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HYDER GULAM*
ABSTRACT
This paper will examine how Islam has conceived war.
The methodology will be based upon examining the
works of both historical and modern authors to outline
not only the concept of war in Islam, but also rules of
warfare. This paper will also enumerate how prisoners
of war have traditionally been treated in Islam.
I. INTRODUCTION
Stop, O people, that I may give you ten rules for your guidance
in the battlefield. Do not commit treachery or deviate from the
right path. You must not mutilate dead bodies. Neither kill a
child, nor a woman, nor aged man. Bring no harm to trees, nor
burn them with fire, especially those which are fruitful. Slay not
any of the enemy’s flock, save for your food. You are likely to
pass by people who have devoted their lives to monastic services;
leave them alone.1
This paper will examine how Islam has conceived war. The
methodology will be based upon the works of both historical and
modern authors to outline not only the concept of war in Islam,
*
BA, BN, LLB, Post Grad Dip (Advanced Clinical Nursing), LLM, MBA,
Registered Nurse (Vic, NSW, UK, USA), Barrister and Solicitor,
Accredited Mediator (IAMA), FRCNA. These views are my own and do
not represent those of the Australian Defense Force or the Commonwealth
of Australia
1
Caliph Abu Bakr – the first Caliph after Prophet Muhammad’s death as
cited in Youssef H Aboul-Enein and Sherifa Zuhur, Islamic Rulings on
Warfare (2004) 22.
188 (2006) 3 UNELJ Hyder Gulam
but also the rules of warfare. This paper will also enumerate how
prisoners of war have traditionally been treated in Islam.
It is arguable that war is a social necessity which nations practice
in order to solve their social problems, which defy a peaceful
solution. Human communities have plunged into conflicts not
only for the mere attainment of material goals but for the
achievement of moral needs as well. Ibn Khaldun was of the
view that war had existed in society since ‘Creation’. Man, by his
very nature, was warlike, motivated to fight for selfish interests
or emotion.2
Some historians explain that in the absence of war, progress and
civilization would have been hindered in some nations. For
example, Hegel argued that change can only take place when
there are opposing forces which struggle against one another so
that a new product, stronger than the rest, rises from the conflict.3
The favour of the Quran in this regard springs from the fact that
it offered this view fourteen hundred years prior: “… If it were
not for God’s support of some people against others, there would
be chaos on earth. But God showers His grace upon the people.”
[2:251] Islam, since the days of Prophet Muhammad, has had to
deal with war and armed conflict. This has ranged from enmity
from the powerful Byzantine and Persian empires early in the
Islamic development, to the Crusaders, the Mughals, the
European Colonists over the last three hundred years to the
modern day Arab-Israeli, Iraqi-Iranian and recent Gulf conflicts.
Thus, it is not surprising that given this history, that Islam has
developed a legal theory to explain how the Islamic community
can wage war to defend itself. This paper will explain this
Islamic legal device.
One important point that needs to be raised at the outset is that
the work of the recognized Muslim jurists on warfare needs to be
approached with the existing socio-political requirements and
conditions of the seventh to ninth century in mind.4 Therefore,
2
As cited in Majid Khadduri, War and Peace in the Law of Islam (1955) 70.
3
As cited ‘The War System in Islam’ at <http://www.submission.org.au/
war.html> accessed 27 July 2005.
4
Mohammad Tallat Al Ghunaimi , The Muslim Conception of International
Law and the Western Approach (1968) 133.
Islam, Law and War 189
5
Wael Hallaq (forthcoming), Jihad and International Law, p.1.
6
Hilmi M. Zawati, ‘Is Jihad a Just War? War, Peace and Human Rights
under Islamic and Public International Law’ (2001) 53 Studies in Religion
and Society 13.
7
Short anecdotal accounts of Prophet Muhammad’s actions or opinions
preceded by a list of transmitters, termed the hadith.
8
Jacob Neusner and Tamara Sonn, Comparing Religion through Law:
Judaism and Islam (1999) 203.
9
As cited in Karima Bennoune, ‘As-salamu alaykum? Humanitarian Law in
Islamic Jurisprudence’ (1994) 15 Michigan Journal of International
Law 615.
190 (2006) 3 UNELJ Hyder Gulam
10
James Turner Johnson, The Holy War in Western and Islamic Tradition
(1997) 61.
11
“The Hereafter is far better for you than this first (life.)” (93:4)
12
Neusner and Sonn, above n 8, 206.
13
Khadduri, above n 2, 56.
14
Aboul-Enein and Zuhur, above n 1, 5–6.
15
Ghunaimi, above n 4, 141.
Islam, Law and War 191
16
Khadduri, above n 2, 60.
