Islamic International Law: Historical Foundations and Al-Shaybani’s Siyar 9781788113854, 9781788113861, 1788113861
Through the analysis of Al-Shaybani's most prolific work As-Siyar Al Kabier, this book offers a unique insight into
148 19 1MB
English Pages 320 Year 2018
Front Matter
Copyright
Contents
Foreword
Preface
Acknowledgements
Glossary
Abbreviations
1. Introduction
2. Reading historical sources
3. The law of war
4. Rules on the consequences of war
5. The law of peace
6. Conclusion
Bibliography
Index
Recommend Papers
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- Khaled Ramadan Bashir
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JOBNAME: Bashir PAGE: 1 SESS: 2 OUTPUT: Mon Sep 10 08:57:55 2018
Islamic International Law
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This book is dedicated to: Ramadan Ali Bashir; My father, who taught me that nothing is more valuable than knowledge. Ghazala M Alhdiri; My mother, who taught me that nothing is impossible. Samira Abubaker; My mother-in-law, who taught me that motherhood does not have to be biological to guarantee love and respect.
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Islamic International Law Historical Foundations and Al-Shaybani’s Siyar
Khaled Ramadan Bashir The University of Aberdeen, UK
Cheltenham, UK + Northampton, MA, USA
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© Khaled Ramadan Bashir 2018 Cover photo: Daniel Burka on Unsplash All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA
A catalogue record for this book is available from the British Library Library of Congress Control Number: 2018944788 This book is available electronically in the Law subject collection DOI 10.4337/9781788113861
ISBN 978 1 78811 385 4 (cased) ISBN 978 1 78811 386 1 (eBook)
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Contents Foreword Preface Acknowledgements Glossary List of abbreviations
vi ix x xi xiv
1 Introduction
1
2 Reading historical sources
49
3 The law of war
98
4 Rules on the consequences of war
180
5 The law of peace
216
6 Conclusion
267
Bibliography Index
279 289
v
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Foreword I rarely get the opportunity to introduce a work that should justly redefine an entire field of study. But Khaled Ramadan Bashir’s book on Islamic International law is such a work. For many years, the standard work in the West on Islamic International law has been that of Majid Khadduri, who had written on the Siyar of Shaybani and the Islamic law of war and peace. And for better or worse, Khadduri has influenced generations of scholars who have taken his representations of Islamic international law to be established truth. But Khadduri’s failures in understanding and representing the nuances of Islamic legal discourses have contributed to the dissemination of entrenched false paradigms about Islamic International law. The current book by Khaled Ramadan Bashir does not only surpass the achievement of Khadduri, but materially reforms and in many regards, nullifies and negates it. The truth is that Khadduri’s writings on the Siyar are so incomplete as to be seriously flawed. The present work by Bashir comes as an urgently needed corrective, not just to Khadduri’s work but to all previous scholarship on Shaybani and his transformative contributions to the law of nations. No scholar can afford to write on the subject of Islamic International law or indeed the history of the law of nations without referring to Bashir’s authoritative study. Bashir convincingly demonstrates that Shaybani’s discourse on the law of nations not only pre-dated Gratian, Aquinas, and Vitoria but it was much more comprehensive, developed, and complete. Shaybani’s work is comparable only to Grotius’ famous treatise, The Law of War and Peace, except that Shaybani wrote his work in the eighth century while Grotius wrote his treatise in the 17th century. Bashir’s scholarship forces us to reconsider the often-repeated thesis that the law of nations is rooted exclusively in the Christian Natural law tradition and to acknowledge the pivotal significance of the Islamic contribution to the law of nations as a discipline and field. Bashir’s scholarship will also challenge all those who are prone to the argument that the roots of the law of nations can only be found in the Judeo-Christian tradition. It is due time that the Islamic contribution to the field of international law be given its full weight and credit, but in order for this to take place, the history of the law of nations must be substantially re-thought and re-written but from a vi
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Foreword
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non-Eurocentric perspective. However, a fair and inclusive historiography of the law of nations is not possible unless Western writers resist the temptation of triumphalism, and civilizational and cultural puritanism. Aside from the issue of historical lineage and recognition, Bashir’s meticulous analysis of Shaybani’s seminal work, the Siyar, challenges all stereotypical caricatures of the Islamic law of nations as being purely functional or pragmatic. It is abundantly clear that Shaybani, like generations of classical jurists after him, wrestled with what they perceived as a supreme Higher law, the Law of God, that governs the interactions and struggles of human kind, and that this law was seen as imposing moral standards beyond the simply opportunistic or pragmatic. It is axiomatic in Shaybani’s thought that the prevention of conflict and the avoidance of war and wanton destruction is the calling of the Higher law. The same can be said about what Shaybani deontologically saw as the rules of honor, chivalry, and conduct becoming a Muslim. Shaybani struggled with striking the balance between a lawless world in which God and God’s Higher law would cease to exist, and an inflexible and blind adherence to ideals that could be unworkable. If the ideals of the Higher law were invoked and asserted dogmatically, these ideals would be liable to being entirely ignored by the political authorities of Shaybani’s day and age. Shaybani did not fossilize Islamic International law into a set of immutable and eternal rules. Rather, he searched for the balance between eternal and supernal principles, and functional and practical applications. As such, Shaybani’s impressive corpus of work is really a study in the methodology of Islamic legal thinking and the dynamism and creativity of Islamic law. The inestimable value of Bashir’s book is not just that it challenges simplistic historical outlooks that anchor the growth of international law solely in European narratives, or that imagine that there is a fundamental civilizational breach between Islam and the West, but Bashir’s work also reminds Muslims of the rootedness of international law principles in Islamic normativities. Shaybani was a prominent judge of the Hanafi School who played an influential role in the early Abbasid dynasty during the reign of the famed Caliph Harun al-Rashid. Yet Shaybani was not the first jurist to write on Islamic international law. The Syrian Awza‘i has reportedly pre-dated him in writing on the Islamic law of nations although his works have been lost. Some of Awza‘i’s positions and arguments have reached us only through the rebuttals of his opponents. But other than Awza‘i, there is cumulative evidence to suggest that early Muslim jurists such as al-Shaabī, Sufyān al-Thawrī, and Abū Hanīfah made critical contributions to the discourses on the Islamic law of nations. Moreover, Shaybani’s own discourses continued to evolve and
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develop through the centuries in the works of generations of jurists who were forced to wrestle with historical circumstances and contexts that were very different than those that Shaybani dealt with. What does remain constant through the centuries of jurisprudential discourses is the innate understanding that there are basic universal laws that call upon human beings to temper the vicissitudes of power struggles and human conflict through the application of higher ethical principles. This is indeed the basic premise at the heart of all efforts at accomplishing a regime of international laws applicable to all humankind. The very fact that generations of Muslim jurists insisted on subjugating politics and war to the rule of law is a profound civilizational achievement. The development and persistence of this intellectual and moral enterprise throughout the existence of the Islamic civilization is a stark reminder that far from endorsing the logic of unfettered political opportunism or all-out warfare, Muslim jurists consistently searched for the boundaries that demarcate the difference between ethical and unethical conduct. Khaled Ramadan Bashir’s invaluable study offers us the first real opportunity to properly value Shaybani’s contributions to the development of the law of nations as a principled human engagement. But more than this, Bashir’s work comes as a stark reminder that international law is truly the collective inheritance of the entire human race. Khaled Abou El Fadl Omar and Azmeralda Alfi Professor of Law, University of California, Los Angeles, School of Law
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Preface Mohammad Al-Shaybani is one of the greatest scholars of Siyar (Islamic international law). His book, Al-Siyar Al-Kabīr, is an eighth-century textbook on international law. In this work I present and discuss the precise nature of Al-Shaybani’s contribution compared to the other great contributions on international law made by Augustine, Gratian, Aquinas, Vitoria and Grotius. I affirm the view that Al-Shaybani made a major contribution to the theory of international law that had been unacknowledged for a long time, and unjustly so, by scholarship. Al-Shaybani’s book was a comprehensive treatise on the law regulating international relations from the Islamic perspective. It was the first attempt to produce such a book on international law as a discipline distinct from other legal fields. In terms of legal complexity, it can only be compared to Grotius’s greatest book on the subject, The Law of War and Peace. In the area of humanitarian law, the only other writer with whom he can be compared is Vitoria, although even Vitoria does not go into the same depth of complexity. Al-Shaybani dealt with war carefully and limited cases of justified wars in his time to just three categories. He offered many rules restricting cruel practices in the treatment of enemy personnel and prisoners of war. The nature of peace and how it could best be achieved was fully considered. Rules on treaties, diplomacy, travel, trade and more were discussed in a way that would best give rise to the peaceful coexistence between nations. Detailed legal rules with the purpose of guaranteeing the continuity of peace are suggested in his work. In contrast, Augustine, Gratian and Aquinas engaged only in limited discussions on some of the subjects of the law of war. Vitoria’s contribution on these matters was more extensive, but even he lagged far behind Al-Shaybani. The work of Al-Shaybani was certainly as detailed, complex, comprehensive and useful as that of Grotius on international law. Besides the presentation and discussion of the merits of his work, a central purpose of this book is to argue that any future work on the history of international law has to consider Al-Shaybani’s contribution for it to be complete.
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Acknowledgements I am grateful to my grandparents for their immeasurable favours upon me. I am also grateful to: + Professor Anthony Carty who encouraged me, made valuable comments and gave great support. He was most caring and always supportive; + Professor Khaled Abou El Fadl to whom I am grateful for writing the foreword and for his support and encouragement (University of California, Los Angeles); + Professor Jean Allain who generously offered valuable comments on the first two chapters (Monash University); + Associate Professor Marie-Luisa Frick who kindly wrote an endorsement for this book (University of Innsbruck); + Associate Prof. Mohd Hisham Mohd Kamal (International Islamic University Malaysia); + Dr Rohimi Shapiee (Universiti Kebangsaan Malaysia); + Professor Peter Duff (University of Aberdeen); + Dr Zeray Yihdego (University of Aberdeen); + Professor Robin Evans-Jones (University of Aberdeen); + The Very Reverend Nicholas Coulton and Professor Nigel Biggar (Christ Church, Oxford); + Imam Mohammad Almahdi Shari-Aldeen (Al-Azhar Mosque); + Professor Ahmed Abou-El-wafa (Cairo University); and + Sheikh Wahbah Alzuhalili, the great scholar (University of Damascus). Thanks also go to all members of my family and my friends who have always been supportive and encouraging; they will always be valued and loved, and no thanks could be enough for their care, patience and support. I am also grateful for the support, care and attention of the wonderful team at Edward Elgar. Thank you all!
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Glossary Ahil-al-dimah
Non-Muslim subjects of the state.
Ahl al-Kitab
(People of the book); Scriptuaries.
Al’aqid shari’at almuta’aqedyan
A term equivalent to pacta sunt servanda.
Al-Kufah
A city in Iraq.
Al-Madinah
The city of Medina, the birthplace of the Muslim State.
Al-Siyar Al-Kabīr
The grand siyar (a book was written by Al-Shaybani on international law in the eighth century).
Ama’an
Al-Ama’an (definite), also written as Amān: guarantee of safety, pledge of security or safe conduct. A contract or grant that can be made by any Muslim and would be binding upon all subject and rulers, in which a foreigner/group of foreigners or a whole state is granted a pledge of security over his/her life and property, normally with permission to enter the country.
Ar’ay
The opinion: this refers to the Hanafi School’s method of reasoning.
Baiet alm’al
Literally the house of money referring to where public money was held.
Caliph (Khalifah)
Ruler of the Muslim State considered as a successor of the Prophet Muhammad as head of state.
Dar al-harb
Territories that are not controlled by Muslims.
Dar al-Islam
The territory controlled by a Muslim state. xi
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Dhimmi
Fata Fatwa Fay Fiqih
Ghanimah Ghazw Hadieth Harbi Ijma’a Ijtihad
Imam Istihsan Istinbat Istinqaad Jihad Jiziyah
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A member of the people of the book (such as Christians and Jews) who lives in the Muslim State with a covenant granting him/her protection and obliging him/her to pay poll tax and not to commit treason. Man or boy; for women, fatah is girl. An opinion, or responsum, issued by Islamic jurists. Wealth acquired from the enemy without fighting. Islamic jurisprudence. It is wider than the mere study of what is lawful and unlawful. It contains rules concerning what is detested or abhorred as well as what is liked, preferred or encouraged. Legally obtained spoils of war in a legally permissible action. Raid. (Also Hadith.) Sayings and actions of the Prophet Muhammad. Alien (from Dar al-harb which is: territories that are not controlled by Muslims.) General consensus among scholars. Analogical extraction of rules. It is a scholarly tool that allows jurists to weigh arguments, evidence and sources of the Law to come up with a certain rule. This can only be done by professionals. A leading person: including in congregational prayers or in scholarly achievements. Juristic preference. Elicitation used in the processes of inferring rules from sources. Humanitarian intervention upon request and under defined rules. Struggle or fighting a legitimate war. Tax levied on non-Muslim subjects of a Muslim state who will not have to pay Islamic obligatory charity. Similar to Roman poll tax.
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Glossary
Kharaj Makrooh Mu‘ahadah Mujtahid Musta’aman Musta’amanoon Qiyas Qura’an Ra’y Ribat
Shari’ah Siyar
Sulih Sunnah/Sunna
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A type of tax usually levied on cultivated lands. A detested act that is not punishable yet unacceptable. Treaty. A person conducting ijtihad. A person who is granted ama’an. Plural of musta’aman. Analogical or systematic reasoning. Also Quran or Qur’an: Holy Book; Islamic book of divine revelation. Juristic opinion. Holding steadfast in the frontiers to respond to any attack by any enemy; it also refers to making the bordering areas safe for passers-by. Islamic law or way of life. Al-Siyar in the definite form, and the plural of sirah. It is used by scholars to refer to Islamic international law. Reconciliation, conciliation or armistice. Prophetic traditions: a collection of sayings and actions of the prophet Muhammad.
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Abbreviations AH
Islamic calendar (Hijri)
AJCL AJSS C&S Law CIW EJLS JHIL JME PUP Siyar SSI
American Journal of Comparative Law Asian Journal of Social Science Journal of Conflict and Security Law Carnegie Institution of Washington European Journal of Legal Studies Journal of the History of International Law Journal of Military Ethics Princeton University Press Islamic international law or as-siyar. United States Army War College: Strategic Studies Institute
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… although also associating partners to Allah is the utmost offence, it is in the jurisdiction of God alone and God postponed the trial for such crime to the Day of Judgement. As for the offences that he prescribed punishments for in this life, it is in the interest of his subjects to prevent fighting; this prevention cannot be achieved by killing those who do not fight. Therefore, only those who fight Muslims should be the subject of fighting. Al-Shaybani
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1. Introduction Al-Shaybani’s book Al-Siyar Al-Kabīr deals with every conceivable aspect of international law relevant to his time. In fact, the reader would be able to locate it within today’s texts and specialized books on international law. While some think that his book is based on sources of Islamic law and was intended to regulate the international affairs of a Muslim state and is therefore irrelevant to the ‘secular’ world order we live in today, others observe that such a comprehensive legal work written in the eighth century is undoubtedly a great asset to those specializing in the field of international law. They argue that the contribution of Al-Shaybani to this field is too great to be ignored. By exploring Al-Siyar Al-Kabīr, I set as this book’s target an investigation of the latter claim and highlighting to what extent Al-Shaybani contributed to the field of international law and relations. Noticeably, as this work was being completed, the Oxford Handbook of The History of International Law presented Al-Shaybani as the earliest among 21 names of the most important contributors to this field throughout history.1 However, although there have been several attempts, the English library is still poorly equipped as far as the contribution of Al-Shaybani is concerned. This book will be the first attempt to offer the reader a genuine and deep insight into the original ‘grand’2 book of Al-Shaybani on international law. As far as the history of international law is concerned, ‘writers habitually begin with the Greek City-States, describe the Roman period as immediately following, and then all of a sudden talk about modern times, neglecting the gap of almost a thousand years’.3 For example, Oppenheim held ‘that there was no international law in Europe during 1
Mashood A Baderin, ‘People in Portrait’ in Bardo Fassbender et al. (eds), The Oxford Handbook of the History of International Law (1st edn, Oxford University Press 2012) 1081. 2 Al-Shaybani has two main books on international law and relations, the shorter book and the grand book. This study confirms that, so far, only the former is available in English. 3 Muhammad Hamidullah, The Muslim Conduct of State (5th edn, SH Muhammad Ashraf 1968) 63. 1
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the Middle Ages, that there was no need of such at that time, and that there was no intermediary link between the Roman Period and Modern Times’.4 Oppenheim and most legal historians failed to recognize the almost 1,000-year gap, thus overlooking the very existence of Siyar or Islamic international law5 as some would now call it. This is alleged despite the fact that Siyar contained great principles on international legal relations.6 In fact, Siyar is a proper system of international law, which governed the international relations of Muslim states for many centuries. Yet it has been marginalized and neglected by legal historians. Moreover, some question whether great European jurists coming centuries later, like Vitoria and Grotius, had knowledge of Siyar and whether they ever drew on it. It is equally important to consider whether the European founders of modern international law were exposed to the great amount of Islamic literature translated into Latin and introduced to most of European centres of knowledge7 before Vitoria and Grotius. In this regard, the I.C.J. Judge, Weeramantry argues that: [i]t is sufficient to note that the Spaniards such as Victoria [sic] (1483–1548) who antedated Grotius’ De Jure Belli ac Pacis of 1625 by nearly a century were too close in time and space to the recent Islamic civilisation in Spain to have been totally unaware of the relevant portion of Islamic learning.8
These speculations are particularly important when, especially in the modern period, Western scholars present themselves in such a way that their perspective can hardly be attributed to Rome or Greece alone. Meanwhile, Wheaton, writing in 1845, arrived at the following significant conclusions: [i]n respect of the mutual intercourse between the Christian and Mahommedan9 Powers, the former have sometimes been content to take the law from the Mahommedans, and in others to modify the International Law of
4
Ibid. Hereafter Siyar, or Al-Siyar as some would write it, would mean Islamic international law. 6 Ali Ali Mansour, The Islamic Sharia and Public International Law [Al-Shari’ah Al-Islamiah Wa Al-Qanoon Al-Dawli Al-A’am] (Al-majlis Al-a’ala Li Al-shu’on Al-islamiyah 1971) 23. 7 Christopher G Weeramantry, Islamic Jurisprudence: An International Perspective (Macmillan 1988) 94–111. 8 Ibid 110. 9 A term sometimes used to refer to Muslims. 5
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Christianity in its relations to them. Instances of the first may be found in the ransom of prisoners, the rights of ambassadors, and many others.10
If this is the case, what is the reason then for the clear failure of most writers working in the field to recognize the contribution of Siyar to the history of international law? Some people believe that it is the lack of materials and lack of original studies. Regarding this, Janis maintains that ‘Islamic jurists have the duty of making their legal system better known to make an effort at reaching a better understanding of Islamic law’.11 From this perspective, this book will, no doubt, help in making Siyar better known. Relevantly, Abū al-Wafā (2007) asserts that ‘we have noticed a shortage if not lack of attention paid to Arab and Muslim jurists and their impact on international law and international relations. This was despite the fact that their contribution in this area is massive and their ability cannot be underestimated.’12 In fact, in a recent study, Koskenniemi explains that the history of international law has been polemic and Eurocentric. Most authors dealing with the history of international law were mainly Europeans and they neglected any other contribution to the field from any other part of the world. Legal historians have been dealing with international law as though it was born and bred in Europe and Europe alone, neglecting other contributions.13 Nevertheless, this book highlights the contribution of one of the most distinguished scholars of Siyar. It will focus on the contribution of Al-Shaybani and highlight his individual, as well as the general, contribution of Siyar to the field of international law. This is because Al-Shaybani was one of the most significant writers of Siyar and his book Al-Siyar Al-Kabīr was the most striking work of his time in the area. By analysing the text of Al-Shaybani’s book, an essential contribution to the history of international law will be made. 10 Henry Wheaton, History of the Law of Nations in Europe and America: From the Earliest Times to the Treaty of Washington, 1842 (Gould, Banks & Co 1845) 555. 11 Gamal M. Bader, ‘A Survey of Islamic International Law’ in Mark W. Janis and Carolyn Evans (eds), Religion and International Law (Martinus Nijhoff Publishers 1999) 101. 12 Aḥmad Abū al-Wafā, Kitāb Al-I lām Bi-Qawā id Al-Qānūn Al-Dawlī Wa-Al- alāqāt Al-Dawlīyah Fī Sharī at Al-Islām [A Book of International Law and Relations in Islamic Shari’a], vol 14 (al-Ṭab ah 2, Dār al-Nahḍah al-Arabīyah 2007) 3. 13 Martti Koskenniemi, ‘Histories of International Law: Dealing with Eurocentrism’ (2011) 2011 Rechtsgeschichte – Legal History 152, 152–76.
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1.1 SIYAR (AL-SIYAR/ISLAMIC INTERNATIONAL LAW) Islamic civilization, like any other one, needed laws to establish order in society. Accordingly, ‘there came into being Islamic Laws or codes of conduct that govern not only inter-personal relations, but also communal and inter-civilizational relations.’14 As was the common attitude, ‘Muslim powers dealt with their neighbors in a way that served their interests and represented their system of values and what they deemed to be acceptable behavior.’15 Nevertheless, relying on divine sources, the Islamic legal systems introduced to the first millennium many humanistic aspects domestically as well as internationally – aspects that were not familiar at that time.16 With the expansion of the Islamic territory through the spread of Islam, Muslim jurists realized the need for regulating many new legal occurrences.17 Many non-Muslims had become subjects of the Islamic territories – the Abode of Peace – where Islam ruled; many new territories came under the control of the Muslim state. Yet it should be emphasized that peace was not the norm at that time; the world was governed by war. This Muslim expansion had ‘a significant influence and effect on the tadwīn (recording) of the rulings on international relations with nonMuslims’.18 This regulation of all non-Muslims applied both in the Islamic territory and beyond, ‘whether these qualified as harbis (aliens, those belonging to dār al-harb19), dhimmis (non-Muslim subjects of the caliph …) or free non-Muslims within dār al-Islam’.20,21 The task was urgent and prompted many Muslim scholars to embark on generating and compiling rules to govern the Islamic inter-personal, inter-religious and inter-state affairs, an area which was later to be known as ‘Siyar’. Their common interest, Bsoul asserts, was: 14
Labeeb Ahmed Bsoul, ‘Historical Evolution of Islamic Law of Nations/ Siyar: Between Memory and Desire’ (2008) 17 Digest of Middle East Studies 48, 57. 15 Ibid. 16 Prohibiting the killing of elderly, women, children in wars; giving women rights and considering them as subjects of law rather than objects; it went as far as to giving animals rights. These among many other newly introduced concepts were the result of having divine law as a source of legal norms, as these concepts were not known to the Arabs (if not to the world) before Islam. 17 Bsoul (n 14) 57. 18 Ibid. 19 A territory that has no peace agreement with the Muslim State. 20 The abode of Muslims where Islamic law applies. 21 Ibid (emphasis added).
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to determine the rulings of siyar, drawing on the Prophet’s22 conduct and relations with non-Muslims in matters of conquest and peaceful agreements. Some approached the subject from a chronological, historical aspect, while others strove to study the principles of Shari’a as they applied to the situation.23
Accordingly, Muslim jurists ‘produced a vast amount of literature and treatises, which acquired great significance with the passage of time’.24 Nevertheless, ‘the first jurist to compile a treatise on Siyar was Abu Hanifa al-Nu‘man ibn Thabit (d. 150/767).’25 Abu Hanifa is the founder of the Hanafi School26 of thought and he had two main disciples who conveyed his teachings and recorded his thoughts. These were Abu-Yusuf and Al-Shaybani, who both contributed greatly to the field of Siyar. Moreover, the teachings of these disciples and their master (i.e. the Hanafi School) were adopted by the leaders of the Abbasid Dynasty (approximately 750–1517 AD). As a result, Bouzenita stated that ‘[t]he most important contribution in siyar-related matters came from the Hanafi School. The Abbasid Caliphate’s affiliation to the Hanafī School gave more political weight and relevance to legal rulings of the Hanafite scholars.’27 However, it is commonly agreed among scholars of his time as well as those throughout the ages that by far the most dedicated of Islamic scholars to this task was Al-Shaybani, who wrote his book Al-Siyar Al-Kabīr in the eighth century, which contained what we would term international law topics. In the field of Siyar, some suggest that this book ‘serves as a standard work of reference to-date’.28 While this is true, it is important to highlight that although Al-Shaybani was the most dedicated he was neither alone nor the first to write on the topic. As Bouzenita puts it, ‘al-Shaabī, Sufyān al-Thawrī, Abū Hanīfah, al-Awzāaī and many others in the deduction of legal rules,
22 Referring to Prophet Muhammad peace be upon him. On every occasion that this book mentions Prophet/Messenger Muhammad, reference to the terminology (Peace Be upon Him) shall be assumed. 23 Bsoul (n 14) 57. 24 Ibid. 25 Ibid 58. 26 The largest of the main four Sunni Islamic schools of jurisprudence. 27 Anke Iman Bouzenita, ‘The Siyar – An Islamic Law Of Nations?’ (2007) 35 Asian Journal of Social Science 19, 25. 28 Ibid.
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teaching, jurisdiction, oral and written discussions with other scholars have largely contributed to the formulation of siyar.’29 In fact, Farouq Hamadah thinks that it was not Al-Shaybani who first compiled a complete Siyar book, but Alfazari.30 This shall not be discussed in detail; however, two points are worth considering. First, in that age, no contemporary book on Siyar comes close to that of Al-Shaybani in its comprehensive detail and scope. Second, great as it is, the book by Alfazari is in no way as in-depth as that of Al-Shaybani’s work. Thus, even Hamadah admits that the method used (casuistic style) by Al-Shaybani was not employed by Alfazari, who had no intention of going beyond explaining the legal rules on existing practical matters. This, Hamadah argues, was probably the reason why minimal details of what Alfazari wrote have reached us, in contrast to the works of Al-Shaybani, which are overflowing with analysis and hypothetical cases.31 From the above, and as will be demonstrated in this book, Al-Shaybani’s work is outstanding and pioneering. While Al-Shaybani is truly one of the great writers of international law, he cannot be said to be the only founder of this field, nor can his thoughts be taken as a representation of this subject. What distinguishes him is the fact that his book was a pioneering achievement. It is the first book, thus far known to us, that has treated international law as a separate field of study and in such a comprehensive manner. 1.1.1 Definition of Siyar The term Siyar in terms of its etymology is the plural of the Arabic noun sirah,32 ‘which means literally a “path”, or “way of walking”’.33 Bsoul explains its historical evolution as follows: [e]ssentially, the concept of siyar evolved from its lexicographical meaning – in particular, from its connotation of behavior or conduct. Siyar is Sira in the 29
Ibid (footnotes omitted). Abi-Ishaq Al-Fizari, The Book of Siyar of the Sheikh of Islam the Imam Abi-Ishaaq Alfazari, Narrated by Mohammad Ibn Waddaah Alqortobi according to Abdulmalik Ibn Habib Al-Mesysi [Kitab Al-Siyar Li Shaykh Al-Islam Al-Imama Abi Ishaaq Al-Fizari: Riwayat Muhammad Ibn Wadaah Alqortobi A’an Abdu-Al-Malik Ibn Habeeb Al-Masisis A’anho: Dirasat Watahqeeq Farooq Hamadah] (Farouq Hamadah ed., Mo’asasat Al-Risalah 1987) 80. 31 Ibid 35–6. 32 This term could also refer to the biography of someone. 33 Bsoul (n 14) 48. 30
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singular [and] came to be used by chroniclers in their narrative accounts to mean life or biography, i.e., the conduct of an individual.34
Al-Siyar (the siyar) or Siyar (in its indefinite form) is the term Islamic scholars used to indicate the rules and regulations concerning topics related to what is called today international law.35 Hamidullah for his part has defined it as ‘[t]hat part of the law and custom of the land and treaty obligations which a Muslim de facto or de jure state observes in its dealings with other de facto or de jure states’.36 Yet this definition is lacking as it excludes individuals as being subjects of Siyar. Rather, Siyar is a branch of Shari’ah that regulates the relations involving a Muslim state or between Muslims and non-Muslims, domestically as well as internationally, both in times of peace and war. As an integral part of Shari’ah, Siyar or Islamic international law looks to its roots as sources. Shari’ah, while being flexible, flows from unalterable general principles with divine origins. In general, Islamic jurists have constructed their reasoning on the major principles derived from the Holy Qura’an37 and the prophetic traditions. Hence, Islam has ‘fostered an attitude of mind which prompted the Muslims to judge matters primarily in light of their religious norms. The questions which they faced in the field of international relations were no exception to this.’38 However, we must not overlook the fact that other tools of Islamic jurisprudence are always utilized in the law-making process, while relying on those general fixed principles.39 This last point has sparked heated debate between those who believe that Siyar is an international law of Muslims and those who argue that international law is a different concept from Siyar, and therefore Siyar should not be called international law. This is because they believe that contemporary international law does not rely on divine law as a main source, that Siyar is different as contemporary ‘[i]nternational law operates between independent and 34
Ibid (footnotes omitted). It is important to stress that although Siyar can be called international law, the former is far more sophisticated and comprehensive than contemporary international law. 36 Hamidullah (n 3) 3. 37 On every occasion that the study mentions the Qura’an, reference to the terminology (the Holy Book) shall be assumed. 38 Muḥammad ibn al-Ḥasan aš-Šhaybānī, The Shorter Book on Muslim International Law (Mahmood Gazi, tr., ed., Adam 2007) x. 39 These are mainly qiyas (analogical reasoning) and ijma’a (consensus). Looking at the writings of Siyar scholars, it can be said that reciprocity is also a source of Islamic international law. 35
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sovereign states; it deals with relations between nations. Each nation possesses its own internal law and exercises an authority subject to no restrictions save those imposed by the law of nations.’40 Nevertheless, if we were to deny Siyar as Islamic international law because of its nature and subjects, we would be weighing Siyar with one scale while using another for the European ‘international’ law. This is so as what we today call international law was, until the nineteenth century, a law of the Christian European nations. Other nations at the time were not only prevented from being subject to this law; they were also considered and treated as barbaric and uncivilized.41 This was reflected even in the writings of the Western jurists of the Enlightenment period such as Gentili and Grotius, who advocated discriminatory treatment against others, especially against non-Christians.42 In addition, while the European-based international law lacks many elements of what might be termed law today, the ‘Siyar as it was called was accepted as law in every sense of the term from the very beginning’.43 Unlike European international law, Siyar ‘never faced the problem of lacking proper sanction and judicial forum to adjudicate disputes’.44 Moreover, while the European conception of international law treated others as barbaric and uncivilized and thus undeserving of inclusion as subjects of this law, Siyar had already adopted the principle of reciprocity centuries before European international law even existed.45 Consequently, the fact that Siyar was designed to govern a Muslim state’s international relations and is derived from divine sources does not make it wrong to call it international law. This is because contemporary international law is based on the European international law. The latter did not differ much from Siyar in these respects. Yet, in an attempt to prove that contemporary international law is distinct from any religious or philosophical legal systems, some commentators reject any attempt to recognize religiously based systems as international law just because they are based on religion. For example, Afsah46 argues that ‘international law is primarily a modern phenomenon 40
Bsoul (n 14) 50. Majid Khadduri, ‘Islam and the Modern Law of Nations’ (1956) 50 The American Journal of International Law 358, 362–7 (footnotes omitted). 42 Ibid 362. 43 Šhaybānī (n 38) 2. 44 Ibid. 45 Ibid 3. 46 Ebrahim Afsah is an Associate Professor of Public International Law at the Faculty of Law, University of Copenhagen. The European Journal of the 41
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serving functional needs not attainable by pre-modern precursors’.47 He argues that the Westphalian system has no place for such divine law sourced systems as that of Siyar. This claim is normally built on unfounded claims such as that states are equal in contemporary international law.48 No objective reader of the current state of contemporary international law could accept this as mere truth.49 On the other hand, Afsah questions the validity of ‘Muslim claims for a particularistic Islamic law of nations’. He thinks that ‘[s]uch claims include the normative rejection of current international law in whose creation and continued development colonised peoples had little active role’.50 Afsah argues that resorting to Siyar by Muslim states is both a reason and a cause of the Muslims’ inability to reach modernity, which
History of International Law published a controversial article of his arguing that the Muslim world is unable to advance merely due to using Islamic law. The article is poorly referenced and the arguments were built on prejudice rather than knowledge. Having been published in such an influential journal reflects how common the spread of unestablished claims is, and therefore inevitably there seem to be some common misunderstandings and misinformation in this field. This is why I decided to discuss his thoughts here to highlight the importance of this book for the library on the one hand and to help better inform international lawyers about the subject area of Islamic international law. 47 Ebrahim Afsah, ‘Contested Universalities of International Law. Islam’s Struggle with Modernity’ (2008) 10 Journal of the History of International Law/ Revue d’histoire du droit international 259, 259. 48 Ibid 260. 49 For example, only five states in the world have the final say in the Security Council over matters that concern the whole world’s peace and security, whereas other countries can just be subservient to one or more of those five. This system of law, for which Afsah seeks acceptance by all without questioning, is dubious especially for small and weak states. In fact, the entire contemporary international legal system is questionable especially ‘the pretence of a universal international legal order, as represented by the United Nations and its Charter. The latter is replaced by a coalition of the international community committed to the forceful implementation of the human rights of liberal democracy and the rule of law. While these legal values are represented as cosmopolitan or universal (‘Who wants to be tortured by a vicious dictator?’ etc.) they are also entirely compatible with the expansion of Western economic interests. What needs the closest scrutiny is the relationship between the two – cosmopolitan values and economic interest. Can the result still be characterized in any sense as a global legal order?’ Anthony Carty, Philosophy of International Law (Edinburgh University Press 2007) 211. 50 Afsah (n 47) 259.
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he explains as the inability to catch up with the modern world technologically as well as institutionally.51 He proposes a Japanese-style method for Muslims to be able to modernize their states. This should be done through borrowing, accepting and implementing Western ideologies, philosophies, laws and methods in all occupations. This is because, he thinks, the West is dominant and you can only draw near to modernity by accepting the Western way of life without question, as did the Japanese, enabling Japan to become part of the modern world.52 Mainly, he thinks that Islamic law has been and continues to be the main obstacle to modernity in these states. He accepts that Japan did, to an extent, differentiate between what it needed to accept and what it did not to become modern but he thinks that this is inapplicable in the case of Muslim states.53 He is eager to blame Islamic traditions for being different from those of the Japanese that they managed to retain while acquiring ‘modernity’ from the West. Meanwhile, he accepts that the history of European international law has not been very attractive to non-European states because of the bad image it had acquired. This was due to bad practice. For example, breaches of this law are punished and/or ignored based on who the perpetrator is, relying on double standards.54 What Afsah did avoid conceding is the fact that Western international law is still nakedly self-serving for certain Western powers, both structurally as well as in practice, and that is the main reason for the failure of many nations to develop. This is the cause of the dissatisfaction with such a system of law. This is why prominent scholars such as the Japanese international lawyer Yasuaki Onuma reject the Western hypocritical system of law, which Western powers seek to impose on others in pursuit of their own interests.55 Some Western scholars, such as Carty, have also voiced concerns about the deficiency of contemporary Western international law.56 Thus, Islamic law should not be blamed for the failures and faults of the Western system, which has earned distrust and dissatisfaction even from Japan, which Afsah takes as a model that he 51
Ibid 260–264, 287. Ibid 268. 53 Ibid 272. 54 Ibid 274. 55 Onuma Yasuaki, ‘When Was the Law of International Society Born?’ (2000) 2 (1) 65 JHIL (accessed 6 October 2009). 56 Anthony Carty, ‘The Yearning for Unity and the Eternal Return of the Tower of Babel’ (2007) 1 European Journal of Legal Studies 1 (accessed 6 June 2018). 52
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encourages Muslims to follow. This discourse, adopted by many like Afsah, can never lead to solving contemporary issues apparent in the international legal system. This is because instead of treating the disease, it diverts both the attention and the blame towards those who have been suffering from it. In addition, Afsah thinks that Siyar puts limits on rationality in the process of law making, as it is sourced from divine law. When he discusses this reason, however, he fails to produce evidence to support his opinion. He misquotes Weal Hallaq by highlighting the latter’s assertion that there are some divine limitations to the usage of rationality in the interpretation process of Islamic legal norms.57 What Afsah did not offer is an honest reflection that Siyar has a lot of scope for both rationality and reciprocity. From what we will see in this work, such a claim cannot be sustained and can only expose a lack of honesty or of knowledge on the part of Afsah. Ironically, one of the reasons why Muslims should accept Western international law as it is, according to Afsah, is that Siyar poses some linguistic and cultural ‘difficulties’. One other reason why, in the opinion of Afsah, Siyar should not be accepted is because to engage ‘in a jurisprudential discourse with adherents of a system of a sacred law requires approaches quite at variance with those familiar to Western lawyers’.58 This approach leads to absurdity. This is because there are three scenarios: to impose Western international law on all; to impose Siyar on all; or to say that both should coexist. Afsah would, it seems, choose the first option. He rejects all rules derived from divine sources in favour of complete implementation of one system, that of the West. Today there are some people who think that God exists and others who think that He does not. Going by the theory of Afsah, only one of these views should be followed and the others must be abolished or converted, even by force. He would not, it seems, suggest that they should both coexist, each living by their own rules, so long as there are clear sets of rules governing the peaceful coexistence of both. This is the inference from his writings. One fact that Afsah and those from his school of thought are unable to recognize is that there is only one way out of this dilemma, that is that all nations must be accepted and taken into account as living peoples represented, but not replaced, by the abstract notion of the state. 57 58
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Afsah (n 47) 279. Ibid.
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Unlike Afsah, after careful consideration of the theoretical background of the European system of international law, Carty asserts that: [i]t is not possible, to separate …, what is belief and what is reason. It is not possible to banish belief, whether religious or secular, from international life. Some way has to be found to negotiate what people regard as non-negotiable, without having to deny the non-negotiability of their positions.59
Afsah, while criticizing the bright picture of Siyar (as a system) drawn by the ICJ Judge Weeramantry, addressed other writings criticizing some Muslim states’ practice. Thus, Afsah compared a practice to a system in order to satisfy a pre-destined outcome of his comparative approach. Methodologically, this is wrong. Consequently his outcome is unfounded. In addition, the fact that Western international law is built on state practice does not necessitate that any other system of international law be studied from such a perspective. Hence, Afsah fails to recognize the difference between the two systems he is comparing.60 What is more, Afsah was not able to admit that the difference between theory and practice exists in Western international law as well, which sets the two legal systems on an equal footing. Afsah falls into contradiction once again when he asserts that the two main parts of Islamic law, fiqh and siyasa, dominating private and public life, respectively, are man-made: ‘Despite purporting to implement the divine will and using revelation as source, both are ultimately manmade.’61 This statement came after pages in which he was explaining that the main issue with Siyar is that it is based on divine law and thus different from Western international law, which, he suggests, is manmade. This is fundamentally at odds with his claim that the reason why Muslim states have not been ‘modernized’, whatever that may mean, is that they have not relinquished the system based on divine law and replaced it with the man-made Western methods. In terms of content, he thinks that the barrier between Muslim states and modernity are twofold. First, he claims that Siyar clashes with Western international law on issues such as human rights and good governance standards, democracy and equality. Second, he argues that the
59 Anthony Carty, ‘The Moral Theologian, Oliver O’Donovan and International Law’ (2008) 9 Political Theology 339, 355. 60 Afsah (n 47) 278. 61 Ibid 287.
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‘universal aspiration’ of Siyar prevents peaceful coexistence and does not permit permanent peace deals.62 The first point can be dismissed as reality dictates, because most (if not all) Muslim states have not been practising Siyar and thus it could not have been the reason that stopped them from reaching ‘modernity’.63 Moreover, many non-Muslim countries are still underdeveloped and would probably be considered by Afsah as unmodern. Thus, not only practising Islamic law, but also being a Muslim itself is not the reason for not reaching ‘modernity’. As for the second reason – that the ‘universal aspiration’ of Siyar prevents peaceful coexistence and permanent peace deals – it can only reveal one of two facts: either that Afsah does not know that Siyar permits unrestricted (timewise) peace deals or that he generalized one juristic view over the entire rich body of Siyar. This is not the only occasion when he has demonstrated a lack of understanding of the Siyar he is criticizing. He repeats exactly the same mistake when he talks about the concept of siyasa64 and the concept of jihad. If there is one point where Afsah was right, this can only be the fact that the body of Siyar needs to be revisited in order to answer the needs of today’s world,65 which Siyar is both capable of doing and not opposed to. While one would expect that supporters of divine rules would suggest that the whole world should fall under their legal system, those (such as Afsah) who claim that such thinking belongs to religious people and think that they are supporting freedom, rights and respect seem to be the eager party to impose their way of life on others. Many honest and open-minded Western thinkers oppose such polemic discussion led by supporters of the Western hegemony. The contemporary state-centred Western-sponsored concept of international law, as put by Carty, ‘has an inherent tendency, which O’Donovan highlights, to ground 62
Ibid 294–6. This debate is indebted to the full article at: Khaled Ramadan Bashir, ‘Article Review, Ebrahim Afsah, “Contested Universalities of International Law. Islam’s Struggle with Modernity”’, Journal of the History of International Law 10 (2008) 259–307 (July 2008)’ (accessed 19 February 2018). 64 For more about siyasa (siyasah) in Islamic international law, see Haniff Ahamat and Mohd Hisham Mohd Kamal, ‘Modern Application of Siyar (Islamic Law of Nations): Some Preliminary Observations’ (2011) 25 Arab Law Quarterly 423, 426–7. 65 Afsah (n 47) 304. 63
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international order in the hegemonic claim of one or two countries to represent the values of the whole of humanity’.66 In the continued search for alternatives to the decayed Western international law, O’Donovan proposes a different, richer and more coherent system to replace it. According to Carty, he argues that ‘[w]ith a theory of political legitimacy which rests upon representation of national identity, O’Donovan points the way to an international order based upon mutual respect among nations under natural law, in the classical medieval sense finally represented by Grotius and Suarez’.67 The contemporary international law, which faces crises of acceptance due to the many faults inherent in its structure, dictates the need for an alternative. The fact that it has been predominantly no more than a tool of suppression in the hands of the United States and other powerful countries makes it unworthy of support and raises the alarm indicating the need for alternative. This is probably why Carty (2007) suggests that ‘international lawyers have to address the society, which they cannot simply do through authoritarian appeals to their own legal dogmatics. They have to find a language, which others can speak.’68 Both the problem and the future risk were highlighted by him when he asserted that: international lawyers frequently aspire to affirm the existence of an international community and the presence of authority to speak on its behalf. However by forcing a hierarchical representation of legal values upon nations, which have not accepted them, international lawyers, and the politicians whom they advise, risk unleashing a whirlwind of violence.69
Be that as it may, it is worth mentioning that one of the greatest scholars of Siyar, Hamidullah,70 commenting on a compulsory course he had to take at Osmania University at the beginning of the twentieth century, asserts that ‘it struck me at once that what was taught to us as international law was identical in many respects with the teachings of the books of fiqh and Muslim history’.71 For those who learn about either of 66 Carty, ‘The Moral Theologian, Oliver O’Donovan and International Law’ (n 59) 339. 67 Ibid. 68 Carty, Philosophy of International Law (n 49) ix. 69 Carty, ‘The Yearning for Unity and the Eternal Return of the Tower of Babel’ (n 56) 1. 70 He is no doubt one of the most renowned authorities of the last century on the topic. 71 Hamidullah (n 3) x.
