Primary Concerns of Classical Jurisprudence

TypesofConJlict

The starting point for understanding the Islamic regulation of armed conflict is thejuristic classification of armed conflict. Classicaljurists often divided armed conflict into four primary categories,)،had (fighting unbelievers), baghy (fighting rebellious Muslim groups), h،raba (fighting highway robbers and ban­dits), and r،dda (apostasy).

3.1.1 J،had (Fighting Unbelievers)

Unlike modern scholarship's fixation on thejustification for war with non­Muslims, classical scholarship is brief on the issue.25 Contrary to a widely re­peated claim that, with the exception of minority jurists like afShafi'i and Ibn Hazm, jurists prohibited offensive warfare,26 most early classical jurisprudence is silent on the question of which non-Muslims may be fought and why. Rather, it focuses primarily on the “when” of the issue, or in other words whether an invitation to Islam is a necessary precursor for war against unbelievers. For

25 Hashmi, “Saving and Taking Lives in War,” 129.

26 See e.g. al-Dawoody, Islam،c Law of War, 111. example, al-Tabari notes in his work on Ikhtilaf 27 that there is a general con­sensus that “the Prophet (pbuh) did not fight his enemies from the people of disbelief except after the propagation of his da'wa (message/invitation) and that he (pbuh) used to order the heads of his military missions to invite [to Is­lam], those who had not received the message.''28 Scholars, he Ihrther notes, disagreed over whether those who had received the message but were not spe­cifically invited to join the religion of Islam needed to be invited before com- baΛ.29 Ifonbushhinhh, IhtlajWfork.Btda.yatcd-muJtahidwanihayatcd-muqta?id, signalled that jurists agreed that the People of the Book, except Christian Ar­abs and the ones from Quraysh, should be fought to force them either to con­vert to Islam or to pay theJizya (poll tax).30 He relied on the Quranic verse, “Fight those of the People of the Book who do not [truly] believe in God and the Last Day, who do not forbid what God and His Messenger have forbidden, who do not obey the rule of justice, until they pay the tax and agree to submit.''31

The bulk of jurisprudence on Hghting unbelievers is instead focused on per­missible harm to be inflicted on the enemy, acceptable military tactics, who may be deliberately killed, who may be inadvertently killed in the course of the battle, who may be taken as captive, and how property of the enemy is to be dealt with in terms of destruction, acquisition and distribution amongst booty recipients.

3.1.2 Baghy (Fighting Rebellious Muslim Groups)

Unlike conflict with non-Muslims, jurists offered more attention to the govern­ing rules when the baghy regime is invoked. As the tradition consolidated, there was a general inclination, albeit with exceptions,32 to restrict the applica­bility of the regime to groups satisfying two primary conditions. First, the group must be rebelling on the basis of possessing a taWll, defined as a plau­sible, even if erroneous, religious justification. As noted by Abou El Fadl, jurists were often expansive in what they considered permissible taWll, often

27 Ikhtilafiiterally means difference. Ikhtilafworks survey differentjurisprudential positions across the prominent schools.

28 Sl--TabiaU, IiiUfab aljlhad wa Kttab à³-^jtzya wa ah m almuhbln mtn Kttab Ikhifllaf al- fuqaha', ed. Joseph Schacht (Leiden: Brill, 1933), 2.

29 ab-TabaU, Ikhtllaf, 3,.

30 Ibn Rushd (al-Haftd), Bidayat al-muJtahid wa nihayat al-muqtasid (Cairo: DSr al-Hadith, 2004), 2:151.

31 Q 9:29. All references to the QurSn are to The Qur'an, trans. M. A. S. Abdel Haleem (Oxford: Oxford University Press, 2005).

32 See Chapter 2 for an examination of Ibn Hazm and Ibn Taymiyya's views. including most grievances against the ruler's governance.33 Second, the group must be sufficiently numerous to be fought.34 The most significant outcome, in addition to the conduct-related outcomes discussed in the book, is that rebels in this case are not held responsible for damage to life and property.

3.1.3 Hiraba (Fighting Highway Robbers and Bandits)

Whereas the hiraba regime is invoked in contemporary works in the war against terrorists, it has traditionally been reserved by jurists to non-political conflicts with highway robbers and bandits. The primary verse relied upon for this crime is:

Those who wage war against God and His Messenger and strive to spread corruption in the land should be punished by death, crucifixion, the am­putation of an alternate hand and foot, or banishment from the land: a disgrace for them in this world, and then a terrible punishment in the Hereafter, unless they repent before you overpower them - in that case bear in mind that God is forgiving and merciful.35

Whereas the Quranic verse relied upon in hiraba conflicts is expansive and potentially applies to rebellion, jurists have navigated sources to limit it to reg­ular criminal activities that resort to terrorizing tactics, such as highway at­tacks in the desert.

