conflicts have ended, to take the necessary measures to ensure that post-conflict justice is carried out in order to prevent conflicts from re-igniting.
Respect for IHL in Muslim countries is one of the most pressing issues faced by our world today. This is because the majority of conflicts take place in Muslim countries, for reasons including historical and colonial factors and a deficit of good governance, which lead, among other consequences, to a lack of democracy and respect for human rights. It is widely acknowledged that respect for IHL is important because of its capacity to reduce the scale of destruction or to introduce a degree of humanity into situations of armed conflict, where acts of brutality, barbarity and destruction occur.
In addition, the vast majority of ongoing conflicts fall into the category of NIACs. Furthermore, in many of the conflicts that we are currently witnessing, parties to the conflict, usually non-State armed groups, justify their acts of hostility by referring to certain rules of the Islamic law of war developed by the Muslim jurists of the second and third centuries of the Islamic calendar (roughly equivalent to the eighth and ninth centuries AD) and certain opinions of Qur’anic exegetes and Hadith scholars. This is why it is especially important – as this article attempts – to study the primary sources on the Islamic law of war, because of the significant and tangible role it plays in influencing the behaviour of the warring parties who use its provisions to justify their acts of hostility. From an academic perspective, it can also be an interesting topic in its own right toresearch how the Islamic legal system can help to limit the devastation caused by armed conflicts and reduce the plight of victims, by comparing its provisions with those of contemporary IHL. On this topic, Loukas Petridis, head of the International Committee of the Red Cross (ICRC) delegation in Niger, said on 25 November 2015:
Given the increase in armed conflicts and violence, dialogue on these issues is more necessary than ever. We need to make more people aware of international humanitarian law and how it ties in with other standards, such as Islamic law and jurisprudence. This is about making sure that people have the widest possible protection.(3)
Moreover, in a meeting between Dr Ahmed al-Tayyeb (the Grand Imam of AlAzhar, the highest religious authority in the Sunni world), Ronald Ofteringer (head of the ICRC delegation in Cairo) and the present author, Dr al-Tayyeb affirmed the role that Islamic institutions can play in enhancing protection for victims of armed conflict.(4) To that end, this article sets out a brief overview of
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(3) ICRC, “Niger: Seminar on Islamic Law and Humanitarianism”, news release, 25 November 2015, available at: www.icrc.org/en/document/niger-seminar-islamic-law-humanitarianism.
(4) ICRC, “Egypt: Continuous Humanitarian Dialogue between the ICRC and Al-Azhar”, news release, 24 October 2017, available at: www.icrc.org/en/document/egypt-grand-imam-dr-ahmed-al-tayyeb-alazharwilling-support-humanitarians.
the principles regulating the use of force in armed conflict under Islamic law and discusses both the challenges in applying them and the extent to which they align with the modern principles of IHL, with a view to identifying how effective these Islamic principles can be in limiting the devastation and suffering caused by armed conflict.
Origins of the Islamic law of war
Over the course of history, most legal systems have devised rules to govern the use of armed force, stipulating both the legitimate reasons for war and the rules governing the conduct of hostilities. IHL does not specifically address the former of these two areas, regarding the justifications for resorting to armed force. This matter is covered by public international law under the Charter of the United Nations (UN), which prohibits the use of armed force except in self-defence or with authorization from the UN Security Council, as set out in Article 42 of the Charter. The function of IHL is to set rules and restrictions on the behaviour of combatants in both international and non-international armed conflicts, with a view to preventing or limiting the effects of armed conflict, minimizing the suffering of victims and protecting individuals who are either not taking part or have ceased their participation in the hostilities, as well as protecting movable and immovable property not being used in military operations. This branch of law is also known as the law of war or the law become more commonly known as international humanitarian law, emphasizing the humanitarian motives that underpin this newly developed branch of law.
The question is, has the Islamic legal system incorporated this comparatively recent branch of law? What is certain is that the classical Muslim jurists did not use this term to refer to armed conflict situations, nor did they use other modernday terminology associated with IHL. Nonetheless, the provisions of Islamic law – as developed and documented by Muslim jurists since at least the second Islamic century (eighth century AD) – show unequivocally that many of the issues covered by IHL were addressed by the Muslim jurists in order to achieve some of the same objectives as those of IHL, namely alleviating the suffering of the victims of armed conflict and protecting certain persons and objects. Before moving on to illustrate this point, at this stage it is worth referring to the sources and characteristics of the Islamic law of war before discussing the core principles regulating the use of force under Islamic law.
Sources of Islamic law
The sources of Islamic law are divided into two main groups: primary sources and secondary sources. Primary sources (also known as “agreed-upon” sources) include the Qur’an, the Sunnah (tradition) of the Prophet, ijmā‘ (legal literature representing consensus of opinion) and qiyās (rules of analogy developed via deductive reasoning). Secondary sources (also known as “disputed” sources) are a number of jurisprudential methods for developing Islamic laws which come in varying order of authority, including istiḥsān (juristic/public preference), maslaḥ ah mursalah (public interest), ‘urf (custom), shar‘ man qablanā (sharı̄ ‘ ahs of religions before Islam), madhhab al-ṣaḥabı̄ (the opinions of the Companions of the Prophet), sadd al-dharā’i‘ (“blocking the means” – i.e., preventing the occurrence of something evil, though it also extends to include facilitating the occurrence of something good) and istiṣḥāb (the continuation of the applicability of a rule that was accepted in the past, unless new evidence supports a change in its applicability).
