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The Islamic Law of War
In the initial centuries, Mujahidin60 found astonishing success in all directions of the compass as they spread the faith by conquest. It is one thing to have a religion of personal piety but quite another to acquire an empire. The nascent Islamic state soon required a body of laws to regulate conduct with neighboring communities and with internally tolerated religious communities. “The special branch of the sacred law—the siyar–developed by the Muslim jurists to meet the need that may aptly be called the Islamic Law of Nations.”61 Islamic practice and laws of war developed from the example of the Prophet Mohammed‘s 27 battles and the commentaries testifying of his immediate successors Abu Bakr and ‘Umar.62 Kadduri notes that the law “precedes the state: it provides the basis of the state.”63 It is therefore not God, but God‘s law which really governs; and, as such, the State should be called nomocracy, not theocracy.64
In the Muslim view, Allah is ineffable and therefore not tainted by human interactions. What makes Islam a nomocracy is that a human ruler enforces the perfect, divinely-given law.65 The state exists solely to enforce the divine law, and if it fails in that duty, the state “obviously forfeits its raison d’etre—the believer still remained under the obligation to observe the law even in the absence of any one to enforce it.”66 Islamic law consists of faraid (obligations) illuminating the Sharia (the right path) to salvation. Sharia distinguishes between religious obligation (fard) and the religiously forbidden (haram). Between these two poles, Muslims have the freedom to express their faith positively (mandub) and to refrain from the unacceptable (makruh). There is also the category of jaiz, to which the law is indifferent and the believer has full freedom of action.67
Kadduri notes there are three vital characteristics of the divine law. First, the law is permanent and applicable in all times and places. Secondly, the primary concerns of the law are the common interest of the Umma, thus the individual is protected only as long as the individual‘s rights coincide with the wellbeing of the Islamic community. Thirdly, the law must be sincerely followed in good faith.68
Traditional Islamic culture rests upon a religion of laws and thus requires religious lawyers, or jurists, to interpret that law. Four centuries after Mohammed, four orthodox legal schools (Hanafi, Maliki, Shafii and Hanbali) became recognized mainstream interpreters of Sunni Islam. Their legal opinions became the standard of orthodoxy, and any departure from these established legal opinions were “denounced as innovation (bida). As a result ijtiha”69 was gradually abandoned in favor of taqlid (literally, “imitation” or “submission”) to the canons of the four schools, and the door of ijtihad was shut.70
The issue of ijtihad gains increasing importance when consideration of current Islamist thought is taken into account, because Salifists discard standard interpretations for innovative understandings. Modern Islamic Radicals, contrary to accepted doctrine, teach that only violent confrontation with the dar al harb and kafir (hypocritical or heretical Muslims) will save Islam. Islamist pronouncements are considered by traditional Islamic jurists as originating from the unlearned and condemned as innovation (bida). Some have identified this trend toward independent Quranic interpretation as the equivalent of the “Protestant Reformation” in Islam. For instance, bin Laden issued a 1998 fatwa, “Jihad Against Jews and Crusaders,” which legitimated subsequent attacks on U.S. embassies in East Africa. Neither bin Laden nor any of his lieutenants are recognized clerics with alim (interpreter of Islamic law) credentials. These self-appointed interpretations are framed in traditional fatwa form to provide a perception of authenticity with Muslim masses.71
As originally formulated, the Muslim law of nations was a temporary situation—the institution of an Islamic nation(s) in relationship with non-Islamic nations. It is universally believed within Islam that “all people, except perhaps those of the tolerated religions, would become Muslims.”72 The entire world will be subordinated to the complete authority of the Caliph. The Muslim law of nations is a triumphalist worldview that recognizes no other legitimate authority.73
Ibn Khaldun (AD 1332-1406) was one of the most prominent scholars to develop Muslim thought concerning war—naming “man‘s will-to-revenge” as its primary cause. Wars were not “casual social calamities”; rather, the causes were rooted from creation in the anger, avarice, emotions, guilt or jealousy of mankind. Thus groups or nations would conspire against one another and then make war.74 War is an unnatural state entered into “because of man‘s carelessness and sins. Ibn ‘Abd-Allah…described wars as diseases…their frequency …arising from the very nature of man, makes their recurrence as permanent as social life itself.”75
Islamic writers wrestle with the same sorts of just war issues that Christians have: i.e., varieties of conflicts, treatment of the defeated, establishment of (Islamic) law. ‘Umar ibn Ibrahim al-Awasi al-Ansari penned a 14th century work, The Dispelling of Fears in the Management of Wars, the 1961 edition of which “mentions over 40 classical Arabic texts on warfare written between the 8th and 15th century.”76 A more recent text focusing upon Islamic international law is, The Book of the Law of Nations, by Shaybani.
Islamic jurists admit no legitimate cause for war except jihad. “Only a war which has an ultimate religious purpose, that is, to enforce God‘s law or to check transgression against it, is a just war. No other form of fighting is permitted within or without the Muslim brotherhood.”77 The jihad concept set strict limits on the Arabic cultural proclivity for internecine conflict. Tribes could not go to war with Muslim coreligionists and justify this as jihad.
“In Muslim legal theory, the objective of war is neither the achievement of victory nor the acquisition of the enemy‘s property; it is rather the fulfillment of a duty—the jihad in Allah‘s path—by universalizing the Islamic faith.78 Thus Hamas‘ declaration of “victory”79 following the recent devastating three-week attack by Israel in the Gaza Strip has little to do with their military debacle and everything to do with the Islamic faith of the Palestinians.80 Jihad is religiously-justified war, “not as an instrument of policy but as an emblem of identity, an expression of community, an end in itself.”81
|Last Updated on Monday, 25 March 2013 18:55|