3.1.4 Ridda (Apostasy)

There is much debate on the ridda regime and its applicability to modern con­flict. Militant regimes claim that contemporary Muslim states are apostate states, so must be fought. In the discussion of Ibn Taymiyya's work and militant ideology, I analyse these arguments and their limitations, considering their de­viation from the classical tradition. However, although classical jurists have not generally devised a specific regime for the conduct of armed conflict with

33 Abou El Fadl, Rebellion, 242.

34 Abou El Fadl, Rebellion, 284.

35 ^q 5:33--4.

36 al-tabatt, Ikhttaf, 242.-4,. apostates, many of them have agreed that an apostate must be asked to repent and, if reluctant to do so, killed 37

.2 WhoMctyBeKildDrnCombat?

Surveying modern scholarship on who may be killed during conflict is bound to leave the reader conhrsed. While many works have been heavily influenced by the distinction between combatants and non-combatants in international humanitarian law, thereby claiming that only those participating in Hghting may be specifically targeted and killed,38 other works have asserted that any­one capable of Hghting may be targeted.39 However, an examination of early Islamic jurisprudence shows little reference to general rules derived on the ba­sis of participation. Jurists generally distinguished between those who may be deliberately targeted and those who may be inadvertently killed during com­bat. They considered religion, gender, age, place of residence, and physical ability as possible factors influencing whether or not a person may be targeted. In the next chapters, I take the reader through the different juristic positions on targeting to portray how varied and complex the juristic literature is on this matter and how modern scholarship is often reductive and dismissive of this diverse tradition.

At the same time, those who may not be killed are often envisioned as le­gitimate collateral damage in a conflict if their death is inevitable. The situa­tion most often envisioned byjurists is Muslims, women, and children shielding a fortress (tatarus). The question often asked is whether the fortress may be attacked by partially indiscriminate weapons such as lances and catapults, considering that such weapons may cause the death of individuals belonging those groups. Again, with varying degrees of acceptance, jurists agree that those weapons may be resorted to in such situations, relying primarily on a later discussed prophetic tradition, whereby the Prophet is said to have been asked about the death of women and children during night raids, to which he responded that they were from them (the inhdels).49

37 'Abdul Ral man al-Jaziri, Kitab al-fiqh 'ala l-madhahib al-arba'a, 2nd ed. (Beirut: DSr al-Kutub al-'Ilmiyya, 2002), 5:372-74.

38 Abu Zahra, al-Llaqat al-dawliyya, 103. See also al-Dawoody, Islamic Law ofWar, 14.

39 Muhammad Hamidullah, Muslim Conduct of State (Lahore: Kashmiri Bazar, 1945), 195.

40 Mulammad b. Idris a!-Shafi'i, al-Umm, ed. Malmud Mutraji (Beirut: DSr al-Kutub al- 'Ilmiyya, 1993), 4:337.

3.3 Captie

A closely connected issue is the treatment of captives. Many modern works emphasize the possibility for ransom and graceful release for captives to assert congruency with the modern regulation of combat.41 However, a practice gen­erally dismissed until its recent revival by the ISIS is the enslavement of captives. Although it is true that the early Islamic tradition allowed for signifi­cantly limited avenues for slavery and encouraged manumission, war with non-Muslims continued to form a legitimate channel for slavery. Again, de­spite modern negligence of the issue, classical jurists agreed that captives may be enslaved and generally disagreed over the imam’s discretion over manumis­sion of women and children on the one hand and of adult men on the other.42

3.4 Property

Discussion of property in modern literature is again reductive and selective, not just in the sources covered but also in the issues examined.

41 Troy Thomas, “Jihad's Captives: Prisoners of War in Islam,” USAF Air University Maxwell- Gunter AFB website (2005), online:, 7, accessed 4 January 2007.

42 Ibn Rushd (alHftd), Bidayat, 2:145.

43 Muhammad Munir, “Suicide Attacks and Islamic Law,” International Review of the Red Cross 90, no. 869 (2008), 88. Wahbeh al-Zuhili, “Islam and International Law,” International Review of the Red Cross 87, no. 858 (2005), 282.

44 al-Shafi'i, al-Umm, 4:368.

45 al-Dawoody, Islamic Law ofWar, 128.

46 Ibn Rushd (alHftd), Bidayat, 2:152.

3.5 Aman

One other avenue for protecting non-Muslim lives and properties is the regime of aman (safety pact). As will be seen in the discussion of militant literature, aman is a key issue in a modern understanding of conflict with non-Muslims since it can seriously limit the conduct of covert or surprise military opera­tions in both non-Muslim and Muslim societies. According to this regime, a Muslim entering non-Muslim lands under a pact of aman may not harm non- Muslims.47 At the same time, non-Muslims entering Muslim lands may not be harmed, and their properties may not be taken for the duration of their stay if they have been granted a safety pledge from a person eligible to grant aman.48 Who may grant an aman and what constitutes a breach of aman has varied from place to place. The modern debate has focused on whether the modern visa regime constitutes a safety pledge, both for a Muslim entering a non-Mus- lim state and for a non-Muslim entering a Muslim state.

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