Islamic humanitarian law
By Syed Imad-ud-Din Asad


INTERNATIONAL humanitarian law, which is an important part of international law, aims at mitigating the effects of war by: (1) restricting the choice of means and methods of carrying out military actions; and (2) compelling the belligerents to spare persons who do not or no longer participate in hostilities.

The Geneva Conventions and Protocols are the main sources of this branch of law. According to the preamble to the Additional Protocol to the Geneva Conventions, international humanitarian law lays down provisions for the protection of victims of armed conflicts. It is silent on whether a state may or may not resort to war. It steps in whenever war breaks out, without concerning itself with the question of justification of that war. The fundamental rules of international humanitarian law that govern the conduct hostilities are:

1. Persons hors de combat and those who do not take direct part in hostilities are entitled to respect for their lives and physical and moral integrity.

2. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.

3. The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power.

4. Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights, and convictions.

5. Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment, or cruel or degrading treatment.

6. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare that cause unnecessary losses or excessive suffering.

7. Parties to a conflict shall, at all times, distinguish between the civilian population and combatants, in order to spare the civilian population and property. Neither the civilian population nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives.

Muslims can take just pride in the fact that Islam established the sanctity of life, honour, and property in times of war, and made rules for the conduct of war and ensured their enforcement, centuries before the West declared them to exist in the various present-day international instruments. The initial body of Islamic humanitarian law, which consisted of the injunctions given in the Quran and the Traditions of the Prophet, was further developed and elaborated by the Muslim jurists. Consequently, Islamic humanitarian law is more comprehensive and equitable than any set of modern treaties on this issue.

First of all, Islamic law clearly sets down guidelines as to when war can be conducted. The Quran mentions various situations when Muslims can indulge in armed conflicts. These include: when a non-Muslim state attacks an Islamic state; when Muslims living in a non-Muslim state are oppressed and persecuted; etc.

The Quran says: “And fight in the way of Allah against those who fight against you....” (2: 190) “Permission (to fight) is given to those on whom war is made....” (22: 39) “And what reason have you not to fight in the way of Allah, and of the weak among the men and the women and the children, who say: Our Lord, take us out of this town, whose people are oppressors, and grant us from Thee a friend, and grant us from Thee a helper!” (4: 75)

Islam allows war when all peaceful means of checking aggression, tyranny, violence, and injustice have failed. Here it must be mentioned that nowhere in the Quran and the Traditions is it mentioned that Muslims should resort to war for the spread of Islamic faith. The Quran clearly says: “There is no compulsion in religion....” (2: 256) This verse is a sufficient answer to all the nonsense which is talked about the Prophet offering Islam or the sword as alternatives to the non-Muslims.

Secondly, Islamic law also defines how the armed forces must behave during an armed conflict. In brief, the acts forbidden in war comprise: (1) starting war without formal ultimatum; (2) cruel ways of killing; (3) killing of non-combatants; (4) killing of prisoners of war; (5) killing of envoys; (6) massacre in the conquered territory; (7) dishonouring of women (8) inhumane treatment of prisoners of war; (9) punishing prisoners of war for acts of belligerency; (10) mutilation of dead bodies; (11) destruction of crops, trees, and other natural resources; (12) plundering and looting; (13) charging the prisoners of war for their maintenance; (14) depriving the conquered population of their possessions, interfering in their religious practices, forcing them to convert to Islam, and denying or restricting their legal and equitable rights. It must be noted that the observance of these rules is incumbent upon every Muslim soldier, commander, and ruler. Anyone who commits a violation of these norms is guilty of an offence under Islamic law.

Along with principles now incorporated in the Geneva Conventions, Islamic law contains provisions not yet incorporated in modern international instruments. For instance, the protections provided by the Conventions are in the nature of multilateral treaties. Islam provides all these protections unilaterally. Similarly, the Conventions allow the detaining state to exact labour from those prisoners of war that are below officer rank. According to Islamic law, no labour can be exacted from the captives.

The Prophet, the pious Caliphs, and later Muslim rulers strictly followed the rules of Islamic humanitarian law. The Prophet used to instruct his commanding officers and soldiers about war ethics. He would particularly emphasise on treating the captives with dignity and kindness. Caliph Abu Bakar’s instructions to his military commanders, regarding behaviour of troops, are also well known.

In 638, when Jerusalem was first conquered by the Muslims, Caliph Omar Bin Khattab made this declaration, which displays the humanity of the victors: “I grant them security of lives, their possessions, their children, their churches, their crosses, and all that belongs to them.... Their churches shall not be impoverished, nor destroyed; neither endowments, nor their dignity.... Neither shall the inhabitants of Jerusalem be exposed to violence in following their religion; nor shall one of them be injured.”

The case of Qutaibah bin Muslim also demonstrates the strict discipline and control under which the Muslim armies were kept. A delegation from Samarqand met Caliph Omar bin Abdul Aziz and complained that Qutaibah, commander of the Muslim army, had unjustifiably stationed the troops in their town. Omar ordered the governor of Samarqand to appoint a judge to adjudicate upon the matter. A Muslim judge was appointed and an inquiry was made as per the instructions of the Caliph. In the light of the evidence obtained, the judge, Jami ibn Hadhir Albaji, pronounced that the Muslim army must vacate the city immediately. He also declared that the sudden attack on the city, without any warning, was a violation of the Islamic law.

Imagine. An army conquers a city and enters it. The inhabitants complain to the victorious government; its judge decides the matter against the victorious army and orders it to vacate the city. Can history point out any war in which the troops kept themselves so strictly bound by the moral code?

In 1187, the capture of Jerusalem by Sultan Salahuddin Ayubi and the excellent behaviour of his troops is another classic example of Islamic war ethics. In fact, during the Crusades, various European writers recorded their surprise at the noble conduct of the Muslims on the field of battle. Oliverus Scholasticus tells how the Sultan Al-Malik Al-Kamil provided a defeated Frankish army with food: “Who could doubt that such goodness, friendship and charity come from God? Men whose parents, sons and daughters, brothers and sisters had died in agony at our hands, whose lands we took, whom we drove naked from their homes, revived us with their own food when we were dying of hunger and showered us with kindness even when we were in their power.”

The Muslims also maintained the same morality while retreating from a territory. In 634, the Muslim army made a strategic retreat from the Hams, Damascus, and other cities to consolidate its strength to repel the army of Heraclius. The retreating army, unlike other contemporary armies, not only left the citizens and their possessions absolutely unhurt, but also returned the tax collected from the inhabitants.

Thus, we see that the nature of war in Islam is that of an extraordinary measure. As long as pacific means are available for settlement of disputes and issues, war is prohibited. Even when war becomes permissible, for the sake of self-defence, etc., Muslim troops are not given a freehand. While conducting hostilities, they must observe the above mentioned rules.

Many people are even unaware that Islam has unilaterally banned the use of chemical, biological, nuclear, and other weapons of mass destruction, by prohibiting cruel ways of killing, killing of non-combatants, destruction of vegetation, etc. Here it must also be mentioned that the 9/11 attacks on the World Trade Centre and the recent kidnappings, torture, and killings of foreign aid workers in Iraq are absolutely un-Islamic. The perpetrators are criminals not only under international law, but also under Islamic law.

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The sign of an infidel is that he is lost in the world,
The sign of the believer is that the world is lost in him