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War Ethics

By:
Sohail H. Hashmi
Source:
The Encyclopedia of Islamic Bioethics What is This? A comprehensive reference work covering the major issues in Islamic bioethics, including medicine, clinical practice, genetics, theology, and Islamic law.

War Ethics

Islamic ethics deals extensively with moral concerns arising from war. The Qurʾān and the Prophet Muḥammad’s practice and teachings (Sunnah) are replete with exhortations and instructions relating to both the grounds for war and its conduct. From these sources, as well as precedents established by the first four Rightly Guided Caliphs, classical jurists developed a large ethical-legal literature on war as part of their efforts to codify Shariʿah. During the past two centuries, Muslim scholars and activists have contested and revised this classical legacy in protracted disputes that will likely continue for years to come.

This article outlines the main points in the Islamic ethics of war, beginning with the circumstances under which war is justified, followed by the rules governing war’s conduct, and concluding with the terms under which truces and peace treaties may be negotiated. Each section summarizes the classical jurists’ views as well as modern debates and reinterpretations in light of the changes in international relations and the rise of international law.

Legitimate Grounds

Jurists of the classical period (roughly the ninth through the fourteenth centuries) discussed lawful or just wars under the rubric of jihad. The term "jihad" means in general “struggle” or “striving,” but it acquired a technical meaning of religiously sanctioned warfare in the ethical-legal literature. Underlying the legal notion of “jihad by the sword” was a theory of world order that divided the world into different abodes: dār al-islām (the abode of Islam), where Islamic law prevailed; dār al-ḥarb (abode of war), where Islamic law was not enforced; and dār al-ʿahd (abode of treaty), an area inhabited by non-Muslims with whom the Muslims had an agreement of non-belligerency.

One form of jihad was defensive war to repulse aggression from the abode of war against the abode of Islam. On the basis of many Qurʾānic verses (e.g., 2:190–191, 4:74–76, 22:39–40), the jurists commonly assumed that such a defensive war was not only permissible to Muslims, but an individual obligation (farḍ ʿayn) for all able-bodied Muslims, male and female.

The other and more widely discussed form of jihad was to expand the abode of Islam by reducing the abode of war. While this type of jihad was considered obligatory upon the head of the Islamic state (imām) if doing so would not jeopardize the security and stability of the Muslim community, participation in it was obligatory only for those able-bodied, adult, free males who were capable financially of engaging in such an activity (farḍ kifāyah). The enemy was to be fought only after it rejected two other options: either that it accepts the Islamic faith or that it accepts Islamic sovereignty and agrees to live as a “protected” (dhimmī) community within the Islamic state. For Shīʿī jurists, the jihad to reduce the abode of war could be waged only under the leadership of the true Imam (i.e., Alī b. Abī Ṭālib and his eleven successors). With the disappearance of the Twelfth Imam in the ninth century, the obligation to perform offensive jihad had lapsed, and only defensive wars could be sanctioned by the Imam’s agents, the ʿulāmāʾ, until the Imam returns.

The classical jurists also dealt with military action undertaken by the Caliph/Imam against enemies within the abode of Islam, including renegade apostates (mūrtaddūn), brigands and highway robbers (mūḥaribūn), and Muslim rebels (ahl al-baghy), including most importantly the Khawārij. Many Sunni jurists regarded such wars to not be jihad in its proper sense but more an exercise of the state’s legitimate police powers. Shīʿī doctrine departed slightly from the Sunni view on this matter by classifying all opponents of the true Imams—whether Muslim or not—as legitimate targets of jihad.

Most Muslim theorists today disavow the classical theory of the offensive jihad and consider it to be contrary to a comprehensive understanding of the Qurʾān and historically anachronistic. For these scholars, defensive war is the only legitimate form of jihad. Most traditional ʿulamāʾ would define self-defense along the lines of international law, that is, aggression against Muslim territory or populations.

Only a few of the most radical Muslim groups still invoke the early juristic notion of the unified abode of Islam locked in an incessant struggle to reduce the abode of the infidels—and even they seem to give this jihad less importance than their immediate goal of seizing power in whatever Muslim country they happen to be based. The radical theorists add to the notion of self-defense the protection of “true” Muslims against the corruption and repression of nominal Muslim governments. For these writers, revolution aimed at establishing Islamic states is the pressing obligation for all righteous Muslims.

