Islamic Military Jurisprudence: Overview

The Basic Rights and Wrongs

(Compiled by instructor From Wikipedia and other sources-April 2009)

I. Development of Rulings: The first military rulings were formulated during the first century after
Muhammad established an Islamic state in Medina. These rulings evolved in accordance with the
interpretations of the Quran and Hadith (the recorded traditions of Muhammad). The key themes in
these rulings were the justness of war, and the injunction to jihad.

II. Compatibility with Modern International Law: According to some professors of law,
the Islamic military jurisprudence are in line with rules of modern international law.

III. Ethics of warfare: The basic principle in fighting in the Quran is that other communities
should be treated as one's own. Fighting is justified for legitimate self-defense, to aid other
Muslims and after a violation in the terms of a treaty, but should be stopped if these
circumstances cease to exist. The principle of forgiveness is reiterated in between the assertions of
the right to self defense..

IV: Legitimacy of Defensive War: If the Muslim community as a whole is attacked, jihad
becomes incumbent on all Muslims. Jihad is differentiated further in respect to the requirements within
Muslim-governed lands (Dar al-Islam) and non-Muslim lands (Dar al-Harb). Fighting in self-defense
is not only legitimate but considered obligatory upon Muslims. But Fight only if can win: Some scholars
argue that war may only be legitimate if Muslims have at least half the power of the enemy (and thus
capable of winning it). The Hanafi school of thought holds that war can only be launched against a
state that had resorted to armed conflict against the Muslims. War, according to the Hanafis, can't simply
be made on the account of nation's religion. Sheikh Abdullah Azzam considers the defense by Muslims
of their territory as one of the foremost obligations after faith

V: Legitimacy of Offensive conflict

The Shafi'i school of thought, was the first to permit offensive jihad. He limited this warfare against
pagan Arabs only, not permitting it against non-Arab non-Muslims.

Javed Ahmad Ghamidi believes that after Muhammad and his companions, there is no concept in
Islam obliging Muslims to wage war for propagation or implementation of Islam. The only valid basis
for military jihad is to end oppression when all other measures have failed. Islam only allows jihad to be
conducted by a government.

According to Abdulaziz Sachedina, offensive jihad raises questions about whether jihad is justifiable
on moral grounds. He states that the Qur'an requires Muslims to establish just public order, increasing
the influence of Islam, allowing public Islamic worship, through offensive measures. To this end, the
Quranic verses revealed in the latter part of Muhammad's career require Muslims to wage jihad against
unbelievers. This has been complicated by the early Muslin wars of expansion which he argues were
although considered jihad by Sunni scholars, but under close scrutiny can be determined to be political.
Moreover, the offensive jihad points more to the complex relationship with the "People of the book

VI. Islamic Jurisprudence addresses many areas of international law including

1. Law of Treaties
2. Treatment of diplomats
3. Treatment of hostages
4. Treatment of refugees
5. Treatment of Prisoners of War?
6. Rights of Asylum

Some Islamic rules on treatment of civilians and civilian areas

1. Islam expressly prohibits the killing of non-combatants. Protect non-combatant civilians. Neither
kill
a child, nor a woman, nor an aged man.
2. Harming civilian areas and pillaging residential areas is also forbidden,
3. No destruction of trees, crops, livestock and farmlands. Bring no harm to the trees, nor burn them
with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food.
4. May not loot travelers
5. No right to use the local facilities of the native people without their consent.
6. Islamic law allows the confiscation of military equipment and supplies captured from the camps and
military headquarters of the combatant armies.

Some Islamic rules on conduct on the battlefield.

A. Do not commit treachery or deviate from the right path
B. Do not mutilate dead bodies.
C. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.
D.No use of poisonous weapons
E.No stopping the supply of water to their enemy.
F.Torturing enemy, and burning the combatants alive is strictly prohibited.
G. Discourages Muslim combatants from displaying pomp & unnecessary boasting when setting out
for battle.
H. No explicit injunctions against use of chemical or biological were developed by medieval
Islamic jurists as these threats were not recognized. But combatants are forbidden to employ
weapons that cause unnecessary injury to the enemy, except under dire circumstances.

VII. Conscription: Combatants must not be conscripted, but rather enlist of their free will, and with
the permission of their family. Traditionally, "adult" is defined as above age 15.

VIII. International conflict: International conflicts are armed strife conducted by one state against
another, and are distinguished from civil wars or armed strife within a state. Different rules??

IX. Declaration of war: Must make a proper declaration of war prior to the commencement of
military operations. Thus, surprise attacks are illegal under the Islamic jurisprudence. Forcible
prevention of religious practice is considered an act of war.

Sunni jurists believe that jihad can be declared by a political leader with the sanction of religious
Islamic authorities. The Shia jurists, however, hold that only a just spiritual leader can declare jihad
and ensure that it is conducted in accordance with the principles of justice. Historically, the lack of a
central religious authority has created problems with the general acceptance of these declarations. Rulers
and other individuals have on occasion declared jihad even when Islamic clerics have refused to
categorize the conflict as such.

X: Negotiations: Always be willing and ready to negotiate peace with the other party without any
hesitation. Islamic jurisprudence calls for third party interventions as another means of ending conflicts.
Such interventions are to establish mediation between the two parties to achieve a just resolution of the
dispute.

XI: Ceasefire: Respect of this cease-fire, prohibiting its violation.

XII: Prisoners of War:

1. Men, women, and children may all be taken as prisoners of war under traditional interpretations of
Islamic law. Generally, a prisoner of war could be, at the discretion of the military leader, freed,
ransomed, exchanged for Muslim prisoners, or kept as slaves. In earlier times, the ransom sometimes
took an educational dimension, where a literate prisoner of war could secure his or her freedom by
teaching ten Muslims to read and write. Some Muslim scholars hold that a prisoner may not be
ransomed for gold or silver, but may be exchanged for Muslim prisoners

2. Women and children prisoners of war cannot be killed under any circumstances, regardless of their
religious convictions, but they may be freed or ransomed
3. Women who are neither freed nor ransomed by their people were to be kept in bondage and referred
to as ma malakat aymanukum. Islamic law does not put an exact limit on the number that can be kept
in bondage. It strictly forbids keeping female slaves as a means of sexual enjoyment and luxury
according to the Islamic scholar

Some Differences Between Islamic and Western Law of War

 War in support of other oppressed Muslims justified (What about other oppressed religions)
 Slavery of prisoners OK

 Conversion attempts OK (peaceful)

 Preemptive war OK if morally certain war is imminent

 Defensive war to protect religion OK

 Doctrine of taqiyya. Pivotal doctrine of taqiyya, which is often euphemized as "religious

dissembling," though in reality simply connotes "Muslim deception vis-à-vis infidels."