Laws of Yesterday’s Wars Symposium – Islamic Laws of War

Editor’s note: The following post highlights a chapter that appears in Samuel White’s edited volumes Laws of Yesterday’s Wars published with Brill. For a general introduction to the series, see Samuel White and Professor Sean Watts’s introductory post.

Many people feel strongly bound to, and are inclined to follow, their own religious and indigenous traditions. Islamic law is a prime example. It is one of the oldest legal systems in existence and plays a role in the lives of most of the world’s 1.8 billion Muslims. Therefore, finding common perspectives between international humanitarian law (IHL) and Islamic law is vital to assist and protect people affected by armed conflict. Islamic law combines both religious and positive law elements and reflects mostly uncodified rules and interpretations ranging from religious ordinances, dietary rules and restrictions, family law, commercial law, criminal law, international law, and IHL.

Laws of War from the Time of Prophet Muhammad

The development of the Islamic laws of war goes back to the earliest and most authoritative period for the formulation of Islamic law, namely, the lifetime of Prophet Muhammad (d. 632). At present, the majority of contemporary armed conflicts take place in Muslim contexts. Most are non-international armed conflicts (NIACs) where many Islamic non-State armed groups (NSAG) use Islamic law as the source of reference to regulate their use of force, their governance, and their administration of justice. In addition to NSAGs, State-affiliated fatwa institutions and Islamic professors and experts deliberate Islamic law positions on a variety of issues. These might pertain, for example, to protections of civilians, conduct of hostilities, use of certain means and methods of warfare, treatment of prisoners of war (POWs), and the management of the dead. In each case, the individuals concerned refer to the earliest rules and precedents addressing the war situations in the period under discussion in this post.

It is remarkable that the Islamic laws of war developed by classical Muslim jurists throughout the seventh, eighth and nineth centuries continue to regulate and justify certain means and methods of warfare by Islamic NSAGs. These rules, which regulated the use of force in the primitive wars of this period, also continue to shape deliberations among Islamic law scholars. Therefore, it is unrealistic to ignore the role Islamic law can play. First, this enables a better understanding of the contemporary patterns that govern the use of force by some State and non-State armed Islamic actors. Second, it can assist in humanizing contemporary armed conflicts in Muslim contexts as well as, third, universalizing the principles of IHL. The chapter presented in this post demonstrates the potential of the Islamic laws of war to help in achieving these three objectives. What is still needed, however, is the development of a concrete actionable plan from both legal and policy perspectives to ensure the realization of these goals.

The Islamic jus ad bellum

To understand the relevance and impact of the Islamic laws of war in contemporary armed conflict, my chapter “Islamic Laws of War,” in The Laws of Yesterday’s Wars 2: From Ancient India to East Africa studies the development of the Islamic laws of war during the lifetime of Prophet Muhammad. It starts with a brief discussion of (a) the “Religious and Political Structure in Arabia at the Advent of Islam” and (b) the “System of Governance, Religion, Law and War” during the Prophet Muhammad’s lifetime. This analysis helps to understand the nature of Islamic jus ad bellum and answer the question of whether these earliest wars were (c) “Offensive or Defensive”.

This chapter and previous studies show that Muslims’ engagement in the armed conflicts during the period under discussion was defensive. It is unfortunate that both modern Islamic and Western literature still focus primarily on the Islamic jus ad bellum while paying too little attention to the Islamic jus in bello rules, let alone their relevance to and impact on the protection of civilian persons and civilian objects in contemporary armed conflicts in Muslim contexts.

The Conduct of Hostilities

The remaining sections of the chapter study the Islamic jus in bello rules under the subtitles (d) “Restrictions and Prohibited Acts” and (e) “Means and Methods of Warfare.” They attempt to show how the Islamic humanitarian principles underpinning these rules may influence the behavior of Muslim arms-carriers in relevant contemporary armed conflicts.

Discussions over Islamic laws of war focus on a range of restrictions and prohibited acts. These address the protection of civilians and non-combatants, prohibitions on the destruction of property and the natural environment, humane treatment of POWs, and prohibitions on mutilation, looting, and perfidy.

As for the means and methods of warfare, pre-modern Muslim jurists deliberated the permissibility of using certain indiscriminate means and methods of warfare that may cause incidental harm to civilian persons and objects. The means of warfare under discussion included, for example, the use of mangonels, poison, or fire-tipped arrows, while the methods included night attacks and firing at human shields. The process of deliberating these primitive means and methods of warfare was complex and controversial and has led to conflicting Islamic legal rulings in many cases. Yet, both IHL and Islamic law experts, on one hand, and Islamic NSAGs who use Islamic law as their source of reference, on the other, can engage in a fruitful and impactful dialogue that can reduce humanitarian suffering in the protracted NIACs in Muslim contexts.

Concluding Thoughts

My chapter in The Laws of Yesterday’s Wars argues that the modern IHL core principles of distinction, proportionality and precautions are echoed in the deliberations of the pre-modern Muslim jurists over what is permissible and what is prohibited in war. These principles are innate to human civilizations and are reflected in various cultures and traditions throughout history. What is needed now is to unearth the equivalence of these principles in other traditions in order to enhance compliance with IHL.

In engagement with communities affected by armed conflict, we need to connect with local sources that influence the behavior of arms carriers in order to universalize IHL and find common principles that help to protect and assist victims of armed conflict. Hence, it is essential that IHL is seen as globally owned, or at least not antithetical to the norms of arms-carriers in contemporary armed conflict. Interestingly, legal innovation when it comes to many Muslim contexts means sometimes revisiting Islamic law provisions going back over a millennium because they have a huge impact on both State and non-State actors. In fact, the law, lawyers, legal concepts and doctrines must encompass innovative ways to enhance compliance of the law if its objective is to be achieved.

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Dr Ahmed Al-Dawoody is the Legal Adviser for Islamic law and jurisprudence at the ICRC in Geneva.

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