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the two systems and then are exposed to the other, this feeling will certainly be familiar.72 Furthermore, regardless of whether or not Siyar has a unique nature, no one can deny its function as a law that is designed to regulate international legal relations in times of both peace and war. For historical clarity, it should be recorded that Siyar existed long before international law was known as a separate field of study in Europe. This might have motivated some of those who cannot accept calling Siyar international law to distinguish their historical differences. This may also have been motivated by the fact that Siyar is wider and more comprehensive; it also enjoys more features that are advanced and mechanisms that are lacking in contemporary international law. In this book, however, I use the term international law to mean Siyar in the context of language. This is the same as when we use the term jurisprudence rather than the Arabic term fiqh. In order to address the English reader, the translation of terminology should always be used as much as possible to avoid having half of the work written in a different language to the research. Consequently, the linguistic connotation of the term international law when it is used to indicate rules that govern the relations between states and individuals in their cross-border relations is no doubt befitting of Siyar. Moreover, Hamidullah observes that: [i]nternational Law means rules of the conduct of states in their mutual dealings. Obviously, it is not necessary that there should be only one set of rules, or one system of international law at a time, for the conduct of all the states of the world. And several systems of international law could, and in fact did, exist simultaneously in different parts of the globe. Even the modern, so-called European, International law is not a collection of unanimously approved rules.73
Similar to this was the opinion of Grotius, who is normally referred to when some people want to exclude regional, religious or ethnic perceptions of international law and argue that they are not part of the latter. He had clearly held a different view when he said: [t]he law which is broader in scope than municipal law is the law of nations; that is the law which has received its obligatory force from the will of nations, or many nations. I added, … [Grotius said], … ‘of many nations’ for the reason that, outside of the sphere of the law of nature, which is also frequently called the law of nations, there is hardly any law common to all 72 73
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Personal experience. Hamidullah (n 3) x.
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nations. Not infrequently, in fact, in one part of the world there is a law of nations which is not such elsewhere.74
Nevertheless, whether contemporary international law is different, compatible, incompatible or even similar to Siyar is a heated debate among scholars, and it will not be my aim to embark on it in this work. What is more important here is to emphasize the importance of studying Siyar in general and the contribution of Al-Shaybani in particular.75 In this regard, James Crawford acknowledges that although Grotius is a regional thinker, we treat him as an international lawyer; therefore, there is no reason why we should not treat Al-Shaybani in the same way.76 1.1.2 Importance of Al-Siyar Today, we live under rules that embody, mainly, Euro-American values as a law for all nations to abide by. Yet these rules are commonly branded as international law and/or the law of nations. In fact, international law is accepted by most non-Western nations, who, although they suffered from its misuse by the West,77 found tremendous advantages in practising it. However, having failed many of its own tests, international law is under scrutiny. Some thinkers believe that for international law to be accepted and practised in the four corners of the world, other nations’ views of international law have to be taken into consideration: this could reveal some of the differences and will certainly help in developing an international law that could truly be called the law of nations (all nations). The search for an alternative or at least an altered version of international law is imminent. The massive use of force, contrary to international law by powerful states, the clash of values and the conflict of interests have emphasized the urgency of such a search. Furthermore, Gaber emphasizes that Siyar: [i]n contrast to the modern concepts, international law was respected and observed, and due to the presence of the coercive force which compelled rules 74 Hugo Grotius, Hugo Grotius. The Law of War and Peace: De Jure Belli Ac Pacis Libri Tres (Francis W. Kelsey tr., Indianapolis 1925) 44 (footnotes omitted). 75 As we shall see later, the aim of this study is to discuss the contribution of one of the writers of Siyar to international law and not to assert whether the latter is compatible with the former or not. 76 J. Crowford, personal communication, 19 May 2012. 77 This term will be used to indicate that part of the West that dominates the course of international affairs.
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and peoples to its obedience, it was rarely violated. Its binding force was not merely the ‘consent’ of the states, which is the basis of treaties, nor was it obeyed because it was the alternative to anarchy. Since it was part of religion, Islamic International Law was purely of a subjective character. It was a divine law, the violation of which would invoke the divine punishment. Thus it implied, of necessity, the principle of the good faith of treaties.78
Moreover, many would argue that in reality Siyar is the true international law of Muslims. This is to say that it is of key relevance to the populations of around 57 countries and these are strongly connected with its teachings. Today, over 1.5 billion people from the world’s population of 6 billion believe in Islam79 and are more likely to admire, respect and practise Siyar even if their states do not formally adopt it. Moreover, the vast majority of Muslims attending Friday ceremonies every week around the globe are more likely to follow the teachings of Siyar regarding their international affairs than to follow international law.80 In addition, in her attempt to measure the attitude of Muslims towards the 2003 Iraq war, Professor Ali has noticed that Muslims from all parts of the world have sought consultations based on Siyar on what they should do and how they should react to the invasion.81 This is yet another indication that people even in secular Muslim states still wish to live under Islamic laws (domestic or international). In addition, many significant empirical studies show that without an appreciation of Siyar, we will never have an international law that could be both practical and effective. For example, Ali and Rehman (2005) asserted that ‘[o]ur study has established that it is not possible to ignore rules developed in the Islamic legal system as regards conduct of inter-state relations including laws of war, which even
78 Mohammad Hosny Mohammad Gaber, ‘The Early Islamic State with Special Reference to the Evolution of the Principles of Islamic International Law, 632–750 A.D.’ (PhD Thesis, American University of Washington 1922) 24–5. 79 Source: (accessed 15 May 2018). 80 Friday prayer is an obligation upon every Muslim male. They are required to attend it in a mosque and the vast majority of them do attend it. Friday ceremonies normally contain the most up-to-date Islamic view on how Muslims should deal with matters of their day-to-day life, and this includes international affairs. 81 S. S. Ali, ‘Resurrecting Siyar through Fatwas? (Re) Constructing “Islamic International Law” in a Post-(Iraq) Invasion World’ (2009) 14 Journal of Conflict and Security Law 115.
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today form a coherent body of rules comparable with any legal system of the world’.82 For these reasons, recognizing the Islamic perspective on international law is undeniably vital to the study and development of international law, especially in our day and age. Furthermore, in an age that is marked by a highlighting of the diversity between Islam and the West along with the claim of a clash of civilizations, the study of Siyar has become more and more important. 1.1.3 Siyar and Western International Law Gazi83 has offered a point-by-point account of the comparison between Siyar and international law. In light of his study, I offer the following comparisons: 1.
2.
While the very nature of international law as a law is contested due to a purported lack of some elements, thus preventing us from calling it a law, the nature of Siyar as a law has never been subject to disagreement. Siyar is the creation of independent jurists, unlike contemporary international law which is mainly created by political entities acting in accordance with their interests. Furthermore, in Siyar law creates political authority as well as the state and not the other way around. This is evident from the fact that law was enacted first and there was never a legislative body in the Muslim State’s structure. Thus, in this regard, ‘the entire concept of Muslim international law is basically different from that of the Western international law which not only stems from the will of the rulers but also remains contingent upon it’.84 Similarly, Bsoul agrees that ‘Islamic international law was not the product of an attempt to discover the rules actually observed and practised by states in their mutual intercourse, as is the case generally with modern systems of international law’.85 He also adds that ‘its origins lie in what are perceived to be infallible religious sources, so that its application
82 S. S. Ali and Javaid Rehman, ‘The Concept of Jihad in Islamic International Law’ (2005) 10 Journal of Conflict and Security Law 321, 342. 83 Šhaybānī (n 38) 17–21. 84 Ibid 18–19. 85 Labeeb Ahmed Bsoul, International Treaties (Mu āhadāt) in Islam: Theory and Practice in the Light of Islamic International Law (Siyar) according to Orthodox Schools (University Press of America 2008) 11.
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and observation had to operate in accordance with the spirit of those general rules’.86 On top of this, unlike the case in Western international law, municipal law and Siyar are not in contradiction, because they come from the same source.87 While the universal character of Western international law is disputed from the very beginning, Siyar from its inception to date bears a universal one. Gazi argues that Western international law considered those outside the European circle as uncivilized and unworthy of its application. Conversely, ‘Muslims never raised the question whether someone was civilised or uncivilised, a question on which no clear and commonly accepted criterion could ever be laid down.’88 In fact, Siyar ‘adopted a criterion which was much more clear and precise in its application, namely the religious and political affiliation of the person concerned’.89 In this regard, Bsoul (2008) argues that Siyar places great emphasis on ‘the universal brotherhood of mankind.90 The significance of this brotherhood is that it annuls all racial and material differences between human beings.’91 From the very beginning, Siyar recognized individuals as well as groups and states as subjects of its domain. Western international law, conversely, still struggles to accept individuals or even groups as subjects except in very limited and non-unanimously agreed upon cases. Siyar ‘has never deprived individuals of seeking redress available to them under the rules of Muslim international law’.92 On the contrary, to date no individual can raise an issue with the
3.
4.
5.
86
Ibid. See also Gaber (n 78) 25. 88 Šhaybānī (n 38) 19–20. 89 Ibid. 90 Bsoul notes: ‘[t]his is made clear in two verses of the Qura’an; chapter 49:11 and 13, which read: ‘O you who believe! Let not a group scoff at another group, it may be that the latter are better than the former, nor defame one another, nor insult one another by nicknames … ; O mankind we have created you from a male and female, and made you into nations and tribes, that you may know one another.’ 91 Bsoul (n 85) 3. 92 Šhaybānī (n 38) 20. 87
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majority of the contemporary international legal bodies.93 In addition to this difference, ‘[n]ot only the citizens of the Muslim state but also the members of a belligerent army and their compatriots had the right to move a Muslim court, invoking a relevant rule of Muslim international law’.94 Gazi argues that only some Western international law scholars have recently considered this.95 When some scholars dispute the universality of Siyar because it rests upon divine sources, they ignore the historical accounts of the contemporary system (international law) they deem universal. However, they will never be able to draw the line between international law of today and religion. In fact, even the individuals whom they consider to be fathers of international law did not attempt to claim what they are claiming. Grotius, for example, concluded his introduction of The Law of War and Peace by saying: ‘if anything has here been said by me inconsistent with piety, with good morals, with Holy Writ, with the concord of the Christian Church, or with any aspect of truth, let it be as if unsaid.’96 Moreover, he also unequivocally stated that:
6.
[r]eligion is of ever greater use in that greater society than in that of a single state. For in the latter the place of religion is taken by the laws and the easy execution of the laws; while on the contrary in that large community the enforcement of law is very difficult, seeing that it can only be carried out by armed force and the laws are very few. Besides, these laws themselves receive their validity chiefly from fear of the divine power; and for this reason those who sin against the law of nations are everywhere said to transgress divine law. Therefore, the Emperors have well said that religion corruption affects all to their hurt.97
In conformity with this, in Stumpf’s great work The Grotian Theology of International Law (2006), he concluded that: Grotius certainly is to a great extent indebted to the Christian theological and legal traditions: his theory of Natural Right follows lines parallel to those of the Salamancan School; his just war doctrine mostly 93
Mohamad Gazi Janaby and Khaled Ramadan Bashir, ‘The Right of Individuals to Take Judicial Action Against International Persons: The Case of NATO’s Intervention in Libya’ (2012) 1 Cambridge Journal of International and Comparative Law 162. 94 Šhaybānī (n 38) 20. 95 Ibid 21. 96 Grotius, The Law of War and Peace (n 74) 30. 97 Ibid 510.
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pursues the path already paved by medieval canon law, and in his understanding of function of Christ’s sacrifice for the redemption of mankind Grotius adheres to orthodox Patristic theology.98
7.
Gazi argues that ‘[t]he Western international law, as conceded by several Christian and Jewish writers, is an offshoot of the Christian civilization prevalent in Christendom’.99 He further stresses that: [t]he Christian component of Western international law becomes more striking in areas where a rule of international law is disputed by one of the parties. In such a situation, according to a recent but highly respectable authority, Oppenheim, it lays down that the principles of Christian morality should be applied. On the other hand, in a similar situation Muslim international law does not invoke any principle of Muslim morality. It invokes the principles of natural justice, particularly the principle of tamathul, mujazah or reciprocity ensuring an equal footing to both the parties.100
From another perspective, one can also add to the above comparison the fact that while modern international law feeds on states’ interest as the main source of life which can be diverted from serving the human cause to the fulfilment of the cause of the state and its leaders, Siyar feeds on ethical and moral standards as principles of law. This is why, ‘in the eyes of Muslim jurists, any system of human relations not based first and foremost on ethical principles loses all significance’.101 In addition to the abovementioned features of Siyar, international law as it is taught today inevitably includes Siyar as a source of law both implicitly and explicitly. It does so when it recognizes customary practices of nations as a source of international law.102 This is because Siyar was the practice of Muslim dynasties and states until the beginning of the twentieth century. Likewise, the Statute of the International Court
98 Christoph A. Stumpf, The Grotian Theology of International Law: Hugo Grotius and the Moral Foundations of International Relations (De Gruyter 2006) 242. 99 Šhaybānī (n 38) 21. 100 Ibid (footnotes omitted). 101 Bsoul (n 85) 13 (footnotes omitted). 102 Interestingly, custom is also seen as a source of Siyar itself. For more about this, see Md Anowar Zahid and Rohimi B. Shapiee, ‘Considering Custom in the Making of Siyar (Islamic International Law) Notes and Comments’ (2010) 3 Journal of East Asia and International Law 123.
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of Justice, particularly article 38, accepts Siyar as a source of international law by recognizing the teachings of great scholars and great civilizations as a source of law. Thus, such writings of great scholars from a great civilization as that of Al-Shaybani should undoubtedly sit well in such a category. Additionally, it is undeniable that ‘many of the most modern concepts of contemporary public international law, such as the principle of humanitarian treatment of prisoners of war, had been anticipated by Islamic law’.103 Indeed, the treatises of Siyar ‘on this specific subject had anticipated by several centuries the first emergence of organised writing in the West on the subject of Public International Law’.104 Moreover, it should be emphasized that ‘[a]long with principles now incorporated in the Geneva Conventions, Islamic law books contained other principles not yet incorporated in modern conventions’.105 Referring to international law, the ICJ Judge Weeramantry adds that ‘the eighth-century treatise of Shaybani had been the subject of a four-volume commentary by Shamsal-Aimma Sarakhsi long before the topic became the subject of western juristic writing’.106 Despite all these facts about the importance of Siyar, it is only recently that some scholars in the West have recognized that Siyar is an integral part of the history of international law and that it is very important and complementary to today’s international law.107 Thus, An-Na’im went as far as suggesting that Siyar should be borne in mind when nations agree a law according to which they would interact. In this regard, he stresses that: the relationship between Islamic law and International Law should be seen in terms of a more inclusive approach to the latter, rather than conflict or competition between the two. In my view, there can only be one International law, but it has to be truly international by incorporating relevant principles
103
Weeramantry (n 7) 109. Ibid. 105 Ibid 135. 106 Ibid 109. 107 As mentioned above, the Oxford Handbook of the History of International Law (Oxford Handbooks in Law) in its ‘People in Portrait’ part, which explores the life and work of the prominent scholars and thinkers of international law, presents Al-Shaybani as the earliest contributor and concludes with Sir Hersch Lauterpacht. Mashood A. Baderin, ‘People in Portrait’ in Fassbender et al. (n 1) 1081. 104
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from different legal traditions, instead of the exclusive Euro-centric concept, principles and institutions of international law as commonly known today.108
Furthermore, in the same line some scholars think that Siyar should be used effectively to develop and improve the current version of international law. For example, Gamal Bader asserts that: [c]ontemporary Islamic legal thought has no trouble subscribing to all current principles of International Law. Beyond that it aspires to enrich International law with its own contributions. What contemporaneous legal systems can contribute to each other and to international law is a different emphasis on values, a particular pattern of juridical reasoning and a distinctive methodology in the search for solutions to common problems. In all these areas Islamic law has much to offer to the ongoing process of development of international law.109
What is more, today ‘a balanced and equitable relationship can only come about once Islamic values are understood and accommodated in the international political order’.110 In fact we must always bear in mind that ‘[i]gnoring them in favour of strictly European ideas will only lead to continued misunderstanding between Muslim and non-Muslim states’.111 It must also be pointed out that Siyar is also capable of recognizing the developments in the international legal system. Therefore, Siyar scholars need to make it available for international lawyers to be better informed when dealing with Muslim communities, they must also exert efforts to update Siyar in light of the developments international law has seen. While there are some attempts to carry out the first task, there are barely any to fulfil the second. This book will offer international lawyers an unprecedented (in its width) opportunity to learn about Siyar in its original form.
108 Abdullahi Ahmed An-Na’im, ‘Islamic Law and International Law’ (2004) (accessed 29 January 2010). 109 Gamal M. Bader, ‘A Survey of Islamic International Law’ in Janis and Evans (n 11) 100–101. 110 Bsoul (n 85) 2. 111 Ibid.
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1.2 AL-SHAYBANI Many prominent scholars of his time, especially those working in the field of Siyar, attested that Al-Shaybani112 was one of the greatest jurists.113 This remains true today. Thus, Abū al-Wafā (2007), writes: ‘it is possible to say that Imam Al-Shaybani influenced and still today influences the development, re-shaping and crystallizing of the principles of international law and international relations in Islam in particular and in the world in general.’114 Moreover, Al-Shaybani has been described as ‘the chief architect of siyar’.115 His books were clear evidence that he was a ‘prolific writer who set down the Hanafi Doctrines, as well as those of other jurists, as his version of Malik’s Muwatta’116 attests’.117 He is also recognized as the founder of Siyar118 as an independent field of study.119 His book Al-Siyar Al-Kabīr was adopted by the Caliph of the time and by many other Muslim rulers after him. The power of this book reached even the Ottoman Empire and was used to regulate Islamic international relations. Furthermore, Al-Shaybani was appointed by the Caliph as a 112 In Western literature, his name is written in a number of different ways including: Šaibānī, aš-Šaibānī, al-Šaibānī, Shaybānī, Ash-Shaybānī, al-Shaybānī, Shaybani, Ash-Shaybani and al-Shaybani. The most accurate in English is aš-Šaibānī. However, some would transliterate it letter by letter and write the Arabic (L) and some would drop it, as it is silent in Arabic. Probably the simplest method, as not all English readers are familiar with Š (sounds like sh), is to use sh instead. Thus, I used Al-Shaybani. 113 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 1 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) ix–x. 114 Abū al-Wafā (n 12) 3. 115 Bsoul (n 85) 14. 116 Muwatta is one of the most authentic and authoritiative books in Islamic jurisprudence. The book contains a record of traditions of Prophet Muhammad as heard in Imam Malik’s circles. There are two versions of this book, one of which was prepared by Al-Shaybani. His version further records the opinions of the Iraqi jurists on the prophetic sayings that were reported by Imam Malik. 117 Muḥammad Ibn-al-Ḥasan aš-Šaibānī, The Islamic Law of Nations: Shaybānī’s Siyar (Majid Khadduri tr., Johns Hopkins Press 1966) 36. 118 As mentioned above, some scholars have used this term as a translation of Siyar whereas others have completely rejected this, claiming that Siyar is separable from the term Islamic international law. 119 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) ix–x.
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judge before and after he was dismissed by him. Upholding justice was his enduring character and the cause for his dismissal when he ruled against the wishes of the Caliph himself. According to the Islamic calendar,120 Muhammad Ibn Al-Hasan Al-Shaybani was born in the year 130 (747 AD).121 He grew up in one of the most significant centres of learning at the time, Al-Kufah.122 Having inherited a large amount of money from his father, Al-Shaybani dedicated his time and wealth to learning. He studied with the greatest scholars of his time, some of whom became the greatest scholars of Islamic law. He followed Abu-Hanifa, the head of the Hanafi School, for four years. Although he studied with many great scholars, ‘the foundation of his scholarship was laid and his legal and juridical understanding was sharpened by Abu Hanifah whose academy he joined at the age of fourteen’.123 After the death of Abu-Hanifa, Al-Shaybani continued his education with the most outstanding disciple of the former, Abu-Yusuf.124 Al-Shaybani and Abu-Yusuf ‘constitute the nucleus to which goes the credit of laying the foundations of the largest school of Islamic law and jurisprudence. Almost ninety percent of the rulings given by Abu Hanifah have been reported to us by Shaybani.’125 However, not only had Al-Shaybani learned in the school of Abu-Hanifa which used istinbat (elicitation) as a source of law, he also travelled to learn in the circles of Imam Malik, the founder of the Maliki School, and Al-awzai. Both of the latter upheld different styles of reasoning in Islamic jurisprudence.126 They used to build their opinions mainly on the traditions and narrations of the Prophet, his companions and the practice of the ‘people of Al-Madinah’127 as well as the Qura’an. As his study with Abu-Yusuf did not last for long, Al-Shaybani travelled seeking knowledge across the Muslim land, but only settled in Medina for some time with Imam Malik. Thus, ‘[t]he impact of the Madinan128 School on Shaybani’s writings is
120
Hereafter this will be AH. Henceforth where years are in the form of (130/747), this indicates 130 by the Islamic calendar and 747 AD. 122 A well-known city in Iraq. 123 Šhaybānī (n 38) 22. 124 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) ix–x. 125 Šhaybānī (n 38) 21–2. 126 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) ix–x. 127 The term refers to the Muslims residing in the Prophet’s city (sometimes written as Medina, currently in Saudi Arabia). 128 Referring to the School of Madina, the Maliki School of thought. 121
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evident from his mastery over the science of Hadith.129,130 The fact that he had studied with two founders of different schools of thought, and his travel in pursuit of knowledge, helped him to become one of the greatest scholars of Islamic Law. His readers note that ‘[h]is writings represent a unique combination of rational interpretation of early precedents and a profuse citation of authorities, particularly the sayings and practices of the Prophet (peace be on him) and his Companions’.131 Yet, in general, in his writing style Al-Shaybani was no different from his contemporaneous Islamic scholars as he too ‘employs a dialogue form in some of his writings, especially when he compares his arguments with those of other jurists. This form not only keeps the discussion lively but also greatly helps the reader, in most cases, to follow the line of argument adopted by the jurist concerned.’132 When Al-Shaybani was only 20, he started teaching in Al-Kufah and his circles were always full. Not only did many of his students become popular scholars and sources of knowledge drawn upon to this day, Imam Al-Shafi’i was also among his students. Al-Shafi’i is the founder of the Al-Shafi’i School, which is one of the four main schools of jurisprudence in Sunni Islamic thought.133 Thus, Al-Shaybani studied with the heads of two of the main Islamic schools and he was the master of the head of another. The most distinguished student of his, Imam Al-Shafi’i, has praised Al-Shaybani on several occasions and once told his audience that ‘the notes he had prepared in the company of Shaybani were equal to the load of a he-camel. He would then explain that he was referring to a he-camel “because it can carry more weight than a she-camel”.’134 Furthermore, Imam Al-Shafi’i once confessed ‘that he never saw a person more knowledgeable about what is lawful and what is unlawful and the niceties of law than Muhammad ibn al-Hasan al-Shaybânî’.135 Later, Al-Shaybani was often consulted by the Abbasid Caliphate on various legal issues. He then was appointed as a judge by the famous Caliph Harun A-Rasheed.136 Al-Shaybani died when he was 58 in the year 189 AH. The Caliph 129 Hadith refers to the second main source of Islamic Law, which is the Prophetic traditions. 130 Šhaybānī (n 38) 23 (footnote added). 131 Ibid (footnote added). 132 Ibid 30. 133 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) x. 134 Šhaybānī (n 38) 23. 135 Ibid. 136 Ibid 24.
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himself led the funeral and addressed the crowds stressing that ‘they were not burying the earthly remains of a mortal; they were rather burying the science of law and jurisprudence itself’.137 As one of the most prolific writers in Islam and by far in the field of Siyar at the time, Al-Shaybani left a great amount of books. Historians have related to him many valuable works138 some of which, unfortunately, have been lost. In the field of international law, the first book he wrote was Al-Siyar Al-Saghir or ‘the Shorter Book of International Law’.139 This was after his Master Abu-Hanifa’s death. He wrote it under the supervision of his new Master, Abu-Yusuf. Gazi, who translated this book, refutes Khadduri’s claim that this book was AbuHanifa’s Siyar. He strongly believes that it was the brainchild of Al-Shaybani. He completely rejects Khadduri’s analysis that because it mostly contains the opinion of Abu-Hanifa it must have been what was known as Abu-Hanifa’s Siyar, to which Al-awzai had written his rejoinder. Thus, Gazi stresses that: Khadduri’s remarks on the subject seem to be mutually contradictory. He denies the popular contention that Shaybani had written this book before 157 AH in which case this cannot be considered to be the Siyar of Abu Hanifah of which a refutation was written by Awza’i. He also conjectures that the Siyar attributed to Abu Hanifah might have been written by Abu Yusuf and might not have reached us. On the other hand, Khadduri declares a chapter from Shaybani’s Kitdb al-Asl as his Siyar and embarks upon its translation without even perhaps trying to check whether the real al-Siyar al-Saghir was in existence or not.140
An examination of Khadduri’s book reveals that his translation is replete with Abu-Hanifa’s opinions pertaining to Siyar questions. If having mainly relied on the opinion of the latter is a sign of any work to be his, then even the work translated by Khadduri should not be called Shaybani’s Siyar; he should have rather called it Abu-Hanifa’s Siyar. Furthermore, no one else questions the fact that Al-Siyar Al-Saghir was written by Al-Shaybani. Therefore, and since it contains the opinion of the latter as well as Abu-Hanifa’s, it will always be more appropriate to call it Al-Shaybani’s Siyar. Luckily, Al-Siyar Al-Saghir is preserved as it was written and it has reached us in its original shape. In fact, now it is available even in 137 138 139 140
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Ibid (footnotes omitted). Ibid. As Gazi, the translator of this book, calls it. Šhaybānī (n 38) 31.
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English entitled Muhammad al-Hasan al-Shybani, Kitab Al-Siyar Al-Saghir, or The Shorter Book on Muslim International Law, translated by Mahmood A. Gazi and published in New Delhi by Adam Publishers in 2005.141 The translator asserts that: al-Hakim al-Shahid Muhammad ibn Muhammad al-Marwazi had prepared a summary of Shaybani’s six books of Zdhir al-Riwdyah which included his two works on Siyar as well. In this summary, Hakim had adopted the entire text of al-Siyar al-Saghir of Shaybani in the original form instead of attempting to make his own summary of the two Siyars. This assertion has not only been verified by its most popular and authoritative commentator, al-Sarakhsi, but is also supported by the fact that most of the extant manuscripts of al-Kafi use the title al-Siyar al-Saghir for the relevant chapter in al-Kafi.142
As mentioned earlier, Al-Shaybani wrote this book while in Iraq, far from the borders of the Muslim State where one would expect the need for Siyar to govern interactions with others. This prompted Al-awzai, the great scholar based in Syria at the time, to offend Al-Shaybani by his famous statement when he questioned ‘what has Mohammad (AlShaybani) to do with this’, referring to Siyar. He uttered this statement when he read Al-Siyar Al-Saghir. Bouzenita recalls Al-awzai’s statement that ‘[t]he people of Iraq are not entitled to a composition (tasnīf) in these legal fields, as they have no knowledge in siyar. The military campaigns of the Messenger of Allah took place in Shām and the Hijāz, not in Iraq, as the latter has been opened to Islam only recently.’143 When this proclamation reached Al-Shaybani, he embarked upon improving Al-Siyar Al-Saghir (the small Siyar) to produce Al-Siyar Al-Kabīr (the major or grand Siyar). This new book was and is indeed a great achievement and a magnificent contribution to the field of Siyar. In fact, when a copy of it reached him, even Al-awzai admitted that it was a unique and valuable book. On this occasion it is reported that he even said, ‘[h]ad it not been evidenced by ahādīth, I would have said that he has taken the knowledge out of himself, and that Allah has destined the correct answer in his legal opinion (rahy).’144 141 One of the most recent and useful reviews of this book is that of my friend Jean Allain. See Jean Allain, ‘M. A. Gazi (Ed.), the Shorter Book of Muslim International Law Reviews’ (2016) 1 Jus Gentium: Journal of International Legal History 183. 142 Šhaybānī (n 38) 33–4 (footnotes omitted). 143 Bouzenita (n 27) 25–6. 144 Ibid (footnotes omitted).
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Clearly, Al-Shaybani was the most significant Islamic scholar in the field of international law in terms of his voluminous writing. Although, as we have seen above, he was not the first to write in this field, but writing his sophisticated book on international law (Al-Siyar Al-Kabīr) made him deserve the title.145 Moreover, Al-Munajjid (1971) argues that Al-Shaybani was ahead of many prominent scholars such as Vitoria, Suarez and Vasquez. He thinks that Al-Shaybani was ahead of his time even compared to Grotius (1583–1645).146 Meanwhile, Johnson (1997), commenting on the likening of Al-Shaybani to Grotius, suggests that: a better comparison is with another major figure in Western moral tradition on war, the Spanish Dominican schoolman Vitoria, who after spending the majority of his career as a teacher, lecturer, and writer, concluded it as a consultant to his monarch, the emperor Charles V, on matters pertaining to the just use of force by the Spanish against the Indians in the New World.147
Related to this, Robert Flint, one of the masters of philosophy of history, stresses that ‘the man of genius who is called the founder of a science merely brings together its already existing elements; he confines himself to uniting its disjecta membra and breathing into them the breath of life’.148 Although Al-Shaybani had some precursors, none of them dealt with the subject of Siyar in its entirety in one book as he did. Thus he, I conclude, with no doubt deserves the title of the father of Siyar. Furthermore, many scholars deem him to be the pioneering author of international law, both public and private.149 Nonetheless, the question of whether he is the father of international law is outside the scope of this book. Yet it must be noted that he is now increasingly regarded to be one of the foremost contributors to the field of international law.150 Šaibānī (n 117) 22. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) xiv. 147 James Turner Johnson, The Holy War Idea in Western and Islamic Traditions (Pennsylvania State University Press 1997) 69. 148 Ernest Nys, ‘Introduction’ in Francisco de Vitoria, De Indis De Ivre Belli Relectiones, Text of 1696 (Ernest Nys ed., John Pawley Bate tr., The Carnegie Institution of Washington 1917) 55. 149 See, for example, the author of ‘The Imam Mohammad Ibn Al-Hasan Al-Shaybani and his Impact on International Relations’ (PhD Thesis at Al-Azhar University: Faculty of Law and Sahri’a in 1997), Authman Juma’a Dmeriyah, ‘The Imam Mohammad Ibn Al-Hasan Al-Shaybani and His Book Al-Siyar Al-Kabir (2-2) [Al-Imam Muhammad Ibn Al-Hasan Al-Shaybani Wa Kitabuhu Al-Siyar Al-Kabir 2-2]’ (Midad, 29 December 2007) (accessed 27 November 2011). 150 Mashood A. Baderin, ‘People in Portrait’ in Fassbender et al. (n 1) 1081. 145 146
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Nevertheless, Al-Shaybani wrote Al-Siyar Al-Kabīr in the eighth century and it has been consistently consulted by Islamic governments ever since. However, this original work on the Islamic law of nations is not available in its entirety today.151 Nevertheless, Muhammad Ibn Ahmad Al-Sarakhsi in the eleventh century made a valuable attempt to rewrite it while adding his own comments. Al-Sarakhsi’s book Sharih Kitab Al-Siyar Al-Kabīr Li-Muhammad Ibn Al-Hasan Al-Shaybani was combined and republished by Salaah Al-Deen Al-Munajjid (5 vols, Cairo: Ma’had Al-Makhtu’tat 1971). The book is in Arabic and its title reads: Explanation of Al-Siyar Al-Kabīr of Al-Shaybani by Al-Sarakhsi, edited by Al-Munajjid, 1971. This book is extremely valuable; first, because it contains the original book by Al-Shaybani on international law (Al-Siyar Al-Kabīr), and second, because Al-Sarakhsi critically analysed Al-Shaybani’s rules in it. Al-Sarakhsi’s commentary on Al-Shaybani’s book has reached us in its entirety. However, some scholars argue that it is very difficult to distinguish the original text of Al-Shaybani from the opinion of the commentator, Al-Sarakhsi. For example, Gazi points out that ‘[t]he text and the commentary are so interwoven that it is extremely difficult to separate the two. Any effort to distinguish the two is bound to be arbitrary.’152 He adds that ‘[t]he editors of the Hyderabad edition of the commentary have tried to identify the text placing them in parentheses. But their identification differs in several places to the text identified by Saláh al-Din al-Munajjid.’153 While this may be true in some editions, in the Cairo edition (Al-Munajjid’s) it is not impossible to distinguish the opinion of Al-Shaybani, as it is always attributed to him. Any opinion in the book is normally attributed to its holder. Therefore, this is no great cause for concern. In fact, even Gazi states in the same book that ‘in spite of the conjectural nature of the text identification by the learned editors of the two editions, the text can be distinguished with a fairly high degree of certitude in most cases’.154 I shall now first introduce the author of this masterpiece, Al-Sarakhsi. Following that, I will address Al-Shaybani’s book as found in the latter’s work and relate it to this study.
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world. 152 153 154
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1.3 AL-SARAKHSI Muhammad Ibn Ahmad Abu-Baker Shamsu Al-imam Al-Sarakhsi,155 who died at the end of the fifth century AH (483/1090), was one of the great scholars of fiqh (jurisprudence) and language.156 He was imprisoned because he ruled that the marriage of the local governor with his emancipated woman was unlawful, as it happened before a required legal period.157 He served 15 years, during which period he taught his disciples from his cell. It is said that he dictated his book Sharih Kitab Al-Siyar Al-Kabīr by heart while his students wrote outside his cell. When they reached the chapter of al-shoroot (the conditions), he was released and completed this work as a free man (480/1087).158 It is worth noting that Al-Sarakhsi dropped some chapters of the original work of Al-Shaybani. He confesses this without referring to them specifically.159 It is unfortunate that the original work of Al-Siyar Al-Kabīr is only available in this book; therefore, we have to accept the narration of Al-Sarakhsi and rely on his memory and sincerity, as Al-Munajjid comments.160 Gazi speculates that it is difficult to assert whether Al-Sarakhsi had a copy of Al-Siyar Al-Kabīr at hand while he was dictating his commentary. He further argues that in case he did not: … It is difficult to determine as to how much of the original he was able to incorporate in his commentary by dint of his extraordinary memory, even though that was something not unusual among the Muslim scholars of the early centuries of Islam. However, it may well be probable that the students sitting around the pit possessed copies of the original and read out to the imprisoned teacher the passages of the original which Sarakhsi set out to elaborate and explain. Recitation of the text by the students in order that it be explained by the teacher was, and still is, a prevalent practice in the traditional centres of Islamic learning.161
Some people would claim that ‘Sarakhsi’s works are considered generally as the commentaries on Shaybani’s works and to that extent only as 155 In Western literature, his name is written in a number of different ways including Sarakhsī, As-Sarakhsī, al-Sarakhsī, Sarakhsi, As-Sarakhsi and Al-Sarakhsi. The latter is adopted in this book. 156 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) iv. 157 Ibid xvi. 158 Ibid. 159 Ibid xvii. 160 Ibid. 161 Šhaybānī (n 38) 32.
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exposition of his works’.162 However, Kassim (1994) disagrees with this claim and points out that Al-Sarakhsi further contributes to the various fields in a great way. For example: 1. 2.
‘Sarakhsi systematizes the doctrine of juristic preference to its fullest and seeks its justification directly from Shari’a sources.’163 He ‘shows the relevance of the doctrine of juristic preference and its application to the muwada‘a (treaties), mu‘amalat (mutual relations) of Muslims with other nations concerning the ahkam al-dunya (worldly affairs)’.164
To be just to both, Al-Shaybani had offered the first comprehensive book on Siyar and Al-Sarakhsi thereafter had offered us that book together with his valuable commentary. Therefore, in our age, neither of them can be mentioned with regard to the field of international law without mentioning the other. This is because, as shown above, today, the work of Al-Shaybani can only be traced through that of Al-Sarakhsi, and the work of Al-Sarakhsi is greatly indebted to that of Al-Shaybani.
1.4 AL-SIYAR AL-KABĪR As we have noted above, Al-Siyar Al-Kabīr by Al-Shaybani is only available through reading Al-Sarakhsi’s commentary book on it (Sharih Kitab Al-Siyar Al-Kabīr). This book in its original form is only available in a few museums and institutions around the world. Two key attempts have been made to revive it: one version was published in Hyderabad and the other in Cairo. Some other attempts were also made to revive this book such as the version by Mohammad Hassan Ismail Al-Shafi’i, published in Beirut (1417/1997).165 Furthermore, an attempt to produce
162 Husain Kassim, Sarakhsi, Hugo Grotius of the Muslims: The Doctrine of Juristic Preference and the Concepts of Treaties and Mutual Relations (Austin & Winfield 1994) 4. 163 Ibid. 164 Ibid. 165 Mohammad Hassan Muhammad Ismael Al-Shafi’i, Explanation of Al-Siyar Al-Kabier of Muhammad Ibn Al-Hasan Al-Shaybani; Dictated by Muhammad Ibn Ahmad As-Sarakhsi [Sharih Kitab Al-Siyar Al-Kabir Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi] (Dar Al-kutob Al-ilmiyah 1997).
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another copy of this book was made at the University of Cairo, resulting in the production of one volume only, edited by Mohammad Abu-Zahra in 1958.166 In addition, a further copy of the commentary on the book of Al-Shaybani (Sharih Kitab Al-Siyar Al-Kabīr Li-Muhammad Ibn Al-Hasan Al-Shaybani) was discovered. This commentary was produced by Mohammad Al-muneeb Al-e’nitabi Al-Istanbuli and was handwritten. This copy is retained in Aarif Hikmat’s library in Medina. The book is called Tayseer Al-maseer fi Sharih Al-Siyar Al-Kabīr [The Book of Facilitating the Understanding of the Commentary on the Grand Siyar].167 This book adds yet another extraordinary work to the works of both Al-Shaybani and Al-Sarakhsi, for it further elaborates on the Explanation of Al-Siyar Al-Kabīr written by Al-Sarakhsi.168 However, as I am content with its inclusiveness, significance and reliability, I shall work with the Al-Munajjid edition. This edition seems to be both complete and preferred by many of the great scholars working on the subject such as Abū al-Wafā. Thus, in this book I will be working with the Cairo version in particular, as it has been possible to authenticate it by comparing it to an original script held in Leiden. 1.4.1 Al-Munajjid’s Edition The Institute of Arabic Manuscripts169 and the League of Arab Nations successfully unearthed, translated and combined the work of AlSarakhsi.170 By this great work, these institutions and Salaah Al-Deen Al-Munajjid in particular have saved the only book containing most of Al-Shaybani’s ‘grand siyar’. Al-Munajjid combined the book and forwarded it to the aforementioned institutions to be published in 1971 in five volumes.171 166
Dmeriyah (n 149). Ibid. 168 Muḥammad Munīb ibn Abd Allāh Aynatābī al-Istanbūlī, The Book of Facilitating the Understanding of the Commentary on Al-Siyar Al-Kabīr. [Tayseer Al-Maseer Fi Sharih Al-Siyar Al-Kabīr Istaktabahu Mualifahu Al-Sayed Mohamad Muneeb Ibn Al-Haj Al-Intabi Alistanbuli] (handwritten in 1215 Hijri, 1800). 169 ‘The Institute of Arabic Manuscripts’ (accessed 31 December 2017). 170 Al-Munajjid travelled from Cairo to Damascus, Paris, Beirut, Istanbul and many other cities wherever a copy of this book or part of it was saved in museums, universities or libraries. 171 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) iv. 167
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The book contains rules governing the relationship between Muslims and non-Muslims both as individuals and as polities in a comprehensive manner. It discusses jihad (use of force), ama’an172 (safe conduct), prisoners of war, the rules of ransom, spoils of war, war crimes, the rights of those granted asylum, delegations and envoys and their rights, international and transnational property law, treaty law, international trade law and rights of religious minorities. In addition, the book deals with hundreds of other rules governing the relationship between Muslim and non-Muslim states, as well as individuals,173 in times of both peace and war at home and abroad. The first volume deals with defence and war in Siyar in a comprehensive manner. It even discusses what should people wear and eat during war. Not only does the volume contain rules to protect diplomatic envoys, it also provides civilians with the right to move and trade freely after being granted the state of ama’an. In the second volume, the book continues to deal with conduct of ama’an whereby a foreigner[s] is granted pledge of security over his/her life and property with permission to enter the country. Almost half of the volume is concerned with this topic. The second main topic discussed is the characterizations of spoils of war and the rules regulating the practice. The third volume is mainly concerned with the regulation of spoils of war. It also deals with property acquisition, conveyancing and possession. It goes as deep as to regulate even renting and hiring equipment in a foreign land. Following this, the writer clarified the rules for what the army should obtain or use and what they should not within foreign lands. The book then goes on to deal with the rules on prisoners of war and whether they should be freed, ransomed, distributed or executed. A major part of the fourth volume contemplates the position of merchants and trade regulations internationally. It also deals with various other topics such as the position of subjects in a foreign land. The position of religious minorities as subjects of a Muslim country was also given a great deal of attention by Al-Shaybani. For example, he discussed their right to freedom of belief and their right to maintain their places of worship. He also explained the rights and duties of visitors and traders as well as inhabitants in Muslim lands.174 In contrast, the following chapter explained the status of Muslims in a non-Muslim land. 172
Khadduri describes it as safe conduct, pledge of security. Individuals are considered subjects of international law according to As-Siyar. 174 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir 173
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Shifting the focus, the first chapter in volume five deals with peace agreements between Muslim and non-Muslim entities. This peace agreement is called mowada’ah175 and the writer explicitly considered all possible terms and conditions that such an agreement could contain. The rest of this volume delves into what we know today as matters of private international law. It is concerned with matrimonial legal issues in both Muslim and non-Muslim lands. It also considers succession law and many other issues regulating the position of foreigners in a Muslim territory and the position of subjects in foreign territories. It is noteworthy that Al-Sarakhsi debates the teachings of Al-Shaybani and rejects them whenever he thinks it is appropriate to do so, which makes his book a very valuable work. As was the trend, whenever an opinion of another scholar is mentioned/discussed, acknowledgement would follow. Thus, we can easily distinguish the opinion of Al-Shaybani from the author’s as well as opinions of others or other opinions mentioned. Al-Munajjid published this book after being examined by three prominent Hanafi scholars and the old copy of Al-Sarakhsi’s book at the American University in Beirut was selected to be the main source, especially in the second volume.176 In addition, Al-Munajjid stated that ‘after the publication of the first volume we managed to view another copy of the original book Sharih Kitab Al-Siyar Al-Kabīr Li-Muhammad Ibn Al-Hasan Al-Shaybani’.177 This copy is still retained in Leiden University today. It ‘dates back to the year eight hundred of the Islamic calendar (i.e. 1422 A.D.). It was copied by hand by Mohammed Ibn Hussein Ibn Ali Al-Ameeli.’178 The fact that Al-Munajjid used many copies held at different institutions around the world highlights the authenticity of his work. Furthermore, War and Peace in the Law of Islam (The Johns Hopkins Press, Washington 1955) and Law in the Middle East (The Middle East Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 4 (Salah Al-Deen Al-Munajjid ed, Ma’had Al-Makhtu’tat 1971) 1689. 175 Ibid 1528–53. 176 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 2 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) iii. 177 Ibid. 178 Ibid.