Legitimate Means

Because the goal of offensive jihad was to expand the frontiers of the Islamic state and spread the Islamic message, not annihilate unbelievers, Muslim armies needed rules of war that facilitated the absorption of non-Muslims into the abode of Islam once the fighting ended. The guiding Qurʾānic principle was “Fight those who fight against you, but do not transgress limits, for God loves not the transgressors” (2:190). From an early date, the “limits” mentioned in this verse were interpreted by many scholars as requiring rules to regulate not only who could be attacked and killed, but also the weapons that may be used in the process.

Discrimination in targeting was a principle clearly established by several Prophetic ḥadīths. The jurists agreed on the basis of these reports that women and children should not be deliberately killed. The prohibition, according to most jurists, is grounded in Q. 2:190 and in the words of the Prophet, who, upon seeing a slain woman during a campaign, said, “She is not one who would have fought,” before ordering his troops not to kill women, children, and peasants. Thus, the majority opinion was that capacity to fight, not acceptance or rejection of Islamic faith, was the criterion for determining if an enemy person could be harmed in war. This view, of course, is not equivalent to modern conceptions of noncombatant immunity. All noncombatants, including women and children, could be enslaved.

The fate of adult, able-bodied enemy males taken as prisoners—whether they had been active combatants or not—raised particular concerns for Muslim jurists. The scholars were divided on the treatment of prisoners of war because the Qurʾān seems to give contradictory requirements in two sets of verses, 8:67–69 and 47:4, and because the Prophet dealt with prisoners differently on different occasions. Ḥanafī jurists held that the Imam had three options: execution, enslavement, or release as dhimmīs. Some Ḥanafīs conceded that ransoming for money or exchanging prisoners for Muslims held by the enemy were options in cases of necessity. The majority of other jurists held that the Muslim ruler could decide to execute, enslave, ransom, exchange, or release male prisoners according to what was in the best interest of the Muslims. Thus, the majority permitted the execution of prisoners of war. Only a minority prohibited altogether the killing of prisoners, based on Q. 47:4, which seems to limit the options to two: release or ransom of prisoners.

The classical theory held that women, children, the old, and the infirm should not be directly targeted by Muslim forces. But the nature of ancient warfare inevitably placed such people in harm’s way, particularly when the enemy retreated to a fortified settlement. The early jurists debated how far military necessity loosens the normal constraints on warfare. Some insisted that Muslim forces should refrain from tactics that risk noncombatant casualties. The majority, however, allowed commanders more latitude: In vanquishing the enemy, Muslim forces had to be able to resort to weapons and tactics that had the potential to kill indiscriminately and possibly on a large scale. If the enemy made discrimination difficult by mixing their fighters with their civilians, then the responsibility for the deaths of civilians lay with the enemy, not Muslim forces.

The majority of jurists permitted Muslim forces to ambush the enemy by night, lay siege to enemy strongholds, breach fortress walls using catapults, cut off the water supply, or flood the enemy. One weapon raised particular moral concerns for the classical jurists: naphtha, or “Greek fire,” that was hurled into besieged settlements. According to a well-known ḥadīth, the Prophet proscribed the use of fire against opponents with the words: “Do not punish creatures of God with the punishment of God.” On the basis of this ḥadīth, jurists of three of the four principal law schools in Sunni Islam, the Ḥanafīs, Mālikīs, and Shāfiʿīs, expressed various reservations regarding the use of incendiary weapons. The general rule adopted seems to be that the deliberate burning of persons, either to overcome them in the midst of battle or to punish them after capture, is forbidden. But the use of incendiary devices to overcome enemy installations or armaments was permissible, if required by military necessity or in reciprocation of enemy provocation. Only the Ḥanafīs permitted the use of fire in attacking the enemy with few reservations.

