The Qur'an permits fighting, and if necessary includes permission to kill those who fight Muslims,65 those who drive Muslims out of their homes,66 those who oppress,67 or in some circumstances, those who cause fitna.
Within these broad categories, all adult able-bodied unbelieving enemy males,68 including polytheists69 may be slain or taken prisoner in armed
Qur'an 2:190. Muslims did not engage in fighting even under and during
oppression in Mecca. The Christian perspective that fighting was prohibited, and in the absence of its explicit abrogation through the Qur'an at that time, was probably considered binding on Muslims as under Isaiah 2:4:
Nation shall not lift up sword against nation; neither shall they learn war anymore.
It was only after the revelation of Qur'an 22:39 (in Medina) that Muslims engaged in self-defence (and who until then had legal grounds to believe that the law on the prohibition on war was still in force).
Qur'an 2:191. Qur'an 2:191.
Rudolph Peters, jihad in Classical and Modem Islam (1996), 33. The scope of Qur'an 47:4 is similar to the IHL provision that deems all members of the armed forces as combatants: Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, vol I (2005), 4.
Qur'an 9:5. Muhammad Asad, The Message of the Qur'an: Translated and Explamed
(1984), 256 n8. There is a further condition that treaty arrangements between the parties are absent, suspended or revoked.
Chapter 3 —110
djihad70 a position not dissimilar to that under IHL. Further, the Q ur'an states that when two parties of Muslims are in conflict, the party that has transgressed 'beyond bounds'71 should be fought,72 creating an exception to the prohibition against the slaying of Muslims,73 issues specifically discussed in chapter 5 under rebellion.
Capture of the enemy is preferable to killing however.74 A person who is no longer a threat or who seeks asylum must, as far as practical, be given asylum / sanctuary, so that he or she may hear the message of the Prophet.75 Those who are hors de combat may also be captured, and in the past wives and children of soldiers were taken captive. This was a clear deterrent to aggressive war but the discussion of this which is outside the scope of this paper.
Captives may be ransomed, used in prisoner exchange or used to bring literacy or other skills to the Muslim community. Through this they
70 71 72 73 74 75
Qur'an 47:4. Unless the individual was invited to Islam (and have declined), then capture is preferable because the person concerned will then be in a position in which to hear the call to, be offered the opportunity to learn and then accept or reject the Muslim Covenant. Often a promise by the prisoner that s/h e will study the Covenant is all that is required to discharge the Muslim's duty7 to da'wa (call to the faith): Qur'an 3:20. See the promise to study7 Islam extracted by7 the Taliban from Yvonne Ridley as a condition for her release: Yvonne Ridley, In the hands of the
Taliban (2001), 209. In former times when slavery was a legal institution, in the old
day7s, Muslims had the additional economic incentive to capture rather than kill an opponent for the potential economic value of the slave in good health.
This is a particular translation from the original Arabic and is discussed further in Chapter 5.
Qur'an 49:9:
If two parties among the Believers fall into a quarrel make ye peace between them: but if one of them transgresses beyond bounds against the other then fight ye (all) against the one that transgresses until it complies with the command of God; but if it complies then make peace between them with justice and be fair: for God loves those who are fair (and just).
The phrase _ two parties among the Believers refers to the '2 groups' in the Arabic dual construct, a very specific form that does not envision a set of warring tribes. The verse also uses the word 'believers as opposed to 'Muslims', the significance of which has been discussed.
Qur'an 2:193; Qur'an 8:39. Some exceptions to this rule include the permission to fight (and kill) Muslims 'who transgress beyond bounds against other Muslims': Qur'an 49:9, and for the execution of quisas and hudud punishments.
Qur'an 9:6:
If one amongst the pagans ask thee for asylum grant it to him so that he may hear the word of God and then escort him to where he can be secure: that is because they are men without knowledge.
Chapter 3 —111
may earn their freedom /6 a concept arguably not known to contemporary IHL. Prisoners of war of limited means may be conditionally released without ransom, for example on their own undertaking that they will not fight against the Muslims in future.77 This is an area of law in which the
shari'a can make a great contribution to IHL, and while outside the scope of this paper, is an issue that should be examined in some detail.