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Institute, Washington 1955), both written by M. Khadduri, were used as secondary sources by Al-Munajjid. Coinciding with these, Hans Kruse’s article in the Journal of the Pakistan Historical Society, Al Shaybani on International Instruments,179 was also consulted.180 Nevertheless, the reader might be confused by the discovery that the book covers of volumes four and five have Al-Munajjid as an editor but the name mentioned on the first page is Abd-Al-Azeez Ahmad. Even so, as the book covers stated the same publisher as for the past three volumes, I decided to keep citing Al-Munajjid to avoid confusion. The editor of this book (Al-Munajjid) affirmed that the original book written by Al-Sarakhsi was divided into two volumes only. Nevertheless, it seems that the original book was structured by way of topic-based chapters, as the connection between the chapters is obvious even if they are about different fields of law.181 The page numbering is consecutive throughout the five volumes. This raises the question of whether the five-volume division was merely a necessity dictated by the amount of unearthed work of Al-Sarakhsi. Whatever the case is, the continuity of the page numbers across all the volumes is a sign of the connectivity, originality and reliability of this work, which claims to present Al-Sarakhsi’s book in its original form. Moreover, as chapters and pages were chronologically related and in consecutive order, Al-Munajjid’s statement that the original work was divided into two volumes seems likely to be true. 1.4.2 The Leiden Manuscript To reaffirm the authenticity of the version of the book I am using, I accessed a copy of the manuscript held at Leiden University and compared it to Al-Munajjid’s edition of Sharih Kitab Al-Siyar Al-Kabīr. Just as Al-Munajjid stated, this copy testifies that it was written in the year 800 according to the Hijri calendar, which is the year 1422 AD. It was handwritten by Al-Ameeli, as mentioned above. Moreover, the Leiden copy was handwritten and bears a signature which I cannot verify. This copy of Al-Sarakhsi’s work was almost identical to the book I am
179
Vol I (1953) 90–100. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 176) ix. 181 For example, although he treatment of spoils of war in volume III is very extensive, in volume IV, whenever Al-Shaybani felt the need or the connection to the topic, he tackled it again. 180
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using. Al-Munajjid, the editor of the latter, did, as mentioned above, refer to the Leiden copy in his book.182 The table of contents is also almost identical in the two versions. However, some sub-headings or subdivisions are not mentioned in Al-Ameeli’s version. For example, on page 89 Al-Munajjid has a subheading called (raising the voices) between the subheadings ‘the detestation of bells’ and ‘fighting in sacred months’; this subheading ‘raising the voices’ is not found in the Leiden version.183 However, the text of the two books is exactly the same if we take out this subheading which appears in Al-Munajjid’s version. On the other hand, from the Leiden version I can now say that the original book, just as Al-Munajjid stated, was unlikely to have been in five volumes as divided by him. This is because Al-Ameeli produced it in two volumes. Nevertheless, it must be emphasized that topics, chapters and the text are still the same in both versions. Also worth mentioning is the fact that even when Al-Shaybani had used two different words to convey the same meaning on two separate occasions, this was still conveyed by Al-Sarakhsi. An example of this is the point at which Al-Sarakhsi writes ‘Chapter of War: How to Prepare for it’, and in another version ‘How to Enter it’.184 This means that Al-Sarakhsi not only was drawing on the original book of Al-Shaybani but he also mentioned any differences between the original copies he (seems to have) had of it. This is further support for the fact that Al-Sarakhsi was citing the original book of Al-Shaybani in great detail and with identical wordings. Meanwhile, Al-Munajjid’s version has also proved to be very authentic because we see exactly the same original (additional185) comments in the main body of the book in his edition too.186 The various minor differences between the two versions are not easy to locate. For example, some added words in Al-Ameeli’s version are not 182
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 176) xix–xxi. Mohammed Ibn Hussian Ibn Ali Al-Ameeli and Muhammad Ibn Ahmad Al-Sarakhsi, ‘Explanation of Al-Siyar Al-Kabīr of Muhammad Ibn Al-Hasan Al-Shaybani; Dictated by Muhammad Ibn Ahmad Al-Sarakhsi Written 800 Hijri. [Sharih Kitab Al-Siyar Al-Kabir Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi; Tama Sanat 800 Hijri] (Microfilm, Leiden University Library 2009, OR 373)’. 184 Ibid 29. 185 These comments would not have been essential if Al-Munajjid wanted to convey the mere thoughts and comments of As-Sarakhsi; however, he proved that he has committed himself to conveying the text of the book exactly as it was. 186 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) 116. 183
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present in Al-Munajjid’s. These are, for example, the words ‘he said’ (referring to Al-Shaybani) at the beginning of one of the chapters of the former version,187 which are not found in the latter.188 In addition, some additional words such as ending a chapter by saying ‘Allah knows best’, found in Al-Ameeli’s version,189 were slightly different from those in the version I am working on, as it said: ‘and Allah is the one who helps us to successes.’190 Another example is when Al-Munajjid wrote ‘and said Mohammad may the mercy of Allah be upon him …’,191 whereas Al-Ameeli wrote ‘and said Mohammad, may Allah confer mercy on him …’.192 Considering the above, it can be confidently said that the book presented by Al-Munajjid is the same as the original copy held at Leiden, which was presented by Al-Ameeli. The minor differences are inconsequential. Unless one reads and compares them both word by word and letter by letter, it is difficult to spot the minor differences in some usages of words. The differences could also rightly be likened to the difference between using the term ‘in addition’ in one copy and using ‘moreover’ in the other. Thus, the meaning and the main body of the text in both remains the same. On the other hand, this copy kept at Leiden University since the seventeenth century raises the question of whether early European international law scholars could have learned about Al-Shaybani’s writings. Furthermore, was there any link between Grotius, a graduate of Leiden who was very familiar with the international law writings in its library in that era, and Al-Shaybani’s works?
187
Al-Ameeli and Al-Sarakhsi (n 183). As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 176) 546. 189 As is found in the chapter discussing the case when a foreigner becomes dhimmi. 190 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 5 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 2243. 191 Ibid 2244. 192 This too was in the chapter ‘when does a foreigner become dhimmi (subject)’. 188
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1.5 MAIN WRITINGS IN THE AREA Although there are quite a few works on Siyar in other languages, especially in Arabic, in this area there are only few authorities available in English today. One of the main and most recent works in Arabic is the work of Abū al-Wafā, head of the international law department at Cairo University. One of his works is an encyclopaedia entitled A Book of International Law and Relations in Islamic Shari’a, published by Dar A-Nahdah Al-Arabiah in Cairo, 2007/1428, in 17 volumes. It is a magnificent contribution to knowledge.193 It is probably the most up-todate Arabic text on the topic of Siyar. In English, although there are few works available on the general topic, the works of Hamidullah194 and Al-Ghunaimi195 are among the most recommended ones. However, on the contributions of Al-Shaybani, there are fewer authorities such as Gazi, the translator of Al-Siyar As-Saghir, Husain Kassim and his book Sarakhsi-Hugo Grotius of the Muslims, and Khadduri the author of The Islamic Law of Nations. In addition, a few articles (see bibliography) have embarked upon studying some of the works of Al-Shaybani. However, at least in English, there is no trace of any work that has comprehensively addressed the latter’s contribution to international law. Moreover, there is a lack of thorough investigation of the position of Al-Shaybani among other international law authors in history. Nevertheless, after a deep reflection on Khadduri’s book The Islamic Law of Nations Shaybani’s Siyar, one might conclude that while this book might only be categorized as ‘a sample of classical’ Islamic law of nations, it is hard to relinquish thinking about the advisability of the rest of the title. Although Khadduri’s work contained a large portion of Al-Shaybani’s writings on international law, his book goes further to encompass the opinions of both Al-Shaybani’s masters Abu-Hanifa and Abu-Yusuf. For example, more than half of the translation consists purely of discussions held by Al-Shaybani’s teachers.196 This point indicates that not all of the book consisted of Al-Shaybani’s Siyar. It is also clear that 193 The book title in Arabic is kitab alaa’lam biqawaa’d alqanoun aadouli wala’laqat aadouliah fi shria’ah al-islamiyah. 194 Especially his works The Muslim Conduct of State and Battlefield of the Prophet. The vast majority of writers in the area cite his works. 195 His The Muslim Conception of International Law and the Western Approach is one of the very few major sources for an English reader on the relations between Western international law and Siyar. 196 From page 96 until page 253, Khadduri’s book mainly contains questions by Abu-Yousf answered by Abu-Hanifa.
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Khadduri (1966) did not literally translate the original book Al-Siyar Al-Kabīr as it was offered by Al-Shaybani. Instead, he tried to collect some of Al-Shaybani’s writings on the law of nations, to construct the latter’s Siyar. Hence, the translation by Khadduri, although containing some of the writings of Al-Shaybani on Siyar, does not necessarily signify a translation of Al-Siyar Al-Kabīr of the latter.197 Khadduri did not rely on Al-Sarakhsi’s explanation of Al-Siyar Al-Kabīr. Instead, he relied on his own work through importing Al-Shaybani’s writings on Siyar from other sources that were not always even other works of Al-Shaybani himself.198 Khadduri justifies this approach in his book by claiming that ‘Sarakhsi’s commentary amounts virtually to a new book; he failed to reproduce Shaybani’s original text, to which access was denied him in the prison, although it may be regarded as an exposition of Shaybani’s doctrines on the siyar as he understood them’.199 He further argues that the original text of Al-Siyar Al-Kabīr failed to reach us even through Al-Sarakhsi’s commentary, as it is hard to distinguish from the overall text. For this reason, Khadduri thinks that Al-Sarakhsi’s commentary symbolizes Siyar according to the Hanafi School in the eleventh century and not in the eighth century of Al-Shaybani.200 Notwithstanding this claim, the allegation that the original text is difficult to distinguish from Al-Sarakhsi’s commentary is easily countered after the re-publication of Sharih Kitab Al-Siyar Al-Kabīr in 1971. Further to our earlier argument, in Al-Sarakhsi’s commentary book, republished five years after Khadduri’s, the original text of Al-Siyar Al-Kabīr can easily be distinguished. Al-Sarakhsi clearly separated Al-Shaybani’s arguments by saying: ‘Mohamed said’; ‘and he stated’; ‘and he narrated’ (referring to Al-Shaybani) so as to keep it as it was in the original book Al-Siyar Al-Kabīr. However, Al-Sarakhsi also added his own explanations.201 Furthermore, throughout Khadduri’s book, Al-Sarakhsi’s Sharih Kitab Al-Siyar Al-Kabīr is consulted as a primary source of Al-Shaybani’s 197 This discussion builds on my previously published article: Khaled Ramadan Bashir, ‘Reconsideration of Khadduri’s The Islamic Law of Nations Shaybani’s Siyar by Majid Khadduri, The Johns Hopkins Press, 1966, ISBN 978-0801869754’ (2013) 9 Journal of Islamic State Practice in International Law 9. 198 Šaibānī (n 117) 44. 199 Ibid. 200 Ibid. 201 Bashir (n 197).
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Siyar. As for the credibility of Al-Sarakhsi, it was never a subject of suspicion even by Khadduri. From the above, it follows that if we are to choose between the credibility of a writer who commented on Al-Siyar Al-Kabīr in the eleventh century (three centuries after the original text was written) and between a twentieth-century scholar who tried to infer the original text from more than one source including the one produced by the writer in our first choice, it is obvious that the text of the eleventh century by Al-Sarakhsi is the worthy one. In fact, Gazi, who is credited with combining and translating Al-Siyar Al-Saghir, stressed the point that: [i]n his effort to make his readers believe that both the Siyars of Shaybani had been lost, Khadduri arbitrarily picks up a chapter from Kitdb al-Asl and presents it as Shaybani’s Siyar. The material included by him in this book does contain Shaybani’s ideas on the Siyar, but it can in no case be called al-Siyar al-Saghir of Shaybani or Shaybani’s Siyar.202
Nevertheless, it is worth mentioning that Khadduri’s book The Islamic Law of Nations Shaybani’s Siyar, which was published in 1966, involved a huge amount of work to unearth, collect and translate old scriptures that embodied the rules of Siyar in Al-Shaybani’s era.203 As stated above, Khadduri has offered the English reader insights into classical Islamic international law in general; he also provides the reader with the opportunity to learn about some of the writings of Al-Shaybani in this field. Nonetheless, Khadduri’s work being different from the work of Ma’had Al-Makhtu’tat (Arabic Institution of Manuscripts) means that the latter would, with no doubt, be evaluated differently: as a specialized institution offering the best available account of Al-Shaybani’s work by providing the aforementioned work of Al-Sarakhsi.204 Thus from the above, Al-Sarakhsi’s work Sharih Kitab Al-Siyar Al-Kabīr Li-Muhammad Ibn Al-Hasan Al-Shaybani represents the best available version of the first (known) book written on international law separately from all other fields of law. The fact that this work encompasses the book205 of Al-Shaybani, independently, makes it worthy of preference. Šhaybānī (n 38) 33. I.e. the eighth century. 204 Al-Munajjid (1971) stated that the only available copy of Al-Siyar Al-Kabier of Al-Shaybani is the one that could be inferred from As-Sarakhsi’s Sharih Kitab Al-Siyar Al-Kabier Li-Muhammad Ibn Al-Hasan Al-Shaybani. 205 This fact is only restricted by the fact that As-Sarakhsi has admitted omitting some of the original work of Al-Shaybani in his commentary. 202 203
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1.6 THE BOOK’S OBJECTIVE The above facts on ‘the contribution of Shaybani in the systematization and codification of the international law of Islam has invited the attention of a number of Western scholars’.206 In addition, Al-Shaybani’s work was published in Turkish translation in 1825. This had prompted Hammer Purgstall, the well-known Austrian historian examining Al-Shaybani’s work, to call him ‘the Hugo Grotius of the Muslims’.207 However, Gazi, who is familiar with the writings of Al-Shaybani and the translator of one of his books, argues that Al-Shaybani (d. 804 CE) came centuries before Hugo Grotius (d. 1645 CE); thus some credit should go to the former scholar who pioneered in this field.208 In addition, a group of international law scholars who were impressed by Al-Shaybani’s work founded the Shaybani’s Society of International Law in 1955 in Germany.209 In addition, the UNICCO translated one of his books into French.210 Al-Shaybani’s book Al-Siyar Al-Kabīr was far more precise and firm than one could imagine, considering the time in which it was written. It dealt comprehensively with international legal aspects of the eighth century. This led Al-awzai211 to confess: ‘had this book contained no clauses from Quran or Sunnah, I would have said that it is an invention of Al-Shaybani.’212 Abū al-Wafā has also stressed that ‘Al-Shaybani did compile a comprehensive and conclusive work on the rules of international law especially those that must be followed in war times’.213 Indeed, Abū al-Wafā, who studied the rules of international law in Al-Shaybani’s writing in light of those of contemporary international law, went on to say that ‘what Al-Shaybani introduced in the eighth century is not less, if not more, than what the practice is now’.214 Although Khadduri has offered the English reader some account of classical Siyar, it cannot be considered as Al-Shaybani’s Siyar, as I pointed out before.215 However, Al-Shaybani’s short Siyar was translated 206 207 208 209 210 211 212 213 214 215
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Šhaybānī (n 38) 33. Ibid. Ibid. Ibid. Abū al-Wafā (n 12) 3. A great scholar who lived in the time of Al-Shaybani. Al-Munajjid, vol 1 (n 113) 277. Abū al-Wafā (n 12) 4. Ibid 5. Bashir (n 197) 9.
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by Gazi as shown above and it is truly a great loss not to have Al-Shaybani’s grand Siyar (as in Al-Sarakhsi’s book) in English. Even if we may not agree with every rule in it, it is far from being just a simple textbook on international law. The book went as far as to discuss what a person should eat and what should not be done in a foreign land. Furthermore, an easy comparison can be seen between rules contained in the Geneva Conventions and a major part of this work in particular and between this book and contemporary international law in general. Furthermore, today, ‘it is being increasingly realized that Shaybani played an exceedingly impactful role on the development of international law as such, so much so that he merits to be considered one of the founders of this branch of law’.216 Besides, as we have seen above, ‘[a]part from dealing with questions of international law in quite a few of his works, two of Shaybani’s works are exclusively devoted to this subject’.217 In a relevant vein, Baron de Taube went so far as to speculate that ‘the modern public International law of declarations of war was a direct descendant of Islamic doctrine’.218 Christopher Weeramantry has also offered evidence of ‘the influence of Islamic doctrine in the writings of Hugo Grotius on the law of combat’.219 Despite the above, there are not enough studies of the extent to which Al-Shaybani has contributed to the advancement of international law. There is no study that has considered his contribution compared with those of other renowned contributors to the field. This book takes filling this lacuna as its goal, focusing on Al-Siyar Al-Kabīr as it is Al-Shaybani’s main international law work. Studying this work of Al-Shaybani in a historical context, as will be explained next, should allow us to explore the extent to which his contribution helped further and develop the field of international law.
Šhaybānī (n 38) xi. Ibid. 218 James Cockayne, ‘Islam and International Humanitarian Law: From a Clash to a Conversation between Civilizations’ (2002) 84 International Review of the Red Cross 598 (accessed 5 September 2017). 219 Ibid. 216 217
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1.7 METHODS OF STUDY The aim is to study Al-Siyar Al-Kabīr as a textbook on international law of the eighth century as well as the texts of some of other scholars who came before and after Al-Shaybani regardless of the sources of their law. When examining this work of Al-Shaybani, it must be borne in mind that it was written in a different time at a different stage of human history. This is why I will discuss matters that are different to contemporary international law within their historical context. I intend to focus on some of the main topics discussed in Al-Shaybani’s book in order to be able to evaluate his contribution to this field. Nevertheless, the research shall not be a historical analysis of events – where law, I believe, might be respected or might be abused – for in this research I will not be comparing a system to a concept. I will only refer to events where they are important to understand the law or to interpret it. This means that relevant events will mainly be earlier practices. The fact that contemporary international law takes the practice of states as a source of law cannot affect my approach. This is because contemporary international law is not necessarily a yardstick to measure other civilizations’ view of international law. In fact, limiting ourselves to the notion that any legal norm to be considered as part of international law must be a practice of states is a very narrow approach. In order to ensure a high standard in dealing with historical texts such as this book, I have looked at some works where similar old living works are considered, for example, the works of Khadduri on the texts of Al-Shaybani and Abu-Yusuf, the work of Gazi on Al-Shaybani’s Al-Siyar Al-Saghir and the work of Ra’afat Abdulmutalib on Al-um of Al-Shafi’i. My method of understanding the text, analysing its contents and authenticating its narrations will largely conform to their conventional approaches. Nevertheless, I will aim to study Al-Shaybani’s thoughts and methods in Al-Siyar Al-Kabīr in a historical context. This will be done through comparing him to some of the renowned historical contributors to international law, namely Augustine, Gratian, Aquinas, Vitoria and Grotius. In my opinion, this must be done before any attempt to establish the relationship between our contemporary international legal order and the writings of this great eighth-century jurist, because ‘[t]he Islamic contribution to the development of international law has to be evaluated in an historical perspective that takes into account the situation which
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existed before the birth of Islam’.220 This is because Siyar could change according to the change of time and circumstances. 1.7.1 Sources and Materials This study was mainly library-based. However, this did not prevent discussions with eminent scholars in rare fields where necessary. I have relied on both Arabic and English language sources. I should establish the relationship between Al-Shaybani’s work and the work of other selected thinkers first, and then through this examine the contributions of Al-Shaybani to the field of international law. It has already been explained that Sharih Kitab Al-Siyar Al-Kabīr is the most authentic book containing the original work of Al-Shaybani of Al-Siyar Al-Kabīr. However, I will still compare its text to that of Al-Siyar Al-Saghir by Al-Shaybani translated by Gazi. Moreover, I will also consult the authentic copy held at Leiden University. 1.7.2 Augustine, Gratian, Aquinas, Vitoria and Grotius Dolezalek argues that comparing Al-Shaybani to European scholars of the Middle Ages is not fair because European scholars like Augustine and Gratian were not in a position to write on international law in such sophisticated terms.221 Nevertheless, this claim, in my view, should be thoroughly tested. Furthermore, these scholars were carefully selected. For example, Augustine was by far the most cited authority on ‘just war’ throughout the Middle Ages and beyond. ‘The die for medieval just-war was cast by St Augustine, who combined Roman and Judaeo-Christian elements in a mode of thought that was to influence opinion throughout the Middle Ages and beyond.’222 Therefore, even if Dolezalek was right and Augustine did not write as prolifically or as eloquently as Al-Shaybani, he is comparable to the latter, as he played a significant role in reshaping war in international law as perceived in the West.223 Another reason for selecting Augustine is to look for any similarities 220
S. Ahmed El-Kosheri, ‘Islam’ in R. Bernhardt (ed.), Max Planck Encyclopedia of Public International Law (1981) 229. 221 Interview with Gero Dolezalek, Professor of Civil Law, School of Law, University of Aberdeen (Aberdeen, 11 May 2009). 222 Frederick H. Russell, The Just War in the Middle Ages (Cambridge University Press 1979) 16. 223 I am aware of the fact that Augustine is not a Western scholar by birth; he was born in North Africa in 354 AD. However, we may still use the description
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between him and Al-Shaybani who succeeded him. I will also, for many of these reasons, consider the teachings of Gratian, who is by far one of the most important figures of canon law in the Middle Ages. Another motive for drawing a comparison with him is that unlike Augustine, Gratian came centuries after Al-Shaybani; thus comparing Gratian to the latter would be fairer from a Western perspective. Furthermore, the appearance of his Decretum (Concordia Discordantium Canonum) ‘marked a watershed in the history of canon law, for it climaxed the development of early medieval canon law collections and inaugurated the period of systematic canonical jurisprudence’.224 Russell stresses that ‘[f]or centuries Gratian reigned as the foremost auctor in the jurisprudential speculation about war’.225 Furthermore, Johnson (1975) adds that in the West, ‘[b]oth the theological and the legal streams of thought on justice in war in the late Middle Ages seem ultimately to flow from Gratian’.226 Gratian is also ‘celebrated as the founder of the science of canon law’.227 In addition, ‘Gratian’s Decretum was in fact a valid law book, the oldest and most voluminous part of the so-called corpus iuris canonici, in catholic ecclesiastical courts until 1917.’228 Thus, Winroth (2000) stresses that ‘Gratian’s Decretum was one of the cornerstones of canon law’.229 However, I will also consider some of the most outstanding authors of the modern world. Thus along with Augustine and Gratian I will consider Aquinas, Grotius and Vitoria. Both Vitoria and Grotius referred to Aquinas, heavily relied on his work in many cases and cited him almost everywhere in their texts just as they did with Augustine. I have thus selected him because of this and because he is a prominent post-medieval scholar who was very close to the Islamic world, and therefore to Al-Shaybani, through Italy and Spain as we shall see later. The selection of Grotius is self-explanatory. As for Vitoria, I have intentionally selected ‘Western scholars’ to include him and the other Western scholars I intend to compare with Al-Shaybani. 224 Russell (n 222) 55. 225 Stephen C. Neff, War and the Law of Nations: A General History (Cambridge University Press 2005) 85. 226 James Turner Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (Princeton University Press 1975) 26. 227 R. W. Dyson, Aquinas’ Political Writings (Cambridge University Press 2002) 286. 228 Anders Winroth, The Making of Gratian’s Decretum (Cambridge University Press 2000) 2. 229 Ibid.
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him among the other outstanding scholars related to this research because I noticed that it is widely held that his writings were revolutionary in that they added a much more humanistic flavour to international relations than others such as Gentili230 and other contemporary scholars.231 Knowing the outstanding level of humanism in the treatment of Al-Shaybani made Vitoria another obvious selection in this study. Furthermore, Grotius acknowledged that he greatly benefited from Gentili. Hence, Nussbaum comments that ‘with respect to organization and documentation, Grotius owes much to Gentili’.232 ‘Grotius,’ he adds, ‘even borrowed several of Gentili’s miscitations.’233 Thus, knowing that they both had much in common and that Grotius’ work would have included Gentili’s,234 I decided to select Vitoria instead of the latter. Grotius had access to Vitoria too, for he was mentioned by him in more than one work and as early as 1604.235 Nevertheless, it will still be worthwhile to examine the thoughts of the latter in contrast to the former for the reasons mentioned above. 1.7.3 Translations and Citations As I am working on an Arabic text as the main source of Al-Shaybani’s writings, I will offer my own translations into English. However, I will seek support by consulting translations of some of the passages in books by other scholars where these are available. In many cases, I will be able to do this with regard to passages included in the Al-Siyar As-Saghir of Al-Shaybani translated by Gazi. As for the translation of the Holy Qura’an, I will be using different translations, in each case selecting the translation closest in meaning to the actual interpretation of a verse. This is because most translations aim at translating the meaning, which cannot always be contained in one concise translation, as the original words normally bear wide meanings. Despite objections by some scholars who think that using international law terms to indicate Siyar’s is an abuse of the latter,236 I will use English terms wherever it is possible to establish that there is no harm to the 230
Vitoria (n 148) 61. Ibid 61–9. 232 Arthur Nussbaum, A Concise History of the Law of Nations, Revised Edn (Macmillan 1954) 108. 233 Ibid 331. 234 Vitoria (n 148) 61. 235 Ibid. 236 Bouzenita (n 27) 31. 231
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general meaning. I believe that using too many Arabic terms in this work would turn it into a compulsory language course. However, I will use Arabic terms when equivalent terms are hard to find in English and when the only way to translate a term will be through using multiple-word terms. Sometimes I had to omit footnotes included in quoted texts for various reasons. For example, in some cases the footnote is in a language other than English or Arabic. In addition, sometimes the quoted text itself is in another language. In all cases, however, the quoted text is the words of the quoted author and therefore the author of the quoted text is always cited even if we are unable to trace the sources they used. This was necessary, as the wording was the cited author’s and because I was not able to trace the footnotes included in the quoted passage in most cases. For scientific purposes, I have noted that footnotes are omitted whenever I had to omit them. In the following chapter, I shall undertake the task of reading through and comparing the methodologies of the above selected scholars in comparison to Al-Shaybani. Prior to this, I will try to relocate Al-Shaybani’s historical position by explaining the historical pattern of international law scholarship throughout the civilizational phases that his work could have passed through. Following that, I will embark on comparing his work to that of the other selected scholars. This shall be done by selecting some major topics: the law of peace and the law of war along with consequences of war. I shall conclude my work by establishing the degree to which Al-Shaybani participated in the furthering of the cause of regulating international relations in accordance with the outcome of this comparative study. The reason why I have selected these topics is that they were the most popular topics in the works of the scholars compared in this book.
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2. Reading historical sources In order for today’s reader to properly understand and objectively evaluate the writings of Al-Shaybani, attention should be paid to the required methods and mechanisms for the analysis of such a historical source. As mentioned in the previous chapter, it would be neither objective nor efficient to assess historical writings merely by comparing them to contemporary writings on international law. This results from two issues: first, the world has changed in many ways. For example, the way we perceive capture, slavery, and prize is different from the way it was perceived when Al-Shaybani was writing. Second, Islamic international law responds to change through time and geography; as a result, this source (Al-Siyar Al-Kabīr), written as it was in the eighth century, will not necessarily represent what Islamic international law should be today. Therefore, these factors have to be considered in order for a proper evaluation of this book be made. In order to achieve this goal, the following should be considered: 1.
The nature of international relations at the time when Al-Shaybani was writing: this will be considered in order to compare the writing of Al-Shaybani in relation to the then existing state of international regulations. Sources of Al-Shaybani’s writings: by recognizing them we can assess whether Al-Shaybani drew on the work of others or developed his through his own initiative. Therefore, I shall, in this chapter, discuss the relationship between his thoughts and others in the area during, before, and after his writing. The objective being the exposure of the sources that he relied upon in his writings. Identifying his methodology and his style of reasoning: in this chapter, I will also highlight the main elements of Al-Shaybani’s methodological approaches in his writings in Al-Siyar Al-Kabīr. In order to paint a fuller picture of Al-Shaybani’s thought, they will be placed in the centre of the writings of other, selected, authors.
2.
3.
4.
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2.1 SOURCES OF AL-SHAYBANI’S WRITINGS AND OTHER CIVILIZATIONS What is the relationship between Al-Shaybani’s writings and other civilizations? In order to answer this question, one must first look at the possibility of borrowing from writers of other civilizations or vice versa. Secondly, one must examine the sources of Siyar. Once this is achieved, it will be possible to elucidate the right answer to this question. 2.1.1 Al-Shaybani and Other Civilizations It must first be emphasized that the focus here is on civilizations that could possibly have interacted with Al-Shaybani or vice versa. For example, if the prehistoric civilizations of South America had developed international law at that time, there would be no link between them and Al-Shaybani because there was only geographical contact with that region several hundred years beyond his lifetime. Therefore, it is not worthwhile to attempt to discuss any influence of that world upon him. This applies to all civilizations that could not have had any intellectual contact with the Arab world before Al-Shaybani’s time. Furthermore, it is important to note that there is no need to discuss here any influence within the Islamic world on Al-Shaybani. This is so because, as already mentioned, Al-Shaybani fully cited the opinions of those Islamic scholars he borrowed from. Other civilizations’ possible influence on Al-Shaybani Many scholars think that international law is as old as history. Montesquieu, for example, stated that ‘[a]ll the nations possess an international law, even the Iroquois who eat their prisoners. They send and receive envoys, they know the rights of war and peace. Only evil is that this international law is not based on right principles.’1 However, the oldest traces of international law (known to us) may be found in the peace treaty in the thirteenth century BCE between Egypt and the Hittites of Northern Syria. It invoked a perpetual peace and strong alliance against enemies as well as immunity for trade between these two realms.2 The Ancient Greeks borrowed from the Phoenician civilization some rules governing their inter-state relations and they went so far as to 1
Muhammad Hamidullah, The Muslim Conduct of State (5th edn, SH Muhammad Ashraf 1968) 49 (footnotes omitted). 2 Ibid (footnotes omitted).
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establish the Amphyctionic League (similar to the League of Nations).3 However, they were not ready to extend the international law they knew to others. Paradoxically, it was Aristotle the great philosopher who advocated that non-Greeks were barbarians who should be enslaved.4 The Romans who succeeded the Greeks built on the Greek systems and established their own law. They set up a body called fetials (group of priests) to which international relations was entrusted. However, with the exception of ambassadors to some degree, the lives and property of non-Romans were not safe in Rome unless they belonged to a state that had a friendship or treaty with the latter.5 The Roman Empire, which ruled over Egypt and Syria, had vicissitudinous wars with ‘Iran’ with which it had common frontiers.6 Later, this great Empire was divided into two: the Eastern and Western Roman Empire. The former, which is more relevant to this inquiry as it shared frontiers with the Arabs before and since Islam, developed fairly important rules for peace but its war rules were subjective and therefore quite unyielding. This is because its ‘laws of war were in the main based on the discretion of individual commanders’.7 Moreover, a very important fact has been marginalized, if not concealed. As ancient Greece had two international legal systems (one applicable to the Greek city-states and Greek allies and friends and another to the rest of the world), the Romans inherited these two systems and developed them. One applied to the Roman states in Rome and the other applied to other states. The law applied among the Greek states and among the Roman states is what writers today introduce as Greek and Roman international law, respectively. The latter law, Hamidullah argues, ‘is what our enthusiastic writers call the successor of the Greek system of international law and the precursor or its namesake of modern times’.8 Perhaps, he added: one may be entitled to doubt the correctness of this statement. Why not give the name of Roman International Law to that set of rules which the Romans observed in their dealings with non-Roman countries, in terms of war as well as peace? These rules might not have been very elaborate nor greatly developed to 3
George Grafton Wilson and George Fox Tucker, International Law (5th edn, Silver and Burdett and Company 1910) 13–14. 4 Hamidullah (n 1) 51. 5 Stephen C. Neff, War and the Law of Nations: A General History (Cambridge University Press 2005). 6 Hamidullah (n 1) 52. 7 Ibid. 8 Ibid 64.
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the extent of being systemised, yet they alone would legitimately be entitled to be called Roman International Law, and not that set of administrative rules which were applicable only to the component parts of the Empire itself.9
From another perspective, Casassa (1946) argues that ‘[t]he Roman ius gentium was never more than the common law of all mankind, the law common to all men whatever their race. Universal rather than international, it was likewise private rather than public law.’10 Thus the Roman ‘international law’, overvalued by many, was, at best, ‘a law of men, not of states; certainly it did not deal with the relations between states. When the Empire was conceived as a world-state and actually was such as far as the civilized world was concerned, there was no room for ius inter gentes.’11 Casassa hence concludes that ‘[m]odern private international law may be traced to the Roman conception of ius gentium, but not public international law’.12 The reality is that in Rome as well as in Greece, ‘nations owed duties to one another if they were the same race, but not otherwise. States as such possessed no rights and were subject to no obligations.’13 The Greeks, for example, ‘recognised no duties towards those nations which were not of Hellenic descent’.14 On the other hand, even canonists working towards the end of the Middle Ages did not develop an international law that was meant to deal with others, beyond Europeans. Thus, Muldoon stresses that: [t]he canonists, by examining Christian-infidel relations only in ecclesiological terms, were building their discussion of international law and relations on a framework that was too small to bear the weight of a fully developed theory of international law. Even the inclusion of the theory of just war did not broaden the intellectual basis sufficiently to enable the canonists to develop such a theory.15 9
Ibid. Charles S. Casassa and Francisco de Vitoria, The Political Thought of Francisco de Vitoria (Pontifical Institute of Mediaeval Studies 1946) 141 (emphasis in the original). 11 Ibid (emphasis in the original). 12 Ibid (emphasis in the original). 13 Mohammad Hosny Mohammad Gaber, ‘The Early Islamic State with Special Reference to the Evolution of the Principles of Islamic International Law, 632–750 A.D.’ (PhD Thesis, American University of Washington 1922) 30. 14 Ibid 31. 15 James Muldoon, Popes, Lawyers, and Infidels: The Church and the Non-Christian World, 1250–1550 (University of Pennsylvania Press 1979) 155. 10
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It should be emphasized that scholars writing in these areas, who have usually considered just war theory throughout history, left many gaps unexplained. When they consider just war theory, for example, they normally first examine St Augustine around the fifth century and then examine Gratian in the eleventh century and then Aquinas, followed by late-medieval Western and the early-modern writers. There is no mention that just war as explained in the fourth century is quite distinct from the notion of just war in the fourteenth and nineteenth centuries. Moreover, it is important to note that while others throughout the history of Europe had been interested in international relations as a topic: it had been the canonists of the early Italian universities who first tried to identify a distinct set of Christian public international law in the 11th and 12th century. Gratian, as one of the most prominent canon lawyers, focused on the questions of an international order in his famous Decretum.16
Therefore, it is difficult to imagine any sort of lending from these civilizations to Al-Shaybani. Nevertheless, this question will be explored in full by evaluating his work in relation to that of Augustine of the fourth century AD. Nevertheless, I should note that the Eastern Roman Empire (Byzantium) and the Persian Empire shared frontiers with the Arabs and both had Arabic ‘colonies and protectorates and even buffer States of purely Arab people in different parts of Arabia’.17 Thus, if they had any influence, it is likely to have been on the Arabian practices of international law prior to Islam. However, this should be a separate investigation; as the Arabian Peninsula is the birthplace of Siyar, it should be examined in detail. Hamidullah, although believing that the history of Siyar could not be studied separately from ancient doctrines, asserts that ‘[f]or me it will suffice to describe conditions in Arabia only, from the point of view of international law, since it was the rules prevalent in this country that were in the main utilized by the Muslims with adaptation, amendment, addition and adoption’.18 Al-Ghunaimi rightly agreed with this approach and pointed out that: [g]ranting that it is a general tenor of the Qura’an that the status quo, in pre-Islamic Arabia, is tacitly ratified unless it is explicitly amended, we are 16 Christoph A Stumpf, ‘Christian and Islamic Traditions of Public International Law’, (2005) 7 Journal of the History of International Law 72. 17 Hamidullah (n 1) 52. 18 Ibid.
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confident that a study of the international situation of pre-Islamic Arabia is indispensable to grasp the core of Muslim international law.19
From this, it follows that there may have been reliance on Arabic practices by Al-Shaybani. Thus, Arabia will now be examined. Pre-Islamic Arabia Prior to Islam, Arabs lived in tribal entities where they belonged in all senses of the word. To them, their tribe was the means of their existence. Therefore, they were ready to die for it, as there was no life for them without this belonging. Although some tribes changed their territory from time to time, some still called them city-states as they ‘had their own political organisation. They administrated justice, they waged war and concluded treaties just as other states.’20 Strong as tribalism used to be in these states, they managed to have some rules governing the peace they had. For example, they practised a system that was known as ‘sacred months’, during which no fighting was allowed for four months every year. They had also developed a great escort system, which helped protect their trade. Moreover, they knew the system of Ilaf (pact) under which they traded with others and sent envoys. One of the customs was to tear a treaty into two pieces with each party holding one piece so that both would be required when the document is to be consulted. The Arabs also recognized the immunity and the decisions of envoys, they appointed certain individuals known for their impartiality as arbitrators regardless of their tribes and they accepted their decisions.21 Furthermore, peace rules such as refuge, asylum and quarter, naturalized and domiciled aliens, hospitality of foreigners, extradition and even laws of shipwreck were known.22 Most important was Hilf Al-fedal or the League of the Virtuous, whereby the tribes signing a pact vowed to defend the oppressed against enemies until justice was done.23 Perceptibly, Arabic laws governing war were even more developed in this era. The nature of Arabia and the style of its socio-political structure offered some other interesting practices considered by some to be customary law. Among these practices were: 19
Muhammad Tal’at Al-Ghunaimi, The Muslim Conception of International Law and the Western Approach (Nijhoff 1968) 10. 20 Hamidullah (n 1) 54. 21 Ibid 54–6. 22 Ibid 60–61. 23 Ibid 61.
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Dhakhiel: the system of promising protection to a stranger who is being targeted by others. Any attempt to harm this stranger will be considered as an assault against the honour of the protecting entity. This might resemble the Greek practice of isotele; however, the exact legal status of the latter practice is unclear.24 Jiwar: under which the mujawir (client, a stranger who adheres to the service of a sanctuary) will have a common war cry with a certain political entity.25
2.
Arabs also developed rules to regulate war, consequences of war, cessation of hostilities and neutrality.26 Nevertheless, kinship and tribalism were, more often than not, stronger than any law. Mostly, Arabs were ready to fight on the side of their relatives and clans regardless of what was right or wrong. Although Arabs knew some very important practices such an elaborate system of arbitration and blood money instead of revenge, lawless practices such as looting others’ wealth (gazow) and going to war for this or any other reason, no matter how insignificant it might be, was still considered part of daily life.27 Up until the beginning of the seventh century, when Islam came to light, ‘the Arabic literary tradition was very slight’.28 Although it is a fact that the Arabs excelled in language to the extent that they had a market29 for exchanging and debating poems they had produced and memorized by heart, they were not known for producing any significant literature. ‘Poetry and oratory apart, there was not, however, any writings of particular significance in the Arabic language.’30 Nevertheless, the dawning of the Qura’an31 changed this. Several hundred years later, ‘Arabic literature could only be numbered in terms of thousands of books’.32 These covered a range of subjects including ‘history, geography, philosophy, political theory, historiography, literary criticism, science and medicine, and above all jurisprudence’.33 The Islamic world, while 24
Al-Ghunaimi (n 19) 11. Ibid 13. 26 Hamidullah (n 1) 61–2. 27 Al-Ghunaimi (n 19) 14–19. 28 Christopher G Weeramantry, Islamic Jurisprudence: An International Perspective (Macmillan 1988) 14. 29 The famous annual poetry conference called Sooq Auqad. 30 Weeramantry (n 28) 14. 31 Muslims believe Gabriel (an angel) revealed it to Mohammad, who was then illiterate. 32 Weeramantry (n 28) 14. 33 Ibid. 25
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Europe was passing through the Dark Ages, thus kept the civilizational torch lit on earth. In all fields, without exception, Islamic scholars were now leading experts.34 Therefore, while Al-Shaybani was writing, civilization was based in Arabia and in the Islamic world, which renders the speculation that he might have borrowed from European ideas very weak. It is said that in the libraries of Baghdad alone, as early as the twelfth century, there were more than 850,000 volumes, not including other libraries such as those of Cordova, Damascus and other cities. In contrast, centuries later the University Library at Oxford still only had very few volumes and Oxford students were being taught orally.35 These facts rule out speculations that Europe might have contributed to the furthering of knowledge in the Muslim state where Al-Shaybani was resident. Today’s most prominent and most advanced universities in the West could only have been recipients, not providers, as they all flourished long after Al-Shaybani’s time.36 Nevertheless, although there was limited writings in pre-Islamic Arabia, this period represents the background of the Islamic jurisprudential tradition of the law of war and peace. Thus, Donner (1991) rightly explained that: [t]he attitudes of the first generations of Muslims towards questions of war and peace were shaped by several factors. Paramount among them were (a) the cultural norms of pre-Islamic societies to which they had belonged, (b) the attitudes towards war contained, implicitly or explicitly, in the Qur’an, and (c) the dramatic events of their own lifetimes. All of these factors contributed to the formation of the ‘classical’ Islamic conception of war, that is, the juridical notion, as well as to popular attitudes.37
Islamic era It is an established feature of the Muslim civilization that Islam has always been open to accommodating and adopting other civilizations’ wealth of knowledge and sciences in many fields. Thus, some people would claim that traces of other legal systems are found in the Islamic 34
Ibid. Ibid 16. 36 Friedrich Heer, The Medieval World: Europe 1100–1350 (Janet Sondheimer tr, New American Library 1962) 235–60. 37 Fred M. Donner, ‘The Sources of Islamic Conceptions of War’ in John Kelsay and James Turner Johnson (eds), Just War and Jihad: Historical and Theoretical Perspectives on War and Peace in Western and Islamic Traditions (Greenwood Press 1991) 33. 35
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one.38 However, Islam is by nature against adopting the law of others. This is because its core civilizational base is built on divine principles in this particular area. A state that does not adopt Shari’ah (Islamic law) will not be an Islamic state. This has remained true throughout the history of Muslim states. Even the Ottoman Empire in its latter stages remained true to this idea. For example, it is true that the sultans adopted many techniques and mechanisms from others, but they ‘were not prepared to adopt the new political and legal concepts which would materially change the judicial structure of Islam’.39 ‘Law in particular was not among the subjects which the Arabs were keen on translating into their language. Thus there was no bridge between Roman law and the emerging Islamic legal system.’40 Hence, it is unlikely that Al-Shaybani, working at the centre of Islamic jurisprudence, would have broken with this tradition and adopted other practices. However, one should explain the claim that ‘[t]he researcher in the history of Muslim International Law will deal with Roman, Persian, Buddhist and other systems of international law’.41 The fact that many of the jurists who worked to develop this law were not Arabs is also hugely important. It is well known that in the Islamic world, jurists were never limited to being Arabs only as there was no room for racial discrimination. This could have made some think that these scholars who came from different parts of the world, including Rome, might have introduced international laws cultivated in their original homelands. While one cannot deny the fact that this may have occurred to some extent, it should be emphasized that there is a difference between Muslim and Islamic international laws. The first, advocated by many, is the general practice in the field throughout the history of the Muslim states. This may have been affected by other theories and practices of international law or may not. Meanwhile, Siyar was originally based on the sources and principles of Shari’ah, which could not have been largely influenced by others. Nevertheless, a large degree of influence is unlikely to have happened before Al-Shaybani’s time. The clarification of the named sources of Siyar in the times of Al-Shaybani explained later in this chapter highlight this. 38 Joseph Schacht, ‘Foreign Elements in Ancient Islamic Law’ in Wael B. Hallaq (ed.), The Formation of Islamic Law (Ashgate/Variorum 2004) 67. 39 Majid Khadduri, ‘Islam and the Modern Law of Nations’ (1956) 50 The American Journal of International Law 358, 364–5. 40 Gamal Moursi Badr, ‘Islamic Law: Its Relation to Other Legal Systems’ (1978) 26 The American Journal of Comparative Law 187, 193. 41 Hamidullah (n 1) 52.
