War and Law in the Islamic World

WAR AND LAW IN THE ISLAMIC WORLD – Book Sample

Contents – WAR AND LAW IN THE ISLAMIC WORLD

• Foreword xi
• Preface xiii
• Acknowledgements xiv
• Table of Legal Materials and Cases xvi
• Introduction 1
• PART i
• Positivist Analysis of the Principles of Protection in Warfare
• I Principles of Protection in Warfare under Islamic Law of War 17

• Introduction 17
• Territorial and Temporal Jurisdiction 18
  • On War and Peace 18
  • During External Warfare 24
  • During Internal Warfare 30
• The Principle of Distinction 33
  • On Discrimination 33
  • In External Warfare 35
  • In Internal Warfare 36
• The Principle of Proportionality 38
  • On Means and Methods of War 38
  • During External Warfare 41
  • During Internal Warfare 42
• Conclusion 43
• II Principles of Protection in Warfare under International Humanitarian Law 45

• Introduction 45
• Territorial and Temporal Jurisdiction 47
  • On the Fragmentation of International (Humanitarian) Law 47
• al Armed Conflicts 51
• .3 Non-International Armed Conflicts 54

• viii contents

• The Principle of Distinction 57
  • On Status and Privileges 57
  • International Armed Conflicts 62
  • Non-International Armed Conflicts 65
• The Principle of Proportionality 67
  • On Humanity and Necessity 67
  • International Armed Conflicts 70
  • Non-International Armed Conflicts 72
• Conclusion 73

• PART ii
• Historical Analysis of the Self and the Other
• III The “Western” Self and the Other 77

• Introduction 77
• From Christianity to Colonialism 78
  • Religious Conscience versus Rationalism 78
  • Nationalism and Orientalism 83
  • The Standard of Civilisation 87
• Capitalism versus Communism 92
  • Imperialism 92
  • Liberalism 94
  • Humanitarianism 96
• From Decolonisation to Globalisation 98
  • Self-Determination versus Sovereignty 98
  • Professionalism versus Anarchy 100
  • Moralism versus Terrorism 102
• Conclusion 104
• IV The “Islamic” Self and the Other 107

• Introduction 107
• From the Period of Revelation to Western Colonisation 108
  • The Early Path to Justice 108
  • The Imperial Venture 113
  • The Western Colonisation 118
• contents ix

• From Sovereignty to Emancipation 120
  • Nationalism 120
  • Modernism 122
  • Revivalism 124
• From Decadence to Devotion 126
  • Rebellious Fundamentalism 126
  • Local Secessionism 130
  • Global Terrorism 132
• Conclusion 134
• PART iii
• Toward a Naturalist Legal Analysis of the Laws of War
• V The Structure of the Legal Arguments in Islamic Law of War 139

• Introduction 139
• Jurisdiction and Distinction 140
  • Authority in Warfare 140
  • On Jurisdiction 147
  • On Distinction 154
• Necessity and Proportionality 156
  • Actions of Warfare 156
  • On Necessity 158
  • On Proportionality 160
• Back to Tradition 162
  • Confronting the Evil 162
  • Fighting the Inner Jihad 166
  • Respecting God’s Creation 170
• Conclusion 173
• VI The Structure of the Legal Arguments in International Humanitarian Law 175

• Introduction 175
• Jurisdiction and Distinction 176
  • Agency in Warfare 176
  • On Jurisdiction 181
  • On Distinction 189
• x contents

• Necessity and Proportionality 192
  • Actions of Warfare 192
  • On Necessity 195
  • On Proportionality 198
• Towards Progress 201
  • Facing Human Selfishness 201
  • Awakening the Human(itarian) Conscience 205
  • Surviving Humanity 209
• Conclusion 211
• Conclusion 213

• On Identity, Knowledge, and Morality 213
• On War, Division, and Conscience 217
• On Unity, Protection, and Life 222
• Bibliography 227
• Author Index 263
• Subject Index 271

Principles of Protection in Warfare under Islamic Law of War

The aim of this chapter is to analyse—from a positivist perspective—the principles of protection, i.e. distinction and proportionality, under ILW. Although some extensive work has been undertaken by different scholars in the field with respect to the general evolution of ILW,1 the principles of protection have not been really examined in detail.

The principles of distinction and proportionality (which are also found in the traditions of IHL, i.e. jus in bello) will be examined herein from the outlook of the primary sources of Islamic law,

i.e. the Qur’an and the Sunnah. These primary sources provide the basis for understanding state conduct during peace and war times, i.e. the so-called siyar.2 Without entering into the debate on the origins of IHL and ILW,3 this structure will facilitate an understanding of past and ongoing conflicts with perpetrators and victims from Islamic and Western origins.

The chapter will firstly categorise the territorial and temporal jurisdiction of ILW, secondly its subjects, and finally the conduct of hostilities in order to give a clearer picture of certain principles present within the Qur’anic experience but whose juris- tic interpretations have blurred the straightforwardness by which the Prophet Muhammad had spread the message of Islam. This latter historical context will be dealt with in Part II (Chapter IV), where a closer look at the narratives of the Islamic Self and its Other will try to expose how—over time—such divisions seem to have influenced the law to reflect such discourse.

Before dealing with the substantive issues in this chapter, a closer look upon the sources of Islamic law is mandatory. Traditionally, the sources of Islamic law are categorised into the Qur’an, the Sunnah, ijma (consensus among the jurists) and qiyas (analogy). However, not all madhahib agree upon the latter two sources and rather treat them as methodologies to interpret the primary divine sources of Islamic law, i.e. the Qur’an and the Sunnah which override all the other sources of Islamic law. The Qur’an constitutes of the Revelation to the Prophet Muhammad. Very few verses in the Qur’an refer to fighting. Therefore, the need to analyse the Sunnah which constitutes of the Traditions of the Prophet Muhammad, namely the things He has done, said and acquiesced to during His lifetime.

 These Traditions have been transmitted through the hadiths which are collections of those Traditions. Their credibility and authenticity depend on the chain of narration and the people involved in collecting these Traditions.4 For those reasons, we will use the collection of hadiths from Al-Bukhari (d. 870), called the Sahih5 which, generally, has been accepted by jurists as being of high authenticity.6

Territorial and Temporal Jurisdiction – On War and Peace

Before analysing ILW and its jurisdictional regimes, its historical development will be briefly dealt with. ILW has been formulated by the jurists in terms of historical progress made by the Islamic community, i.e. the ummah, from the period of Revelation onwards7 through the early battles of Islam.8

The establishment of the first Islamic community was accompanied and guided by the Revelation to the Prophet and the teachings of the Prophet. The Qur’an and the Traditions would adapt to the challenges which the first Muslims were facing both from within and outside their community.9

 In the first instance, the Islamic faith had to be propagated peacefully. Until the Meccans continued to persecute the Muslims in Medina after their migration there, the ummah needed to be defended accordingly against their aggressive enemies.

The moment the new Muslim state gained more power, it could afford to pursue an offensive policy in the Arabian Peninsula rather than a defensive one.10 After the victories of the Islamic armies within this territory, an expansionist desire would spread the message around the rest of the world11 with the aim of inviting the non-Muslims to embrace this new religion or otherwise subject them to the Islamic rule while permitting them to continue their own religious practices.12 In that regard, the so-called “peace verses”13 though they precede those of the “sword”, were set aside.14 Hence, the theory of abrogation, i.e. naskh,15 was particularly useful for setting aside the initial engagement of

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