With regard to damage to enemy property, Mālikīs and Shāfiʿīs distinguished between the enemy’s landed property and their livestock. The former may be destroyed, they argued, based on reports that the Prophet on at least two occasions destroyed the enemy’s crops. But there are no recorded instances of the Prophet’s slaughter of animals in war, and thus most jurists were reluctant to sanction the killing of livestock. The Ḥanafīs again tended to be the most permissive. Enemy property seized as spoils of war should not be destroyed, they argued, because that would be a loss for Muslims. However, if Muslim forces could not secure the territory, they had license to despoil the enemy’s buildings, agriculture, and livestock.

Rules for the conduct of war against rebels differed significantly from those against all other enemies. The main reason was that in spite of their rebellion against the head of state, the rebels remained Muslim. Therefore, the goal in fighting them was foremost to rehabilitate them speedily into the body politic. Accordingly, rebels may not be pursued during a rout, their injured and able-bodied prisoners may not be executed, their women and children may not be enslaved, and their homes and property may not be seized as spoils or destroyed.

The juristic consensus on limited warfare was challenged by extremist interpreters of the Qurʾān throughout the early centuries. Among the most notorious were belligerent factions of the Khawārij movement that arose in the mid-seventh century. These Khawārij dubbed all persons—including women and children, Muslims or polytheists—who refused to join their cause as infidels and as such, liable to be killed.

Echoes of such extremist views are heard among Muslim terrorist groups in modern times. Because these latter-day Khawārij consider themselves as the only authentic Muslims, they feel no compunction about waging an indiscriminate war against all others, whether they are civilians in their own country or foreign civilians. For example, in its 1998 declaration of war against “Jews and Crusaders,” the World Islamic Front, consisting of al-Qaeda and its supporters, claimed that all Americans, whether military or civilian, were legitimate targets.

Yet, despite the attention that extremist groups garner, they represent a fringe element and their tactics have been widely condemned by most mainstream Muslim scholars. The indiscriminate attacks of terrorist groups, including al-Qaeda and the Islamic State, have been denounced as contrary to the basic principle of discrimination between combatants and noncombatants in Islamic military ethics. Nevertheless, disputes continue even among mainstream scholars on the definition of who qualifies as a noncombatant. For example, most scholars were quick to condemn the attack on the World Trade Center by al-Qaeda on 11 September 2001. But some of these scholars refused to condemn attacks—including suicide attacks—launched by Hamas and Islamic Jihad against Israeli targets. Civilian targets in the United States were illegitimate, they argued, but because all Israelis are complicit in the occupation of Palestinian territories, they are all liable to attack in the Palestinian struggle to regain their homeland.

In general terms, the scholarly consensus today is that the modern principles of international humanitarian law are in no way incompatible with Islamic ethical principles, and that they are a logical extension and development of the classical Shariʿah rules. Muslim-majority states have given credence to this view by signing the Geneva Conventions and other international agreements on the laws of war. In doing so, they have affirmed Muslim commitment to modern notions of noncombatant immunity and the humane treatment of prisoners of war.

One major gap in modern Muslim reflections on military ethics is weapons of mass destruction. To date, very little work has been done by Muslim scholars on how nuclear, biological, and chemical weapons relate to Islamic ethics. This silence is particularly glaring in light of the fact that a number of Muslim countries stockpile and have used chemical weapons, and nuclear proliferation beyond Pakistan remains a concern. Among the few Muslim scholars who have dealt with this issue, the majority view seems to be that the acquisition of such weapons is permissible as a deterrent to the threat posed by non-Muslim states that have already acquired such weapons. The Qurʾānic verse that is frequently cited as justification is 8:60: “And prepare against them whatever you are able of power and of steeds of war by which you may terrify the enemy of God and your enemy and others besides them whom you do not know [but] whom God knows.” Muslims should never initiate the use of weapons of mass destruction because they are incompatible with Islamic strictures on limited warfare, but in case of necessity, should deterrence fail, Muslims may resort to their use in retaliation and to prevent further aggression. The minority of scholars who argue against the acquisition of weapons of mass destruction point to the troubling moral issues raised by threatening to use or actually using weapons whose principal victims are noncombatants, both those initially attacked and future generations.