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Moreover, the fact that Al-Shaybani undertook such detailed work does not mean that he necessarily borrowed from others before him. It is known that ‘given similar circumstances, men, more often than not, think alike; and it will be absurd to conclude that the later in time must unavoidably have borrowed his ideas in all cases from those who lived earlier’.42 This is true even if they were great in the field and a link is likely to be proven between them; and also where these two factors are absent, such as in Al-Shaybani’s case. Nevertheless, while these facts permit the speculation that Al-Shaybani might have borrowed from his peers in other nations, one could dispute that he borrowed from civilizations preceding the Islamic one. It is true that the Caliph in Baghdad had founded a great institute for research called Bayt al Hikmah.43 In it the great works of previous civilizations (whether from India, Babylon or Greece) were translated into Arabic. This was in fact ‘the first great internationalisation of scientific and philosophical knowledge’.44 Nevertheless, there is no evidence that Al-Shaybani was influenced by any of the old civilizations preceding the Islamic one. This is because this institute was only established in the ninth century,45 whereas he wrote in the eighth century. Additionally, among the writers working on Al-Shaybani’s texts, none claimed that he had borrowed from other civilizations. What is more, many scholars have come to two conclusions: first, that non-Islamic works on jurisprudence were not the target of translation by Islamic scholars and secondly, that Muslim scholars have always acknowledged without hesitation all of their sources as they did in all other fields of knowledge but we see no such acknowledgement in the field of law which means that they did not resort to non-Islamic works on jurisprudence. Thus, Gaber concluded that: [t]here is no doubt that the Muslims were not acquainted with Roman books of jurisprudence, that they did not translate any of these books, and that they did not make any reference to them. If they had known these books they would have acknowledged the fact in their works, as they acknowledged the translation of Greek and Persian books on science and philosophy.46
42 43 44 45 46
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Ibid 48. Literally translated: the house of wisdom. Weeramantry (n 28) 18. Ibid 17. Gaber (n 13) 32–3.
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Furthermore, ‘to say that Islamic law evolved from Arab customary law is unwarranted, since it is a well-known fact that the new religion prohibited many bad practices and accepted some good ones.’47 In conclusion, it would be naïve to imagine that international law is only 400, 500 or even 1,000 years old when we know that great civilizations coexisted thousands of years ago and that they must have had some legal system or tradition to regulate their affairs.48 On the contrary, it is known that ancient societies such as the Greeks and Romans had known some forms of international law. However, as set out above, the Greeks knew international law as a law that governed relations between their cities alone.49 Others were considered by them to be barbaric and they were there only to serve the Greeks (as Aristotle used to claim).50 Moreover, although the Romans applied international law in relation to allies and friends, they treated the rest of the world as they wished, not as the law dictated.51 In addition, Walker (1899) stresses that in ‘the Dark Ages, between 476 and 800 A.D., International Law reached its nadir in the west’.52 The idea of setting up legal norms to be respected by the establishing power in relation to others was only newly introduced by Islamic writers.53 At any rate, since the translation institute mentioned above was only established after Al-Shaybani, it would not have been possible for him to learn about these two ancient systems. What is even more indicative of the fact that Al-Shaybani did not borrow from other civilizations is the fact that he referenced all ideas of other jurists. None of these were non-Islamic jurists. Having said this, Al-Shaybani’s judgement, as he was writing his book, could had been influenced by that time’s realities. This is because one of the main principles of Islamic law is reciprocity when dealing with 47
Ibid 34. Y. Onuma, ‘When Was the Law of International Society Born?’ (2000) 2 Journal of the History of International Law / Revue d’histoire du droit international 1, 4. 49 Arthur Nussbaum, A Concise History of the Law of Nations, Revised Edn (Macmillan 1954) 5–6. 50 Aḥmad Abū al-Wafā, Kitāb Al-I lām Bi-Qawā id Al-Qānūn Al-Dawlī Wa-Al- alāqāt Al-Dawlīyah Fī Sharī at Al-Islām [A Book of International Law and Relations in Islamic Shari’a], vol 1 (al-Ṭab ah 2, Dār al-Nahḍah al- Arabīyah 2007) 9. 51 Ibid. 52 Thomas Alfred Walker, A History of the Law of Nations: From the Earliest Times to the Peace of Westphalia, 1648, vol 1 (Cambridge University Press 1899) 64. 53 Abū al-Wafā (n 50) 9. 48
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others. Thus, in this way a possible influence of other civilizations on Al-Shaybani’s writings could be envisaged. Al-Shaybani’s possible influence on other civilizations Evidence shows that modern Western civilization only started after contact with the Islamic world.54 For example, Sicily was part of the Muslim state from 831 until 1090 and there is evidence of Islamic knowledge transformation through this channel to Europe.55 Surprisingly, many scholars of legal history in Europe today are still reluctant to acknowledge such a link. They sometimes leave gaps in their texts to avoid mentioning this channel of transfer. For example, the great book on Europe’s legal history by Lesaffer ambiguously stated that ‘civil law tradition has its origins in the late eleventh century, in the rediscovery of ancient Roman law in Italy’.56 This is said as if this discovery was made entirely separately from the massive civilizational interaction between Italy and the world of Al-Shaybani, which transpired over more than two centuries. The other point of transformation of Islamic knowledge was during the Crusades. It is undeniable that ‘[t]he growth of scholasticism in Europe was promoted by contact with the grapplings of the Islamic mind with philosophical problems that were similar to the Christians’.57 Not only in philosophy, but also in all fields of knowledge during this period, had the European scholars gained much knowledge from the Islamic world. For example, ‘[n]ew thrusts in chemistry, physics, astronomy, geography, history, poetry and commerce […] were part of the intellectual and cultural follow-on from the Crusades.’58 A third source of European flourishing is the Islamic intellectual heritage in Spain. Toledo could be named as one example. The great medieval historian Heer asserts that ‘[it] was from the example of Toledo that Europe first learnt to understand that learning knows no frontiers’.59 He adds that ‘[a]t Toledo Arabs, Jews and Greeks worked with Spaniards, Frenchmen and Germans, with Slavs from the Balkans and, last but not least, with Englishmen’.60 Could all of those have returned home, leaving 54
Heer (n 36) 235–323. Weeramantry (n 28) 19. 56 Randall Lesaffer, European Legal History: A Cultural and Political Perspective (Jan Arriens tr., Cambridge University Press 2009) 3. 57 Weeramantry (n 28) 14. 58 Ibid. 59 Heer (n 36) 240. 60 Ibid. 55
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all the knowledge they gained in Spain behind? Could they have kept it for themselves? Moreover, a massive movement of translation of world knowledge made it feasible for Europe to benefit from these Islamic centres of knowledge.61 This represented a valuable channel whereby knowledge flowed into Europe ‘without which the dramatic take-off in European intellectual life could well have been some centuries delayed’.62 With this in mind, jurisprudence was self-evidently pre-eminent among all other subjects of knowledge. This is because in the Islamic world, ‘Quranic principles applied to every aspect of law and living, and as such jurisprudence came to be the central concern of scholars in all branches of learning’.63 Furthermore, some scholars hold that ‘God had not in the Qur’an revealed Himself or His nature, but rather His law. The Divine Being was beyond the comprehension of humans but His commands were expressly revealed so that they may be known and understood.’64 As a result, many Islamic scholars prefer to work on God’s command (the law) rather than concentrating on theology. Islamic jurisprudence therefore, was the topic discussed in virtually every mosque where circles of learning were held.65 From this, it is clear that the Qura’an was the main source of inspiration to legal scholars who were mainly developing tools to analyse, understand and interpret its main unalterable principles and trying to extract minor rules from the major ones to govern issues arising in daily life. Thus, it was not theology that was the focus of Islamic jurists, but law.66 In this regard, Hamilton (1962) stressed that: [t]he master science of the Muslim world was Law. Law, indeed, might be said to embrace all things, human and divine, and both for its comprehensiveness and for the ardour with which its study was pursued it would be hard to find a parallel elsewhere, except in Judaism.67
The fact that law and jurisprudence were central to Islamic learning led to the introduction of unprecedented contributions to all fields of law including international law. 61
Ibid 239–40. Weeramantry (n 28) 20. 63 Ibid 27 (emphasis added). 64 Ibid. 65 Weeramantry (n 28) 27. 66 Hamilton AR Gibb, Mohammedanism: An Historical Survey (Oxford University Press 1962) 9. 67 Ibid 9–10. 62
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In the West, there is now, among students of religion, an acknowledgement of ‘the influence of Muslim philosophers on medieval Christian scholastic theology and philosophy’.68 Nevertheless, ‘scholarship on Islam has been hampered by a legacy from a previous ages of comparative study that represented the religion and culture of the Islamic world as inferior to that of the West.’69 From these facts, it should not be difficult to establish the possibility of a strong relationship between Al-Shaybani’s writings and some of the principles of contemporary international law. This is principally important, as we learn that great Western scholars (especially those who played a key role in the renaissance of Europe) had in fact benefited greatly from Islamic erudition. For example, Thomas Aquinas and Pope Sylvester II learned much from Islamic sources.70 In fact, Al-Shaybani among other ‘classical Islamic scholars wrote about truces, types of combat, prisoners of war, division of spoils, and debated and developed principles that are very similar to St. Thomas Aquinas’ concept of just war’.71 If it is considered whether this was just a coincidence, no one can deny that Aristotle’s thoughts, which Aquinas heavily relied upon in his analyses, came to Europe through the Islamic world. The Muslim philosopher Ibn Rushed, known in the West as Averroes, offered both them and their radical interpretation.72 One of the clear signs of Aquinas being influenced by Islamic scholastic thoughts is his consideration of the doctrine of double truth as developed by Averroes. In fact, this principle ‘became one of the principal bases for his own intellectual system, as he went on to produce an elaborate theology harmonising the truth of reason with the truth of revelation, thus carrying forward the work of the Arab philosophers’.73 Furthermore, ‘[i]t is indeed said that when Aquinas was composing the Summa Theologica he had the works of Averroes constantly by his side.’74 This and further research carried out by Boisard on Aquinas led him to the conclusion that ‘the Islamic 68 James Turner Johnson and John Kelsay (eds), Cross, Crescent and Sword: The Justification and Limitation of War in Western and Islamic Tradition (Greenwood Press 1990) xi. 69 Ibid xi–xii. 70 Weeramantry (n 28) 28. 71 Youssef H. Aboul-Enein and Sherifa Zuhur, Islamic Rulings on Warfare (Strategic Studies Institute, US Army War College 2004) vii. 72 Lesaffer (n 56) 244. 73 Weeramantry (n 28) 103. 74 Ibid.
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influence on him was “incontrovertible”’.75 Moreover, many scholars today have confirmed that he was both acquainted with Islamic works and used them. In addition, they confirm that he influenced European thinkers who came after him as a result of his exposure to the Islamic teachings.76 Yet we see no mention of this in Aquinas’s writings. This is unsurprising, as Aquinas did not always cite the sources from which he borrowed: he borrowed from both St Augustine and Gratian without acknowledging his sources.77 Aquinas is not the only example: Vitoria and Grotius were also influenced, for example. As for the former, there is much evidence that he was heavily influenced by Islamic legal teachings. For he ‘conceived a universal law, an affirmation of need to respect treaties, and preached for freedom of communication. He dared to suggest that the suppression of paganism was not sufficient cause for a just war.’78 All of these and many more of his ideas, in Boisard’s view, could only have come from Islamic sources. As for Grotius, he had demonstrated his knowledge of Islamic rules and his conception of the matters he considered. ‘It is true’, Boisard stressed, ‘that we now know how many western authors in fields other than law drew from Muslim works without mentioning their sources, so that it does not seem absurd to ask that there at least be a study of direct or indirect influence of Islam on Grotius.’79 Moreover, the history of European international law shows that the greatest contributors to its development came through scholars from Italy and Spain, most of whom lived centuries after Al-Shaybani.80 This should be noted while bearing in mind the facts mentioned above about the role of Italy and Spain as channels of knowledge transmission from the Islamic world of Al-Shaybani to Europe. Furthermore, ‘it is also to be noted that books on jura belli (laws of war) by Ayala and Vitoria, Gentilis and Grotius and others have no counterpart in the Roman and Greek literature, and they are the product of an age when European erudition was not so highly developed as today.’81 Hamidullah, commenting on 75 Marcel A. Boisard, ‘On the Probable Influence of Islam on Western Public and International Law’ (1980) 11 International Journal of Middle East Studies 429, 444. 76 Majid Khadduri, War and Peace in the Law of Islam (1st AMS ed., AMS Press 1979) 58. 77 Joan Doreen Tooke, The Just War in Aquinas and Grotius (SPCK 1965) 29. 78 Boisard (n 75) 445. 79 Ibid 446. 80 See, for example, Nussbaum (n 49) 1081–3. 81 Hamidullah (n 1) 64.
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this, said that ‘[t]o us, therefore, they are but echoes of these Arabic works on jihad (war) and siyar (conduct in time of war and peace)’.82 In the same line, the ICJ Judge Weeramantry further argues that: [i]n relation to vital discipline on international law there was no literature from Greece and Rome comparable to their literature in private law. We do not have treatises dealing with such questions as the binding force and interpretation of treaties, duties of combatants, the rights of non-combatants or the disposal of enemy property. The only body of literature in this discipline was the Islamic one.83
Similarly, Al-Ghunaimi (2007) in The Law of Peace in Islam came to the conclusion that there are many of the European pioneering authors of international law, such as Vitoria, Ayala and Gentili, whose works had no equivalent in Greek or Roman literature, had emerged from Spain and Rome. Thus, they must have been ‘influenced by Islamic writings, as Islam preceded to the seats of knowledge in Spain and Italy’.84 In addition, Boisard established that ‘[t]he first legal doctrine taught in both Spain and Italy was Muslim law; what was borrowed from Roman times and canon law came later’.85 Thus, the fact has been stressed that ‘Islamic international law had worked out a set of mature juristic principles. This raises the question whether this was a legal phenomenon separate from and unrelated to the resurgence of international law that occurred in the West from the seventeenth century onwards.’86 As a result, one should ask: ‘was this Western development an independent take-off or did it draw upon the pre-existing body of Islamic knowledge?’87 It is ironic how contemporary international law roots are normally traced back to seventeenth-century Europe, strengthening the belief that Grotius is the father of international law. The reasons why this view is indefensible are many and they could best be summarized as follows: 1.
‘The prior existence of a mature body of international law worked out by accomplished Islamic jurists in textbooks upon the subject is an incontrovertible fact.’88 82
Ibid. Weeramantry (n 28) 158. 84 Muhammad Tal’at al-Ghunaimi, Qanoon Alsalam Fi El Islam [The Law of Peace in Islam] (Munsha’at Alma’arif 2007) 64. 85 Boisard (n 75) 445. 86 Weeramantry (n 28) 149. 87 Ibid. 88 Ibid. 83
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It is indisputable that in all departments of knowledge, the West had started to receive a great deal of literature from the Islamic world from the eleventh century. The principle pacta sunt servada, attributed to Grotius, a wellestablished legal rule in Siyar centuries before him. Being very close to the Islamic world and having to deal with it in in times of peace and war, the West must have observed Siyar as it was practised towards them. While it is undeniable that Western scholars have greatly contributed to developing the contemporary principles of international law, ‘some at least of the original impetus both in regard to the general concept and in regard to a number of specific ideas must clearly have come from the world of Islam – the only power and cultural bloc comparable to that of the world of Christianity’.89 Western scholars built their achievements from the bases established by the Romans and the Greeks. This is true in all humanistic fields except in international law, as they had not left literature on this subject as they did with private law. Prior to the European intellectual resurgence, ‘[t]he only body of literature in this subject was the Islamic’.90 Knowledge of Arabic was ‘part of the literary equipment of the accomplished fifteenth- and sixteenth-century scholar, particularly in Spain and Italy’.91 Therefore, Arabic literature was ‘not a great unknown in the days when the first seeds were being sown of what was to become Western international law’.92
3. 4.
5.
6.
7.
In fact, most topics addressed by Grotius in The Law of War and Peace are similar to those addressed by Al-Shaybani. However, in many cases it is hard to see in early European writings such topics or styles, which suggests a link between Al-Shaybani and Grotius. More significant is the style of reasoning Vitoria employed: a reader of Vitoria and Al-Shaybani cannot avoid linking them both together, especially as far as their style of reasoning is concerned. Furthermore, one of the main academic institutes in Europe (Leiden University), from where contemporary international law emerged, started collecting Arabic manuscripts on all subjects centuries ago. In fact, its Collection Guides notes: 89 90 91 92
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Ibid 150. Ibid. Ibid. Ibid.
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[c]ollection of c. 4,000 Arabic manuscripts dating from the 9th till the 20th century. The core of the collection consists of the legacy of Levinus Warner (1619–65), Orientalist and diplomat, after whom the entire Leiden collection is still known as ‘Legatum Warnerianum’ (Warner’s Legacy). However, many scholars before and after him have contributed to its growth. The collection covers the entire range of the Arabic written heritage.93
What is particularly important about this collection is that an original copy of Al-Sarakhsi’s book, as indicated in Chapter 1, is still held at this library. It is held there under Oriental Manuscript number Or 373 and was acquired by the library, among other scriptures, between 1609 and 1665.94 This raises some critical questions such as whether Grotius and other international lawyers after him familiar with Leiden Library consulted this book, in particular in view of the fact that Grotius in his famous work The Law of War and Peace demonstrated quite a substantial knowledge of both Siyar and the style Siyar writers used: his writing is very similar in style and comprehensiveness to that of Al-Shaybani and other Siyar scholars. He demonstrated awareness of Siyar rules when he, from time to time, mentions its detailed rules using ‘Mohammedan’ instead of ‘Islamic’ to refer to Siyar rules.95 He also refers to some rules of Siyar as ‘rules with Turkish origin’.96 This too possibly indicates his knowledge of Al-Shaybani’s thought as it was formally adopted by the Ottoman Empire as mentioned earlier. It would be unwise to think that a man of his intelligence and position was unaware of Al-Shaybani’s writing.97 In addition, in his book The Truth of Christian Religion Grotius 93 ‘Collection Arabic Manuscripts’ (Leiden University Library). (accessed 4 October 2010). 94 Jan Just Witkam, ‘Inventories of Collections of Oriental Manuscripts Vol 1; Compiled by Jan Just Witkam’ (accessed 4 October 2010). 95 See, for example, his reference to the Messenger Mohammed’s saying on war in Hugo Grotius, Hugo Grotius. The Law of War and Peace: De Jure Belli Ac Pacis Libri Tres (Francis W. Kelsey tr., Indianapolis 1925) 606. He also referred to Siyar in the same manner in this book on page 714 to give another example of how familiar he was with Siyar. 96 Ibid 687. 97 Grotius’s knowledge of international regulations in this part of the world is anything but scant. His writings demonstrate the depth of his knowledge that covered even the ancient rules known in the region. For example, he cited rules that were known to the Nabatean Arabs in ibid 204. This is evidence of his knowledge of Al-Shaybani, who was the main figure of Islamic international law for those who had any knowledge of that subject.
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once again demonstrated deep knowledge of the Qura’an, Islamic law and religion. He dedicated a whole chapter (vi) to comparing and contrasting Islam to Christianity and Mohammad to Jesus.98 Although his book was full of misconceptions, misrepresentations and misinformation about both Islam and Muslims, it still demonstrates his familiarity with Islamic law.99 Finally, Kelsey (1964) drew our attention to some very important conjecture when he concluded that: [i]nternational law existed before the publication of the first systematic treatise which Grotius has had the great honour of transmitting to posterity. Thomas Aquinas specialized in natural law. Vitoria the Spaniard distinguished jus naturale and jus inter gentes, which Suarez had treated in a masterly passage and with final authority. Ayala, to whom Grotius referred in the Prolegomena, is also a Spaniard, and we may say that the work of this great Spanish trinity, not to mention many other Spanish notables of that epoch, would perhaps have enabled another than Grotius to combine their work systematically and to make of it the basis of his treatise.100
First, the fact that Grotius was the first to compose a complete thesis on European international law means that we can now seek to decipher where Al-Shaybani fits in. Second, the passage dictates that Grotius had gained much from scholars who were immersed in Spanish scholarship, indicating a link between his achievements and the Islamic civilizational torch, which existed in Spain. The speculation, therefore, that Grotius learned about Al-Shaybani’s before he produced his own teachings is plausible. Furthermore, Grotius, who was passionate about reading classical works related to the law of nations, knew Arabic as well as Hebrew.101 What is more, he had lived with and been greatly influenced by the Leiden Professor of Theology, Franciscus Junius.102 It is very unlikely that the latter was unaware of Al-Shaybani’s thought. It is therefore unlikely that Grotius was not influenced by Al-Shaybani, in one way or another. 98 Peace Be Upon Him. On every occasion that this book mentions Jesus or Christ, reference to the terminology (Peace Be upon Him) shall be assumed. 99 For further reading see Hugo Grotius, The Truth of the Christian Religion. In Six Books. Corrected, and Illustrated with Notes, By Le Clerc. (John Clarke tr., William Baynes 1829) (accessed 12 December 2017). 100 Hugo Grotius, De Jure Belli Ac Pacis, Libri Tres. Introduction by James Brown Scott (Francis W Kelsey and others trs, Oceana 1964) xiv. 101 R. W. Lee, Hugo Grotius (H. Milford 1930) 4. 102 Ibid.
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Some Western scholars have investigated the issue in more depth. The result is that ‘many modern non-Muslim Scholars, such as Khadduri, Krousa and Boregitshal, admit on the roots of modern international law that many elements of the latter system were derived from the works of Muslim jurists, in particular, the Siyar of Shaybani’.103 2.1.2 Sources of Islamic International Law In order to examine further whether there are any links between Al-Shaybani’s works on international law and others from previous civilizations, two aspects should be taken into consideration. Firstly, what are the sources of Siyar as well as the schools of jurisprudence that Al-Shaybani was familiar with and could they have had any link with the works of pre-Islamic writers from other civilizations? Secondly, how can we define Al-Shaybani’s style of writing in order to enable us to see his work within a historical perspective while ascertaining whether he had borrowed for it or lent it and from whom or to whom, respectively? Law and theology (which always go hand in hand in Islam) were initially studied under the term fiqh. This discipline, however, was later known as Shari’ah (literally ‘the way’).104 Shari’ah is derived from primary sources (the Qura’an and Sunnah) and secondary sources (mainly comprising of Ijma’a (consensus) and Ijtihad (reasoning)).105 Before discussing the sources of Shari’ah, which are the sources of Siyar, it is important to underline the characteristics of these sources. It is also important to distinguish these sources from the sources of other manmade legal systems. As Abū al-Wafā asserts, the most important characteristics of Siyar sourcing principles are:106 1.
Flexibility: these sources are designed to cater for all times and places. The jurists will always find it doable to tailor a rule for a certain period in a certain space within these sources and without violating the main principles of law; Structural hierarchy: this helps jurists to arrive at the best rule when there is a conflict between sources. For example, if there is any
2.
103
Labeeb Ahmed Bsoul, International Treaties (Mu‘āhadāt) in Islam: Theory and Practice in the Light of Islamic International Law (Siyar) according to Orthodox Schools (University Press of America 2008) 173. 104 Weeramantry (n 28) 30. 105 Ibid. 106 Abū al-Wafā (n 50) 58–62.
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conflict between a rule stated in the Qura’an and another in any other source, the former will be adopted; Universalism: sources of Siyar are universal in their character;107 Jurisdiction: sources of Siyar apply and are obligatory on states as well as individuals; Diversity: in fact, ‘the state could take different actions relying on the same source’.108 This fits perfectly as it is a general principle in Islamic law that the change of circumstances could require a change of the rule but still retaining the same source; and The ability to correspond to reality: thus when extracting legal rules from the sources, reality should be taken into account.
3. 4. 5.
6.
Nevertheless, the sources of Islamic law are often explained by reference to the following famous hadieth109 which sets out a clear hierarchy: [w]hen the Apostle of Allah (peace_be_upon_him) intended to send Mu’adh ibn Jabal to the Yemen, he asked: How will you judge when the occasion of deciding a case arises? He replied: I shall judge in accordance with Allah’s Book. He asked: (What will you do) if you do not find any guidance in Allah’s Book? He replied: (I shall act) in accordance with the Sunnah of the Apostle of Allah (peace_be_upon_him). He asked: (What will you do) if you do not find any guidance in the Sunnah of the Apostle of Allah (peace_be_ upon_him) and in Allah’s Book? He replied: I shall do my best to form an opinion and I shall spare no effort. The Apostle of Allah (peace_be_upon_ him) then patted him on the breast and said: Praise be to Allah Who has helped the messenger of the Apostle of Allah to find something which pleases the Apostle of Allah.110
This hadieth111 is quite self-explanatory as to the sources of Islamic law. Unlike the sources of contemporary international law, divine law and morality are at the heart of Siyar’s sources. In the latter: The Qur’an represents the authoritative source of law; traditions are equivalent to custom; rules and principles expressed in treaties with non-Muslims
107
This is clearly stated in chapter 7, verse 158 of the Qura’an. Abū al-Wafā (n 50) 58. 109 A hadieth is a record of a certain Prophetic tradition; it could be a saying or a practice of the Messenger of Islam, Muhammad. 110 Dawud, The Office of the Judge (Kitab Al-Aqdiyah). Book 24: Hadith 3585. 111 A statement attributed to the Prophet Mohammad. 108
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fall in the category of agreement; and the opinions of the caliphs and jurists, based on legal deduction and analogy, may be regarded as reason.112
The main point here is that the only legislator is Allah and thereafter his last Messenger, Prophet Muhammad, who was authorized to legislate by an explicit verse in the Qura’an. The role of Islamic jurists is only to extract detailed rules (where they are not available) from either the major rules of the Qura’an and Sunnah or by analogy between a current case to an authentic one in the Qura’an or Sunnah. Jurists have explained the rules of extracting such judgements and even the conditions jurists must fulfil before they can carry out this job. The sources of Siyar may be listed as follows. The Holy Qura’an This is the main source of law and any other legal opinion contradicting it is null and void. ‘The two most important sources for Islamic law known as shari‘ah are first, the sacred text, the Quran (the Muslim book of divine revelation) and second, the prophetic tradition.’113 The Qura’an is a book that was revealed during the lifetime of the Messenger (Mohammad) who had ensured that it was memorized, written and saved. Thus, ‘[t]he Qur’an is admitted by the Muslims as the Word of God and therefore the basis of all their law.’114 Today it is still the same book, with no amendments found, across the world. It comprises both general and specific rules. For example, most of succession law and some parts of criminal law are explicitly covered in the Qura’an. Meanwhile, generally, and especially in the area of international law, the majority of its legal rules are general principles. In fact, sometimes ‘[t]he principle contained in a single sentence could be the foundation on which a whole structure of constitutional law might be built’.115 Yet ‘[i]t is not strictly a constitutional code, but more specifically described by God as a book of Guidance.’116,117 Furthermore, the Qura’an is ‘not always linear in format nor explicit, it requires interpretation, not least because it is read as a living text, for its 112
Khadduri (n 39) 358. Aboul-Enein and Zuhur (n 71) vii. 114 Hamidullah (n 1) 19. 115 Weeramantry (n 28) 32. 116 Baderin here refers to the Holy Qura’an 2:2: ‘This is the Book; In it is guidance sure, without doubt, to those who fear God.’ 117 Mashood A. Baderin, International Human Rights and Islamic Law (Oxford University Press 2003) 34–5. 113
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contemporary, as well as historic significance’.118 Consequently, ‘Muslims, who have no central authority like the Roman Catholic Pope, seek the guidance of religious scholars, or clerics.’119 As it was revealed to the Prophet over a period of time and on different occasions to regulate different occurrences, the Qura’an should be read in a way that takes into account these facts. Furthermore, ‘the various injunctions and exhortations contained in the Qur’an are not to be read as individual provisions but as parts of one integral whole.’120 As for interpreting the Qura’an, due to this fact and that it is revealed in its best form in the Arabic language it, as the main and the most important source of Islamic law, must be interpreted only by the highest authorities in language as well as in fiqih. Furthermore, due to its unique structure, ‘[t]he more devout and learned the interpreter, the more the meaning of each Qur’anic passage expands – a concept one does not find in other legal systems where the interpreter plays an elevated role, such as the Roman, the Hindu or the Jewish’.121 In contrast, not only had Augustine but also Gratian, Aquinas, Grotius and Vitoria consulted the Bible, both the Old and New Testaments. They all cited and relied upon verses from both. The clearest example of this is when Augustine, consulting the Old Testament, departed from the Christian notion of pacifism to allow war under the pretext of religion.122 The others also utilized this method of Augustine. Thus, the difference between them and Al-Shaybani is the fact that the latter had to come up with the nearest interpretation of the same text (within the Qura’an) in order to situate his own understanding of what the rule should be. The others, on the other hand, travelled from the New Testament to the Old when they were looking for a divine verse to support their views. Yet the need for suiting interpretations for the same verse sometimes arises in their cases too. The Sunnah Sunnah (or ‘prophetic tradition’) refers to the sayings and practices of the Prophet Muhammad. ‘This tradition consists of short anecdotal accounts of the Prophet Muhammad’s actions or opinions preceded by a list of transmitters, termed the hadith.’123 ‘They are the inspired precepts of the 118 119 120 121 122 123
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Aboul-Enein and Zuhur (n 71) 2–3. Ibid. Weeramantry (n 28) 33. Ibid 34. This is addressed in more detail below. Aboul-Enein and Zuhur (n 71) vii.
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Prophet, which resulted either directly from his dicta or sayings, or indirectly from his deeds, or his tacit approval of current customary practices.’124 These traditions were collected by early Islamic scholars and recorded with a neat methodological order and referencing.125 Some of the main collections of hadieth are the seven ‘identified by the names of their authors: al-Bukhari, al-Tirmidhi, Muslim, Abu Dawud, al-Nisa’i, al-Nawawi, and Ibn Majah’.126 It could have been the wish of Prophet Muhammad to obliterate all pre-Islamic legal practices and customs; however, pragmatic as he was, as Hallaq puts it, Mohammad ‘could not have done away with all the social practices and institutions that prevailed in his time’.127 The Prophet was often described as a living Qura’an, as all his practices and sayings were in accordance with it. It is necessary to note that the Prophet Mohammad ‘functioned as a spiritual guide as well as a temporal leader of the Faithful’.128 As we have seen above, normally the Qura’an would contain general principles and the Sunnah would expound the practical meaning of these general principles. Even where the Qura’an explicitly regulates a matter, the practice or the utterance of the Prophet will then serve as a practical guideline on how to execute Allah’s rule on a certain issue. The Qura’an (59/7) explicitly orders believers to follow the ‘Messenger’.129 Therefore, his sayings and actions are law-making as he is authorized by the divine. The Qura’an and Sunnah therefore are complementary, and should never be contradictory. That is why if a Sunnah collides with the
124 Sobhi Mahmassani, ‘The Principles of International Law in the Light of Islamic Doctrine’ (1966) 117 Recueil Des Cours 230 (accessed 16 November 2011). 125 It should be noted that none of these collections were compiled during the lifetime of Prophet Muhammad. 126 Aboul-Enein and Zuhur (n 71) vii. 127 Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunnī ‘uṣ ūl Al-Fiqh’ (Cambridge University Press 1999) 3. 128 Hamidullah (n 1) 48. 129 The Holy Qura’an 59:7.
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Qura’an, the latter prevails and the Sunnah would be considered unauthentic.130 Both sources have been described by some as a book and a candle where ‘[t]he life and work of the Prophet provided the candle by the light of which the book is to be read’.131 There is logic behind this: who would have been in a better position to provide such light than the one that God trusted to convey his message? In addition, during the Prophet’s lifetime, revelations continued to come from God, so if the Prophet as an authorized legislator made any error of judgement he would have been corrected immediately. It is important that ‘[t]hese traditions were not only of judgments but also of what the Prophet did and what the Prophet said, all of which gave a background as to how Islamic life should be lived’.132 Consequently, ‘we find these traditions and the rules deduced from them becoming the most important source of Islamic Law, after the Qur’an.’133 Augustine, Gratian, Aquinas, Vitoria and Grotius also relied upon this method. All of them referred to the practices of prophets and messengers in support of their arguments. This signifies another similarity in approach between them, on the one hand, and Al-Shaybani, on the other. As shown by the hadieth above, jurists can extract legal terms and judgements from the Qura’an, and also the Sunnah if need be. This is provided that any new legal rule is rendered null and void as soon as it is shown to be contradictory to the Qura’an or to the Sunnah. This is why some scholars call Ijma’a (consensus of opinion) and Qiyas (individual opinions) ‘dependant sources’134 of Islamic law as they cannot be utilized to enact new different laws, rather they can only be used to extract specific rules from The Qura’an and Sunnah.
130 When Qura’an and Hadieth as sources of Islamic law are considered, there are two main questions. First, the authenticity of the source. Second, the interpretation of the text. The Qura’an is considered to be an authentic text, with many passages open to interpretations. Meanwhile, when scholars are dealing with the Prophetic tradition (Hadieth) they must attend to both questions; the question of authenticity and the question of interpretation. Bin-Bayyah Abdullah, ‘Sina’at Al-fatwa’ (Youtube/binbayyah, 6 July 2014) (accessed 8 April 2016). 131 Weeramantry (n 28) 35. 132 Ibid 37. 133 Ibid. 134 Abū al-Wafā (n 50) 56.
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Ijma’a (consensus of opinion) When a matter arising requires a judgement that is not explicitly governed by the Qura’an or Sunnah, then ijma’a can provide the rule. It is ‘the general consensus among Islamic scholars of a particular age in relation to the legal rule correctly applicable to the situation’.135 Ijma’a is the third strongest source of law because it bears the collective opinion of the most learned scholars in the subject. The well-known saying of the Prophet Mohammad ‘my nation will never unanimously agree on error’, as well as the ‘assurance of freedom from error in the communal mind’,136 has made ijma’a the most trusted (secondary/dependant) source of law after the Qura’an and Sunnah.137 Qiyas (analogy) Qiyas generally means that when there is an analogous precedent similar to the situation being considered, the rule of such precedent can be extended to and redesigned to govern the new situation by analogy. When none of the above three sources provide the answer to a specific legal question, a learned jurist must strive to arrive at a rule. When the Prophet sent Mu’adh as a judge to Yemen, as I referred to earlier, Mu’adh was to extract rules from the Qura’an and Sunnah if the matter before him was not governed in detail in one or both of them. As this could be done by individual jurists, if there is a rule governing this matter issued by ijma’a, then the latter rule will be considered. Where there is no consensus on the issue, then qiyas should take place. In order to be able to conduct qiyas, a scholar must fulfil a set of strict criteria138 to become a mujtahid and be able to carry out ijtihad (conduct qiyas).139 If these are the general sources of Islamic law, some scholars have asserted that Siyar has further sources. However, none of these may be independent from the Qura’an and Sunnah, nor can any of them produce a rule that is contrary to them. According to Hamidullah, these sources are:
135
Weeramantry (n 28) 39. Ibid. 137 There is a discussion about what should consititute Ijma’a. 138 Islamic jurisprudence contains a set of certain criteria one must meet in full before scholars can accept one’s opinion. In short: this scholar must be well versed in the all branches of Qura’anic sciences, Sunnah, Arabic and opinions of major (especially) early scholars. 139 Weeramantry (n 28) 41. 136
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Orthodox practice: ‘Just as the practice of the Prophet, so also that of his successors has attracted a variety of authors. It is to be found in books of Hadith, of history, of biography, of case-law, of anthologies and other publications.’140
2.
Practice of other Muslim rulers (not repudiated by the jurisconsults).
Al-Shaybani relied on the above sources in writing his books on international law. In fact, as far as the sources of law are concerned, he did not go beyond those noted above. Thus, it would be illogical to think that he had borrowed from the writings of other writers in civilizations prior or even contemporary to the Islamic one. In fact, here, it is worth repeating the statement of the great jurist who lived in the time of Al-Shaybani, Al-awzai, who commented on the former’s book, saying: ‘[h]ad it not been evidenced by ahādīth, I would have said that he has taken the knowledge out of himself, and that Allah has destined the correct answer in his legal opinion (rahy).’141 It is unlikely that a great scholar such as Al-awzai would have condoned borrowing without acknowledgement in Al-Shaybani’s book. However, there could be a link between the Islamic civilization and previous ones. Yet this could only have affected Al-Shaybani through being influenced by customs that were still practised. For example, this may apply to the ancient Iraqi civilizations in particular, as he was writing in Baghdad. Nevertheless, Islamic legislators treated custom in one of the following ways: endorsement, prohibition and regulation of an existing practice while, in some cases, neither endorsing nor prohibiting it. This is a possible adoption of local customs by Islamic law. However, even if some rules were known prior to Islam, they could have only become rules of Siyar after adoption by the legislator. For example, Islam came to endorse the fact that Christianity and Judaism were sources of law for a certain era. In fact: Islam, Christianity, and Judaism share far more concepts and traditions than most people realize. Most importantly, each is based on Prophetic tradition; that is, the Prophets of the Old Testament, particularly Moses, as well as Jesus, the Son of Mary, are recognized and honored in Islam. All three faiths 140
Hamidullah (n 1) 23. Anke Iman Bouzenita, ‘The Siyar – An Islamic Law of Nations?’ (2007) 35 Asian Journal of Social Science 19, 25. 141
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possess divine Revelation through their Prophets and share a belief in an afterlife and a Day of Judgment.142
Yet only some of these laws were adopted in Islam by the legislator and came to be considered law. Furthermore, even if a legal norm or a rule was known before Islam, it could lose its status as a result of a new law under Islam. However, the reader of Al-Shaybani’s book would find it possible to trace his reliance on the principle of reciprocity in international relations. This seems to have been the case so long as there was no clear intervention by the legislator (through Qura’an or Sunnah). Unlike Al-Shaybani, both Augustine and Gratian had to work with three different main sources. They had to consult the Old Testament and the New Testament while at the same time being aware of Roman law. For example, when they addressed the issue of military service and whether or not a Christian should join the army, they were confronted by two famous principles of Christianity; ‘Turn the other cheek’ (Matthew 5:29) and ‘Give place to wrath’ (Romans 12:19).143 Thus, they both resorted to the Old Testament in which they had to find support for their justification of war.144 Grotius too was both a religious scholar and a writer who held the role of divine law up high in his work. Thus Bellamy (2006) stresses that ‘Grotius has often been misinterpreted as offering an entirely secular theory of natural law’.145 In reality, Grotius ‘defined natural law in traditional terms as a reason applied to understanding the will of God’.146 Vitoria also consults divine law, shown by his reliance on the Bible and the Torah. He consults religious teachings when he refers to the teachings of great theologians147 such as Augustine and Aquinas. He also utilizes philosophy where he consults the ideas of those such as Aristotle. In addition, he employs logic in support of his arguments.148 The reader of Vitoria will find his work very similar to that of Al-Shaybani in terms of applying reason and ‘contrastive analysis’ whenever a case is not clearly 142
Aboul-Enein and Zuhur (n 71) 20–21. Frederick H. Russell, The Just War in the Middle Ages (Cambridge University Press 1979) 57. 144 Ibid. 145 Alex J. Bellamy, Just Wars: From Cicero to Iraq (Polity Press 2006) 71. 146 Ibid (footnotes omitted). 147 He consults both theologians as well as jurists. 148 Francisco de Vitoria, De Indis De Ivre Belli Relectiones, Text of 1696 (Ernest Nys ed., John Pawley Bate tr., The Carnegie Institution of Washington 1917) 143–4. 143
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judged in divine law. For both have resorted to comparing two similar issues, one governed by law and one not, in order to import the rule of the former to apply to the latter. This is what is in Islamic jurisprudence called qiyas, as set out above, and it is also clearly and heavily employed by Vitoria. In addition, he supports his arguments by mentioning what he thinks the law is, ‘justifying its reason by examples from the various forms of law and from history, ancient and modern’.149 Nevertheless, divine law seems to have been the defining point for Vitoria too. For him, if anything is lawful or unlawful according to divine and natural law it cannot be rendered otherwise by human law. In one example, he concludes that ‘if there were any human law which without any cause took away rights conferred by natural and divine law, it would be inhumane and unreasonable and consequently would not have the force of law’.150 In fact, law in general can only be so in the thoughts of many such as Vitoria when it is deemed as such in conformity with divine rules. Thus, divine law is above all laws to the point that, as Vitoria asserts, even ‘what is evil of itself ceases to be evil if it is done on the authority of God’.151 This also could be said to be the case for Augustine, Gratian and Aquinas. Moreover, Grotius too, as set out above, thought that if any statement in his book was against divine law, it must be ignored.152
2.2 AL-SHAYBANI’S METHODOLOGY AND STYLE OF REASONING In order to fully understand Al-Shaybani’s methodological order and his style of reasoning, both the sources153 of his legal writings and the Islamic legal schools must be examined. I have discussed the first point above and therefore, before I analyse his style of reasoning and method of writing, I shall briefly introduce the sources of Islamic methodology (Islamic schools of thought). Following that, I shall examine his writings in Al-Siyar Al-Kabīr to ascertain whether he has relied on Islamic sources and adopted Islamic schools’ methods. This should help us to understand if there is any connection between his approach and pre-Islamic civilizations. Further, another purpose of this section is to evaluate his writings 149
James Brown Scott, The Spanish Origin of International Law. Francisco de Vitoria and His Law of Nations (Clarendon Press 1934) 240. 150 Vitoria (n 148) 152. 151 Casassa and Vitoria (n 10) 134. 152 Grotius, The Law of War and Peace (n 95) 30. 153 I.e. sources of Islamic law.
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as a pioneering contribution in the field of international law. Understanding his methodology will, no doubt, help us to understand his approach to international law and relations. 2.2.1 Schools of Jurisprudence Like their Roman counterparts, ‘Islamic jurists’ activities included both legal consultation and the teaching of students. They were thus in contact with both the practical requirements of clients and demands of practical teaching.’154 As there were no councils such as these in the time of the early Christian Church (e.g. meetings of councils of churchmen), jurists in the Islamic system became very important. Thus, the development of law was ‘naturally steered in the direction of juristic activity rather than towards authoritative religious pronouncements’.155 This in fact ‘highlighted the juristic role in a manner not paralleled in Rome, where the law was not a sacred law and hence no religious authority added sanctity to the juristic interpretation’.156 Islamic jurisprudence was no different to other major legal systems in having more than one school of thought. Mainly, there is the Sunni branch, which is followed by the vast majority of Muslims, and the Shi’ie branch. Originally, both were political divisions and developed into separate schools. Further schools and divisions also exist. However, in this work I will focus only on the schools that were directly related to Al-Shaybani, which were two of the four major Sunni schools. As we have seen in the introductory chapter, Al-Shaybani had attended the circles of the heads of two major Islamic schools of thought. If there is a possibility that he was influenced by someone, it would be by one or both of these schools. Although he did attend the circles of Al-awzai and other great scholars, most of his learning occurred in the Hanafi School and then subsequently the Maliki School. There are two other major schools of thought; however, neither of them would have played a role in shaping his approach. In fact, the opposite could be true for both and is at least true for the Shafi’i School (the head of this school was a disciple of Al-Shaybani himself). With Al-Shaybani being a cornerstone of the Hanafi School himself, one would expect that it is the main source of inspiration for him. However, before I can conclude this, these two major schools will be briefly set out. 154 155 156
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Weeramantry (n 28) 46. Ibid. Ibid.