As mentioned, the Q ur'an also enumerates, in w hat may be
described as nine groups or heads of power, those who may be fought. The order in which the categories are examined does not either follow their textual order in the Q ur'an or the chronological order of revelation but are arranged so that the grounds more easily recognised under IHL are discussed first. The IHL position is briefly mentioned, followed by the
shari'a position. Self-evident categories are simply named. Note also that in theory under Shi'i, Islam all opponents of the legitimate imam may be fought.78 For the 'absence' (occultation of the rightful Shi'i) imam,79 difference with Sunni Islam is not relevant in practice.80
1 'Those w ho fight M uslim s'
The UN Charter in the main addresses Nation States81 and provides for collective security which in Charter terms generally means the preservation of international peace and security,82 and invoking an 'autom atic' reaction against a potential aggressor.83 The UN Charter obliges States to settle their
76 77 78 79 80 81 82 83
Adil Salahi, Muhammad: Man and the Prophet (2002), 283.
Ibid. According to Yvonne Ridley, In the hands of the Taliban (2001), 209., and although Ridley does not fall into the category of a poor POW, the Taliban nonetheless released her on her own undertaking that she would study the faith. Ridley tried to obtain a visa for Afghanistan (ibid. 62) but failing that she had entered Afghanistan clandestinely (ibid. 91) in circumstances that cannot easily be characterised as innocent passage.
Sohail H Hashmi, 'Islamic Ethics and Weapons of Mass Destruction: An Argument for Nonproliferation' in S H Hashmi and S P Lee (eds), Ethics and Weapons of Mass Destruction: Religious and Secular Perspectives, (2004) 321, 325.
H A R Gibb and J H Kramers (eds), Concise Encyclopaedia of Islam (4th ed, 2001), 110. See Appendix 1 for discussion of the occultation of tire 12th Shi'i imam.
See the issue of tire occultation of tire imam n 189, 72 and associated text. Article 2(1) United Nations Charter.
Danesh Sarooshi, The United Nations and the Development of Collective Security: The Delegation by tire UN Security Council of its Chapter VII Powers (1999), 6. Martti Koskenniemi, 'The Place of Law in Collective Security7' in N D White (ed)
C hapter 3 —112
disputes peaceably and to do so with justice.84 To this end there is an international prohibition on the use of force85 but one which necessarily provides for two broad exceptions.86 States enjoy an inherent right of individual and collective self-defence in the event of an armed attack and this right appears to continue until the UN Security Council takes measures in the meaning of Article 51.87 On the question of w hat constitutes an armed attack the ICJ approved the customary definition of the term.88
In discussing the scope of self-defence in international law, the majority of the ICJ in the Wall Case89 recognised that in the law as it stands, a State has a right under Article 51 of the UN Charter to self-defence when attacked by another State or by 'irregulars [...] sent by or on behalf of a State [...] and [whose] armed activity would have been classified as an armed attack had it been carried out by regular armed forces'.90 The ICJ
Article 2(3) United Nations Charter. Article 2(4) United Nations Charter.
(a) Article 51 United Nations Charter (Self-defence and Collective self-defence in the event of an attack) and
(b) When authorised to use force by the Security Council under Chapter VII of the UN Charter.
Article 51 United Nations Charter.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA), Merits, (Judgment of 27 June) (1986) 14 ICJ Rep 1, para. 195:
In the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack. Reliance on collective self-defence of course does not remove the need for this. There appears now to be general agreement on the nature of the acts which can be treated as constituting armed attacks. In particular, it may be considered to be agreed that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also "the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity7 as to amount to" (inter alia) an actual armed attack conducted by regular forces, "or its substantial involvement therein". This description, contained in Article 3, paragraph (g), of the Definition of Aggression annexed to General Assembly resolution 3314 (XXIX), may be taken to reflect customary7 international law. The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State [...]
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (2004) ICJ Rep 136,177.
Ibid. 90
C hapter 3 —113
reiterated this position in the Congo Case.91 Here, the Court found that circumstances for Ugandan self-defence were not present because92:
there is no satisfactory proof of the involvement in these [anti- Ugandan rebel groups'] attacks, direct or indirect, of the Government of the DRC.
Higgins J. however, expressed her reservations with respect to the Court's narrower view of self-defence.93 Greig holds that the ICJ's view on Article 51 is 'confusing and legally unconvincing' and notes that the Article 51 right is not, on its plain meaning, qualified by the source of the armed attack,94 a view supported by Abadee and Rothwell who said th a t'[...] rarely has the prima facie capacity to respond to the attacks of a non-State actor been challenged'.95 The view expressed by Higgins J., Greig, Abadee and Rothwell on self-defence is compatible with the shari'a, which permits Muslims to fight all those who fight them,96 which is subject to no
qualification based on a nexus with a State or otherwise, and is the shari'a
position adopted in this thesis on the right to self defence. Even post September 11, the ICJ did not relax this definition to encompass the armed activity of non-State actors not acting in concert with a State party.97
Phillips extends the concept of 'collective obligations' (fard kifaya) to the armed djihad98 as a notion of collective security. Qur'an 2:190-191
91 92 93 94 95 96 97 98
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (2005) ICJ Rep 168, 209.