The defining factor that differentiates Islamic law from most other legal systems is the fact that it includes rules on worship, beliefs and morality, as well as rules governing numerous other areas of life such as family law, financial transactions, criminal law, governance, and international relations in peacetime and wartime. Based on the religious aspects of Islamic law, some people mistakenly conclude that all provisions of Islamic law are unchangeable. In reality, however, while it is true that the rules on worship, creed and morality or unanimously agreedupon rules are fixed and unchangeable, there are other provisions which may be changed, as long as this is done to achieve the objective of the legislator. As described by Ibn Qayyim al-Jawziyyah (d. 1350), serving the public interest is the objective of every single rule in Islam, because sharı̄ ‘ah is founded on the divine command and the public good of the people in this world and the next. It is all justice, all compassion, all public good, and all wisdom. If any ruling changes justice into injustice, or mercy into its opposite, or the public good into corruption, or wisdom into folly, then it cannot be part of the sharı̄ ‘ah, even if an interpretation of the sharı̄ ‘ah is invoked, for sharı̄ ‘ah is God’s justice among His worshippers, and His mercy amongst His creation, and His shadow on his earth.(5)
This definitive statement by Ibn Qayyim al-Jawziyyah shows that the fundamental objective of Islamic law is to achieve justice and serve the public interest, always and everywhere.
Most Islamic law regulations on the use of force are derived from the Holy Qur’an
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(5) See Ṣubḥı̄al-Ṣāliḥ, Ma‘ālim al-Sharı̄ ‘ ah al-Islāmiyyah (Beirut: Dār al-’Ilm lil-Malāyīn, 1975), p. 62. Dār al‘Ilm lil-Malāyı̄n, Beirut, 1975, p. 62.
and Sunnah, as well as the early historical precedents of the Islamic state(6) since the seventh and eighth centuries, or what are known in the Ḥanafı̄ school of law as the siyar (approach) – i.e., the ways and methods followed by the Islamic state in its dealings with non-Muslims in times of peace and war, specifically in the era of the Prophet Muhammad and the Rightly Guided Caliphs. The term siyar is also used by some Ḥanafı̄ jurists to refer to the rules governing certain types of NIAC that occurred in the first half of the first Islamic century, such as what are known in Islamic jurisprudence as qitāl al-bughāh (fighting against rebels or secessionists) and ḥurūb al-riddah (wars of apostasy).(7) Muslim jurists established legal limits on the use of force using those sources and their own ijtihād (reasoning or judgment in making laws), based on both the sources themselves and the abovementioned tools such as qiyās, maslaḥ ̣ ah mursalah and madhhab al-ṣaḥabı̄ .We can therefore conclude that these regulations were developed under a different model of international relations and in a specific context during the lifetime of the Prophet between 624 and 634 AD, in which military engagements were less brutal and deadly than those seen today.(8)
Characteristics of the Islamic law of war
Therefore, because of the uniqueness of its sources and contexts, the Islamic law of war is defined by the following characteristics: its religious dimension, the instinct of Muslims to comply with it out of a desire to obey God, its lack of consistent codification, and the specificity of its context and sources.
There is a religious dimension to the Islamic law of war in the sense that compliance with the Islamic regulations on the use of force is an act of worship which brings a Muslim soldier closer to God. This classical juristic endeavour for humanizing armed conflicts led to contradictory rulings because in deliberating these rulings individual jurists sometimes prioritized humanitarian concerns and at other times prioritized the military necessity of winning the war, even if this was in contravention of humanitarian principles.(9)
Respect for the Islamic regulations on the use of force was something that a Muslim instinctively complied with and imposed on himself through his desire to obey God, regardless of whether or not his enemy adhered to the same rules, rather than stemming from the obligation to comply with international conventions,
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(6) Editor’s note: For the purposes of this article, the term “the Islamic state” refers to the State founded by the Muslims during the seventh century.
(7) See Muḥammad ibn Aḥmad al-Sarakhsı̄ , Kitāb al-Mabsūt Vol. 10 (Beirut: Dār al-Ma’rifah), p. 2. Vol. 10, Dār al-Ma‘rifah, Beirut, p. 2.
(8) See Ahmed Al-Dawoody, The Islamic Law of War: Justifications and Regulations, Palgrave Macmillan(New York: Palgrave Macmillan, 2011), pp. 11–41.
(9) As discussed below, the jurists gave conflicting rulings regarding the permissibility of, for example, targeting women, children or the aged if they engage in hostilities, and the use of certain means and methods of warfare.