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Hanafi School Established in Baghdad, the Hanafi School borrowed this name from its founder’s nickname Abu-Hanifa157 and it is the largest and the oldest Sunni school.158 Imam Abu-Hanifa (d. 767) used to make a living by manufacturing and selling silk.159 He was ‘known as the Great Imam, possessed remarkable powers of reasoning and deduction. He relied on analogy and equity (istihsân) so frequently that this school was called the School of the People of Opinion.’160,161 The Hanafi School was not merely a circle for learning or teaching jurisprudence. Rather it was a place where Abu-Hanifa would raise legal issues to be discussed and deeply analysed by him and his students. Once the analysing and discussion was complete, he would then order his students to write down the final legal opinions in suitable chapters of the great book of Islamic jurisprudence.162 Unlike Socrates, Abu-Hanifa did not leave written records of his thoughts; rather they were memorized by his devout disciples who wrote them down and preserved them. His most outstanding disciples were Malik (head of the Maliki School), Abu-Yusuf and Al-Shaybani. While the first two produced compendiums of law as taught by Abu-Hanifa, the credit must go to Al-Shaybani for writing and preserving most of his master’s teachings. The fact that Abu-Yusuf and Al-Shaybani were drawn very close by the Caliph, who had appointed them both as judges of the State in Baghdad one after another respectively, highlights the importance of this school. It is not only knowledge that they possessed, but also piety and justice. Al-Shaybani, for example, fearing unknowingly delivering unjust decrees, refused the position of chief judge of the Muslim State. He was finally convinced by the Caliph, who had to imprison him for 50 days in order to force him to accept the post.163 Furthermore, the teachings of this school were officially adopted by subsequent dynasties 157 Nu’mān ibn Thābit ibn Zutā ibn Marzubān (yet he was and still is best known as Abu-Hanifa). 158 Mahmassani (n 124) 224. 159 Weeramantry (n 28) 49. 160 Madrassat Ahl ar-Ra’y. 161 Mahmassani (n 124) 224. 162 Authman Juma’a Dmeriyah, ‘The Imam Mohammad Ibn Al-Hasan Al-Shaybani and His Book Al-Siyar Al-Kabir (2-2) [Al-Imam Muhammad Ibn Al-Hasan Al-Shaybani Wa Kitabuhu Al-Siyar Al-Kabir 2-2]’ (Midad, 29 December 2007) (accessed 27 November 2011). 163 Muḥammad Munīb ibn Abd Allāh Aynatābī al-Istanbūlī, The Book of Facilitating the Understanding of the Commentary on Al-Siyar Al-Kabīr. Tayseer
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as well. Both the Moghul Empire in India and the Ottoman Empire adopted them.164 One of the most distinguishing features of this school is that its ‘jurists acted with much authority. They developed the doctrine of ra’y under which learned doctrine was an independent source of law – a doctrine heavily contested by other schools such as the Shafi.’165 They worked in a unique fashion as they used to create hypothetical questions and answer them. Although some other schools might have shared this method with the Hanafi School, the latter has invested uniquely heavily in it.166 Moreover, this school gave preference to public interest and emphasized that it should be greatly considered in legal questions.167 Maliki School Malik Ibn Anas (d. 795), who as mentioned above was a student of Abu-Hanifa, established this school in Medina, and his most well-known work was Al-Muwatta. This book is one of the main collections of the Prophet’s practice (hadieth). Some described it as ‘a comprehensive exposition of the current practice observed in Medina’.168 The practice of the people of Medina (the Prophet’s city) was to him reliable evidence on law. This is because they lived with the prophet and practised the law under his supervision. Therefore, he reasoned, they would practise it in the same way just as the Prophet did. In this, Malik is unique as he was the only master (among the four imams of the main schools) who attributed such value to the practice of the inhabitants of Medina.169 ‘Although Malik accepted an equitable source of law based on public interest (al-masâlih al-mursalah), he insisted more strongly on Holy enactments and Traditions than on analogy and juristic opinion. Being thus more conservative than the Hanafi School.’ Thus, as Mahmassani pointed out, ‘the Maliki School was called the School of the People of Tradition.170,171
Al-Maseer Fi Sharih Al-Siyar Al-Kabīr Istaktabahu Mualifahu Al-Sayed Mohamad Muneeb Ibn Al-Haj Al-Intabi Alistanbuli (handwritten in 1215 Hijri, 1800). 164 Weeramantry (n 28) 50. 165 Ibid. 166 Interview with Hamzah Abu-Fars (March 2010). 167 Weeramantry (n 28) 46. 168 Ibid. 169 Interview with Abu-Fars (n 166). 170 Madrassat Ahl il-Hadîth. 171 Mahmassani (n 124) 224.
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His teachings were practical and not only speculative, as most of the Hanafi School’s were. This is because in the latter school, ‘a group of pupils gathered themselves around the teachings of the master and gradually grew into a “school”. In the case of the Maliki School, most of its followers were practical lawyers.’172 Although he used to cite the hadieth without mentioning the chain of narrators, ‘Malik is regarded as one of the greatest authorities on hadith’.173 In all schools, the Islamic jurist was never a lawmaker; rather his ‘function was to discover the law and expound it, but all law was made by God’.174 Nevertheless, although Roman jurists were able to go further and participate in law-making, the fact that their rules could be overwritten by other functional bodies such as the Roman Senate represents a great restriction on their efforts. In contrast, Muslim jurists’ opinion faces no threat from any outsider, as there is no parliament or legislative body to alter their conclusions on what the law should be. Thus, only jurists could expound the law in Islam.175 2.2.2 Al-Shaybani’s Methodology and Style of Reasoning in Al-Siyar Al-Kabīr There are many important aspects of Al-Shaybani’s methodology to address. Of primary importance is the perception of the world according to Al-Shaybani’s understanding of international relations, namely, the classical division of the world into a dichotomy: dar-al-Islam and dar-al-harb. The classical division between dar-al-harb and dar-al-Islam In the classic writings of Al-Siyar, the term dar-al-harb should be translated as foreign lands, not the abode of war, and dar-al-Islam should be translated as Islam’s state, not the abode of Muslims. These are often used as legal terms to distinguish the Muslim State from the rest of the world. Many scholars suggest that (according to their literal meaning) these terms are clear signals of the hostile nature of the Muslim State towards others (non-Muslims). In particular, many scholars explain the term dar-al-harb as an announcement of war against the rest of the world
172 173 174 175
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Weeramantry (n 28) 51. Ibid. Ibid 55. Ibid 56.
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by Islam’s states. This way of perceiving these two terms has led many to think that a Muslim state recognizes no other state other than itself.176 Scholars have advanced two different arguments in the face of this unfounded claim. One says that the aforementioned view reveals a misunderstanding of the actual meaning of these terms. The other argument is that the terms were used in a different time to regulate a different set of international relations. As these two terms are very important for the process of understanding the nature of international relations according to Siyar and therefore understanding Al-Shaybani’s intentions in using them, I shall briefly discuss some of the main views on them. Weeramantry suggests that ‘[t]he pax Romana and the pax Britannica were terms expressive of the prevalence of a certain legal system and its protection over vast areas of the globe, in the same way as the pax Islamica prevailed over the territories falling within the Dar-al-Islam’.177 Furthermore, with regard to Al-Shaybani’s book on international law, El-Kosheri stresses that ‘[i]n fact, dar al-harb is nothing else than the ager hosticus of the Romans, in contrast to the ager rom anus, and the pax islamica is a transposition in a new context of the pax romana’.178 Meanwhile, many scholars today think that the ‘the proselytising spirit of the early days of Islam led to an attitude of war towards the dar-al-harb, for the ultimate objective was an Islamic world order’.179 This assumption has convinced many to speculate that Muslims’ ultimate goal was to take over the whole world in order to establish the law of God everywhere.180 Some argue that this is not unique to Islam; Christianity is also often cited. In principle, St Augustine offered a similar sort of division of the world: the civitas terrenae and the civitas dei. The second (which is the City of God) should strive to extend its goodness to the former in a perpetual struggle against evil.181 Nevertheless, Johnson (1997) draws the conclusion that despite the similarity there are some important differences between the Islamic and the Christian divisions. He thinks that the Islamic notion is different from the Augustinian one, for: 176
For example, see Khadduri (n 39) 358. Weeramantry (n 28) 130. 178 S. Ahmed El-Kosheri, ‘Islam’ in R. Bernhardt (ed.), Max Planck Encyclopedia of Public International Law (1981) 224. 179 Weeramantry (n 28) 145. 180 Khadduri (n 39) 358. 181 James Turner Johnson, The Holy War Idea in Western and Islamic Traditions (Pennsylvania State University Press 1997) 48–50. 177
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not only was it juristic rather than theological, aiming at insuring behavior rather than right motivation, but it defined the world in terms of control of territory rather than the invisible progress of divine grace, and it defined membership in the two spheres by behavior (submission to God’s will, islam, whether or not this was accompanied by faith, iman) and not the invisible presence of divine grace. Its political meaning was built into the concept of distinction between the two spheres, not developed out of it as was the case with medieval political theory based on Augustine’s thought, and the juristic concept of two worlds directly addressed the political character of the Muslim state.182
Nevertheless, those who would normally translate these two terms literally may not be taking into account certain key issues. These could be summarized as follows:183 + Siyar requires the respect of non-Muslims even in times of war. + Siyar allows the recognition of other states especially during periods of peace or truce. + When subjects of the Muslim state are domiciled in non-Muslim states, they are required to respect the law of those non-Muslim states. + The theoretical state of war did not always exist in the sense of physical fighting. + Jihad, when intended to spread Islam, did not always mean fighting; it could be an intellectual war or ‘war of words’. + A very strong argument among scholars suggests that Muhammad, the Prophet of Islam, led only two offensive wars, which he was forced into. Other than that, all of his wars were defensive. + Some scholars hold that along with dar-al-Islam and dar-al-harb there also existed dar-al-a’ahid (abode of covenant) and dar-a-sulih (abode of peaceful agreement). + If ‘the spirit of proselytising’, as some critics hold, is the reason for this classification, their whole theory fails, as Siyar does not allow forceful conversion of others. In fact, even in practice, many of the populations conquered by Muslims still have many non-Muslims who were never forced to convert to their faith. + In addition, if Al-Shaybani intended dar-al-harb to be the abode of war literally, he would not, as will be seen later, have required that leaders in this abode must not be fought even when war is permitted until they are offered the choices of becoming a Muslim, paying tribute or finally fighting. 182 183
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Ibid. Weeramantry (n 28) 145.
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+ Finally, as we shall see, Al-Shaybani appears to have treated persons from what is called by some the ‘abode of war’ as if they were from a friendly country. For example, acquisition of property collected from enemy lands as booty would be legally effective for warriors once they crossed the border. This is the exact rule he applied to the enemy crossing borders carrying booty collected from Al-Shaybani’s country.184 Probably due to recognizing some of these facts, some scholars tried to water down their harsh view of the term dar-al-harb. They falsely claim that the state of war under this term ‘should not be construed as actual hostilities; it was rather equivalent, in Western legal terminology, to non-recognition’.185 Al-Shaybani wrote his book on the assumption that all territories under the rule of Muslims are part of dar-al-Islam and all external territories that do not fall under the rule of Muslims are dar-al-harb. Linguistically, a software – unaware of the background – would translate dar-al-Islam as ‘the house of Islam’ and dar-al-harb as ‘the house of war’. Yet, through reading Al-Siyar Al-Kabīr, it can be gleaned that the usage of these terms was merely a temporal matter. For example, in Al-Shaybani’s time, foreign states were simply referred to in this way. This is because the nature of international relations was at that time very hostile, with war as the norm and peace as the exception. In fact, even before Islam, the Arabs were never assured of peace. They were constantly vigilant and they only enjoyed peace when they were either powerful or protected by a powerful entity in the area. Even when some of them were protected by other strong powers adjacent to them, this came at a price. For example, as mentioned above, the Eastern Roman Empire (Byzantium) and the Persian Empire had Arab ‘colonies and protectorates and even buffer States of purely Arab people in different parts of Arabia’.186 This seems to have been the norm of that 184 This was the case throughout his writings. For example, see the chapter on what is considered to become owned by enemies once they crossed the borders in Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 4 (Salah Al-Deen Al-Munajjid ed, Ma’had Al-Makhtu’tat 1971) 1246. 185 Khadduri (n 39) 359–60. 186 Hamidullah (n 1) 52. See also Irfan Kawar, ‘The Arabs in The Peace Treaty of A.D. 561’ (1956) 3 (2) 181–213 Arabica (accessed 23 November 2011).
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time. Independence was only possible for a state if it was powerful enough to defend itself against the surrounding greedy powers.187 Even years after Al-Shaybani, the Eastern Roman Empire itself, when its military situation was adverse, was forced to pay tribute to the Varangian princes.188 In addition, the latter were given valuable commercial concessions. Moreover, hundreds of years after Al-Shaybani’s era, in late mediaeval Europe, both Christians and Romanists continued to instinctively regard ‘all non-Christians as ipso facto enemies’.189 This should explain that this way of dividing the world was simply a matter of labelling rather than judgement. As explained above, ‘this division, under the Abbasids, corresponded to the factual relations between the Islamic state and non-Muslim states.’ Thus, Johnson (1997) stresses that this division was a juristic and not a theological product. He further stresses that ‘[r]ather than seeking to divide the world, it sought to describe a division that was already a fact and set up parameters for how Muslims should act to make the best of it’.190 Thus, calling the rest of the world ‘the house of war’ could have been due to the fact that non-Muslim states were likely to use war against dar-al-Islam rather than the other way round. On the other hand, Al-Shaybani’s writings show that he used the term dar-al-Islam to mean all land and entities under the rule of Muslims and those who had signed special treaties whereby Muslims would not fear them. Thus, the literal meaning cannot have been the intention of Al-Shaybani or any of his colleagues writing on this topic. How could it be understood literally as the ‘house of Islam’ when some of the entities included were not Muslim entities? In fact, the term dar-al-Islam was used to describe Muslim countries as well as non-Muslim territories that were under Islamic protection. This is easily identifiable from Al-Shaybani’s writings. For example, as explored further below, even a Christian or a Jewish land where no Muslims reside can become part of dar-al-Islam without the need for its people to change their religion.191 Therefore, dar-al-Islam cannot be translated literally as ‘the house of Islam’ or ‘the abode of Muslims’. 187
Gaber (n 13) 7. Nussbaum (n 49) 49. 189 Russell (n 143) 66. 190 Johnson (n 181) 66. 191 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir LiMuhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 3 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 1039. 188
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Nevertheless, it cannot be proven that all or even most of the parts of dar-al-harb (literally: the house of war) were at war with the Muslims’ state. Those criticizing Al-Shaybani’s use of the term would need to prove two impossible scenarios of that time: 1.
They would need to prove that in his time there was no need to refer to all entities that did not fall within dar-al-Islam as dar-alharb. In other words, they would need to prove that the norm in international relations was not warlike. In fact, war was ‘simply a constant feature of the political landscape, as routine as the coming and going of the seasons of the year’.192 They would also need to prove that the Muslims’ state was at war with the rest of the world. However, this was not the case; in fact, ‘the hostile relations of two or more states do not always amount to war. More often than not they only fall short of war; and fighting and bloodshed, or, at least, the mobilisation of the whole of the public forces of a state does not take place’.193
2.
Thus, I can conclude that even in the case of Al-Shaybani and according to his hypotheses: perpetuity of jihad is relative as the jihad comes into being only when circumstances are favourable to the Muslim state and is likely to be suspended if the interests of the Muslim state require it. Hence, the doctrine of jihad does not necessarily envisage constant fighting, but merely implies the existence of a state of war between the Muslim state and its neighbours.194
In this respect, Abou el Fadl argues that: [i]t is simply not true that Muslim jurists continued to accept the idea of the inevitability of a state of mutual hostility between Muslims and non-Muslims. A substantial number of jurists from different Sunni schools, not just the Shafi’i school, accepted the category of the abode of treaty or peace as a permanent realm enjoying full treaty rights, not as an aberration or unwelcome concession to reality.195 192
Neff (n 5) 30. Hamidullah (n 1) 160. 194 Al-Ghunaimi (n 19) 142. 195 Khaled Abou El fadl, ‘The Use and Abuse of “Holy War”: Review of The Holy War Idea in Western and Islamic Traditions, James Turner Johnson (University Park, Pa.: Pennsylvania State University Press, 1997)’ (Carnegie Council for Ethics in International Affairs, 20 December 2000) (accessed 11 August 2016). 193
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Moreover, Abū al-Wafā (2007) rightly stresses that Al-Shaybani’s division of the world into two sections is not unrelated to the jurisdictions of law. This is apparent when we see that he described the two abodes as follow: 1.
Dar-al-Islam: is the abode where Islamic rules are practised. The meaning of this is that the Islamic rules are not applicable in dar-alharb.196 Dar-al-Islam is also the abode where Muslims are safe and the abode is under their control. Thus, the deciding factor is not the territory but the application of law and the control over it.197 Dar-al-harb: as Al-Shaybani defines it, it is the abode that does not fulfil the conditions of dar-al-Islam. In other words, it is the abode that cannot be described as dar-al-Islam.198 On top of that, Al-Shaybani was always clear that subjects visiting them should respect the laws of foreign lands.199
2.
Abū al-Wafā went on to say that Al-Shaybani discussed issues such as belonging to one abode or another, the period that is allowed for visitors, and the personal laws and rules applied to foreigners in dar-al-Islam.200 All of this highlights the fact that Al-Shaybani did not divide the world into ‘us’ and ‘them’ (enemies); rather he divided it according to jurisdictions of law, regardless of the literal translation of the terminology he and other jurists used. Thus, the dichotomy, especially in the context of that time, is merely a delineation of legal jurisdictions. Therefore, any attempt to use these two terms in their literal meaning will be misleading. The main issue is that although some Islamic scholars (including Al-Shaybani) supported the view that war with dar-al-harb should always be an option if their rulers were not open to peace agreement; the distinction between dar-al-harb and dar al-Islam cannot be used to indicate this view. This, to summarize the above, can be explained by two factors: first, it was not originally intended for this purpose; and second, scholars who opposed the idea of perpetual strife to either subdue dar-al-harb under the flag of dar-al-Islam or establish peace agreements 196
Aḥmad Abū al-Wafā, Kitāb Al-I‘lām Bi-Qawā‘id Al-Qānūn Al-Dawlī Wa-Al-‘alāqāt Al-Dawlīyah Fī Sharī‘at Al-Islām [A Book of International Law and Relations in Islamic Shari’a], vol 14 (al-Ṭab‘ah 2, Dār al-Nahḍah al-‘Arabīyah 2007) 10. 197 Ibid 11. 198 Ibid 12. 199 Ibid 13. 200 Ibid 14–17.
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used the same distinction. In the West, the idea of this dichotomy is best explained as a juristic and non-theological distinction, which distinguishes it from that of St Augustine. For the reasons set out above, dar-al-Islam and dar-al-harb should be used in their Arabic form, as their translation requires so much explanation. However, it is still sometimes simpler to call other states ‘foreign states’ rather than ‘dar-al-harb’ in order to avoid confusion for those studying international law today and to avoid the need to explain the above as well as the fact that there are other categories of states. Based on Al-Shaybani’s definitions, these states include entities that have signed agreements with the Muslim State and can thus be described as neither dar-al-Islam nor dar-al-harb. This is a failure on the part of Al-Shaybani, who did not clarify the status of the ‘covenanting states’ as some would call them.201 Similar distinctions to those used by Al-Shaybani were used in other ancient systems; however, they are not identical. For example, given the above, his usage of the word harbi (extracted from dar-al-harb) does not mean ‘warrior’. This is apparent as he used it when he talked about traders, merchants and visitors, and all of the subjects of dar-al-harb. Somewhat similar to this term is the term hostis, as ‘in Latium the word hostis means only a stranger’.202 Moreover, to the Greeks, if a people is known to them neither in peace nor in war the taking of plunder from them was allowed, as when Aristotle commended the taking of plunder from barbarians.203 Thus to them, war only meant actual hostilities. This is also apparent in the case of Roman law, in which: if it is considered that neither friendship nor hospitality nor any treaty for the sake of friendship has been made with any people these are not indeed public enemies; yet whatever has come to them from the Romans should belong to them, and a free Roman captured by them would be a slave. The same thing, again, would happen if any one came from them to the Romans; and in this case also postliminy should be granted.204
Similar to the Greeks, ancient Rome considered itself ‘permanently at war with any state with which it did not have a treaty of friendship or alliance (foedus)’.205 However, this never meant that actual hostilities were conducted. This is probably the closest system to that of 201
Many scholars would call them so, including Imam Al-Shafi’i. Abou El fadl (n 195). 202 Grotius, Hugo Grotius. The Law of War and Peace (n 95) 394. 203 Ibid. 204 Ibid. 205 Neff (n 5) 31.
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Al-Shaybani, which raises the question of whether he could have borrowed this from the Romans. In the West, well over eight centuries after Al-Shaybani, we see a similar dichotomy in scholarly approaches. The world, it seems, was seen as between ‘them and us’. Even in one of the most open-minded approaches, that of Vitoria, one witnesses the apparent traces of such a division. This division in Vitoria’s work is also founded on the differentiation between fellow religious people and all others. The term ‘commonwealth’ or ‘common weal’ as used by Gratian, as we shall see later, was no more than an umbrella sheltering fellow religious men and excluding all others. This was true even in the case of the most moderate scholars such as Vitoria. For, in one case, he speaks of the prohibition of carrying out a war, even if it was justified, if in doing so more harm would be caused for the commonwealth than the good it may bring. Vitoria explains what he means by ‘commonwealth’ as follows: if Spain declares war on France for reasons which are otherwise just, and even if the war is useful to the kingdom of Spain, if the waging of the war causes greater harm and loss to Christendom – for example, if the Turks are enabled in the meantime to occupy Christian countries – then hostilities should be suspended.206
Thus, the commonwealth is the Christian world (or Christendom, as he called it). All the rest of the world is considered as separate. One other similar approach to that of Al-Shaybani held by Vitoria is the legal distinction between his dichotomies on the one hand and the rest of the world on the other. Both held that divine law is only applicable to their states and not to others. Thus, according to Al-Shaybani, Islamic law binds dar-al-Islam only, and Christian law, according to Vitoria, binds Christendom. Thus, they both accept that other legal entities exist. However, they both believe that all are bound by the law of nations: ius gentium in the case of Vitoria and the acceptable international rules in the case of Al-Shaybani. Vitoria thus (unconventionally for Europe) accepts that other legal systems are laws outside Christendom. Non-European ‘barbarian’ societies, he concluded, ‘might be subject to the ius gentium, whereas they could clearly be subject to no other simple human law other than their own’.207 This is probably what most distinguishes Vitoria from other European scholars who preceded him. He first accepts that others 206
Anthony Pagden and Jeremy Lawrance, Francisco de Vitoria; Political Writings (Cambridge University Press 1991) 22. 207 Ibid xvi.
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might be rendered subjects of ius gentium (European international law) and he also accepts that others have proper laws and legal systems. In this, he agrees with Al-Shaybani. Al-Shaybani, exceptionally in that time, and Vitoria, exceptionally during his era in Europe, both strongly affirmed the concept that others have their own legal systems and thus cannot be attacked militarily on the pretext of being ‘unworthy’. As we shall see in this study, this is clear in almost all of the rules put forward by Al-Shaybani with regard to war and peace. Vitoria also made this clear when he said that others ‘could not be robbed of their property, either as private citizens or as princes, on the ground that they were not true masters (ueri domini)’.208 Other important characteristics of Al-Shaybani’s methodology Al-Shaybani followed his master Abu-Hanifa in many ways. First, he adopted a system whereby he created possible hypothetical cases on a certain topic and then delivered rulings for each case, differentiating the outcomes where relevant. He discussed almost every imaginable case with regard to matters of the international law of his time: peace and war and private and public international law issues that could arise were often covered by him. While it is true that this style is not entirely unknown to Roman209 and medieval thinkers, Al-Shaybani could not have gained this approach from them. Meanwhile, it is easy to notice that this style was revived in Europe only after contact with the Islamic civilization. This is because in Europe, ‘the casuistic treatment of just-war doctrine was undertaken on a large scale only in the post-medieval era’.210 Meanwhile, traces of Malik’s methods and style are evident in Al-Shaybani’s work. For example, Al-Shaybani narrates the hadieth but sometimes he does so without mentioning the whole chain of its narrators just as Imam Malik did. Along with these observations about Al-Shaybani’s writings, I shall further identify the different approaches and characteristics he demonstrated in his writings as follows: A. Broad knowledge in all legal fields It is clear to the reader that Al-Shaybani was very well acquainted with the detailed rules of Shari’ah as well as the rules concerning Islamic international relations. Rules such as the regulation of testimonies and witnesses, succession law, property 208 209 210
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Ibid 51. Lesaffer (n 56) 113. Nussbaum (n 49) 37.
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law and many more were central to his book. For example, Al-Shaybani discussed cases such as when a Muslim in dar-al-harb hired, borrowed or lent an object to others. The legal implications and consequences of the different legal claims that could occur in such cases were carefully and fully detailed.211 In doing so, it was likely that he was aided by his knowledge of other branches of Islamic law and not only Siyar. Indeed, Imam Al-Shafi’i, as mentioned above, once confessed ‘that he never saw a person more knowledgeable about what is lawful and what is unlawful and the niceties of law than Muhammad ibn al-Hasan al-Shaybânî’.212 B. Coherent and open approach Al-Shaybani demonstrates a high level of coherence in his articulated and consequential approach in Al-Siyar Al-Kabīr. Throughout his work, it is difficult to discover any incoherence or inconsistency between different legal rules on different legal matters. This is probably due to his broad knowledge of all fields of Islamic law from which Siyar is sourced, and the coherence, perpetuality and strength of the main principles (and sources) of Siyar. Imam Al-Shafi’i used to say: ‘I believe my opinion is right with the possibility that it is wrong and I believe the opinion of those who disagree with me is wrong with the possibility that it is right.’213 Everywhere in the book, Al-Shaybani and Al-Sarakhsi show a similar attitude. Al-Shaybani, when delivering his opinion on a subject that is open to scholarly interpretation, rules that his opinion is the right one; yet, if a different opinion of other jurists is utilized by others, their actions shall thus be considered valid.214 Therefore, it is clear that the two scholars approve the use of other scholars’ opinions on matters of disagreement even if such opinions go against their own. This is required to avoid human errors when the opinion of the scholars becomes a source of law. In addition, it is self-evident that in Siyar there is scope for scholars to introduce their opinion into the law-making process. This allows them to take into account the time and place and their effect on legal norms. Another example of this open-minded approach is to be 211
See, for example, As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 191) 973. 212 Muḥammad ibn al-Ḥasan aš-Šhaybānī, The Shorter Book on Muslim International Law (Mahmood Ghazi tr., ed. 2007, Adam 2007) 23. 213 Abdulhakim Jackson, ‘The Etiquette of Disagreement’ (Islamic Research Foundation International, Inc., 2006) (accessed 14 December 2017). 214 See, for example, the discussion in As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 191) 1002–1003.
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found with Al-Shaybani,215 who used Al-Basri’s opinion to support his argument when appropriate, although he often disagreed with him. Moreover, noticeably Al-Shaybani did not always agree with the opinion of other scholars affiliated to his school. In fact, wherever he found stronger evidence and a better explanation of an opinion, he would support it even if it were opposite to his own or that of his head of school.216 In addition, human reasoning and rationale are employed by Al-Shaybani whenever possible. As we shall see later, he did this in cases where he decided to support one of two or more authentic opinions held by scholars in matters that are subject to human reasoning. From Al-Shaybani’s book, it is clear that even when a certain scholar becomes part of a school that uses a different methodology, he would still agree with other schools when he thought that their judgement was more correct. To him, an opinion supported by two groups of scholars is more worthy of support than that supported by only one group, even if he belonged to the latter.217 This attitude of Al-Shaybani can be seen in the writings of Grotius. Unlike Vitoria, Grotius ‘presented what he writes as his own theory; and though he uses his predecessors (including both Thomas and Victoria) copiously, he does not intend to argue from their position to his’.218 Probably the slight difference between these two would be Grotius’s constant references to ancient sources, whereas Al-Shaybani confined himself to the sources of law mentioned above. However, Grotius used these sources as support for his own arguments. Thus, Johnson notes that Grotius considered that ‘[t]ypically figures from the past serve him as examples only, whether they represent ancient Greece or Rome, medieval Christians, or the New World’.219 C. New approach to the study of international law As we have seen, by producing Al-Siyar Al-Kabīr, Al-Shaybani separated the study of international law and considered it a separate field of study for the first 215 For example, we can see that Al-Shaybani had a completely different view from that held by Al-Basri regarding the right of the imam to kill those captured. 216 See, for example, the discussion in As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 191) 886. 217 Dmeriyah (n 162). 218 James Turner Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (Princeton University Press 1975) 210. 219 Ibid.
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time. Yet he did not separate the study into private international law and public international law. Nonetheless, his book was the first ever treatise on a single topic of law, as it was only meant to consider the Islamic perspective of international law topics. Historically, international law topics had never been dealt with, to our knowledge, in such a way. A book existed on the art of war: the famous ancient Chinese book The Art of War written in the fourth century BC by Sun Tzu.220 Others chose to write about classifications of war, such as the book written by Kamandaka in ancient India.221 However, it has never been claimed by historians that all topics of international law, including peace, had been dealt with in one book, prior to Al-Shaybani and Grotius. In comparison, ‘[a]lthough Vitoria does not use the term “international law”, his ius gentium includes both public and private international law.’222 It is also true to say that although Al-Shaybani does not use the term ‘international law’, his Arabic term ‘Siyar’ includes both public and private international law. However, the difference between these is that the former did not consider all the subjects of international law of his time and certainly did not cover all the subjects covered by Al-Shaybani. Meanwhile, the latter has offered a genuine and thorough treatment of all of the subjects of international law as far as his era is concerned. In addition, Vitoria did not produce any writings comparable to those of Al-Shaybani, for his main legacy was lecture notes from his students and not comprehensive books like those of Al-Shaybani. It is quite hard to imagine a book that did both comprehensively and exclusively consider the subjects of international law in the eighth century. However, all subjects that Al-Shaybani treated in Al-Siyar Al-Kabīr were related to that. His book can only be compared to what comes centuries later – that is, the work of Grotius. Al-Shaybani’s approach was innovative in many ways, for example in considering individuals as subjects of international law, which was only hesitantly introduced in the modern age in Europe. It was only at the time of Vitoria that this idea gained ground: ‘Vitoria’s ius gentium certainly concerns the relations of individuals, and it concerns individuals not only as members of different countries but also simply as individuals.’223 An example of this is Vitoria’s detailed rules regarding the rights of 220 Leon Friedman (ed.), The Law of War: A Documentary History, vol 1 (Greenwood 1972) 3. 221 Neff (n 5) 14. 222 Casassa and Vitoria (n 10) 213. 223 Ibid 147.
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individuals to travel anywhere they wish. The only scholar we know of who preceded Vitoria in directly considering individuals as subjects of international law is Al-Shaybani. D. Comprehensive, detailed and unequivocal legal approach Probably one of the most notable characteristics of Al-Shaybani’s work is his comprehensiveness. When addressing a set of facts, he also treats analogous cases. After explicitly explaining all the rules that govern a certain set of facts, he alters one or more of the given facts of the hypothetically envisaged case and explains the rules relevant to those circumstances. In this respect, even compared to just war, authors writing hundreds of years later, his work was still more comprehensive. For example, unlike Al-Shaybani, ‘[t]here are certainly inadequacies and omissions in Aquinas’s thinking on war’.224 In addition, the latter only addressed some of the regulations of war, whereas Al-Shaybani addressed both war and peace in a comprehensive manner. Another example is Gratian who, despite being one of the most important figures of the late Middle Ages, only treated war by way of sporadic references made to military service in various parts of his Decretum.225 Gratian was not as systematic, comprehensive or detailed as Al-Shaybani was centuries before him. Augustine was cited by Gratian, Aquinas and Grotius and by a large number of Western legal historians working on international law. Yet he neither wrote in detail on subjects related to international law nor wrote with an explicitly legal approach. Those who cited him, it seems, have interpreted legal arguments from his hybrid theological texts. For example, ‘St Augustine’s City of God is not an easy work to read.’226 The translation by the Loeb Classical Library may have done much to mitigate this. However, the issue is that Augustinian thoughts are difficult to interpret from a legal point of view, which is why there is a heated debate between those who claim that Augustine offered some legal teachings on international relations and those who reject such a claim completely.227 The best place to look for his legal opinion on issues of international law would probably be in the works of others such as Gratian, Aquinas and Grotius. Meanwhile, the book of Al-Shaybani 224
Tooke (n 77) 27. Russell (n 143) 56. 226 Saint Augustine, The City of God Against the Pagans, vol iv (Philip Levine tr., William Heinemann 1966) viii. 227 Dino Bigongiari, The Political Writings of St. Augustine (Henry Paolucci tr., Regnery Gateway 1962) vii–viii. 225
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focused mainly on matters of international law from a legal perspective so that even non-Muslims and non-religious people can draw on his legal thoughts. This said, Grotius, referring to both ancient and medieval writers related to international law, concluded that: no one has dealt with the subject-matter as a whole, and those who have treated portions of it have done so in a way to leave much to the labours of others. Of the ancient philosophers nothing in this field remains; either of the Greeks, among whom Aristotle had composed a book with the title Rights of War, or-what was especially to be desired-of those who gave their allegiance to the young Christianity. Even the books of the ancient Romans on fetial law have transmitted to us nothing of themselves except the title. Those who have made collections of the cases which are called ‘cases of conscience’ have merely written chapters on war, promises, oaths and reprisals, just as on other subjects.228
Nevertheless, had Grotius taken Al-Shaybani’s work into consideration, his statement above might have been different. It should be emphasized that as far as Europe is concerned, Grotius made a significant contribution to the study of international law. Accordingly, Muldoon, comparing Grotius to other European figures in the field, underlines that he ‘set the issue of international law and relations in a broader perspective than had Innocent IV or the other canonists’.229 Thus, it seems that Grotius is the most appropriate Western international law scholar to compare to Al-Shaybani. Unlike Al-Shaybani, Grotius and Vitoria did not limit the options of rulers with regard to interpreting international law. This is what led Casassa to express his concern that ‘[w]ithout calling into question Vitoria’s intentions, the fact is that his plan would function only if the consciences of kings were sufficiently sensitive’.230 This is because he relies on the good intentions of rulers as much as (if not more than) he relies on complicated legal rules. An example is apparent in appointing the prince prosecuting a just war to be both the judge and jury who has the right to estimate what sort of compensation and punishment should be imposed on the other party in war. Vitoria frequently repeated that his rules should not to be misused; however, this minimizes the impact of his work. Grotius had a similar approach to Vitoria, although we do not see as many warnings such as those of Vitoria in his writings. 228 229 230
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Grotius, The Law of War and Peace (n 95) 22. Muldoon (n 15) 158. Casassa and Vitoria (n 10) 211.
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While some take the view that Al-Shaybani gave less attention in his book to peace than war, this makes sense in historical context.231 Peaceful relations between nations today are far more developed than they were in the time of Al-Shaybani. As a result, we now have international commercial law, international trade law, international aviation law and many more. E. Realistic approach Al-Shaybani’s work takes a realistic approach, showing a deep understanding of politics as well as international law in his time. As explained above, the Qura’an and Sunnah and other sources of Siyar are not always explicit, and in many cases the legislator did not provide clarification. In such cases, Al-Shaybani took a realistic approach while maintaining the moral and ethical principles required by principles of Siyar. For example, his approach to war is rightly described by Kelsay as ‘military realism’.232 As Al-Shaybani ‘issued a number of opinions in response to questions about military options and the immunity of noncombatants from direct and intentional killing […] he tried233 […] to balance considerations of military necessity with the restrictions characteristic of early Muslim practice’.234 Furthermore, if compared to justwar theorists even towards the late medieval period, Al-Shaybani’s work is still the most realist, the most humane and the most comprehensive at the same time. The doctrine of Aquinas, for example, ‘in no way reflects or is adapted to contemporary politics, ecclesiastical, and social conditions or ideas, such as feudalism and imperialism’.235 F. Al-Shaybani and contemporary international law Al-Shaybani’s work is not modern international law. The relationship between Augustine, Gratian, Aquinas, Vitoria, Grotius and Al-Shaybani is that they all have commented – with different types of contribution – on subjects related to the area of international law. The contribution of the first three was limited and is mainly confined to discussion of issues relating to jus ad bellum. As for Vitoria, who contributed more, Antony Pagden rightly said, ‘although it is clearly false to speak of Vitoria as the father of anything so generalised and modern as “International Law”, it is the case that his writings became an integral part of later attempts to introduce 231
Abū al-Wafā (n 50) 45. John Kelsay, ‘Al-Shaybani and the Islamic Law of War’ (2003) 2 Journal of Military Ethics 63, 71. 233 Sentence added. 234 Kelsay (n 232) 71. 235 Tooke (n 77) 26. 232
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some regulative principle into international relations.’236 In contrast, Grotius too, according to Vollenhoven, did not write sketches of international law as it is perceived today. ‘The subject matter of Grotius’s book is not international law in its modern meaning.’237 Rather, the purpose of his book was ‘to explain the law which reigns on earth, so far as this law is not the law of separate states (nations) and of their political subdivisions’.238 Thus, he was not writing solely about national law, which he calls ius civil in his book, and was not writing a ‘modern international law’ textbook. He collected rules from different stages of history and from different philosophies and religions in order to support what he thought was the law applicable to humankind. This also, in part, applies to Al-Shaybani with greater emphasis on the fact that his book on international law can only be compared to that of Grotius. This is because, in general, it was both as detailed as that of Grotius is and was sketched with great legal technicality and sophistication. In addition, the scope of Al-Shaybani’s international law book goes beyond Grotius to cover inter-state, inter-religious and transnational relations. Nevertheless, none of the above-named scholars defined international law, including Grotius in his book Iure Belli Ac Pacis. ‘For international law the book does not even attempt to invent a name, as it does not regard it a separate matter. The book points out what is the law which in the author’s view is binding on general principles; it refrains from adding what is merely customary239 … or statutory240,241 Grotius’s book in fact is ‘neither a book on international law in the sense that it is confined to rules between states (nations), nor in the sense that it separates a law of mankind for individuals from one for nations’.242 In the first sense, Al-Shaybani’s book was different as explained above, but in the second sense the two books are the same, for in Al-Shaybani’s the law of nations is applicable to both individuals and nations, yet it is an integral part of Islamic law.
236
Pagden and Lawrance (n 206) xxviii. C. van Vollenhoven, The Framework of Grotius’ Book De Iure Belli Ac Pacis (1625) (Noord-Hollansche 1932) 1. 238 Ibid. 239 Vollenhoven notes that there are only some limited exemptions to this. 240 Again, Vollenhoven notes that there are only some limited exemptions to this. 241 Vollenhoven (n 237) 1. 242 Ibid 17. 237
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3. The law of war The Roman philosopher Seneca protested that: [w]e try to restrain murders and the killing of individuals. Why are wars and the crime of slaughtering nations full of glory? Avarice and cruelty know no bounds. In accordance with decrees of the Senate and orders of the people atrocities are committed, and actions forbidden to private citizens are commanded in the name of the state.1
Unfortunately, the world of Seneca was no more warlike than ours is today. This is why every attempt to regulate war and lessen its atrocities must be taken seriously as long as war cannot be eliminated as a practice. Al-Shaybani, nevertheless, wrote about declarations of war, justification and limitations of use of force, prisoners of war, spoils of war, ceasefire, surrender, truce, international trade, travel regulations and conflict laws during war. He covered civil or internal wars, alliances, the issue of allowing foreign troops passage to attack others, neutrality, the principle of non-intervention and issues related to the participation of foreign fighters in civil wars. He went on to write about the rules and regulations of many topics related to these in detail. For example, he discussed rules related to international commercial affairs during war in an unprecedented way. In this study, I will only focus on some aspects of war in the international sphere. War in itself was for states to decide on. When a state decided to go to war, it was merely exercising a legal right granted by ‘international law’. ‘War was in law a natural function of the State and a prerogative of its uncontrolled sovereignty.’2 This was the perception, in most cases, until the middle of the twentieth century.3 However, it should be examined whether this was also the position of Al-Shaybani. In this chapter, I will examine Al-Shaybani’s writings in Al-Siyar Al-Kabīr on the topic of the regulation of war. I will only discuss some of 1 Hugo Grotius, Hugo Grotius. The Law of War and Peace: De Jure Belli Ac Pacis Libri Tres (Francis W. Kelsey tr., Indianapolis 1925) 170. 2 L. Oppenheim, International Law: A Treatise, vol 2 Disputes, War and Neutrality (Hersch Lauterpacht ed., 7th ed., Longmans 1952) 178. 3 Ibid.
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the most important issues he addressed and have selected topics that he focused on in most detail in his book and that are central to war affairs. This chapter is divided into two key parts: jus ad bellum and jus in bello.4 Prior to this, I will give a brief historical account of the customs and laws regulating war before and around the time of Al-Shaybani.
3.1 BRIEF HISTORICAL ACCOUNT OF LAW ON WAR AFFAIRS 3.1.1 General History Legal historians have indicated that humanity has long known some forms of rules and customs related to war. Some argue that this was as early as 3100 BC.5 Friedman asserts that ‘[v]irtually every civilization of which we have record placed some limitations on the conduct of warfare. As early as the Egyptian and Sumerian wars of the second millennium B.C., there were rules defining the circumstances under which war might be initiated.’6 Moreover, some argue that contrary to the way ancient civilizations are often perceived, in Ancient Greece war was not always the normal state of affairs. Greeks, then, believed that if they did not meet certain conditions and still went to war they would be punished by God.7 Meanwhile, there was a custom called ‘reprisals’ whereby an individual is permitted ‘to use force for the protection of rights not only against an alleged foreign wrongdoer but against his country and fellow citizens as well’.8 Although these were rules to be followed in war, some think that these ‘private reprisals are preeminently symptomatic of lawlessness and barbarism. This is very true of ancient Greece.’9 Furthermore, although
4
I have chosen these two terms as they best cover the most important topics in the area of the law of war and they will allow us to historically assess Al-Shaybani’s contribution. 5 Arthur Nussbaum, A Concise History of the Law of Nations, Revised Edn (Macmillan 1954) 1. 6 Leon Friedman (ed.), The Law of War: A Documentary History, vol 1 (Greenwood 1972) 3. 7 Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome, vol 2 (Macmillan and Co, Ltd 1911) 176. 8 Nussbaum (n 5) 8. 9 Ibid.
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war with Greek cities was not preferred, war with others was the norm, as held by Aristotle and even Plato.10 The oldest identified traces of more solid rules concerning war were religious, such as Jewish law. For example, ‘Deuteronomy contains what are probably the oldest written canons on warfare prohibiting the killing of women and children, among others.’11 Moreover, in Deuteronomy, Nussbaum claims that, there is ‘an indication of the notion of holy war, which came to be resumed by Islam and, in the Crusades, by Christianity’.12 Historians stress that even in the seventh century BC, there are some traces of humanization in war. They cite the example of 690 BC when the Sennacherib led a successful campaign against Jerusalem and dealt with their captured enemy according to a prescribed law. They ‘handled most of the conquered Jews with legally prescribed mercy’.13 On the other hand, ancient India and China knew many customs according to which war was humanized. The ancient Chinese prohibited waging wars ‘during the planting and harvesting seasons’.14 Furthermore, in the fourth century BC, in his famous book The Art of War, Sun Tzu said that attacking the injured and the elderly among the enemy is forbidden.15 It was in ancient China when ‘[f]or the first time in history, a conception of war was integrated into a cohesive general structure of social, political and moral theory’.16 Furthermore, unlike the Greek concept of a latent state of war with others, Confucianism offered a great deal of peacefulness in its conceptualization of the world. In fact, ‘[t]he concept that peace was the natural condition of the world would seem to have been first articulated in China.’17 Yet some scholars insist that none of these were international laws in the actual sense.18 For some this was due to the limited scope of applicability or to their discriminatory nature. For others, some of these rules were only customs that had not yet reached the stage where they could be called laws. By contrast, the Hindus who followed the code of Manu had some customs but these were only with regard to treatment of the enemy in 10 Stephen C. Neff, War and the Law of Nations: A General History (Cambridge University Press 2005) 30–31. 11 Nussbaum (n 5) 3. 12 Ibid. 13 Friedman (n 6) 3. 14 Ibid. 15 Ibid. 16 Neff (n 10) 10. 17 Ibid 31. 18 Nussbaum (n 5) 3.