Ibid. 205 para. 146. The requirement for a nexus with State no doubt arises from the UNGA, 'Resolution adopted by the General Assembly [on the report of the 6th Committee (A/56/589 and Corr. 1)] 56/83. Responsibility7 of States for internationally wrongful acts' (2002) A/Res/56/83.
Legal Consequences of the Construction of a Wall in die Occupied Palestinian Territory, Advisory7 Opinion (2004) ICJ Rep 136,188 per Higgins J. (references omitted).
D W Greig, 'Invalidity7 and the Law of Treaties' (2006), 110 n 344.
Nicole Abadee and Donald R Rothwell, 'The Howard Doctrine: Australia and Anticipatory7 Self-Defence against Terrorist Attacks' (2007) 26 Australian Yearbook of International Law 19, 31.
Qur'an 2:190.
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (2005) ICJ Rep 168.
Robert L Phillips, 'Combattancy, Noncombatancy, and Non-combatant Immunity in Just War Tradition' in J T Johnson and J Kelsay (eds), Cross, Crescent, and Sword : The justification and limitation of war in Western and Islamic tradition, (1990) 197, 200.
C hapter 3 —114
permits Muslims to fight in self-defence." However, according to Khadduri:100
The classical doctrine of jihad made no distinction between defensive and offensive war, for in tire pursuance of the establishment of God's Sovereignty and Justice on Earth the difference between defensive and offensive acts was irrelevant.
This is not to say that the first wars fought by the early Muslims were offensive. To the contrary they were defensive wars. The Battles of
Badr (2A H / 624 AD), Uhud (3 A H /625 AD) and Khandacj (5 A H / 627 AD), were all battles fought by the Muslims within a few miles of Medina, in defence of their City-State against the Meccan enemy and their allied tribes whose homelands were much further away.101 It is noted for the purposes of this analysis that the minor expeditions, raids and skirmishes102 between the Arab tribes and the Muslims are in a definitional sense not considered "battles7 o r'w ars7.103
In fact the first major battle fought by Muslims away from Medina was the battle for Mecca,104 at a time when the majority of Meccans were non-Muslims. The battle was not initiated by the Muslims, but was a case of Medina's Muslims responding to an obligation under a pact of mutual
99
100 101
102
103
Qur'an 2:190-191 (That is, those who legitimately may be fought in self-defence
(je gli-J), Qur'an 2:190; Qur'an 2:191. The word qital is translated as fighting and also means killing
Majid Khadduri, The Islamic Conception of Justice (1984). The distance between Mecca and Medina is over 200 miles.
Some armed confrontations are characterised as (1) sariyah D-E^a word which does not appear in the Qur'an but shares the same triliterals ( j jc y ) with the word isra'a
(the Prophet's the night journey: Qur'an 17:1, and historically share the common feature of something that happened at night and in this case a small night expedition by part of an army of between 5 - 400, or according to other sources 1 person (a hadith related from the Prophet) to 500 people (fath al-Bari), but in contemporary usage in a military sense, is not limited to a night expedition: E W Lane, Arabic English Lexicon vol l (1984), at 1355., and (2) ghazwa ( *jJ&) which in pre-Islamic Arabia was an expedition or a raid seeking booty in the enemy territory
and can comprise an army of varying size: E W Lane, Arabic English Lexicon vol 2 (1984), 2257. After Islam, the word means a campaign in which the Prophet participated: Muhammad Shanafiyyah Ghrabal, The Concise Arabic Encyclopaedia (al- Mawsouah al-Arabiyyah al-Missriyyah) (1965), 1256. The word ghazwa appears in Qur'an 3:156 but not in the context of the conduct of an armed conflict, but to remind Muslims that a person's time of death is fixed by God and cowardice, or avoiding fighting would not have caused them to live longer. The word ghazwa is here used in the Islamic context and for example, used in the vernacular to describe
djihad, as in the reference to the ghazwa Badr (jA> SjJ*) although Badr was fought by Muslims in defence of Medina. (Badr is a few miles out of Medina and over 200 miles from their Qureishi opponents home town of Mecca.)
See Gulzar Ahmed, The Battles of the Prophet of Allah Vol. II (1986), 280. for a list of the Prophet's military expeditions.
C hapter 3 —115