17
However, Ghunaimi notes that Kharijites conceived jihad as a sixth pillar of
Islam, a notion discounted by other Muslims – Khadduri, above n 2, 141.
18
Mustafa Akyol 2004, ‘Muslim Jurists on POWs and Non-Combatants’, in
FrontPageMagazine.com dated October 8, 2004 at
<http://www.FrontPage.com> accessed on 25 July 2005.
19
Khadduri, above n 2, 184.
192 (2006) 3 UNELJ Hyder Gulam
20
Johnson, above n 10, 49.
21
Ibid 63.
22
Ghunaimi, above n 4, 65.
23
Hallaq, above n 5, 1.
24
Zawati, above n 6, 11.
25
Ibid 12.
Islam, Law and War 193
26
Khadduri, above n 2, 54.
27
Ibid 66.
28
Aboul-Enein and Zuhur, above n 1, 7.
29
“Fight against those who believe not in God and the Last Day, nor forbid
that which has been forbidden by God and his Messenger, and those who
acknowledge not the religion of truth among the people of the scripture
until they pay the jizyah, and feel themselves subdued” [Surah
al-Tawba:29].
194 (2006) 3 UNELJ Hyder Gulam
30
Aboul-Enein and Zuhur, above n 1, 11.
31
Ghunaimi states that there is another methodology for dealing with
apparently contradictory commandments bearing on the same subject, one
being in general terms and the other being conditional, ‘the contention is
that general commandment is to be limited by the conditions of the
conditional commandment’: Ghunaimi, above n 4, 165.
32
Khadduri, above n 2, 11.
33
Akyol, above n 18.
34
Ghunaimi, above n 4, 154.
35
Akyol, above n 18.
Islam, Law and War 195
36
Ghunaimi, above n 4, 23.
37
Abdulaziz Sachedina, ‘From Defensive to Offensive Warfare: The Use and
Abuse of Jihad in the Muslim World’, from the University of Virginia
portal at <http://www.people.virginia.edu/~aas/article/article8.htm> at 13
December 2006.
38
Ibid.
39
Amir Taheri , ‘Islam and War’, New York Post (New York) February 16,
2003.
196 (2006) 3 UNELJ Hyder Gulam
40
Ibid
41
Bennoune, above n 9, 614.
Islam, Law and War 197
42
Sachedina, above n 37.
43
Bennoune, above n 9, 616.
198 (2006) 3 UNELJ Hyder Gulam
44
Ibid 622.
45
Sachedina, above n 37.
46
Ghunaimi, above n 4, 70.
Islam, Law and War 199
47
Bennoune, above n 9, 619.
48
Ibid.
49
Ibid 619–20
50
Ibid
200 (2006) 3 UNELJ Hyder Gulam
51
Sachedina, above n 37.
Islam, Law and War 201
God’s service, and not material gain. The other element was
obedience and loyalty to the military commander.52
According to Peters, in peacetime Muslims must fulfil heir
collective jihad-duty by military training and material
preparations for warfare.53 With respect this does not differ from
the Latin maxim ‘si vis pacem, para bellum’ – in times of peace,
prepare for war’.
V. RULES OF WARFARE
Fight in the way of Allah with those who fight with you, and
do not exceed the limits, surely Allah does not love those
who exceed the limits. [2:190]
As noted previously, for the jihad to have any validity, it must be
waged ‘in the path of God’ and not for the sake of material gain.
Accordingly, the rules of warfare are also constructed with the
intent of serving God. The specific prohibitions on the means and
methods of warfare were first elaborated in detailed instructions
given by the Prophet, and later by the first Caliphs, to Muslim
warriors as they were being sent into battle. Though methods of
warfare employed in the seventh and eighth centuries differ
greatly from modern methods, the principles established in
earlier times are equally applicable today. Women, children, and
other non-combatants were recognized as a separate category of
persons entitled to various degrees of immunity from attack54
The initiation of war must be preceded by an invitation to Islam.
Only upon failure to accept the faith or pay the poll text in the
case of Scripturaries, could fighting be precipitated.55 In Islam,
the rules of warfare are supposed to apply not merely because of
reciprocity concerns, but also because they are just and because
acting in conformity with them is required by God. This principle
is reflected in the orders of the Prophet Muhammad and the
Caliphs. Khadduri states, when discussing the law of nations:
52
Khadduri, above n 2, 84–86.
53
Rudolph Peters, Jihad in Classical and Modern Islam, Markus Wiener
Publishers (1996) 119.
54
Bennoune, above n 9, 623.
55
Khadduri, above n 2, 96.
202 (2006) 3 UNELJ Hyder Gulam
56
Ibid 6.