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warfare. For example, they prohibited killing a sleeping enemy, a naked enemy or an enemy who has lost his coat of arms.19 Nevertheless, they did not regulate or limit resort to war and in any case the few rules they had were not applicable when the enemy was not from kindred races.20 Indians seemed to have been very interested in the classificatory side of writing about war. In the fourth century AD, Kamandaka wrote treatises in which he described as many as 16 types of war.21 However, in general, both the ancient Chinese as well as the ancient Indians were no less warlike nations and no less brutal and savage than many other ancient civilizations.22 In fact, some think that in the ancient Orient, without much difference from primitives, warfare did not know limits to killing and cruelty.23 Ancient Rome had also known some forms of customs and rules as far as wars were concerned.24 For example, in around 500 years BC they established the institution of fetials, which consisted of a group of priests. This religious institution was ‘entrusted with the administration of the religious ceremonials pertaining to treaties and to war and other international matters (legation, extradition)’.25 The fetials were to decide whether a foreign entity was in violation of its ‘duties towards Romans’.26 If this institution recommended war to the Senate and its recommendation was accepted then the war was considered to be just. However, only the Roman party decided whether a war was legal, despite being both the judge and a party at the same time.27 This is another example of how the Romans, especially in that era,28 considered all others as unworthy of being subjects of the law. Furthermore, the fact that there are no clear regulations makes this system very subjective. Similar to the Greeks, Ancient Rome considered itself ‘permanently at war with any state with which it did not have a treaty of friendship or alliance (foedus)’.29 In any case, ‘it cannot be said that the Romans produced any very elaborate thought on the subject.’30 19
Ibid. Phillipson (n 7) 204–205. 21 Neff (n 10) 14. 22 Phillipson (n 7) 204. 23 Nussbaum (n 5) 5. 24 Phillipson (n 7) 167. 25 Nussbaum (n 5) 10. 26 Ibid. 27 Frederick H. Russell, The Just War in the Middle Ages (Cambridge University Press 1979) 5. 28 Nussbaum (n 5) 166–200. 29 Neff (n 10) 31. 30 Ibid 37. 20
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Thus, both ancient Greece and Rome knew some very useful rules31 whereby the use of force was, to a very small extent, regulated. However, these rules were only applicable to the entities they marked as worthy of the law in their times.32 In fact, this evokes the views of the founders of the post-medieval European international law, who claimed that this law applied only to the ‘civilized’ world (European states). Thus, generally, although some think that the ‘Roman international law of peace was a great advance on the Greek system … the Roman law of war remained very much the same, recognised no right for the belligerent, and using nothing but discretion regarding the non-Roman enemy’.33 During the Middle Ages, the spread of Christianity in the West played a great role in changing the general theoretical perception of affairs of war, especially in Rome. Walker (1899) points out that Christianity was one of the most effective cures to the diseases of international law regarding war in Rome.34 In the beginning, the notion of pacifism and non-resistance prevailed.35 However, this attitude was later balanced by the development of the old Greco-Roman36 doctrine of ‘just war’.37 Some constraints on war affairs were also known. For example, around the eleventh century, the Truce of God system was introduced by the Church, which prohibited warriors from the use of force on certain days of the week.38 Nevertheless, the Truce of God was directed against violence and not against war; it was meant to prevent violence occurring in a certain geo-religious space39 and there is no evidence that it was intended to be applicable to others, especially to non-Christians.40 Furthermore, during the Middle Ages, in the West private reprisals were also practised widely 31 For example, declaration of war rules and the concept of ‘just war’ when war is required to be authorized and waged for a ‘justifiable reason’. 32 Phillipson (n 7) 167. 33 Muhammad Hamidullah, The Muslim Conduct of State (5th edn, SH Muhammad Ashraf 1968) 64. 34 Thomas Alfred Walker, A History of the Law of Nations: From the Earliest Times to the Peace of Westphalia, 1648, vol 1 (Cambridge University Press 1899) 67. 35 Joan Doreen Tooke, The Just War in Aquinas and Grotius (SPCK 1965) 1–5. 36 The idea was originally Greek and was adopted and enhanced by the Romans. 37 Friedman (n 6) 6. 38 Ibid 11. It is interesting to note that prohibiting fighting in certain periods of time was known to the Arabs centuries before and was endorsed by Islam in the seventh century. 39 Russell (n 27) 34. 40 Neff (n 10) 70.
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and almost freely against foreign individuals and their entities, with only a few procedural exceptions. It was only towards the end of this era when most but not all Western nations brought this practice to halt.41 Moreover, while it is true that some medieval Western practices were chivalrous, the chivalrous practices were not legally binding. ‘[T]hus the formal declaration of war which was practised up to the seventeenth century is presumably related to chivalry.’42 During the Middle Ages, the West’s most significant input was probably the revival of the Roman doctrine of just war. The resuscitation and altering of this doctrine was carried out by St Augustine (d. 430) in a Christian spirit. He did this ‘in connection with the objections on the basis of the scriptures which Tertullian (160–230) and other early Church Fathers had raised against Christian participation in war and military service’.43 Cited by Aquinas, who seems to be in agreement, Augustine thinks that according to the Gospel Christians are free to take arms; he thinks that the Gospel did not forbid Christians from being soldiers.44 Indeed, later, Aquinas went as far as to conclude that it is lawful for clerics and bishops to fight.45 St Augustine permitted this participation only when a ‘war is just’.46 In his view, war was just if it was ‘for the avenging of injury suffered – when one must vanquish by armed force a city or a nation which is unwilling to punish a bad action of its citizens, or which refuses to restore what it has unjustly taken’.47 To him as long as the motive for war was to punish sinners and therefore achieve peace, then the war is licit.48 ‘[U]nfairness of the opposing side,’ says Augustine, ‘occasions just war.’49 He was against wars for power or even revenge. However, although he had always reiterated that the objective of war is peace, to him conquering others is one of the ways to establish it.50 Further, if the authority’s final aim is to establish peace then the war is godly. According to Augustine, all that is needed for a war to be just, so 41
Nussbaum (n 5) 25–6. Ibid 27 (footnotes omitted). 43 Ibid 35. 44 R. W. Dyson, Aquinas: Political Writings (Cambridge University Press 2002) 240. 45 Ibid 243. 46 The term just used to describe wars in Western theory has to be used with care, for in most cases it meant justified or lawful rather than just. 47 Nussbaum (n 5) 35. 48 Russell (n 27) 18. 49 Grotius, The Law of War and Peace (n 1) 170. 50 Russell (n 27) 16. 42
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to speak, is authorization by the monarch.51 Furthermore, he considered the authority to be the guardian of peace and therefore to have the ultimate discretion on deciding on what a just war is for the sake of ‘peace’. Thus, Augustine said that ‘the natural order which seeks the peace of mankind, ordains that a monarch should have the power of undertaking war if he thinks it advisable’.52 St Augustine, following the footsteps of some other Church fathers, had to mitigate this strong biblical pacifism in response to necessity. This might be due to the need to compromise with emperors to defend church interests worldwide. Thus Russell explains that Constantine’s ‘benefactions to the Church and the peace he achieved exerted a subtle but powerful pressure on Christian theologians to accommodate Christian citizenship to Roman wars’.53 The new approach is to free the hands of the emperor to use force as a necessary ‘chore of punishing wrongdoers’.54 What is vital here is the definition of sin and wrongdoing. To the Romans, this was the violation of their law. However, St Augustine made it encompass all acts that are not congruent to God’s law. Therefore, ‘any violation of Christian doctrine could be seen as an injustice warranting unlimited violent punishment.’55 In addition, this approach dictates that ‘the gospels forbade only the use of force for egoistical ends’.56 Gratian, who was behind the institution of canon law during the twelfth century, followed St Augustine and went even further. These teachings represented the beginning of a new era in Church history in which it started to participate quite heavily in war affairs (e.g. the Crusades).57 This is because Gratian was of the opinion that a ‘soldier can please God with warlike arms’,58 and ‘[i]t is not a sin to serve as a soldier’.59 As St Augustine did before him, Isidore of Seville (d. 636) played a significant role in transmitting the knowledge of ancient Rome to the Christian world. Retracing Cicero, he proposed that war must only be waged for repelling and punishing enemies and the recovery of lost 51
Friedman (n 6) 7. Dino Bigongiari, The Political Writings of St. Augustine (Henry Paolucci tr., Regnery Gateway 1962) 163. 53 Russell (n 27) 12. 54 Neff (n 10) 47. 55 Russell (n 27) 19 (footnote and punctuations omitted). 56 Neff (n 10) 47. 57 Ibid 47–8. 58 John Eppstein, The Catholic Tradition of the Law of Nations (Burns Oates & Washbourne Ltd 1935) 81. 59 Ibid. 52
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goods after a formal declaration.60 In the West, his input was only overshadowed by Aquinas in the thirteenth century.61 Nevertheless, generally, war was considered to be just against others just for being different and it was also considered to be a tool to punish those who have committed the sin of being an ‘infidel’. It is true that fighting others just because they are different in faith was not explicit in Augustine’s teachings.62 However, in the teachings of Gratian it was less implicit63 and in later teachings such as those of the Decretists they are as explicit as they could possibly be.64 Gratian clearly addressed rewarding those who fight against pagans and non-Christians, implying his support for war on the ground of religious differences. For example, he goes on to say: ‘[w]hoever dies in battle against the infidels is worthy to enter into the heavenly kingdom.’65 Aquinas too ‘justified fighting enemies to restrain them from further sinning’.66 Furthermore, in the West, it was only in the late medieval period that some theologians such as Innocent IV67 and Hostiensis clearly prohibited the war of conversion.68 Nevertheless, probably one of the clearest examples of strong opinion against wars on the basis of the ‘mere’69 difference of religion was that of Vitoria, who had clearly and rigorously prohibited wars on such pretext. ‘Difference of religion,’ he argued, ‘is not a cause of just war.’70 The development of St Augustine’s just war theory could be attributed, firstly, to Aquinas. He required three conditions in order for a war to be called just: authority of the sovereign, just cause (attacking those who 60
Russell (n 27) 27. Nussbaum (n 5) 35. 62 Russell (n 27) 73. 63 Ibid 74–6. 64 Ibid 112–15. 65 Eppstein (n 58) 82. 66 Russell (n 27) 260. 67 It is always interesting and important to note that most of the scholars supporting such changes towards the other in Europe had come from either Italian or Spanish educational backgrounds. It should be investigated to what extent Al-Shaybani and his colleagues writing on Al-Siyar had influenced these thinkers and therefore Europe at large. 68 Russell (n 27) 293–4. 69 I have highlighted this word to demonstrate that I am aware that while some people had rejected such justifications of war, in most cases this rejection was not without qualifications and exceptions. 70 Francisco de Vitoria, De Indis De Ivre Belli Relectiones, Text of 1696 (Ernest Nys ed., John Pawley Bate tr., The Carnegie Institution of Washington 1917) 170. 61
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attacked) and rightful intention.71 Yet it seems that he was still not able to completely abandon the old notion of considering war as a charity, as expounded by St Augustine,72 Gratian73 and others. Thus, ‘Aquinas’s only discussion of war occurs in a treatise on charity.’74 According to Augustine, Gratian and Aquinas, war was permitted in this part of the world against wrongdoing (including being different in faith). War was just if it was for punishing wrongdoers or if it was for the recovery of what was lost to wrongdoers. Conversion was a natural consequence of a just war. Gratian, quoting St Augustine, stated that ‘enemies of the Church are to be coerced even by war’.75 In reality, Augustine changed his position from opposing forceful conversions, such as was practised in Rome, to supporting compulsion into religion.76 The Church in Medieval Europe, it can be said, only knew some forms of limitations on how to conduct just war. These are the Peace of God in 975, the Truce of God in 1027 and banning the use of certain weapons in 1139. Nevertheless, the issue is that it did not promote any of these before these dates, nor did it promote these limitations to be applicable to non-Christians even after these dates.77 Nonetheless, especially in and after the fifteenth century, scholars later developed the Thomistic teachings taking into consideration classical views such as the Greek, Roman and Christian perspectives. Probably one of the most important, among these scholars, was ‘Francisco de Vitoria (1485–1546), a Spanish Professor who lectured on Thomistic philosophy in Paris and Salamanca’.78,79 Indeed, some attribute to him the establishment of ‘a body of writing about war which, for the first time, dealt squarely with harsh practical questions rather than with abstract generalisation’.80 71
Friedman (n 6) 9–10. Russell (n 27) 16. 73 Ibid 60. 74 Tooke (n 35) 26. 75 James Turner Johnson, The Holy War Idea in Western and Islamic Traditions (Pennsylvania State University Press 1997) 52–4. 76 Bigongiari (n 52) 355. 77 Johnson, The Holy War Idea in Western and Islamic Traditions (n 75) 103–104. 78 Friedman (n 6) 11. 79 Although most Western scholars are reluctant to establish any link between this scholar (indeed most of this period’s scholars linked with Spain) and the fact that the Spanish universities were teaching the Islamic perspective on the ‘just war’ (Siyar), as well as other perspectives, this is not necessarily proof of a disconnect between their teachings and Al-Shaybani’s. 80 Neff (n 10) 70–71. 72
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This in fact highlights two facts that are important to this enquiry. First, since Neff stresses that all of the writings on war before Vitoria were mere generalizations and that his writings represent the first practical and wideranging work in the area, chances are that Al-Shaybani was the one who first achieved this. Secondly, the fact that Neff considers Vitoria, hundreds of years later than Al-Shaybani, the first to write in such a way on this topic is but another example to show that, especially in the West, there is a lack of knowledge with regard to the contribution of Al-Shaybani. In the Eastern Roman Empire, the head of the state (the emperor) was conceived as God’s vicegerent and therefore free to wage wars whenever he deemed fit. The ‘combination of the two powers – spiritual and temporal – in the emperor had its repercussions on the legal conception of war. Byzantium held that war is just, meritorious and even holy so long as it serves the interests of the state.’81 In addition, Christians outside of his empire were considered subject to the emperor’s protection. This often led him to aggression even if a peace treaty was in place. For example, after the 562 peace treaty was signed with the Persians, the Emperor Justin presumed the right to assist the Christians who were rebelling against the Persian ruler.82 These practices, accompanied by the notion of being the lawmaker and (the only) ruler, had left no room for legal norms to dictate any terms. Even the doctrine of just war had no role to play in this part of the world. This led to savagery and cruelty in the practice of this empire where others were concerned. Blinding prisoners of war was just one of the brutal practices.83 In general, ‘Byzantium saw unprecedented slaughter, including the massacre of defenceless civilians and captured prisoners, particularly of enemy nationalities such as the Slavs, Magyars, and Turks.’84 It is important to note that if there was any possible contact between Al-Shaybani and other civilizations that he could have learned from, it would naturally be this empire. Yet I have above refuted speculation that he borrowed from other nations. Nevertheless, the following chapters will further evidence that the rule of law he introduced could not have been borrowed from the Eastern Roman Empire. However, one common shortcoming is the practices of many scholars who describe just war in the Middle Ages as if it was complete and as if all just war theorists were in agreement. It must be remembered that this concept only completely matured after the end of the Middle Ages. 81 Muhammad Tal’at Al-Ghunaimi, The Muslim Conception of International Law and the Western Approach (Nijhoff 1968) 77. 82 Nussbaum (n 5) 39. 83 Ibid 49. 84 Friedman (n 6) 11.
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Moreover, it would be wrong to assume, as many have done, that just war is solely Christian or solely secular in origin and development.85 Finally, generally one could say that the world was not as unhostile as one would have wished for it to be. For up until the late medieval period: [h]ostility towards the foreigner was a persistent theme running through the sources. Hellenic Greeks considered all wars against non-Hellenes to be justified; internal conflicts did not qualify as wars. The Romans similarly exhibited an instinctive animosity toward barbarian tribes that was reinforced by patristic persecution of pagans and heretics. The Carolingian ecclesiastics developed the notion of a holy war for conquest and conversion of infidel peoples.86
Besides, Oppenheim also importantly stressed that: [d]uring antiquity, and the greater part of the Middle Ages, war was a contention between the whole populations of the belligerent states. In time of war every subject of one belligerent, whether an armed and fighting individual or not, whether man or woman, adult or infant, could be killed or enslaved by the other belligerent at will.87
However, if this were true in Europe, which historians seem to have taken as a main field of research, would this statement also apply to Al-Shaybani’s world, drawing limitations and rules to restrain war? This is what we shall consider next. 3.1.2 Pre-Islamic Arabia As explained earlier, Islamic law either endorsed, amended or untouched practices known to the Arabs before its dawning. For example, the pre-Islamic Arabic system of having sacred places and sacred months where and when war was prohibited88 was later endorsed by Islamic law. This was also the case as far as many areas of the law of war are concerned. Thus, the pre-Islamic Arabic laws of war are important. As indicated in Chapter 2, Arabs in this era developed rules on: declaration of war, treatment of enemy persons and property, prisoners of war, distribution of booty, special privileges of the commander of the expedition, spies, hostages, truce and armistice and parley and a host of other matters, even distinctive uniforms … even neutrality was not unknown.89 85
James Turner Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (Princeton University Press 1975) 26. 86 Russell (n 27) 293. 87 Oppenheim (n 2) 204. 88 Al-Ghunaimi (n 81) 17. 89 Hamidullah (n 33) 61–2 (emphases added and footnotes omitted).
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Arabs by this time knew rules that ‘forbade fighting during certain periods of the year90 and condemned excessive destruction, reflecting both a code of honour that protected the weak – women, children, the aged, and prisoners – and the view that fighting is instrumental to an end’.91 Later, ‘these rules are reinforced by the morality of the Qur’an and the sunna.’92 In addition, one of the most interesting aspects of the Arabic version of international law is that it initiated a system whereby collective force will be used against all aggression, especially against weak and vulnerable entities. Arabs called this the League of the Virtuous (Hilf Al-fedal) in which, as mentioned earlier, the parties to this treaty/ alliance vowed to defend the oppressed against enemies until justice is done.93 This is a very interesting point in the history of international law. Indeed, it represents a pioneering attempt to create something similar to the League of Nations or even to the United Nations. Above all, it represents the seed of the idea of using collective force in defence of the oppressed. The collective use of force against an oppressor after failing all peaceful attempts to settle the situation was indeed detailed in the Holy Qura’an around 1400 years before the UN charter came into existence.94 What is more, some of the Arabic practices of alliance and protection served both as a prevention of war or attack at times and as a start of it at others. This is clearly seen in two practices of the Arab tribes who had some political structure and independence somewhat similar to that of the city-states existing at that time in other parts of the world. The examples of these practices are dhakhiel and jiwar, discussed earlier. Nevertheless, in general, although they recognized some procedural and prerequisite conditions to be respected when and while going to war, Arabs sometimes led atrocious wars for the slightest reasons. They hardly knew limits to using war, which they understood as a tool to restore justice, for revenge, and even for economic gains. This is so to the extent that ‘[t]he clan strategy cherished patriotism within itself as an ultimate end and regarded other clans as its justifiable victims. The Arab who is not attached to a tribe is considered an outlaw.’95 In the absence of a peace treaty, war was indeed the rule in this part of the world too and 90
The four sacred months. Terry Nardin (ed.), The Ethics of War and Peace: Religious and Secular Perspectives (Princeton University Press 1996) 259. 92 Ibid. 93 Hamidullah (n 33) 61. 94 For more readings refer to Mashood A. Baderin (ed.), International Law and Islamic Law (Ashgate 2008) xxxiii. 95 Al-Ghunaimi (n 81) 15. 91
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gazu (attacking others for the sake of despoiling) was indeed the norm in Arabia.96 Worse still is that the treatment of enemy personnel knew hardly any limits. Even after the enemy was killed, typically in that age the body might still be treated badly. For example, enemies’ heads were sometimes cut off and displayed as trophies.97 Even so, Arabs also knew many peace-promoting practices, which were later adopted by Islam. These include the ama’an.98 Later ‘[a]ny Moslim originally had the power to grant foreigners protection by a one-sided act (ama’n) which was binding upon the whole community. The foreigner became thereby a mustami’n.’99 This was practised both in times of war and peace.100 Only such humanistic practices mitigated the horrors and scourges of wars. 3.1.3 Islamic World In general, ‘Islam, as well as Christianity, regards war as an evil and peace as the normal state of things.’101 However, Islam played a more proactive role in regulating and monitoring both the conduct and end of war from the start. ‘Islamic jurisprudence offers relatively rich discussions on many issues relating to war, its limitations, and its justifications.’102 This substantial part of the civilizational contributions to the field is still ‘poorly known’. Even the known parts are not enough to represent a massive heritage that is both deep in history and wide in scope. In addition, ‘[t]oo many works of Islamic jurisprudence from all periods remain unpublished, and the lines of affiliation among even those works published to date are not yet always understood.’103
96
Ibid 142. Youssef H. Aboul-Enein and Sherifa Zuhur, Islamic Rulings on Warfare (Strategic Studies Institute, US Army War College 2004) 17. 98 Nussbaum (n 5) 53. 99 Ibid (footnotes omitted). 100 Al-Shaybani had invested heavily in this topic, which could in itself be subject to a separate investigation that would not realistically or practically fit here. 101 Al-Ghunaimi (n 81) 78. 102 Fred M. Donner, ‘The Sources of Islamic Conceptions of War’ in John Kelsay and James Turner Johnson (eds), Just War and Jihad: Historical and Theoretical Perspectives on War and Peace in Western and Islamic Traditions (Greenwood Press 1991). 103 Fred M. Donner, ‘The Sources of Islamic Conceptions of War’ in ibid. 97
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The reason for producing such a mass of literature in the area is probably that Islam, unlike some other religions,104 does not differentiate between state affairs and individual affairs as far as law is concerned. Hence, ‘[a] remarkable feature of Islam is that it is not only a religion, but also a moral code and a legal system.’105 Moreover, from the very beginning, all neighbouring entities and empires were hostile to Islam apart from Abyssinia. The other two major entities represented in the Persian and Byzantine empires were ‘claiming universal domination and proclaiming war as the effective way to achieve their ambition’.106 All of this must be borne in mind when this topic is studied. As I have pointed out above, the Qura’an (where jihad is regulated) is a book that should be read in its entirety. Lawyers who are not aware of this important fact often fall into misinterpretations and misjudgements. Thus, Aboul-Enein asserts that: [s]ome Western readers will probably find the Islamic rulings on war to be contradictory. It may not be clear whether they promote war or peace. Muslims believe the Quran to be divinely revealed, and Quran experts hold that the text must be understood in the spirit of its entirety, and not simply reduced to selected verses or phrases. Surah 3, al-Imran, verse 7 reads: And those who are firmly grounded in knowledge say: ‘We believe in the Book; the whole of it is from our Lord:’ and none will grasp the Message except men of understanding.107
Some scholars went as far as to exclude the Islamic world from their historical overview of the subject.108 Neff (2005), for example, while acknowledging the Islamic contribution in this field internally, suggests that internationally there is nothing to be considered from this part of the world. He claims that Islamic society ‘held relations within the Islamic 104 Such as Christianity and the Greek religions, who both think that state affairs are one thing and godly teachings are another; see ‘Othman, Interview with Yusuf Al-Qaradawi, Head of the “World Organisation of Islamic Scholars”’, Aldeen Wa-adunia; A-Shariah Wa-alhayah (20 June 2010). 105 Sobhi Mahmassani, ‘The Principles of International Law in the Light of Islamic Doctrine’ (1966) 117 Recueil Des Cours 230 (accessed 16 November 2011) 210. 106 Al-Ghunaimi (n 81) 70. 107 Aboul-Enein and Zuhur (n 97) 2–3. 108 For example, Friedman (n 6).
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fold to be peaceful, without regard to race, language or cultural heritage, while positing ceaseless hostility against the infidel world outside’.109 Nevertheless, while Neff rejects the existence of any Islamic legal contribution to the topic of international wars, he goes on to explain the Islamic rules on wars with non-Muslims just one page on from that statement.110 Yet he once again claims that ‘Islamic writers did not develop any very deep or extensive body of ideas about foreign war’.111 This statement (which is unique but not uncommon in Western thought) is important, as it further highlights the need for conducting this study. It is true that ‘Islamic rules of warfare are complex, appear to be contradictory and require careful analysis’.112 However, some of the peaceful rules and regulations introduced by Siyar on war affairs hardly have a parallel in the history of most of the Western states in the Middle Ages.113 For example, it is in ‘Muslim law we come across, for the first time, the full-fledged notion of recognising rights for the enemy in all times, in peace as much as in war, rights endorsed by the Qur’an and by the practice of the Prophet and his successors’.114 In Siyar ‘[a] key and continuous theme was that war was to be waged in accordance with religious principles – bellum pium (literally, pious war, or war in accordance with God’s will)115 as well as bellum justum (just war)’.116 Thus, Siyar advocated, unlike the then existing laws and practices, that war should be limited to three cases only, other than which it would be considered illegal. War was made permissible only in self-defence, defence of the oppressed (under some conditions), and defence of freedom of religion. However, many scholars demand that war is only obligatory when it is imposed on Muslims. For example, Al-Zuhili, one of the most authoritative contemporary Islamic scholars, in his Islam and International Law explains as follows: 109
Neff (n 10) 10. Ibid 39–41. 111 Ibid 42. 112 Aboul-Enein and Zuhur (n 97) 1. 113 Christopher G. Weeramantry, Islamic Jurisprudence: An International Perspective (Macmillan 1988) 136–8, 144. See also Hamidullah (n 33) 69. 114 Hamidullah (n 33) 69. 115 I reject using the term God’s will, what Aboul-Enein and Zuhur should have used here is God’s law instead. Islamic traditions contain many references where people should not make oaths or promises on behalf of God for they might be wrong. Thus Muslims should follow God’s orders and not claim that he willed something unknowingly. 116 Aboul-Enein and Zuhur (n 97) 4. 110
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[t]here are three kinds of circumstances that legitimize warfare in Islam, namely: a)
b)
c)
aggression against Muslims, either individually or collectively, as preachers for Islam, or attempts to make Muslims apostates or the launching of war against Muslims. God the Almighty says: ‘To those against whom war is made, permission is given (to fight), because they were wronged …’ and ‘And slay them wherever ye catch them, and turn them out from where they have turned you out, for tumult and oppression are worse than slaughter …’ assistance for the victims of injustice, whether individuals or groups. God the Almighty says: ‘And why should ye not fight in the cause of God and those who, being weak, are ill-treated (and oppressed)? Men, women and children, whose cry is: ‘Our Lord! Rescue us from this town, whose people are oppressors …’ self-defence and to ward off attacks on one’s homeland. God the Almighty says: ‘Fight in the cause of God those who fight you, but do not transgress limits, for God loveth not transgressors.’117
Any other use of force in international relations is prohibited. It is important to note that all Islamic scholars agree that in no case should anyone be compelled into religion or out of it. However, some scholars interpreted wars for freedom of religion to be continuous war against the infidels until ‘the word of God becomes superior on earth’. Nonetheless, even this view, which was also held by some Islamic jurists, was not an exception from its contemporary world affairs. In fact, some other systems’ justifications for war were much broader.118 For example, as seen above, the Byzantium Empire had no legal restrictions, which meant that the emperor could go to war almost for any reason he liked. One of the most important features of Siyar is the fact that it did not consider being an ‘infidel’ (non-believer) as wrongdoing and so was not a justification for Muslims to wage war on others. Non-believing entities, in all cases, had to act first in order for them to be a legitimate target of war. For example, if preaching, accepting or practising Islam is hindered, Muslims can then respond. Yet this should only be done as a last resort. In contrast, wars of conversion adumbrated by earlier just-war theorists (such as Pope Gregory I (d. 604)) were only explicitly prohibited in the late medieval periods. Thus, during as well as after the time of Al-Shaybani, in the Western teachings being different was enough to 117 Wahbeh Al-Zuhili, ‘Islam and International Law’ (2005) 78 International Review of the Red Cross 281. 118 If we compare this opinion to that of Greeks and Romans, both eastern and western, where war was just in multiple cases, we find that the limiting of the practice of war to only three defined causes by Islamic scholars is unprecedented.
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justify a war against another party.119 Even the Romanists such as Azo ‘assimilated together all those who deviated from orthodoxy, such as heretics, Jews, pagans, and infidels, and held them liable to punishment on account of their beliefs rather than for any acts of rapine’.120 It was only in the thirteenth century that Pope Innocent IV stressed that ‘non-adherence to Christian faith was not wrongful in and of itself’.121 Meanwhile, ‘Islamic scholars were very concerned with niyah (intent).’122 Not only did war have to fit into one of the above-mentioned three defined categories, it also had to be carried out for no intention other than for the sake of serving God. This is a prerequisite for it to be both legal and acceptable to God. Therefore, only those who have perfectly adhered to the criteria will be considered martyrs if they die in war. This is what one clearly see in the prophetic saying: ‘[h]e who has been killed to uphold the word of God has been martyred for his sake’ (al-Bukhari, Vol. 1, hadith number 223).123 A person who wages war with any other intention is doing anything but the permitted jihad. Therefore, war in Siyar is governed by criteria into which it must fit in order to be legal and also intent, which is internal but serves as an extra guard against utilizing war for egotistical purposes. Thus the Messenger of Islam says, ‘a person whose intent is glory, booty (spoils), or females has no ties to God, and only God knows who strives for his sake’ [‘strives’ refers here to the process of jihad] (al-Bukhari, Vol. 6, No. 430).124 Furthermore, in the Critical Exposition of the Popular ‘Jihad’, the author stresses that: Mohammad never professed to have followed the footsteps of Moses and Joshua in waging wars of extermination and proselytism. He only appealed to the sword in his and his followers’ defence. Never he seems to have been anxious to copy the practice of the surrounding nations, Christians, Jews, and Egyptians. His wars of defence, as they certainly all were, were very mild, specially with regard to the treatment of children, women, and old men who were never to be attacked; and above all, in the mildness shown towards the captives of war who were either to be set free or ransomed,—but were never to be enslaved,—contrary to the practice of all the surrounding nations.125 119
Russell (n 27) 293–4. Ibid 51. 121 Neff (n 10) 42. 122 Aboul-Enein and Zuhur (n 97) 14. 123 Ibid. 124 Ibid. 125 Moulavi Cherágh Ali, ‘Critical Exposition of the Popular “Jihad,” Showing That All the Wars of Mohammad Were Defensive; and That Aggressive War, 120
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On the other hand, Siyar contained detailed rules governing affairs of war, developed by early Islamic jurists and constantly reviewed by their successors.126 As mentioned earlier, Muslim jurists have written comprehensive treatises on the legal justifications of war, treatment of enemy persons, giving quarter, treatment of prisoners of war, ransom, civil wars and rebellions, international highwaymen and pirates, declaration of war, end of war, position of non-combatants, spies, uniforms, flags of truce, enemy property, women in the Muslim army, treatment of the dead, non-hostile intercourse with belligerents, apostasy and many other subjects in the field.127 In fact, there was no equivalent Western contribution before the post-medieval European scholars had emerged.128 In addition, whether in the early age or later, both the law and practice of war were less cruel than any other contemporary nation.129 Even when the Muslim State was under attack, its practice showed both a gentle law of war and utter obedience to it. This is what Walker (1899), probably, meant when he indicated that ‘[t]he Crusaders might even learn, and doubtless did learn, from the Saracens130 lessons in civilisation’.131 Moreover, Heer (1962) asserts in this regard that: Oliverus Scholasticus relates how the Muslim Sultan al-Malik-al-Kamil supplied a defeated Frankish army with food: ‘Who could doubt that such goodness, friendship and charity came 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 in their power.’132
Another example is Tarik Ibn Zyad, the first Muslim conqueror of Spain. As he was commanding his army to enter the latter, following the footsteps of the Caliph Abu Baker, he ordered that ‘no offence should be offered to the peaceable and unarmed inhabitants, that those only should
or Compulsory Conversion, Is Not Allowed in The Koran. With Appendices Proving That the Word “Jihad” Does Not Exegetically Mean “Warfare,” and That Slavery Is Not Sanctioned by the Prophet of Islam’ (1885) 141. 126 Ahmed Mohsen Al-Dawoody, War in Islamic Law: Justifications and Regulations (University of Birmingham 2009) 366. 127 For more details, see Hamidullah (n 33). 128 Weeramantry (n 113) 150. 129 Walker (n 34) 75–7. 130 Used in the West to describe Muslims. 131 Walker (n 34) 75–7. 132 Friedrich Heer, The Medieval World: Europe 1100–1350 (Janet Sondheimer tr, New American Library 1962) 144.
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be attacked who bore or assisted bearing arms, and that plunder should be confined to the field of battle and to towns carried by assault’.133 A further interesting comparison between Siyar and medieval European thought is that self-defence was almost totally rejected as a notion in the latter for fear that it might be used for egotistical goals contrary to the aim of just war which serves the common weal.134 Although, conversely, natural law accepted the notion of self-defence, natural law scholars had never dealt with the notion in depth. Neff claims that as individuals did, ‘states had a natural-law right of self-defence too, against aggressors; but this was little developed in mediaeval writings’.135 Furthermore, although Romanists discussed self-defence, they did not discuss it in relation to war. They rather discussed self-defence as a means of response to private attacks on persons such as those by robbers and murderers.136 While this might be true in the Western medieval writings, this is not the case in Siyar. Siyar writers have dealt with this topic in an exhaustive manner. Overall, it seems that prior to Al-Shaybani, other civilizations only knew very little or no effective rules to limit the use of force against others. Even the most popular contributions such as those of St Augustine were no more than abstract theological doctrines with much moral importance but less legal significance, and they probably played a more significant role as a background to post-medieval studies than they did in their own time.137 Furthermore, ‘Medieval legists eagerly employed both Roman law and Augustine’s doctrine of religious persecutions as hammer and anvil to forge their justifications of wars and crusades.’138 This is what pushed legal historian Walker (1899) to say, both wrongly and rightly, that ‘[i]t is a relief to turn from the rude warfare of the Christian West to the belligerent doings of the Arabs. Not only did the Koran furnish a new Code of Laws of War, but the war-practice of the conquering Saracen supplied an object-lesson for the whole civilised world.’139 Walker was wrong in saying both ‘Christian West’ rather than ‘the West’ and ‘belligerent Arabs’ rather than ‘Muslims’. He was, however, right in the rest of his statement.140 This is because the motive of Western actors was 133
Walker (n 34) 76. Neff (n 10) 60. 135 Ibid. 136 Russell (n 27) 44. 137 Nussbaum (n 5) 17–51. 138 Russell (n 27) 25. 139 Walker (n 34) 125. 140 Just because of an error of judgement made by the likes of Augustine and Gratian, who turned the Christian perspective into a warlike one, this does not 134
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not solely Christian but rather egotistical, whereas what he called ‘belligerent Arabs’ were not always Arabs nor was it Arabic chivalry behind their actions; they were rather Muslims from all parts of the world and their conduct was tamed by Siyar.141 With respect to jus in bello, Siyar offered many humanitarian rules that were only recently introduced into other systems. For example, indiscriminate killing was clearly prohibited by the Qura’an (Al-ma’ida, verse 32). The Messenger reiterated this when he showed disapproval after he found a dead woman lying on the battlefield. He then explicitly prohibited the killing of women and children.142 In truth, violence and punishment of the enemy was never an Islamic agenda, rather completely the opposite. This is because, unlike in just war theory, wars are not fought to punish or kill but they are fought for one of the reasons named above. Thus Prophet Muhammad said that ‘[y]ou are neither hard-hearted nor of fierce character, nor one who shouts in the markets. You do not return evil for evil, but excuse and forgive’ (al-Bukhari, Vol. 6, Book 60, hadith No. 362).143 Some of the cruel practices of that time were completely rejected by Siyar. For example, the displaying of heads of the enemy as trophies practised in pre-Islamic Arabia was completely rejected by Siyar. ‘Two schools of Islamic opinion contest this issue, but the practice generally was frowned upon … due to a [Qura’anic] … verse about transgressing beyond the limits of war, and because burial of the dead was instead recommended by the Prophet, according to Abu Ya‘la.’144 Non-combatants were both identified and protected by Siyar, these were mainly women, children, elders, the infirm and worshippers in places of worship. Prophet Mohammad clearly forbade their killing. It was from his statement and practices that ‘jurists have drawn the principle that those who are noncombatants should not be killed during or after the war’.145 justify the expression ‘Christian West’. It is true for the West in that time not because they were Christians but because of the prominent teaching of the churchmen of that time. In the same time, Walker’s description, the ‘belligerent Arabs’, ironic as it was, would have been better if it was just the ‘Muslims’. 141 This is but another common misconception in Western writings, attributing positive developments to Arabs as if only Arabs existed and attributing negative developments to Muslims as if their action was nothing but a translation of Islamic law into reality. 142 Aboul-Enein and Zuhur (n 97) 22. 143 Ibid. 144 Ibid 17 (footnote omitted). 145 Ibid 23.
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That aside, some thinkers around the world have hugely contributed to the study of laws governing war. Yet the only system that was intended to be applied to all regardless of faith, nationality or race from the seventh century was that body developed by Al-Shaybani and his colleagues, namely Siyar or Islamic international law. Even the bearers of the harshest views among them, never advocated war without lengthy legal prescriptions of how to avoid, how to conduct and how to end it. In this respect, Aboul-Enein reaffirms that: [w]ar verses in the Quran, al-Anfal, verses 60–2, have prompted Islamic commentaries on warfare, its preparedness, and the concept of deterrence: ‘Against them make ready your strength to the utmost of your power, including steeds of war, to strike terror into the hearts of the enemies of God and your enemies.’ (Verse 60, al-Anfal) It is easy to simply quote verse 60 and not the next verse: ‘But if the enemy incline towards peace, do thou (also) incline towards peace, and trust in God: for He is the one that heareth and knoweth.’ (al-Anfal, Verse 61)146
Nevertheless, the wealth of literature on the topic of Siyar pays a lot of attention to the topic of war in general. Islamic jurists from the very beginning comprehensively covered this. Among many other topics, ‘Islamic texts on warfare actually focus on the concepts of just war, typologies of conflicts, treatment of the vanquished, division of spoils, and the upholding of Islamic law, given the travel and exchange between Muslim and non-Muslim territories.’147 As many of its neighbours targeted Islam, it was not surprising that ‘Islamic rulings on the topic in the early period dealt mostly with the law of war’.148 Some sources have counted more than ‘40 classical Arabic texts on warfare written between the 8th and 15th century’.149 The book of Al-Shaybani written in the eighth century must also be mentioned here. Indeed, some have described it as ‘a precursor to international law that provides many details on the legality, typology, and rules of military engagement, truces, and relations between Muslims and the enemy groups or states that surrounded them in the earliest period of Muslim expansion’.150 In addition: 146
Ibid. Ibid 2. 148 Labeeb Ahmed Bsoul, ‘Historical Evolution of Islamic Law of Nations/ Siyar: Between Memory and Desire’ (2008) 17 Digest of Middle East Studies 48 50–51. 149 Aboul-Enein and Zuhur (n 97) 2 (footnotes omitted). 150 Ibid (footnotes omitted). 147
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[e]ven books written by modern Islamic militant ideologues contain a code of conduct for warfare. In the fourth chapter of Human Rights in Islam, Abu al-’A’la Mawdudi, one of Pakistan’s founding fathers and chief ideologists, states: Islam has first drawn a clear line of distinction between the combatants and the noncombatants of the enemy country.151
This background is very useful to aid an understanding the writings of Al-Shaybani. Next, I will focus on the conceptualization of the topic in his writings, after which his jus ad bellum and jus in bello will be discussed.
3.2 AL-SHAYBANI’S TREATMENT OF THE SUBJECT Many scholars would argue that up to the beginning of the twentieth century, war was not seen as an unlawful means of dealing with others. Some limitations on the use of force were only introduced internationally in this century through the UN Charter and arguably through the Kellogg–Briand Pact. Nevertheless, outside Europe, Al-Shaybani had already neatly structured a system in the eighth century whereby the use of force was restricted to only a few permissible situations. He even detailed the regulation of the use of force in domestic affairs. In his book, Al-Shaybani addressed the technical rules of war. The book went into such detail that the colours of flags used in wars were classified.152 Moreover, Al-Shaybani recalls the Prophet’s advice on various matters such as the type of horses that should be used in fighting, not to overload horses with work, not to raise voices during fighting and preferring to wear a turban. In addition, a whole chapter was dedicated to the question of when a soldier requires permission to act from his commander.153 In fact, the author went so far as to discuss the requirement of parental permission for a Muslim to join the army.154 Nevertheless, although Al-Shaybani’s treatment of the subject is very comprehensive, I will discuss only selected parts of his contribution in this book. First, I will analyse the general theoretical aspects characterizing Al-Shaybani’s treatment of the topic as follows. 151
Ibid 23. Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir LiMuhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 1 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 60–75. 153 Ibid 174. 154 Ibid 183. 152
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3.2.1 Definition of War Al-Shaybani, in general, used the term jihad to refer to the use of force in the few cases he described as legally valid and justified wars. As this involved adhering to Islamic law, he preferred (as other Islamic scholars did) to call it jihad. It is clear that this term does not apply to all types of wars that the Arabs knew before Islam. For example, it appears that a war of revenge or a war for the sake of collecting booty or conquering more land would not be considered as jihad. Jihad in general can be carried out ‘by waging war a) with the heart, b) with the tongue, c) with the hands, and d) with the sword. Jihad also means a personal struggle to live as a true Muslim.’155 The term today is largely confused; especially the way it is perceived in the West, thus Kelsay asserts that: some may be surprised to learn that the term does not mean ‘holy war’. It is better translated as ‘effort’, ‘struggle’, or ‘striving’. In its typical presentation, jihad is further joined with the phrase ‘in the path of God’. Muslims who speak of the duty of jihad are thus referring, in the first place, to a moral duty. Given this general formulation, jihad admits of numerous applications. Prayer, worldly work, faithfulness in keeping promises – all these can be, and have been associated with the symbol of jihad.156
However, neither Al-Shaybani nor Al-Sarakhsi offered a definition of jihad. Meanwhile, acts, which were considered part of jihad or types of it, were in general defined if not by the former then by the latter. For example, ribat157 was clearly defined. Although Al-Shaybani sets aside a separate chapter for this topic, it is difficult to conclude that he intended it to be anything other than part of the subject of jihad. The legal evidence he offered in support of it being an obligation, the rules applied to it, and the requirements of those who should conduct it are of no significant difference from that used by him in the context of jihad. On the other hand, it is striking that Al-Shaybani dedicates a separate chapter to jihad and titles it so. In line with this, some scholars prefer to speculate that ribat is different from jihad at least as far as its legal status is concerned. Some would claim that jihad is a public duty if carried by 155
Aboul-Enein and Zuhur (n 97) 4. John Kelsay, ‘Al-Shaybani and the Islamic Law of War’ (2003) 2 Journal of Military Ethics 63, 63. 157 Khadduri rightly defined it as ‘the safeguarding of frontiers of the dar al-Islam by stationing forces in the harbours and frontier-towns (thughur) for defence purposes’. Majid Khadduri, War and Peace in the Law of Islam (1st AMS ed., AMS Press 1979) 81. 156
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some not required by the rest, whereas ribat is an individual duty required from all. For example, Aboul-Enein suggests, that ‘[s]ome jurists considered defense of the frontiers (ribat) to be a requirement of Muslims comparable to jihad’.158 Nevertheless, the word ribat is originally borrowed from its physical meaning, where it meant tying the horses in the bordering areas and persisting with doing so in order to be prepared for any attack, to make the area safe for travellers and to serve as a deterrent to those who might plan to attack the state.159 Nonetheless, although Al-Shaybani comprehensively discussed jihad, how to conduct it, when and why, he did not, as mentioned above, offer a definition. Therefore, I will follow his approach and examine Al-Shaybani’s work without first giving a definition. However, he generally dealt with this topic on the basis that it is equivalent to the term ‘use of force’. One exception to this is the fact that jihad is a war that must be carried out in accordance with the law of God, for the sake of God and carried out by people who accept the authority of God and follow his last Messenger Mohammad. That is why he ruled that a non-Muslim who takes part in fighting cannot be allocated a share of the spoils of war, but he should be remunerated. This is the case even if the remuneration might even earn him more than what his normal share would otherwise be.160 Notwithstanding the above, the term that I will use in contrast to jihad is ‘just war’ in the Western traditions. Thus, I will briefly examine this term. ‘Just war’ is normally used in the writings of legal historians as a static term, as if no change has occurred in this very old notion throughout the centuries. Thus, as argued above, it is a common error to describe just war in the Middle Ages as if it was born complete and as if all just war theorists were in agreement.161 It should also be noted here that this error must also be avoided in dealing with the concept of jihad. This is because, to some extent, the two concepts differ from time to time and from one scholar to another just as they differ from one another throughout history.