Military Necessity

As the preceding discussion demonstrates, military necessity is often invoked by classical and modern scholars to permit the suspension of normal restraints on warfare. Classical jurisprudence tended to allow Muslim commanders wide latitude on the grounds of military necessity, even if this resulted in the death of noncombatants and the destruction of their property. The argument for necessity (ḍarūrah) was further divided into two categories. First, the jurists cited the principle of al-maṣlaḥah al-mursalah, or the general welfare of the Muslim community. Some jurists invoked maṣlaḥah to lift normal restraints on fighting when the entire Muslim community was threatened with imminent destruction. However, most jurists resorted to maṣlaḥah in contexts far less dire; it often meant simply that all means ordinarily considered reprehensible but not expressly prohibited could be employed if necessary to ensure a Muslim victory—not just to prevent a Muslim defeat.

The second principle was muqābalah bi-al-mithl, or reciprocity. Qurʾānic justifications for reciprocity were found in such verses as “If then anyone transgresses the prohibition against you, transgress you likewise against him” (2:194); “And fight the polytheists all together (kāffahan) as they fight you all together” (9:36). From these verses jurists adduced the general principle that reciprocity not only permitted, but required Muslims to resort to rather indiscriminate and destructive methods if the enemy initiated their use. Unfortunately, the moral or legal basis for such permission is developed no further than the invocation of necessity, meaning, again, to prevent a Muslim defeat or a loss of Muslim honor.

However, scholars generally agreed that certain categorical prohibitions could not be violated, even under claims of military necessity. These prohibitions included unnecessarily cruel means of killing or maiming, such as through burning alive, torture, and mutilation; mutilation of corpses; killing of ambassadors; the taking of hostages as shields against enemy attack; general massacre of the enemy following surrender; and killing through treachery and perfidy, such as in violating oaths or grants of quarter or safe-conduct.

Cessation of Hostilities

A number of Qurʾānic verses point to the cessation of hostilities. Two of the most direct are “Fight them until there is no more strife and religion is for God, but if they cease let there be no hostility except for the oppressors” (2:193) and “But if they incline to peace, incline you to it as well, and place your trust in God” (8:61, known as the verse of peace). In addition, the Prophet’s biography contains numerous accounts of negotiations and agreements, of which the most significant was the treaty of al-Ḥudaybīyah concluded by the Prophet with his Quraysh opponents in 628.

On the basis of these sanctions, the classical jurists agreed that the Muslim ruler could contract a truce for specified periods of time. Such an agreement converted a territory from the abode of war to an abode of truce. The majority view was that the Imam could agree to a suspension of hostilities whenever he deemed it in the Muslims’ interest. A minority allowed truces only in case of necessity, to avoid hardships and calamity for the Muslims.

The jurists opined as well on whether Muslims could negotiate a truce on the condition that they pay the enemy a tribute. All permitted some type of concession in cases of dire necessity. The Ḥanafīs allowed a one-time payment but did not sanction payment by the Muslims of an annual tribute to the enemy, unless they were about to be defeated in their own territory. The Shāfiʿīs allowed the payment of tribute only when the Muslims fear complete destruction at the hands of an overwhelmingly stronger foe.

As for the term of truces, the clear presumption in the juristic literature is that they are permitted only for specified periods. Based on varying reports of the intended duration of the treaty of al-Ḥudaybīyah, the jurists gave maximum limits for truces ranging from three to ten years, frequently adding the advice that the ruler may and should nullify the truce before its term if he deems the Muslims able to resume the war. If he chooses to do so, he must give clear notice to the enemy that the truce has ended before launching an attack. The Shāfiʿīs considered ten years the limit, but allowed the ruler to renew the treaty up to the time limit in the original agreement if the Muslims did not have the ability to resume hostilities. They also allowed agreements with no specified expiration, so long as the right of the ruler to nullify them was included, basing this ruling on the Prophet’s open-ended agreement with the Jews of Khaybar in 629. As a group, the Ḥanafīs were perhaps the most open to the idea of peace treaties with no specified limit. A peace treaty could remain in place, they held, until it was either formally ended by the Muslims or the other party or it was deliberately violated by the other party.

Muslim theory and practice today are generally in agreement with international law. All Muslim-majority states are members of the United Nations and most are signatories to the principal international agreements on the peaceful resolution of disputes. Most Muslim legal experts and ethicists subscribe to the view that the state of peace—not war punctuated by truces—ought to be the normal state of international relations.

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