57
Muhammad Hamidulah , The Muslim Conduct of States (1953) as cited in
Neusner and Sonn, above n 8, 624.
58
Sahih Muslim (Ch: 2:32) as cited in A. Rahman I Doi, Non Muslims under
Shari’ah (1983) 94–95.
59
Hassan , The Concept of State and Law in Islam (1981) as cited in
Bennoune, above n 9, 624.
60
Bennoune, above n 9, 625.
61
Ahmed Z. Yamani, ‘Humanitarian International Law in Islam: A General
Outlook’ (1985) 7 Michigan Year Book of International Legal Studies
189, 201.
Islam, Law and War 203
62
Ibid.
63
Bennoune, above n 9, 625.
64
Ibid 629.
65
Khadduri, above n 2, 103.
66
Yamani, above n 61, 199–200.
67
Ghunaimi, above n 4, 105–6.
204 (2006) 3 UNELJ Hyder Gulam
68
Bennoune, above n 9, 630.
69
Yamani, above n 61, 199.
70
Ibid 199.
71
Ibid 207.
72
Akyol, above n 18.
Islam, Law and War 205
1. Cessation of hostilities;
2. Victory of the Muslim army;
3. Surrender of the enemy; and
4. Treaty of peace or armistice (aman).73
Wallaq states that classical jihad theory makes no mention of
Muslim military defeat, and the possibility of ‘reducing Muslim
sovereignty to a subjugated status.’74 The assumption inherent in
all the writings is winning.
73
Peters, above n 53,147.
74
Hallaq, above n 5, 10.
75
Peters, above n 53, 147.
76
Bernard Oxman, ‘Environmental Warfare’(1991) 22 Ocean Development
and International Law 433.
77
Bennoune, above n 9, 637.
206 (2006) 3 UNELJ Hyder Gulam
78
Ibid 607–8
79
George H. Aldrich, ‘The Taliban, al Qaeda, and the Determination of Illegal
Combatants’ (2002) 4 Humanitares Volkerrecht 202.
80
Bennoune, above n 9, 622.
81
Ibid 633.
82
As cited in Anwar A. Qadri, Islamic Jurisprudence in the Modern World
(2nd ed, 1973) 278–279.
83
Sahih Muslim (Ch: 2:32) as cited in Doi, above n 58, 95.
84
Yamani, above n 61, 213–4.
Islam, Law and War 207
85
Ibid 210.
86
Ghunaimi, above n 4, 127.
87
Ibid 131.
88
Doi, above n 58, 95.
89
Sahih al-Bukhari (ch 40:7) as cited in Doi, above n 58, 96.
90
Ibid 96.
208 (2006) 3 UNELJ Hyder Gulam
prisoners. It has also been argued that the Prophet only did so if
the specific prisoner was considered to have committed a crime
before the hostilities, rather than merely having participated in
the fighting. Yamani points to the execution of Uqbah ibn Abu
Mu’ayt, a prisoner of war, who had earlier attacked Muhammad
while he was praying.91
Qutb cites the decision of Caliph Umar to whip the son of Amr
ibn al-‘As, the victorious general and renowned governor of
Egypt, because Amr’s son had beaten a Coptic subject without
any legal justification. According to Qutb, the general himself
was almost the target of the Caliph’s whip.92
To conclude this section, upon capture by the enemy, Muslim
prisoners were under no obligation to submit or obey the orders
of the enemy. If they were able to escape or destroy enemy
property, they should attempt to do as much. However, if the
Muslim prisoner gave a pledge not to escape, he must faithfully
observe his parole.93
VII. CONCLUSION
This paper has attempted to examine how Islam has conceived
war. In addition, this paper has also attempted to enumerate how
prisoners of war have traditionally been cared for in Islam. It
should be noted that force was never a factor in the spread of
Islam. If it happened that non-Muslim people embraced Islam, it
was mainly due to the various kinds of justice on the part of the
Muslim. It was also due to the tolerance and leniency of Islam,
which was unknown to the other religions at that time.
For Muslims going to war must be for the right motive, in God’s
way. The intent of the jihadist was all important – to bring
justice, or for self defence. Pure jihad was never for material
gain, and there were also limits to the conflict. This no way better
expressed that the following verse from the Holy Quran:
91
Yamani, above n 61, 213.
92
Muhammed Qutb, ‘Islam and the Crisis of the Modern World’ in Kurshid
Ahmad (ed), Islam: Its Meaning and Message (1976) 258.
93
Khadduri, above n 2, 129.
Islam, Law and War 209
And fight in the way of Allah those who fight you, and do
not exceed limits surely Allah does not love those who
exceed the limits. [2:190].