158
Aboul-Enein and Zuhur (n 97) 5. See also ibid 81. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 6–7. 160 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir LiMuhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 3 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 896. 161 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 26. 159
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Furthermore, Ramsey argued that the best translation of justum bellum is ‘justified war’ rather than ‘just war’.162 This appears to be more accurate, especially with regard to Augustine who rolls out the possibility of having true justice in this world. As noted above, just war is not a mere religious or a mere secular doctrine.163 This is because both the idea of just war and the backdrop known as natural law originate from ancient philosophy and ancient teachings. Christian thinkers, who imported these two intertwined institutions from ancient civilizations, had only been able to use Christian teachings as a third element.164 The roles of the different elements might have differed in strength over time but all three were always dealt with at the same time. St Augustine, who had to work within the framework of an empire, was no exception but in his theory the Christian dogmas were no more central than the other two other factors. Even Grotius, in our view, needed to develop the existing system of just war theory in order to make it accommodating to all Christian nations. This is, I assume, what forced him to resort to the natural law framework in order to deliver a theory acceptable to all Christian nations. Nevertheless, religion can neither be ignored nor given less importance than other factors as a main factor in reshaping this concept. This is because even the Greeks and Romans who originally developed this concept also brought religion and gods into consideration when calculating the elements of their just war concepts. Thus, although Al-Shaybani’s ‘justified war’ is mainly sourced in religion, the just war concept at all points of its history will not be hard to compare to the concept of jihad from some particular angles. 3.2.2 Al-Shaybani’s Perception of War Historically, it could be said that almost all advocates of war held that it was a tool for peace. In this respect, both recent and ancient commentators seem to see it from the same angle. In this, Al-Shaybani, St Augustine,165 Gratian,166 Aquinas,167 Grotius,168 Vitoria169 and many 162 Paul Ramsey, War and the Christian Conscience: How Shall Modern War Be Conducted Justly? (Duke University Press 1961) 15. 163 Neff (n 10) 68–9. 164 For more reading, see, for example, ibid 56–7. 165 Russell (n 27) 16. 166 Ibid 60. 167 Ibid 262. 168 Grotius, The Law of War and Peace (n 1) 33. 169 Vitoria (n 70) 172.
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before and after them agree. For Augustine, war is ‘waged only that God may by it deliver men from the necessity and preserve them in peace. For peace is not sought in order to the kindling of war, but war is waged in order that peace may be obtained.’170 In effect, he went as far as to claim that ‘[p]unishment of evil-doers that prevented them from doing further wrong when administrated without being moved by revenge or taking pleasure in suffering was an act of love’.171 Furthermore, to Augustine, soldiers must not think about the suffering that war might cause, rather they should anticipate the peace it would create. ‘What is evil in war?’ he questioned. ‘Is it the death of some who will soon die in any case, that others may live in peaceful subjection?’172 Both Aquinas and Augustine thought that the intention of peace was a requirement for a ‘just war’.173 For Gratian, not only was peace the ultimate goal, but he described war as peace as well. He claimed that ‘[t]hose wars are peaceful which are waged in order that the wicked may be constrained and the good relieved’.174 Aquinas in the thirteenth century displays the same rhetoric: to him ‘war can be transformed into true peace by the sprit in which it is fought’.175 However, most legal historians have not examined this issue in any detail,176 and the question of whose peace is to be the goal of a justified war is not addressed. In this book, I will try to fill this gap and shed some light on this dilemma. First, the statement that ‘during the entire period of administration of war the soul cannot be kept serene and trusting in God unless it is always looking forward to peace’177 is attributed to Grotius. Thus, there is no doubt that peace is the ultimate achievement of war (at least just war). This is the case for Grotius, who went further to cite Augustine as saying: ‘[p]eace is not sought that war may be followed, but war is waged that peace may be secured.’178 In addition, Grotius went as far as to consider war as a tool of peace. In this regard, he says: ‘[w]ar, however, is 170
Bigongiari (n 52) 182. Russell (n 27) 17. 172 Bigongiari (n 52) 164. 173 Dyson (n 44) 241–2. 174 Eppstein (n 58) 81. 175 Tooke (n 35) 23. 176 Most of the legal historians whose works are consulted in this work distance themselves from being deeply involved in such questions. It is in some cases possible to see that the ultimate goal of one scholar or another is peace, but in-depth analysis of such a topic is rare. 177 Grotius, The Law of War and Peace (n 1) 861. 178 Ibid. 171
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undertaken in order to secure peace, and there is no controversy which may not give rise to war.’179 ‘War itself will finally conduct us to peace as its ultimate goal,’180 he added. In addition, he also said that ‘peace should also be accepted even at a loss, especially by Christians’.181 Once again, peace was not only perceived as the outcome of war but was also seen as a valuable outcome, more valuable than other outcomes such as wealth. However, peace to Augustine, Gratian and Aquinas might be different from what it meant to Grotius. The reason for this is that the first three looked at war as a means to achieve peace; which can only be achieved, it seems, by punishing sinners. Thus, peace is to win the war against sinners and suppress them. That conversion is considered to be peace achievable by war is very possible for these three scholars. However, it is this last point that might distinguish Grotius who appears to be not explicitly in favour of wars of conversion. Vitoria too must be mentioned here, as he did not agree with forceful conversion. It is also difficult to define what these writers meant by ‘peace’. It is especially confusing if we consider the above statement that ‘peace is not sought that war may be followed, but war is waged that peace may be secured’. Probably the easiest way to explain this is that since the world is warlike, in order to make others come to terms with peace, war is required. However, why should peace not be sought first and without war? This is perhaps because sinners must be punished. Thus, even the simplest deconstruction of this notion is confusing, and will remain so unless peace has a different meaning in their glossaries. Although Vitoria belonged to the same school as the above-mentioned scholars in seeing that war could be the tool of justice by punishing wrongdoers, his understanding of the details of this theory differs. As we shall see later, he put more constraints on the justifications given to the ‘injured’ to punish ‘those caused the injury’ by war than any of the other thinkers mentioned above. Nevertheless, he still thinks that the end of war should be peace and that peace should be sought through war. He thus says: ‘the end and aim of war is peace and security.’182 Nevertheless, he distinguishes himself even from Grotius by seeing war as the exception and not the rule. For he asserted that ‘[t]here is a single and only just cause for commencing a war, namely, a wrong received’.183 Nevertheless, the meaning of this statement is limited, as we shall see later. 179 180 181 182 183
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Ibid 33. Ibid 394. Ibid 861. Vitoria (n 70) 172. Ibid 170.
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Notwithstanding the above, Al-Shaybani, by stating the immense reward a believer could gain, opens his book by encouraging individuals to serve their state by joining the army and guarding the frontiers of their country. The reward of al-riba’at184 is said to be equivalent to that of fasting for one month for the sake of God. Furthermore, in this regard, Al-Shaybani narrated that the Prophet has uttered that staying one night in the path of Allah is better than praying for 60 years.185 For Al-Shaybani to start his book with this topic is an indication that he was promoting a defensive approach which could be an indication of his support for this state of international affairs. On the other hand, opening his book on international law with this topic could be a sign of how important war was in it. This latter speculation is confirmed by the fact that war, spoils of war and army organization occupied a large part of this work. Nevertheless, as clarified in Chapter 1, Al-Sarakhsi tried to distinguish Al-Shaybani’s arguments by using the phrases: Mohamed186 said; and he stated; and he narrated (referring to Al-Shaybani) so as to keep it as it was in the original book Al-Siyar Al-Kabīr. Yet Al-Sarakhsi has also added his own explanations. For example, the passage: ‘And then he stated187 that Ma’abad188 said: if this nation resorted to farming, victory will be snatched from them and in their hearts there will be fear.’189 This Arabic passage (stated by Al-Shaybani) is very succinct and while Al-Shaybani in his Siyar stated it with no commentary, Al-Sarakhsi commented on it in a very explicit way. Al-Sarakhsi interpreted it as follows: if this nation worked in farming and abandoned jihad;190 victory will be seized from them and they will live with fear in their hearts. He added that this does not mean that everybody should join the army and nobody should work in agriculture. Instead, it denotes that the nation should have warriors as well as farmers and they should never abandon serving in the army.191 Otherwise, they will be an easy target for any 184
The definite form of the word rebat. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 7. 186 The first name of Al-Shaybani. 187 Referring to Al-Shaybani. 188 It is not clear who Ma’abad is; however, based on the methods of Al-Shaybani he must be one of the very early trustworthy Muslims. As for the passage, most probably it was the saying of the Prophet. 189 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 19. 190 It meant joining the army for all purposes; however, here he speaks about guarding the frontiers. 191 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 19–20. 185
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enemy whether motivated by worldly gains or by religious or ethnic differences.192 However, from this we can also see that while Al-Shaybani promoted taking up arms, he still hints that this should be done to defend the state and not to commit aggression. In other words, from the previous passages we can sense how Al-Shaybani, like St Augustine and many other scholars before and after him, highlights that peace is the ultimate goal. This is apparent when he selected the above Prophetic saying to point out that in order to be safe from being invaded by others, you must not lay down arms. Scholars of Siyar usually hold that there should always be an army ready to defend the nation and act as a deterrent should others think of attacking. Thus, Al-Shaybani sought peace in a nation that is prepared to defend itself and that shows no signs of weakness that could induce others into starting wars against it. In comparison, Gratian in his Decretum includes a pseudo-Augustinian passage that states the following: wars served peace when they coerced evil-doers and sustained the righteous; they punished the wicked and raised up good and pious men. Men who obeyed divine commandments in killing evil-doers were avenging hands of God and instruments of his wrath. Those who were contemptuous of divine mandates should be coerced by severe vengeance lest the evil spread.193
One way the peace sought by these scholars could be explained is found in the following statement of Augustine: ‘even in waging war, cherish the spirit of a peace-maker, that, by conquering those whom you attack, you may lead them back to the advantage of peace.’194 Thus, peace could mean conquest and conversion. However, Augustine went on to explain that the peace he meant is not the peace a dictionary would define: ‘[i]f, however, peace among men be sweet as procuring temporal safety,’ Augustine says, ‘how much sweeter is that peace with God which procures for men the eternal felicity of angels!’195 Thus, the peace intended by Augustine and therefore by the scholars who followed his approach is peace in religious terms and not its legal connotation. There can be no third choice as either conquering or converting is what peace meant here. In any case, however, it seems that conquering others is the peace sought, as Augustine clearly supports expansionist views. For he 192 193 194 195
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Ibid. Russell (n 27) 73 (footnotes omitted). Bigongiari (n 52) 182. Ibid 182–3.
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held the view that ‘to carry on war and extend a kingdom over wholly subdued nations seems to bad men to be felicity, to good men necessity’.196 While both Al-Shaybani and just war advocates claim that peace is the ultimate goal of taking up arms, their philosophical approaches differ as to how to implement this. Just war theorists such as St Augustine and Gratian think that by inflicting punishments on those who are sinful, we will help them become better and therefore the world will be a more peaceful place.197 Aquinas also agrees with Augustine’s statement on what he thinks of as a just cause when he says that: [m]any things must be done which are against wishes of those whom we have to punish with, as it were, a kindly severity. When we take away from someone the freedom to do wrong, it is beneficial for him that he should be vanquished, for nothing is more unfortunate than the happiness of sinners, when impunity nourishes guilt and evil will arises [sic] like an enemy within.198
By contrast, Al-Shaybani probably thought that by being strong and ready to go to war it is possible to stop others from attacking you and therefore war will mainly be avoided. This might sound like the balance of power theory. It is true, as we shall see later, that he is in support of fighting unbelievers if they do not accept either Islam or a peace deal until they come under the rule of the Muslim State. Yet, as we shall see in the jus ad bellum section, even this to him is a method of making the world safer. In this, he is not much different from just war theorists of the Middle Ages. However, in any case it must be emphasized that the idea of being prepared for war as a method to achieve peace is originally a Qura’anic principle. Thus, verse 60 in chapter 8 of the Qura’an reads: [m]ake ready for them all thou canst of (armed) force and of horses tethered, that thereby ye may dismay the enemy of Allah and your enemy, and others beside them whom ye know not. Allah knoweth them. Whatsoever ye spend in the way of Allah it will be repaid to you in full, and ye will not be wronged.199
Furthermore, in this chapter Al-Shaybani cites many supportive statements that were made by the Prophet or his successors (Caliphs). The 196
Ibid 183. Neff (n 10) 47. 198 Dyson (n 44) 241–2. 199 Marmaduke William Pickthall (tr), The Glorious Qur’an: Translation (Tahrike Tarsile Qur’an 2009) 8/60. 197
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common ground between all of the cited statements and opinions is that being prepared for war is inevitable for Muslims to live in peace. In order for their enemies to refrain from carrying out their (announced and hidden) intentions of destroying them, they must have an army ready to fight at all times. Clearly, this was why most of the citations mention an uncertain and unpleasant future for Muslims if they lay down arms and work in farming, settling without having an army ready to fight and being vigilant at the frontiers.200 Al-Shaybani was not alone in using the term jihad when discussing the use of force. After he had demonstrated the importance of jihad as a public duty, a safeguard and a tool for peace, he focused on the individual duties and requirements. As for the many duties of the warrior, the most important of them is to have the right intention: the warriors are warned that they should never take up arms if worldly gains are their motive in doing so.201 To those familiar with the history of the law of war, this also sounds familiar. As indicated above, St Augustine and many other Christian just war theorists have held similar views. However, the interpretation of what is godly and what is worldly remains obscure at some stages of history when rulers bent the truth and blackmailed ordinary people in order to serve their worldly desires. Individuals too, could possibly join a war that is legal and pious but their motive is to fulfil desires; however, this is clearly prohibited by Al-Shaybani. This is where and (presumably) why Al-Shaybani narrated a Prophetic saying warning people that if their intention was to fulfil certain whims, they will have no reward whatsoever for this work.202 This approach is very important both to discourage people from fighting for unjust causes and to remind people that even when others cannot have access to their hidden agenda, the one they believe has such access (God) will not be pleased if they fight for egotistical causes. This is helpful because even when people are able to convince others of their just cause, they are warned that this will not be a reason for their war to be just. Therefore, there is a self-deterrent system in place to achieve the ultimate goal of stopping people from waging wars for non-just reasons. This brings us to another form of peace that is sought as an ultimate goal of war: the peace of hearts, peace with God. The first chapter of Al-Sarakhsi’s book (Sharih Kitab Al-Siyar Al-Kabīr) was on ribat and is concluded with the following statement 200 201 202
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As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 6–20. Ibid 17–26. Ibid 25–6.
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by Al-Sarakhsi: ‘Mohammad may Allah have mercy on him closed this chapter with the prophetic saying narrated by Abu Hurairah that the Prophet peace be upon him said: whoever dies while carrying out ribat he dies as a martyr.’203 This statement is very important for two reasons. Firstly, it reaffirms our point, in chapter 1, that the writings of Al-Shaybani can easily be distinguished from the comments of Al-Sarakhsi. Secondly, it is important as it reinforces the fact that this whole chapter, in which Al-Shaybani discusses the importance and requirements of joining the army, is about ribat and not offensive war. As mentioned above this is very significant as far as reading the intentions of Al-Shaybani and his perception of war. In general, to Al-Shaybani war is fought to establish the rule of law (the law of God) and to uphold its rules, and so he pays an incredible amount of attention to every detail in order to achieve a war that is conducted according to the law it defends. Therefore, as we shall see later, war is limited to this end and it must be carried out only in permitted circumstances and using the permitted methods and means. Thus, to Al-Shaybani war is an exception and not the accepted norm. The nearest approaches to this, in the previous respect, were probably those of Vitoria and Grotius. The latter considered war ‘as type of law-enforcement procedure akin to judicial remedies’.204 Meanwhile, Grotius sees no reason why war should be considered as an exception or even abhorred so long as the law of nature is taken into account. Thus, he claims that: [i]n the first principles of nature there is nothing which is opposed to war; rather, all points are in its favour, the end and aim of war being the preservation of life and limb, and the keeping or acquiring of things useful to life, war is in perfect accord with those first principles of nature.205
In defence of this view, he explained that nature has given all animals the right and the strength to defend themselves as well as to attack whenever they want to feed.206 However, exceptions to the general rule are very rare. For it was mostly held that war must be the norm and the pretexts given to war were very wide indeed, even in the writings of Grotius. The exception to this is 203
Ibid 37. Edward Dumbauld, The Life and Legal Writings of Hugo Grotius (1st ed., University of Oklahoma Press 1969) 60. 205 Grotius, The Law of War and Peace (n 1) 52. 206 Ibid 51–3. 204
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probably Vitoria, who rejects wars to punish others for sins that did not directly cause harm to ‘us’, as he puts it. Nevertheless, for Grotius: [t]he new international law, however, was not completely distinct from the old. Grotius and his immediate predecessors had read many of the same writers that had shaped the canonistic theory of relations between states. He had also read the works of Vitoria and Joannes de Legnano, among others. Furthermore, in discussing the right of Europeans to punish those who violated the laws of nature, he admitted his debt to the work of Innocent IV.207
Thus, war was still perceived, largely, similarly by Grotius and Augustine. This led Muldoon (1979) to conclude that: [c]ontrary to some modern opinions, Grotius also retained some of the moralizing flavour of the canonists’ work on infidels, as the statement about the right to punish the violators of the natural law demonstrates. As was the case in so many aspects of sixteenth- and seventeenth-century life, the medieval substructure was just beneath the surface, not always perceptible from the vantage point of twentieth century, but obvious when looked at from the medieval perspective.208
Nevertheless, matters related to jus ad bellum are discussed by Al-Shaybani in a very detailed way. Only Grotius comes close in terms of the level of detail. Augustine, Gratian and Aquinas did not examine this in any depth or length; Vitoria did more, but he did not write as comprehensively as Al-Shaybani and Grotius did. Al-Shaybani, while prohibiting all other wars, allowed only three limited and clearly defined types of war. Grotius also limited just war to a number of situations, although he did not define and limit their scope. Thus, just wars, although limited by Grotius in number, as seen above, were not limited in interpretation, which could allow rulers to tailor their greediest wars around them so that they can be called just or at least lawful. In this regard, Vitoria was much more effective than Grotius as his just war causes are more tightly governed.
3.3 AL-SHAYBANI AND JUS AD BELLUM As mentioned earlier, for the Arabs (and those around them) in that age, a state of war was the norm and there were various types of wars, whereas Siyar had only permitted a few types of war. Thus, one might 207
James Muldoon, Popes, Lawyers, and Infidels: The Church and the Non-Christian World, 1250–1550 (University of Pennsylvania Press 1979) 158. 208 Ibid.
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think that it would have been far easier for Al-Shaybani to address the permissible wars only. To Al-Shaybani the very few and limited types of permissible wars are defined and not open to a wide interpretation. Therefore, as was always his approach, politicians and decision makers had no room for self-centred agendas to wage wars with the state’s army. Generally, war is limited by Al-Shaybani to certain cases within limited circumstances. Yet even permissible wars can only take place after all other peaceful remedies are exhausted. These limited cases are as follows. 3.3.1 Self-defence When an enemy attacks, it is not only permissible to respond to the attack but it is also obligatory to do so. This includes following the enemy army to free captured goods and persons. In fact, if the army is not sufficient to respond to such an attack, it becomes an obligation for all to fight the attacker.209 Moreover, if an enemy attacked and collected spoils and captured persons, it should be followed until it reaches the borders in pursuit of the captured and the goods. However, if the enemy has crossed the borders then it is only obligatory to chase them abroad if the army is capable of doing so. Otherwise, it is optional to do so. Whether the subjects captured are Muslims or not Muslims should make no difference in these cases. This is because non-Muslim subjects are also protected by the Muslim State.210 In this approach, as it seems, Al-Shaybani’s approach was novel. In fact some just war theorists in the Middle Ages, as shown above, were reluctant to accept self-defence as a just cause in principle.211 Indeed, ‘Aquinas like many other theologians did not devote a thoroughgoing analysis to the concepts of self-defense and ultio or punishment in relation to the just war, nor did he explicitly relate the crusades to the just war, although these concepts seem necessarily related.’212 Nevertheless, while both Augustine and Aquinas were very reluctant to justify self-defence under any circumstances,213 Grotius both discussed and agreed with self-defence as a just cause. In this, he is closer to 209 This is clearly explained by As-Sarakhsi when explaining Al-Shaybani’s rules on the required parental permissions to join the army. See As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 199. 210 Ibid 208–209. 211 Neff (n 10) 60. 212 Russell (n 27) 290. 213 Ramsey (n 162) 34–5.
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Al-Shaybani’s approach than the other writers are, even though he called it self-preservation214 on a state level (rather than self-defence).215 To Grotius, self-defence is a natural right that could go on to the point of the death of the opponent.216 Hence, he says, ‘public powers have not only the right of self-defence but also the right to exact punishment.’217 However, to him while self-defence can be pre-emptive, it must be built on the real intention of the other party, not just a guess.218 However, Grotius did not always directly discuss self-defence as a notion of state right. As we have just seen in the previous statement, what he was talking about is the right of public officers to self-defence. Thus, this appears to be unrelated to a right of a state in its international relations. Vitoria also preceded Grotius on this point. ‘Any one,’ to him, ‘even a private person, can accept and wage a defensive war.’219 Thus, he stresses that ‘a State is within its rights not only in defending itself, but also in avenging itself and its subjects and redressing wrong’.220 However, he here conventionally differentiates between self-defence and wars of redress, which indicates that he firstly sees self-defence as an unobjectionable cause for war, which distinguishes him from Augustine, Gratian and Aquinas, and secondly, he allows offensive war but only in specific circumstances. The weakness of Vitoria’s defensive approach is that it can go so far as to reach a point of uncertainty, for he allows some actions that could support pre-emptive wars and even extraordinary defensive tools. For example, ‘[i]t is lawful to seize, and hold an enemy fortress or city by way of obtaining security and avoiding a danger or as a means of defence and in order to take away from the enemy an opportunity to do harm, etc.’221
214 Grotius’ notion of self-defence was far broader than that of Al-Shaybani. He sees all acts to secure prolongation of the state’s life and the state’s interest as self-defence. 215 Alex J. Bellamy, Just Wars: From Cicero to Iraq (Polity Press 2006) 72–3. 216 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 214–15. 217 Grotius, The Law of War and Peace (n 1) 184. 218 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 214–15. 219 Vitoria (n 70) 167. 220 Ibid 168. 221 Ibid 165.
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3.3.2 Humanitarian Missions It can be said that in Siyar the concept of ‘istinqaad’ is similar222 to the concept of humanitarian intervention.223 Ahmed Abū al-Wafā sums up the thoughts of Al-Shaybani on this as follows: Al-Shaybani approves of istinqaad in two cases. First, rescuing Muslims is a duty upon every Muslim. This overrides any condition or terms of treaty. This is because no term or condition can go against the general principles of law. It is like what we today call the jus cogens, which, arguably, cannot be circumvented by treaties. Secondly, there is a duty to protect others. Here even non-Muslim subjects of the Muslim State must also be protected and rescued when need be. In addition, non-Muslims who have the right to be protected by Muslims must be rescued when need be. This is such as the case when a treaty requires Muslims to do so.224 Vitoria had a similar approach to this. However, the identity of his notion can be distinguished from that of the latter in this case. This is because to Vitoria when Christians reside in another state and the ‘tyranny’ of its lords or the ‘tyrannical laws’ injure innocent persons, the Christians have a right, if not a duty, to go to war with those lords and remove such operations and rules in that state.225 3.3.3 Defence of Freedom of Religion This is a subject of disagreement between Al-Shaybani and his master Abu-Hanifa and other scholars as well. First, war to Al-Shaybani is only allowed where there is no valid peace treaty or accord. Besides, war is not allowed against those who hold valid ama’an.226 Bearing that in mind, he and Al-Sarakhsi think that war should be waged against the rest if they refuse either to accept Islam freely, or to accept a peace deal in which they pay tribute to and fall under the protection of the Muslim State. This is so, in their opinion, so long as the army is realistically capable of doing so. However, as explained above, this is only in the absence of a peace deal and the absence of ama’an. Moreover, as we 222
Although it might not be identical. Aḥmad Abū al-Wafā, Kitāb Al-I‘lām Bi-Qawā‘id Al-Qānūn Al-Dawlī Wa-Al-‘alāqāt Al-Dawlīyah Fī Sharī‘at Al-Islām [A Book of International Law and Relations in Islamic Shari’a], vol 14 (al-Ṭab‘ah 2, Dār al-Nahḍah al-‘Arabīyah 2007) 31. 224 Ibid 44. 225 Vitoria (n 70) 159. 226 Pledge of safety. 223
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shall see later, even in the absence of treaty and ama’an, the Muslim State should seek peace by paying tribute to others to avoid war with a powerful state. Apparently, Al-Shaybani seems to have reflected the contemporary international legal norm of his time. For that, as we saw above, during his time, there was no peace. War was the norm. States had the right to conquer others when able to do so – otherwise others might conquer it if they can do so. The only way to be secure from attacks and from being conquered was to pay tribute to others in return for peace. However, if this was the norm, then why did Al-Shaybani abstain from forfeiting this norm, in favour of Islamic law as he did on many occasions? This question is relatively important since, as we saw above, Islamic law (generally) is against attacking others except in self-defence or humanitarian situations. Nevertheless, the head of Al-Shaybani’s School and Al-thawri disagree with his stance and take the view that war is only permissible when it is dictated on the state by a hostile action taken by another. In this regard, Al-thawri asserts that war is only required when started by the enemy.227 Since there is a disagreement on this particular category, it will be discussed below in more detail. From what can be read in Al-Shaybani’s teachings in this regard, this type of war or jihad is permitted for the sake of conveying the message of God to all human beings. However, forceful conversion is out of the question. This type of war is intended to ensure that all humans learn about the last message of God (Islam) and that they have the free choice to become Muslims if/when they freely choose to do so. It is limited to these two aims and cannot be used without exhausting all other remedies that could reach these targets without resorting to arms. Thus, negotiation in order to secure a passage to convey the message to the people of an entity must always be undertaken first. If they do not accept this option, then they must be offered the choice of concluding a peace treaty with the Muslim State. Under such an accord, they will become a protectorate of the Muslim State and the Muslim ruler will then have the duty to defend them from all harm in exchange for a certain tax figure agreed upon. It is only when all of these options are rejected that war becomes permissible. Thus, Al-Shaybani stated that when the Muslims meet the disbelievers, if Islam has not reached them, they should not be fought until they are called to Islam. In supporting this view, Al-Sarakhsi recalls God’s 227
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As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 160) 187–90.
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utterance: ‘We never punish until we have sent a messenger.’228 Moreover, he further recalls the prophet’s advice to one of his army chiefs: ‘call people to Islam first.’ Al-Sarakhsi explains that ‘as they might think that we are fighting them for their wealth or to capture their children, and if they know that we are fighting for religion, they may possibly accept Islam without need for fight.’229 Furthermore, Al-Shaybani stresses that war should always be the last resort. Thus, he ruled that if Islam has reached them but they are not aware that they may be left alone if they pay jiziyah (poll tax), then they should not be fought until they are informed as such. Six hundred years later, Vitoria expressed views similar to Al-Shaybani’s. For example, he concluded that if the preaching of the Gospel is hindered, war will then be just as such hindering constitutes a just case for war. To Vitoria, ‘[t]he Indians are not to be warred into subjection or despoiled of their property if they give the Spaniards unhindered freedom to preach the Gospel. And this whether they accept the faith or not.’230 He further asserted that ‘ambassadors are by the law of nations inviolable and the Spaniards are the ambassadors of Christian peoples. Therefore, the native Indians are bound to give them, at least, a friendly hearing and not to repel them.’231 Moreover, he added that ‘Christians have a right to preach and publish the Gospel in the lands of Barbarians’.232 In addition, if this was hindered in any way and that hindering could not be dealt with by peaceful means, then war in order to propagate Christianity is lawful.233 The differences between him and Al-Shaybani are evident in the details of their rules. For example, Vitoria thought that for the sake of furthering the cause of Christianity and spreading its message, the Pope could entrust the role of preaching to whomsoever he likes and he could also prohibit others from preaching or even trading in a region where Christianity is being preached whenever such prohibition would help the cause of the latter. Thus in the case of the Indians, Vitoria took the view that the Pope could entrust to the Spaniards alone the task of converting the Indian aborigines and could also forbid all others not only from preaching, but
228 229 230 231 232 233
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Pickthall (n 199) 17/15. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 76. Vitoria (n 70) 150. Ibid 156. Ibid 150. Ibid.
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also from trade too in that region if the propagation of Christianity would thus be furthered.234 This goes beyond Al-Shaybani’s approach. However, they agree when Vitoria says that the right of Christians stops, as noted above, at preaching and the recipient is left to choose whether to believe in the Gospel or not. However, if preaching is hindered, then the people of that land can ‘be warred into subjection or despoiled of their property’.235 The same also applies when the ruler or the public do not hinder the preaching but kill, threaten or by any means prevent others from converting. For in this case an apparent just cause for war is present against those people, says Vitoria.236 This also applies if a prince or a ruler was trying to force Christian convertors to revert.237 In support of his argument, Vitoria cites Deuteronomy, ch.20: When thou comest nigh unto a place to fight against it, then proclaim peace unto it. And it shall be if it make thee answer of peace, and open unto thee, that all the people that is found therein shall be saved and shall be tributaries unto thee and shall serve thee. But if it will make no peace with thee, but will make war against thee, then thou shalt besiege it. And when the lord thy God hath delivered it into thine hands, thou shalt smite every male thereof with the edge of the sword, but not the women and the little ones.238
Nevertheless, Vitoria again distinguished himself from Al-Shaybani by taking the view that if in any state a large proportion of the population has converted to Christianity, ‘the Pope, either with or without a request on their part, might on reasonable ground have given them a Christian prince, such as the King of Spain, and driven out their infidel lords’.239 3.3.4 War and Religion After affirming that the head of Hanafi School sees war as obligatory but only so if necessary,240 Al-Shaybani concludes that jihad is an obligation upon Muslims, who should not discontinue it, when able, until the non-believers either accept Islam or sign a peace treaty. This of course is only in the absence of a peace deal or pledge of security. Al-Sarakhsi added that jihad was regulated differently at different stages of the life of 234 235 236 237 238 239 240
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Ibid. Ibid 150, 157. Ibid 157–8. Ibid 157. Ibid 182. Ibid 150. Such as in the case of self-defence or defending the oppressed.
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the Prophet and in the last stage it was to fight permanently to raise up the believers and daunt the non-believers.241 According to Al-Shaybani, Al-thawri242 took the view that fighting non-believers is not an obligation upon Muslims unless the enemy have started a fight. His evidence is Allah’s sayings: And kill them wherever you find them, and drive them out from whence they drove you out, and persecution is severer than slaughter, and do not fight with them at the Sacred Mosque until they fight with you in it, but if they do fight you, then slay them; such is the recompense of the unbelievers.243
In addition, he quotes the verse that says: ‘And wage war on all of the idolaters as they are waging war on all of you. And know that Allah is with those who keep their duty (unto Him).’244 Contrary to this view, Al-Shaybani, also challenging the head of his school, thinks that fighting non-believers is an obligation upon all Muslims (collective duty), which if carried out by some is not required by the rest. If no one carries out jihad, every Muslim becomes sinful.245 Al-Shaybani argues that, God, in the Qura’an, said: + ‘O ye who believe! Fight those of the disbelievers who are near to you, and let them find harshness in you, and know that Allah is with those who keep their duty (unto Him).’246 + ‘Fight in the way of Allah …’247 + ‘Fight against such of those who have been given the Scripture as believe not in Allah …’248 + ‘And strive for Allah with the endeavour which is His right.’249 Al-Sarakhsi supports this argument of Al-Shaybani while reiterating that the last stage of the revelation was to fight all non-believers until they give jiziyah (tribute) or become Muslims. Generally, it is a duty placed upon all Muslims but which only needs to be fulfilled by some who fight 241
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 187–8. A very well-regarded Muslim jurist at that time and still to the present day. 243 M. H. Shakir (tr), Holy Qur’an =: Al-Qur’ān Al-Ḥakīm (1st US ed, Tahrike Tarsile Quran 1982) 2/191. 244 Pickthall (n 199) 9/36. 245 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 187–8. 246 Pickthall (n 199) 9/123. 247 Ibid 2/190. 248 Ibid 9/29. 249 Ibid 22/78. 242
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to convey the message of God to all humanity. When the message is communicated to others, they will then have to choose to either enter Islam or pay jiziyah and be under the rule and protection of the Muslim State.250 In the religious context, this method preceded Al-Shaybani and even Islam. Indeed, Al-Shaybani’s approach thus far was the most lenient one among the supporters of this method. For example, in one of his exegesis works on the Old Testament, Aquinas recalls that the ‘Israelites’ knew two types of hostile cities: the neighbouring one promised by God and the remote one not promised by God. When the ‘Israelites’ conquered the second type, they killed all men and spared women and children. As when they conquered neighbouring cities promised by God, as executors of his will, they killed everybody in it for the sins committed by their ancestors. In all cases, fruitful trees had to be spared for they would benefit the Israelites later.251 Aquinas then explained that in Deuteronomy 20: ‘peace should first be offered to the enemy, then, lacking a favourable response, the Israelites should wage wars vigorously with full confidence in God. When war is imminent the priests should comfort the people with the promise of divine aid.’252 He also added that when victory is achieved, women, children and fruit trees should be spared.253 Although there was no explicit mention by Aquinas that Christians are the inheritors of Jewish law in this regard, it is clear that he is in support of such religious wars.254 Although Aquinas stressed that there must be a wrong on the side of the enemy to justify war, this wrong does not have to be physical nor existential, for it can be an ‘injury to justice’ committed by the other.255 What is new, however, is that according to Al-Shaybani, war is only needed if the other party did not allow his people the free will to accept Islam or pay tribute. Al-Shaybani is totally against war if other options like becoming a protectorate are available. Furthermore, in Al-Shaybani’s writings there is no punishment for the sins of others or even for one’s own sins. Lastly, wars of conversion approved by Augustine, Gratian and other Western scholars do not
250
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 160) 188. Russell (n 27) 184. 252 Ibid. 253 Ibid. 254 Ibid. 255 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 40. 251
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feature in Al-Shaybani’s approach.256 The only Western scholar whose ideas were similar to Al-Shaybani’s in this regard is Vitoria, as explained earlier. It is striking, however, to see that even Grotius was in favour of punishing the children of Adam for the sins they may commit. What is more is that he still followed other canonists in their approach towards this concept. Most notably was his reference to Innocent IV, when Muldoon (1979) quoted him saying that ‘we follow the opinion of Innocent and others who say that war may be waged upon those whose sin is against nature’.257 Muldoon added that ‘[c]ontrary to some modern opinions, Grotius also retained some of the moralizing flavour of the canonists’ work on infidels, as the statement about the right to punish the violators of the natural law demonstrates’.258 Aquinas, unconventionally in the medieval West, prohibited forceful conversion of infidels as faith is to be accepted and not imposed.259 Nevertheless, Aquinas differentiates between two types of people: the first are ‘those who have never received the faith, such as the heathens and the Jews’.260 He considers belief as ‘an act of will’, thus these people cannot be compelled into the religion. ‘However, they should be coerced by the faithful,’ he said, ‘less they hinder the faith by blasphemies or evil persuasions, or indeed, by open persecution.’261 Thus, he thinks that their forceful conversion is not possible as belief is a matter of the heart, but others still must be fought and subdued. The only time he explicitly accepts conversion as a just aim of war is in the case of apostates and heretics, those who accepted the faith and then deserted it.262 This is not dissimilar from some Islamic juristic views. Aquinas, however, allowed wars against infidels when they ‘harmed faithful Christians by blasphemous, evil persuasions and outright persecutions’.263 Christians living under the rule of infidels is another reason for war discussed by Aquinas. This situation for him requires a war to eliminate the dominance of the ‘infidel’ over the ‘faithful’, as he termed it. To him, ‘infidels by the very fact of their infidelity deserved to lose their power over the faithful.’264 256 257 258 259 260 261 262 263 264
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With the exception of apostasy in some exceptional circumstances. Muldoon (n 207) 158. Ibid. Russell (n 27) 284–5. Dyson (n 44) 268. Ibid. Ibid. Russell (n 27) 284–5. Ibid 285–6.
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Aquinas clearly states this as follows: ‘because unbelievers, by reason of their unbelief, deserve to lose their power over the faithful, who are made children of God.’265 This view, as we have seen earlier, was later also held by Vitoria. Nevertheless, Al-Shaybani’s position is weak if the same Qura’anic verses that he used to support his argument are considered. He stated that God said: ‘Fight in the way of Allah’.266 When looking at this verse in the Qura’an, it is clear that reading it as a whole could go against Al-Shaybani’s argument. This verse reads: Fight in the way of Allah against those who fight against you, but begin not hostilities. Lo! Allah loveth not aggressors.267
The above supports the argument of Al-thawri, who confirms that fighting the non-believers is not an obligation upon Muslims unless others have started a fight. This view is more worthy of support especially today because calling people to Islam is not restricted and can be carried out almost anywhere in the world. Furthermore, all Muslim States are parties to the UN Charter, which does not permit the use of force for this purpose. Therefore, and since treaties have a sacred status in Siyar, peace, debatably, has become the norm in the latter. Even Al-Shaybani himself in the same book avers that treaties are not to be breached unless the other party has done so.268 Prophet Mohammad himself would not, it seems, have approved the opinion of Al-Shaybani. This is because his practice was to start wars only if hostilities were committed by the other party first. ‘He never envisaged a war of aggression. Consequently, the precedents during the life-time of the Prophet do not back the theory of aggressive jihad.’269 Moreover, the great scholar Moulavi Cheragh Ali concluded that ‘neither the wars of Mohammad were offensive, nor did he in any way use force or compulsion in the matter of belief’.270 In reality, ‘[a]ll the wars of Mohammad were defensive. He and those who took interest in his cause were severely oppressed at intervals, and were in a sort of general persecution at Mecca at the hands of the ungodly and fierce Koreish.’271 265 266 267 268 269 270 271
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Dyson (n 44) 271 (footnotes omitted). Pickthall (n 199) 2/190. Ibid (italic and underlining added). As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 187. Al-Ghunaimi (n 81) 183. Ali (n 125) i. Ibid ii.
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However, why did Al-Shaybani then take the view he did? In order to answer this we first have to examine his justifications for his view, while bearing in mind that we are discussing an age where war was the norm and peace was the exception. As we have seen above, going to war purely for economic reasons was not an unknown practice around the world both in the time of Al-Shaybani and subsequently. However, this is not sufficient to fully understand the reasons behind his approach, Islam prohibits such wars. Here, it is also vital to understand that Al-Shaybani as well as many other scholars who share his view, seem to see Islam as: a reformative revolution to be counted among the great revolutions in the history of humanity. Islam, like both the French and Russian revolutions, is a revolution based on particular dogmas and theories addressed to humanity as a whole and claiming universality. Such revolutions tend to prevail by their very nature and have a predestined role to enforce their philosophy upon opponents of the new ideas, otherwise they betray their aim and ‘raison d’etre’.272
In addition, for a better understanding of the approach of Al-Shaybani – that if the preaching of Islam is hindered war could be used to deliver the message of Islam – it should be noted that Islam was deemed both a message to all humanity and that it was different from all existing harsh practices on different levels. For ‘Islam should be viewed in the light of its moral and spiritual precepts and how they have contributed to the dignity and the welfare of the mass of mankind’.273 The great historian H. G. Wells, in the Outline of History, pointed out that Islam: was the best social and political order the times could offer. It prevailed because everywhere it found politically apathetic peoples robbed, oppressed … and it found selfish and unsound governments out of touch with any people at all. It was the broadest, freshest, and cleanest political idea that has yet come into actual activity in the world, and it offered better terms than any other to the mass of mankind.274
Hence, the aim of Al-Shaybani and supporters of his view could have been to enlighten humanity and to improve the well-being of all peoples in the world by upholding justice through establishing the rule of law. That is why in his argument he is against wars for worldly ends or wars 272
Al-Ghunaimi (n 81) 20. Ibrahim Alwazir, ‘The Relationship between the Ruler and the Ruled’ (Alhewar) (accessed 21 January 2018). 274 H. G. Wells and Raymond Postgate, The Outline of History: Being a Plain History of Life and Mankind, vol 2 (Doubleday & Co 1961) 493. 273
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against others because of their colour, race or sex; rather war should be waged against disbelievers in order to convey the message to all humanity as an ultimate goal. Those who accept the new way of life (Islam) become citizens of the Muslim State with their full rights and duties. Others, he thinks, should be brought under the rule of the Muslim State and pay poll tax where possible. Even if they offered a peace treaty, Al-Shaybani thinks that it should only be accepted when the army is unable to fight them.275 To him, it seems, this is the only way the message of God could be conveyed around the world and this is the only method to secure an environment for freedom of religion. This freedom seems to have been the driver of this passion to offer such rules. This passion led even the followers of faiths that prohibited violence to find a way to justify an endless war against disbelievers. For example, Ambrose of Milan (c.339–397) combined teachings of the Old Testament with some hostile Roman teachings to conclude that a perpetual Christian holy war should be permitted in the face of the non-Romans or nonChristians.276 However, Al-Shaybani’s open examination of this notion is not found in the writings even of later mediaeval thinkers in the West, except a few such as Vitoria. For example, the canonist Gratian was writing about war as if the Crusades were not happening before his eyes. In fact, he ‘nowhere discussed ex Professo the juristic problems of the crusades’.277 It is important to note that other universal social, cultural, political and legal revolutions have been spread by all means, including war. The quest for peace, enlightenment, broader freedoms and justice in an affluent society are among the common characteristics of such revolutions. Indeed, ‘… the cry for fraternity, liberty, and equality echoed in the different corners of Arabia more than twelve centuries before the French Revolution and Islam launched the principles of an affluent society in a way far more acceptable than contemporary economic doctrines.’278 In addition, from a philosophical perspective, Al-Shaybani believed in Islam as the last message from God to enlighten all humanity. Therefore, this message must reach all human beings as they have the right to learn about it. It is conceivable that in his time it was almost impossible to achieve such a task without going to war. Similarly, St Augustine, for instance, backing up his theory with references from the Old Testament, treated war as a tool ‘of furthering divine purposes’.279 To him, ‘the 275 276 277 278 279
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As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 187–91. Russell (n 27) 13–15. Ibid 83. Al-Ghunaimi (n 81) 20–21. Russell (n 27) 74.
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Church in its efforts to compel the wicked to the good was imitating none less than God Himself.’280 Thus, Augustine and others such as Gratian who came centuries after Al-Shaybani promoted war for the sake of religion.281 Even Grotius took the extreme view that violation of divine law was a sin that deserved punishment by war, and considered that as a just cause even if the war was carried by those who were not ‘directly’ affected by the sin.282 In fact, to him rejecting the common features of religion, as he called them, can be a just case for war against the denier. These features are the Oneness of God; ‘God is none of the things which are seen, but something more exalted than these’; God is the cherisher of all human affairs; God judges people with the most fair system; and that the creator of all things is God. In particular, the idea ‘that there is a divinity and that he has a care for the affairs of men’283 must always be a cause for punishment to those who reject these two notions. Nevertheless, by doing this, Grotius (moderately) limits the usage of religion as a pretext for war whereas Augustine, Gratian and Aquinas had done little to limit or lessen such utilization, as their endorsement of such usage was broad and undefined. Nevertheless, in part, Vitoria, as noted above, demonstrates the change of tone in Europe with regard to allowing wars on the grounds of merely being different in religion. He did openly reject this notion. Yet this was not without qualifications. He argued that even the Pope is not the lord of the whole world. Thus, ‘The Pope has no power over Indian aborigines or over other unbelievers.’284 ‘The corollary follows,’ he said, ‘that even if the barbarians refuse to recognise any lordship of the Pope, that furnishes no ground for making war on them and seizing their property.’285 Furthermore, he ruled that ‘[d]ifference of religion is not a cause of just war’.286 He thus concluded that, if religion is presented to a certain population and they do not accept it, this could not be taken as an excuse to fight them. Thus, he says, in one example: ‘if the faith be presented to the Indians in the way named only and they do not receive it, the Spaniards can not make this a reason for waging war on them or for 280
Ibid 16. Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 36. 282 Grotius, The Law of War and Peace (n 1) 508–10. 283 Ibid 513. 284 Vitoria (n 70) 137. 285 Ibid. 286 Ibid 170. 281
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proceeding against them under the law of war.’287 In fact, Vitoria was against war even if others refused to listen to Christian preaching. For these people will only be committing a moral sin, which does not give rise to punishment by war.288 From the above, we can see that his position certainly distanced him from Augustine, Gratian and Aquinas, but brings him closer to Al-Shaybani. Unconventionally, in Europe at least, Vitoria rejects the notion that sins against nature are to be punished by war; he also alerts us to the danger such a concept would have.289 For example, he stressed that a ‘Christian prince can not, even by the authorisation of the Pope, restrain the Indians from sins against the law of nature or punish them because of these sins’.290 This was in fact another natural outcome of his assertion that neither the Emperor nor the Pope could be held as the lord of the world. This is what distinguished him from Grotius and draws him closer to the propositions of Al-Shaybani. This is because to Al-Shaybani the worst sin is to disbelieve in God291, and this sin does not justify wars on its committers. Thus, it follows that no other sin could. As did Al-Shaybani, Vitoria correspondingly insists that war must be the last resort.292 In addition, Vitoria, who permits wars as punishment for wrongdoers, strongly stresses that ‘[n]ot every kind and degree of wrong can suffice for commencing a war’.293 Moreover, ‘in order that a war be just, it is not always enough that the prince believes he has a just cause.’294 ‘The justice of the war must be most thoroughly and carefully examined.’295 In case of doubt about a just cause war should not be fought.296 Impressively, he further argued that ‘the proofs and tokens of the injustice of war may be such that ignorance would be no excuse even to subjects of this sort who serve in it. ‘This is clear,’ says Vitoria, ‘because such ignorance might be deliberate and adopted with evil intent 287
Ibid 143. Ibid 144–6. 289 Ibid 145–7. 290 Ibid 146. 291 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir LiMuhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 4 (Salah Al-Deen Al-Munajjid ed, Ma’had Al-Makhtu’tat 1971) 1415. 292 Vitoria (n 70) 154. 293 Ibid 170. 294 Ibid 163. 295 Ibid. 296 Ibid 175. 288
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towards the enemy.’297 He thus asserts that ‘Senators, Petty rulers and in general all who are admitted on summons or voluntarily to the public council or the prince’s council ought, and are bound, to examine into the cause of an unjust war’.298 This is so that ‘war ought not to be made on the sole judgment of the king, nor, indeed, on the judgment of a few, but on that of many, and they be wise and upright men’.299 Thus, Vitoria is credited, in Europe, with the statement: ‘[t]he Emperor is not the lord of the whole earth.’300 He also stressed that ‘[e]xtension of empire is not a just cause of war’.301 ‘Neither the personal glory of the prince nor any other advantage to him is a just cause of war.’302 To him, ‘[t]here is a single and only just cause for commencing a war, namely, a wrong received.’303 Of course, this has to be understood with regard to offensive and not defensive wars, as set out above. To oppose the Spaniards’ claims used to legitimize the invasion, conquest and despoiling of the Indians as well as to oppose the claim that the Emperor or the Pope is a lord of the whole world required exceptional courage, knowledge and bravery of Vitoria. ‘Vitoria took a vigorous stand against the misdeeds of conquistadores and showed humanness and intelligent understanding towards the Indians, in respect to whom he felt keenly the missionary obligations of his order.’304 Nevertheless, although his work rates highly when compared to his contemporaneous Europeans in terms of humanity and justice, a deep analysis of his lectures reveals some weaknesses. For example, ‘Vitoria’s system … did not indicate, as it sometimes has been asserted, “equality” of Christian and pagan princes – much less equality of “states,” which was not considered by Vitoria in this connection.’305 In fact, Nussbaum points out that: as a Spaniard proud of his country – and this pride appears everywhere in his writings – he could not possibly bring himself to advise his compatriots to renounce their tremendous new acquisitions for scruples of moral theology. In his day the Spanish conquest was no longer a subject of controversy. The only 297 298 299 300 301 302 303 304 305
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Ibid 174. Ibid. Ibid. Ibid 129. Ibid 170. Ibid. Ibid. Nussbaum (n 5) 80. Ibid 381 (footnote omitted).
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and very necessary thing for a theologian to do was to warn the conquistadores against misuse of their power. This Vitoria did vigorously and authoritatively.306
Vitoria’s approach to war is not only similar to but is in fact almost indistinguishable from Al-Shaybani’s approach in most cases. The differences between the two are limited and easily summarized, as set out above. Otherwise, Al-Shaybani’s hypothesis on this subject was as if copied word by word by Vitoria. Since most of the latter’s radical views were almost entirely new in the West, one might question how much of a link there was between the two thinkers. However, in the West, hundreds of years after Al-Shaybani, some were still thinking that war could be just on many secular and religious grounds.307 These many permissible wars in the West at this time were already limited by Al-Shaybani to the three categories named above. However, some more recent scholars in the West have largely withdrawn their support for wars for religion. Vitoria and Grotius are the best examples of this. Nevertheless, the reason why Vitoria rejected wars for religion is, ‘among other reasons, to admit war for religion would lead to just wars on both sides’.308 This is probably what made Grotius also reject wars for religion.309 Just like some of his predecessors, Grotius ‘rejected the legitimacy of both “divinely commanded” war and war to enforce religious orthodoxy’.310 However, in some respects it is difficult to submit that Grotius agrees with Vitoria in this regard. This is because he sometimes asserts that ‘all Christians are under the obligation to enter a league against the enemies of Christianity’.311 In addition, a further point to be borne in mind is the fact that this opinion held by Al-Shaybani was possibly a natural outcome of the state of international relations in his time. For not only were other states very reluctant to accept peace and allow Muslims to convey the message to their peoples, but they were also taking the initiative of attacking the Muslim State with the intent of eliminating Islam itself. In the same vein, Ghunaimi points out that: [w]e could not say then that by using force to spread these dogmas beyond the political boundaries of Arabia, Islam proved to be a warlike creed; 306
Ibid 83. See, for example, Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 50–51. 308 Ibid 221. 309 Ibid. 310 Bellamy (n 215) 73. 311 Grotius, The Law of War and Peace (n 1) 403. 307
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otherwise we overlook the hostile attitude which the exponents of past political and religious ideas outside Arabia took towards Islam and ignore as well the universal claims of Islam.312
It is important to note the reality that Islam, which came to mitigate the power of the tyrants for the sake of the masses, was inevitably to face latent wars by the powerful. Not surprisingly, therefore, ‘Muslims faced major threats from the beginning and were surrounded by many enemies.’313 This was indeed the case until recently. For example, both Gentili and Grotius held views whereby the Islamic world should be a permanent target of European wars until Muslims are converted.314 Some people might argue that it is understandable that they would hold such views as they saw the Muslim State as a conqueror and not as a revolutionist. However, they both considered Muslims the enemy of God.315 Moreover, when Islam first prevailed and many people answered its call in Arabia and the surrounding kingdoms, it was expected that these powers would face Islam with enmity. This is presumably, for rulers, because some of their subjects would be devoted to someone else (God) – when they join Islam – rather than their powers. These issues must have all been at play in the holding of all of these different views. All this should be read in the context of the time: the values propagated by Al-Shaybani were faced with horrendous hostilities from the Arabs, the Persians and the Byzantines, and later from the Crusaders. In fact even Romanists, influenced by just war theorists, maintained the ancient point of view of Roman hostility towards others, whom they considered as a subject to penalties and even ‘mentioned the Saracens as a contemporary example of infidelity and idolatry’.316 Despite the clear arguments against propagating revolutionary dogmas by force, it may have been seen by Al-Shaybani as the only way to carry out such a mission for the furtherance of the human civilization at that time. Even today, some 13 centuries after Al-Shaybani, some scholars and influential politicians still advocate the use of force to spread ideas; the living example is the claim that it is permissible to spread democracy by using force.317 312
Al-Ghunaimi (n 81) 21. Bsoul (n 148) 50–51. 314 Al-Ghunaimi (n 81) 76. 315 Ibid. 316 Russell (n 27) 50–51. 317 Kenneth D Heath, ‘Could We Have Armed The Kosovo Liberation Army? The New Norms Governing Intervention In Civil War’ (1999) 4 UCLA J. Int’l L. & For. Aff. 313
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Broadly, in theory, Al-Shaybani’s approach meets with ‘the early just-war doctrine of ancient and medieval periods, when war was seen as the servant of justice rather than as an instrument of policy, vanity or oppression’.318 Nonetheless, we can see that Al-Shaybani’s approach was a response to the realism of his time. Yet his approach was a departure from the then widely practised waging of wars for the sake of gaining territory, slaves or for revenge. As we have seen above, this legal limitation on war was not suggested before the legal system to which Al-Shaybani belongs came into existence, neither in Arabia nor elsewhere.319 Although just war theory brought about some limitations, rules of just war were not applicable except to Romans and to Roman allies or friends. Although figures like St Augustine,320 Gratian321 and many other just war theorists held that war for worldly gains is prohibited, it was widely held that it is necessary to have war against non-Romans, despoiling and forcefully converting them as a punishment for their sins, which could simply consist of having a different faith.322 Furthermore, Al-Shaybani held the view that war is only permissible in a defined number of specific cases. In the harshest of these cases, the enemy will still be given the choice of converting or paying poll tax and joining the Muslim State to avoid war. Meanwhile, according to the medieval just war theory, the enemy would have no option but the sword as a punishment for their wickedness. The sin of improper belief is also included in the definition of wickedness here.323 Nevertheless, Vitoria and Grotius offered alternatives to war, as did Al-Shaybani. They both considered going to war without exhausting these remedies unlawful. Certainly, Grotius has offered more options than Al-Shaybani. Indeed, Grotius seems to be in favour of trying arbitration, conference and more to settle disputes before champions could go to war.324 Just like Al-Shaybani, Grotius was also determined that in case of doubt about the just cause, people must refrain from war.325 What is confusing about Grotius, however, is that while he stressed such pre-war arrangements, he 318
Neff (n 10) 395. This statement must not undermine any future discoveries that might attribute such limitations to previous civilizations. 320 Russell (n 27) 23. 321 Ibid 61. 322 Ibid 16, 52, 53, 56, 57. 323 Ibid 23. 324 William Stanley Macbean Knight, The Life and Works of Hugo Grotius (Oceana Pub, Inc 1962) 198. See also Grotius, The Law of War and Peace (n 1) 563. 325 Grotius, The Law of War and Peace (n 1) 560. 319
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also says that ‘a sovereign must be sure that he could satisfy his rights through force of arms’.326 3.3.5 Al-Shaybani’s Legal Complexity and Others In the thirteenth century, some Western scholars such as Aquinas considered war sinful and required three conditions in order for war to be called just. These, generally, are (1) authority of the sovereign, (2) just cause and (3) rightful intention.327 Aquinas never explained how these conditions fit into realities and practices, nor did he offer a clear theoretical definition of them.328 There is therefore some confusion in determining what fits within these criteria and what does not. For example, to Aquinas sedition is a special kind of sin and it is a moral sin.329 Thus, according to his criteria this befits a just cause. In fact his treatment of some of these conditions was even simpler than the treatment they received by Augustine.330 Neither St Augustine nor Aquinas elaborated much on the justa causa (just cause), although it was the core element of deciding whether a war was just or not. It is therefore surprising that ‘relatively little attention was given to it by medieval writers, who typically confined themselves to the most general comments on the topic’.331 Furthermore, having the right intention is required by Al-Shaybani. This intention is limited to carrying out one of the permissible wars in accordance to the law for no other cause but serving God and not for other worldly gains. In the last notion, his argument is in line with St Augustine, Gratian and Aquinas. Meanwhile, to Grotius, Bellamy asserts, ‘wars fought for just causes might be waged without right intention and would therefore be unjust (though not necessarily unlawful)’.332 As mentioned above, even among those who required the right intention for a war to be just, some still thought that war is just so long as it has the approval of authority. Yet even Gratian, who talked about the authority in more detail than the others did, lacked precision in identifying the institutions that could authorize war.333 He also failed to produce, 326 327 328 329 330 331 332 333
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Bellamy (n 215) 73. Friedman (n 6) 9–10. Tooke (n 35) 26–8. Dyson (n 44) 250. Russell (n 27) 269. Neff (n 10) 50–51. Bellamy (n 215) 73. Russell (n 27) 71.
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unlike Al-Shaybani, any manual guide for the authorities to follow when deciding whether to go to war.334 Meanwhile, Grotius seems to pay much attention to the issue of authority and the right to wage wars. To him, it is only the sovereign authority or those authorized by it that should be able to start formal wars according to the law of nations.335 Furthermore, he explained, sovereigns are those ‘whose actions are not subject to the legal control of another, so that they cannot be rendered void by the operation of another human will’.336 Grotius in this is likely to have drawn quite heavily on Vitoria who had preceded him with deep analysis of the issue of authority. Vitoria had already pointed out that ‘where there are already lawful princes in a state, all authority is in their hands and without them nothing of a public nature can be done either in war or in peace’.337 Authority, to him, refers only to those who head perfect communities and have the right to war.338 He further explained that it is a ‘perfect community’ … ‘which is not a part of another community, but has its own laws and its own council and its own magistrates’.339 What Grotius and Vitoria offered on this subject did not seem to have an equivalent in Al-Shaybani’s writings. Meanwhile, Grotius explains sovereignty and sovereign rights in the form of a very long political text in his book.340 Dangerous as it was, St Augustine promoted the idea that it was not only God who could order a just war but also ‘God’s officials on earth could authorise a just-war in defence not only of moral order but in defence of the rights of the Church hierarchy’.341 Moreover, St Augustine considered a war of revenge as a just war.342 To him, all that is required for a war to be just, so to speak, is the authorization by the monarch.343 Gratian too thinks that ‘[t]he soldier who kills a man in obedience to authority is not guilty of murder’.344 In contrast to this approach, Grotius wrote his book De Jure Belli et Pacis in reaction to ‘the disturbing trend towards the realist view that sovereigns could wage 334 335 336 337 338 339 340 341 342 343 344
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Ibid. Grotius, The Law of War and Peace (n 1) 97–101. Ibid 102. Vitoria (n 70) 169. Ibid. Ibid. Grotius, The Law of War and Peace (n 1) 97–137. Russell (n 27) 126. Nussbaum (n 5) 35. Friedman (n 6) 7. Eppstein (n 58) 82.
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war for any reason and fight in an unconstrained fashion. Grotius believed that war itself was neither inherently right nor wrong.’345 ‘International law, Grotius believed, provided a framework for evaluating when and how war could be legitimately used.’346 Thus, the latter’s approach meets with Al-Shaybani’s whereas that of Augustine, Gratian and Aquinas was different. To St Augustine, monarchs wage wars and these will be considered lawful or just regardless of what the law is (if it ever existed). In line with St Augustine’s347 thoughts, Gratian went as far as to consider ‘[o]bedience to evil commands, or even in a war motivated by greed, rendered the warrior innocent of any blame, while the prince’s iniquity was upon his head’.348 Thus, in just war theory, refusing to take part in an unlawful war is prohibited,349 and indeed St Augustine saw it as treason.350 In addition, ‘[s]ubjects fighting in self-defence, according to Grotius, are always in the right, regardless of whether the cause motivating their sovereign is just or not.’351 This is because he took the view that subjects have the right to defend themselves, their property or others or their property against an attack by the opposing force even if the opposing forces’ war was a just one and they were on the unjust side.352 This idea of having to fight with the unjust side in ‘self-defence’ adds nothing to the issue that warriors must always fight even in an unjust war when authorities decide to wage one. In contrast, however, if the ruler goes to war and it does not fall within the criteria set up by the jurists, it would be considered unlawful according to Al-Shaybani. This is vitally important for many reasons. For example, the individual following the teachings of Al-Shaybani will not support, even if forced to participate in, a war that is led by his ruler if it is said by jurists to be unlawful. On the contrary, warriors will consider any war lawful so long as it is led by the monarch when they follow the general just war theory. This alone could open the door for rulers to wage wars whenever they deemed it right. On the contrary, rulers in Al-Shaybani’s system cannot render an unlawful war lawful even if they had the power to make it happen. 345
Bellamy (n 215) 73 (footnote omitted). Ibid 71. 347 Neff (n 10) 23. 348 Ibid 69. 349 Ibid 70. 350 Russell (n 27) 22. 351 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 221. 352 Ibid. 346
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However, Vitoria, in his lectures, said that ‘[i]f a subject is convinced of the injustice of a war, he ought not to serve in it, even on the command of his princes’.353 However, for the sake of unity and for the benefit of the state, he ruled that ‘[i]n a doubtful case, subjects may follow their prince to battle not only in a defensive, but also in offensive war’.354 This, to some extent, is also found in Grotius’ writings. For he asserted that ‘[i]f those under the rule of another [such as individual citizens considered in relation to the body politic of their state] are ordered to take the field … they should altogether refrain from so doing if it is clear to them that the case of the war is unjust’.355 This was because to Grotius, ‘God must be obeyed, rather than men’.356 Furthermore, unlike Al-Shaybani, in the West even Aquinas centuries later did not conceive of just war as part of jurisprudence; rather he conceived it ‘as part of moral theology’.357 Thus some scholars believe that he was not ‘writing a treatise on natural law or politics, but is touching on individual moral problems in the context of dogmatic theology’.358 Most importantly, however, is the fact that St Augustine, Gratian and even Aquinas differentiated between Christian and nonChristian entities. In general, their rules had to be respected with regard to Christians, but in the face of others, law was the monarch’s will.359 Compared to these views, Al-Shaybani was clearly concerned with legal procedures and he advocated law beneficial to all. On the other hand, ‘[j]ust-war theory did not explicitly require the issuing of a formal demand for redress prior to resorting to war.’360 On the contrary, Al-Shaybani not only required a formal declaration of war, he also required offering alternatives to the other party. To him, a declaration of war is a requirement and the administration of war must be in the hands of the government. Thus, he went so far as to consider hostile activities launched by others against a state incapable of being considered a declaration of war unless the government, to which the launchers of these activities belonged, permitted them.361 Nevertheless, 353
Vitoria (n 70) 173. Ibid 164. 355 C. van Vollenhoven, The Framework of Grotius’ Book De Iure Belli Ac Pacis (1625) (Noord-Hollansche 1932) 47. 356 Ibid. 357 Nussbaum (n 5) 35. 358 Tooke (n 35) 26. 359 Hamidullah (n 33) 64. 360 Neff (n 10) 71. 361 Hamidullah (n 33) 163. 354
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Grotius once again is in agreement with Al-Shaybani, because in contrast to other just war theorists, he asserts that war must only ‘be waged by sovereigns and only when they have properly declared their intentions and causes, offering the enemy an opportunity to provide restitution’.362 From another perspective, ‘[t]he logic of the just-war outlook clearly had no room for neutrality.’363 Third parties were always supposed to side with the just party in this theory – the problem is who is to decide which party was just.364 Although Grotius and Vitoria might be exceptions to this case, the former’s treatment of neutrality is still inadequate and clumsy. If, Grotius argued, ‘two allies are waging war against others, and each for a just cause, aid in men and money will have to be sent to both’.365 The question then is how wide the use of war could be in support of allies and what the rules of neutrality are. What is more is that according to Grotius, ‘although the enemy may be “prosecuted” everywhere, under no circumstances may neutral countries or their populations be despoiled’.366 This could mean that although people in neutral countries might be safe, neutral countries could be turned into battlefields in pursuit of the enemy. As for Vitoria, he prohibited targeting foreigners in the land being attacked, thus it is more likely that he would not allow attacking neutrals either. Generally, in just war theory, some very practical issues always went ‘beneath the notice of the theologians and philosophers, which cried out for solution’.367 For example, it is difficult to define the position of a neutral body contracting with a warring party to supply them with military equipment, according to their writings. Unlike just war theorists, Al-Shaybani dealt with all practical questions of the time relating to war affairs including details about this issue. ‘Another very practical problem facing medieval rulers was what to do about small-scale injuries which did not justify the drastic step of war.’368 For example, what would be the solution if a highwayman or a robber from another state attacked a subject? It is true that Aquinas did contribute in this regard by excluding some types of violence from being considered war.369 However, he was 362
Bellamy (n 215) 73. Neff (n 10) 75. 364 Ibid. 365 Grotius, The Law of War and Peace (n 1) 404. 366 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 223. 367 Neff (n 10) 75. 368 Ibid 76. 369 Russell (n 27) 271. 363
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not even close to being comprehensive. While just war theorists fail to deliver in this area too, Al-Shaybani discussed the solution to this as well. As for the last hypothetical example, Al-Shaybani offered a detailed and proportionate means of redress. It is true, as pointed out above, that ancient Greece knew a custom called ‘reprisals’ whereby an individual is permitted ‘to use force for the protection of rights not only against an alleged foreign wrongdoer but against his country and fellow citizens as well’.370 However, this was nothing but a prescription for more bloodshed and disproportionality. The Greek system offers no limit to the kind of retaliation involved. Meanwhile, while it is also true that both Aquinas and Augustine were naturally against private wars,371 this is because they required authority; they were not against reprisals once there existed approval of the authority. While they prohibited wars without the consent of the authority, they did not prevent the latter from carrying out reprisals on behalf of the individuals. Al-Shaybani, on the other hand, offered some alternative solutions to such problems, expressing that not every hostile action should be responded to with war. In fact, Al-Sarakhsi, commenting on Al-Shaybani, goes even so far as to maintain that ‘if a foreign armed force without permission of its government takes belligerent action against a Muslim State, that does not amount to a declaration or existence of war between the two States.’372,373 Thus, while ‘war was a decidedly more complex phenomenon than the expositors of natural-law and just-war theory were able to take account of’, Al-Shaybani discussed war with both comprehension and comprehensiveness.374 Furthermore, in the medieval West not only Augustine, Gratian and Aquinas but ‘almost all theologians did not adequately cover the problems of truce, mercenaries, and crusading orders. Explanation of these inadequacies lies in the received texts the theologians commented upon.’375 While Augustine’s ideas were generic and open to interpretation, ‘Gratian’s Decretals can fairly be said not to have stated briefly the 370
Nussbaum (n 5) 8. Dyson (n 44) 242. 372 Hamidullah (n 33) 163. 373 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir LiMuhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 5 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 1695–8. 374 Neff (n 10) 82. 375 Russell (n 27) 290. 371
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essence of the idea of just war, owing to the method he used of laying excerpts from diverse sources side by side out of context.’376 Notwithstanding the above, just war theory may have been superior to many other conceptualizations of war around Europe. This may well be true even until much later ages. In this regard, Neff went as far as to argue that: [i]t is not easy to say whether fundamental ideas about war are today significantly more advanced than they were in the age of Cicero. It may even be contended that the post-1945 version of just-war doctrine is greatly inferior to that of the ancient stoics and the medieval Christians, in that it has no deep grounding in a rich body of ideas about the conduct of human social and political relations in general, in the manner of ancient and medieval natural law.377
This, however, cannot be said to be true with regard to Al-Shaybani’s thesis, especially as it is very well grounded in the rich and sophisticated body of human social sciences of Islamic law and Islamic philosophy. 3.3.6 Grotius From the above, comparisons between Al-Shaybani and Grotius often seem to yield different results. Thus, more light will be shed on Grotius. Firstly, Grotius dealt with war according to the law of Christianity compared to that of what he called ‘nature’. Indeed, ‘[o]ne of the most notable features of Grotius’s treatment of the subject of war is the distinction he attempts to maintain between what is allowed by nature and what is permitted to Christians.’378 The benefit of this method employed by Grotius is that, at least in theory, the rules produced will be useful for all human beings. However, there are some difficulties with this method: for example, having two different laws in force in the same world. Grotius did not attempt to answer the pressing questions this prompts. Therefore, Johnson asserts that: his natural-law doctrine on war applies to all men since it is knowable by reason. Christians, by faith, possess some additional knowledge, which in part supplements and in part replaces that which natural reason provides. If warring nations are Christian, then, they are bound by limits that are known to 376 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 38. 377 Neff (n 10) 395. 378 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 210.
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other nations and therefore do not bind them. In wars between non-Christian nations natural law alone provides the rules by which war should be fought. Grotius never adequately resolves the question of war between two nations, one Christian and one not. To what extent are Christians bound by their own moral knowledge in such circumstances?379
Thus, although he has the privilege of offering a choice of law – one for Christians and one for others – the problems of this system are complex. Al-Shaybani did not offer two legal systems; however, he offered the options whereby non-Muslim nations could employ his law and/or apply the reciprocity principle advanced by him, under which people can create mutually respected rules. For instance, as we shall see later, he ruled that nations could agree a prohibition on the killing of captured men. Another problem in Grotius’s dual system of law for one world is that: [s]ince European nations were by definition ‘Christian,’ and since the customs and mutual agreements in the jus gentium were also products of interactions among European nations, it was difficult during the early modern period to distinguish between standards drawn from Christianity and those drawn from the jus gentium.380
Nevertheless, if Grotius is compared to Augustine, Gratian and Aquinas, his is the most articulated approach and he is the most methodical and comprehensive in his treatment of the area. However, his often-broad definition of just causes allows others to interpret it broadly. Thus, commentators can explain these causes differently. One example is Bellamy, who defines these just causes as:381 1. 2.
self-defence including pre-emptive wars (natural law); the right to punish wrongdoers (natural law). The wrong here must be ‘unambiguously destructive’ of society; the enforcement of legal rights (grounded in human law); and the reparation of injuries where no other avenue was available.
3. 4.
As we have seen above, Al-Shaybani and Grotius both approve of wars in self-defence. However, while self-defence is somewhat similar to the UN-based notion for Al-Shaybani, Grotius went further to approve of pre-emptive wars opening many doors to endless wars. That aside, the rest of his just causes would be unlikely to be accepted by Al-Shaybani, 379 380 381
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Ibid 211. Ibid 219. Bellamy (n 215) 74.
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as wars for him must never be allowed for aims such as punishment or revenge.382 Licit war to him was limited to three cases, as shown above. Nevertheless, Grotius also discussed the issue of decision-making while going to war in more depth than that of most of his predecessors. To him war is solemn (just) if: 1. 2.
made by the sovereign authority in the city on both sides; or waged according to the ‘rites and formalities’ required by the law of nations.
Any war without compliance with all of these conditions is less solemn or unjust.383 The three classical criteria of just war were still upheld by Grotius, who did also add to them. However, Grotius, as mentioned above, seems to find the requirement of right intention problematic.384 To him, ‘sovereignty replaces the criterion of right authority; just cases … are limited to those that can be discerned by an objective observer; and right intention, the most clearly subjective of the classic criteria, is treated only scantly and in connection with other topics.’385 What is more is that all just wars to Grotius are defensive.386 However, if his concepts are brought together, for scrutiny, even his notion of self-defence (which he called self-preservation), as shown above, was dangerous enough to permit rulers to wage offensive wars, colonize lands and slaughter men. This is particularly true for his notion of a state’s self-preservation, as it can do anything in order to prosper, continue to exist and flourish under the pretence of preserving itself. His ideas were so wide that they led Tuck (1999) to say that: Grotius had always tried to distance himself from Oldenbarnevelt’s peace policy, and De Iure Belli ac Pacis reminded his audience that he was still an enthusiast for war around the globe. He was indeed a most improbable figure to be the tutelary deity of the Peace Palace at The Hague.387
382
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 115) 199, 1415. Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 212. 384 Bellamy (n 215) 73. 385 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 213–14. 386 Ibid 214–15. 387 Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford University Press 1999) 95. 383
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Contrary to popular belief, Grotius was not an heir of Vitoria. Rather, says Tuck, ‘Grotius endorsed for a state the most far-reaching set of rights to make war which were available in the contemporary repertoire.’388 Probably the clearest example of such risky endorsements is the fact that ‘he accepted a strong version of an international right to punish, and to appropriate territory which was not being used properly by indigenous peoples’.389 Grotius was never hesitant to support explicitly such a colonial pretext. For example, he bluntly said: if within the territory of a people there is any deserted and unproductive soil, this also ought to be granted to foreigners if they ask for it. Or it is right for foreigners even to take possession of such ground, for the reason that uncultivated land ought not to be considered as occupied except in respect to sovereignty, which remains unimpaired in favour of the original people.390
In comparison, although Vitoria prohibits war for religion or for the appropriation of properties, he had immense support for polished ideas that could allow powerful rulers and states to appropriate the lands and properties of others without fighting. This was done by granting foreigners bountiful rights and privileges that fell well short of a coldblooded occupation and colonization without resistance. For they were granted the right to travel to, reside in and exploit all communal lands around the globe, as we shall see later when discussing the rights of foreigners.391 These are somewhat similar to the notion of Grotius, when he said that all unutilized lands can be taken by foreigners and that preventing, expelling or even resisting those foreigners will be a legitimate cause for war against aborigines or the natives of that state/land. Furthermore, Grotius, most likely in order to support the East/West Indies Company in its colonization activities, asserted that any land or goods that are not being used or utilized by someone are permissible for others to take or colonize.392 There is no doubt that these ideas were firmly grounded in Vitoria’s thoughts. These and even further such dangerous concepts found in Grotius’ writings played a significant part in promoting colonization and accompanying activities. Accordingly, Tuck stresses the fact that:
388 389 390 391 392
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Ibid 108. Ibid. Grotius, The Law of War and Peace (n 1) 202. Vitoria (n 70) 151–3. Tuck (n 387) 102–105.
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[t]he idea that foreign rulers can punish tyrants, cannibals, pirates, those who kill settlers, and those who are inhuman to their parents neatly legitimised a great deal of European action against native peoples around the world, and was disconcertingly close to the extreme pre-Victorian arguments used by the Spaniards in America.393
The notion of punishment was abused to the point that it could be exploited by powers to be used as pretext for their unlawful wars. This is because even Grotius widened the scope for this ‘just cause’ to make it as such. For example, in one passage he says that: kings, and those who possess the right equal to those kings have the right of demanding punishment not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature in regard to any person whatsoever.394
Moreover, Grotius, as did Augustine, went so far as to endorse that war may be waged upon those who ‘sin against nature’.395 There is no doubt that ‘sin against nature’ can easily be used by the powerful to wage wars at their own convenience whenever they wish and against whom they wish. Nevertheless, Vitoria was different among those ‘whom in justification of war seem to demand that he who undertakes it should have suffered injuries either in his person or his state, or that he should have jurisdiction over him who is attacked’.396 In sum, matters related to jus ad bellum were discussed in detail by Al-Shaybani. In terms of the depth in which he addressed the topic, only the work of Grotius is comparable. This is because Augustine, Gratian and Aquinas wrote neither as much nor in such a sophisticated way as the others on the topic did. With regard to Vitoria, on the whole, he certainly did offer more than Aquinas, Gratian and Augustine, yet he did not offer as much as Al-Shaybani or Grotius on the subject, as he only addressed some of the issues of jus ad bellum.
393 394 395 396
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Ibid 103. Grotius, The Law of War and Peace (n 1) 504. Ibid 506. Ibid.
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3.4 AL-SHAYBANI AND JUS IN BELLO Where Al-Shaybani was writing, rules were already well established whereby non-combatants, women and children were not to be killed and prisoners of war had to be treated humanely. Thus, it has been affirmed that: [d]espite their divergences, the authors of the siyar developed a complex Islamic law of war that lays down rules governing, for example, the treatment of enemy persons and property. By affirming the principle of humanity in the midst of war, al-Shaybani and al-Awza’i helped pioneer the modern law of armed conflict.397
Just as Kelsay asserts, Al-Shaybani’s ‘text is a mine of information regarding the conduct of war. However, any reader opening the text will immediately be struck by the predominance of administration issues in the questions addressed.’398 Yet the last point, in my view, should be seen as an advantage. When war dictates its terms, the only way one can guarantee adherence to any law is by having a system in place whereby everything is organized, monitored and neatly administered. While armies even today are taught to obey commanders and follow the rules in order to achieve victory, Al-Shaybani seems to have been more concerned about all the commanders and those taking orders following the law. In general, to Al-Shaybani war is fought to establish the law (the law of God) and to uphold its rules; therefore, paying attention to every detail in order to achieve a war that is conducted according to the law it defends is logical. Al-Shaybani did not treat rules governing the permissibility of war and rules on the conduct of war separately. Thus, he narrated the following hadith both in his Al-Siyar Al-Saghir and in Al-Siyar Al-Kabīr with no difference except that in the latter we can see the comments of Al-Sarakhsi, in his Sharih, added. This hadith in Al-Siyar Al-Saghir reads: [w]henever the Messenger of Allah, peace be on him, sent an army or a group of troops he used to admonish its leader to fear Allah in his personal behaviour and to be pleasant to the Muslims who accompanied him. Then he 397 International Committee of the Red Cross, ‘Debate on Humanitarian Law, Policy and Action: Protection of Victims of Armed Conflict under Islamic Law and International Humanitarian Law’ (29 June 2006) (accessed 22 January 2018). 398 Kelsay (n 156) 67.
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would say: “Fight in the name of Allah and in the way of Allah; fight only those who disbelieve in Allah. Do not misappropriate; do not commit treachery; do not mutilate [the dead]; and do not kill a child. When you meet the polytheists who are your enemy invite them to Islam. If they accept Islam, accept it from them and hold yourselves back from them. Then, invite them to move over from their territory to the territory of Muhajirin.399 If they do that, accept it from them and hold yourselves back from them. In case they do not, tell them that they are like other non-resident Muslims: they shall be subject to the injunctions of Allah applicable to other Muslims; however, they shall have no share in fay’400 of the state or in the spoils of war. If they refuse [to accept Islam], invite them to pay jizyah. If they do that, accept it from them, and hold yourselves back from them. When you lay siege to the people of a fort or a city and they ask you to allow them to surrender, subject to the commandment of Allah, do not [commit yourselves to] do that, because you might not know what is the commandment of Allah regarding them. Rather, bring them to the acceptance of your own decision, and then decide about them according to your own opinion. When you lay siege to the people of a fort or a city and they ask you to grant them the guarantee of Allah and the guarantee of His Messenger, do not give them the guarantee of Allah or the guarantee of His Messenger; rather grant them your own guarantee and the guarantee of your forefathers for it is less grave if you were to fail to fulfil your guarantee and your forefathers’ guarantee.”401
This passage is very important and should be examined from different perspectives while bearing in mind firstly that prophetic traditions can only be fully understood if they are traced back to when and where and with what regard they occurred. Afterwards, scholars would infer rules from therein, some of which would be general in nature and character and therefore applicable to all cases. Others might be of a specific nature and character that should only be related to that incident where and when it happened. That is why the explanation of Al-Shaybani and the comments of Al-Sarakhsi should be consulted before we can fully understand the intention of Al-Shaybani behind narrating this tradition. However, prior to doing that, it must be noted that scholars would start by evaluating the authenticity of the narrated tradition to ensure that it is not one of the many made up traditions that had never belonged to the Prophet. 399
This term was used for the migrants who fled Makah in order to save their faith. It is an indication of when this hadith was authored by the Messenger and for what purpose. This is extremely important here, as we have to see the history of every clause in order for us to decipher the intended message. 400 Fay’ means proceeds of the state from the enemy property other than war booty. 401 Muḥammad ibn al-Ḥasan aš-Šhaybānī, The Shorter Book on Muslim International Law (Mahmood Ghazi tr., ed. 2007, Adam 2007) 43–4.
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Thus, I shall now turn to the treatment of this tradition and the subject of jus in bello as it is found in Al-Siyar Al-Kabīr. Before I do that, it is important to note that Al-Sarakhsi asserts that it was with this hadith that Al-Shaybani opened his Al-Siyar As-Saghir 402 and this is indeed the case in Gazi’s translation. This is further evidence of the reliability of the texts I am working with and their relation to Al-Shaybani. In Sharih Al-Siyar Al-Kabīr, the only difference is the comments of Al-Sarakhsi added in this narration to explain its different provisions in detail. In Al-Siyar Al-Kabīr Al-Shaybani narrates that ‘whenever the prophet peace be upon him ‘sent forth an army or detachment he charged its commander personally to fear God, the Most High, and he enjoined the Muslims who were with him to do good’.403,404 The Prophet further ordered them not to give the enemy the vow of God. Because, it is better that Muslims give their own oath for that they do not know what the judgment of God could be and if they break it for any reason they do not break the oath of God.405 This point is quite important if compared to the method of many just war writers who seem to have granted the monarch the right to decide what the will of God is. For example, we saw earlier how St Augustine considered the monarch as an authority to decide what is lawful and what is not as far as war is concerned. To him, rulers waging wars according to his just war notion were acting according to divine authorization, however indirect it was.406 For Augustine, ‘[e]ither God or the ruler, be he king or prince, had the unequivocal responsibility to decide whether recourse to war was necessary.’407 3.4.1 Non-combatant Immunities In conformity with the previous narration and for better understanding of this hadith, Al-Shaybani revealed some of the commands that were given by the companions (when they became caliphs) of the prophet to the heads of armies whenever they were sent forth by them. By this Al-Shaybani had reconfirmed his method for law-making processes as he used the practice of the fore-caliphs when extracting legal norms from 402
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 38. Majid Khadduri, ‘Islam and the Modern Law of Nations’ (1956) 50 The American Journal of International Law 358, 75–6. 404 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 38. 405 Ibid 38–9. 406 Russell (n 27) 20–21. 407 Ibid 21–2. 403
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the Islamic principles. He explicitly described the incident when the first Caliph Abu-Bakr charged his army chief with precise rules to be followed throughout the mission. It was to teach both leaders to advise their commanders and soldiers to abide by the stated rules. These narrations played a supportive role to Al-Shaybani’s opinions on these legal matters. For example, he narrates that the Caliph Abu-Bakr ordered his army chief not to: + distract worshippers ‘pretending to be’ worshipping in their chapels (with the exception, explained by Al-Sarakhsi, that if those worshippers had played a part in the war against the Muslim army, they should not benefit from this exclusion);408 + kill children, women or the elderly (unless they were participating in the fighting, Al-Sarakhsi adds); + destroy fruit-bearing trees; + kill animals except for food; + steal anything from the spoils of war; or + become too proud when victorious. Al-Shaybani then further identifies the categories of people whose killing is abhorred in war.409 They generally highlight the detestation of the killing of any: + + + + +
women; children; insane people; elders; or non-combatant individuals and groups.410
To arrive at this conclusion, Al-Shaybani also referred to the Qura’anic verse: ‘Fight in the way of Allah against those who fight against you, but begin not hostilities. Lo! Allah loveth not aggressors.’411
408
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 38. As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr (n 291) 1415. 410 In that age, all able bodied-men who reached the age of puberty were considered combatants. This fits in well with their style of life where all men under this category were expected to carry arms and participate in wars. 411 Pickthall (n 199) 2/190. 409
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In addition, he recalled the Messenger Mohammad addressing a reprimand to Khalid,412 pointing out that ‘the woman killed was not fighting and therefore she should have never been killed’. He had also sent word to Khalid admonishing him that he should not kill any children or elderly people.413 By this, Al-Shaybani pioneeringly discussed the main legal rules included in the hadieth. He identified non-combatants, and explained the limitations commanders and soldiers must adhere to in wars. 3.4.2 Unnecessary Suffering and Punishment Al-Shaybani explained that the aim of war is not to persecute the enemy or despoil it. Rather, war is a last resort and should always be seen as such by warriors. Thus, warriors must abstain from all unnecessary killing or injuries. This is what we can clearly see in his following statement when he emphasized that: … although also associating partners to Allah is the utmost offence, it is in the jurisdiction of God alone and God postponed the trial for such crime to the Day of Judgement. As for the offences that he prescribed punishments for in this life, it is in the interest of his subjects to prevent fighting. This prevention cannot be achieved by killing those who do not fight. Therefore, only those who fight Muslims should be the subject of fighting.414
According to this statement, none of the non-combatant categories mentioned above by him can be fought unless they started fighting; it is only then that it would be permissible for the soldiers to fight them. In addition, this statement is clearly an indication of the principle of proportionality cherished by Al-Shaybani in many places in his book. The use of force against non-combatants is prohibited unless it is necessary to achieve the goal of the war. Elsewhere, as we shall see later, he also discussed the prohibition on using unnecessary methods of war such as the prohibition of using fire unless it is essential, as it is clear in his statement. Nevertheless, Al-Shaybani appears to be against war on the ground of being different in faith. However, this statement of his should be viewed as follows: first, this is a clear statement from which we can infer that Al-Shaybani is against war unless it is necessary. Second, this leaves us 412 Referring to Khaled Ibn Al-walied, who is known to have led the Muslim army on many occasions. 413 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 291) 1415. 414 Ibid.
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in no doubt that he is totally against war for punishing sinners. This is because no sin could be worse than disbelief. Finally, Al-Shaybani made his opinion unmistakably clear that all unnecessary suffering must be avoided in war. Thus, it is clear that Al-Shaybani’s opinion is very different from St Augustine, Gratian and other just war theorists who justified wars carried out to punish sinners. While Al-Shaybani clearly prohibited the killing of non-combatants and prohibited using force to punish those who commit the greatest sin ever (disbelief), St Augustine advocated that the sins ‘merited punishment of the enemy population without regard to the distinction between soldiers and civilians’.415 To Augustine, ‘[m]otivated by a righteous wrath, the just war warrior could kill with impunity even those who were morally innocent.’416 In Europe, exceptionally, Vincent of Beavais had called for the prohibition of killing those who did not aid the ruler of the enemy in his war.417 Apart from this, in the Middle Ages, it seems that the attempt of medieval just war theorists to distinguish non-combatants was limited to the institution of Peace of God. Yet even this was only applicable to those who were not allowed by the Church to take up arms.418 Thus, everyone else had no protection. Moreover, even this limited scope was never clearly defined.419 For example, ‘[n]owhere did Augustine discuss the principle of non-combatant immunity, leading one commentator to conclude that Augustine was “unconcerned with the fate of the innocent so far as the necessities of the just war is concerned”.’420 In comparison, to Vitoria, not only redress but also punishment of the enemy is a right of war. He explained this by saying that: princes have authority not only over their subjects, but also over foreigners, so far as to prevent them from committing wrongs, and this is by the law of nations and by the authority of the whole world.421 Nay, it seems to be by natural law also, seeing that otherwise society could not hold together unless
415
Russell (n 27) 19. Ibid 19–20. 417 Ibid 275. 418 Ibid 34. 419 Ibid 173. 420 Bellamy (n 215) 29 (footnotes omitted). 421 I have underlined this phrase to emphasize that while Vitoria refused the notion that the Emperor or even the Pope is the lord of the whole world, he still held such ideas as that underlined here. 416
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there was somewhere a power and authority to deter wrongdoers and prevent them from injuring the good and innocent.422
Of course, this could be deemed as part of the rules governing the duties to administrate occupied lands. In such a case, Vitoria takes the credit for initiating such discussion. However, there is nothing, it seems, that could prevent commanders from utilizing this statement to do as they wish. Nevertheless, as the aim of war is not only to recover damages but also to exact punishment, the just cause bearer can deprive the enemy of parts of their territory, impose a tribute on them and sometimes even depose their princes. The prince in possession of just cause determines the amount of redress and the scale of punishment.423 It is true that Vitoria urges princes, who will be both the victim’s advocate and the judge at the same time, to be moderate in exacting punishment and in the recovery of loss. However, this on its own is a sword in the hands of the one with the authority to punish his enemy in the way he deems fit. Nevertheless, when compared to Augustine, Gratian and Aquinas or even to Grotius, the record of Vitoria on jus in bello is undoubtedly stronger in terms of how much attention he paid to this topic and in terms of how much protection he believed should be given to non-combatants. When local people try to evict foreign settlers by force due to ‘fear’ – because foreigners are more powerful and more intelligent than them – Vitoria allowed the use of only sufficient force by the settlers to resist and to reclaim safety and security in that land. However, if the local people persist in such action, they can then be faced down with all methods of war including killing, despoiling and all that is needed in order to gain full control of that state, and not only to resist eviction.424 In the case of the Indians, trying to evict the Spaniards, Vitoria thus suggests that if this happens, the latter should resist with the minimum force and destruction to the Indians needed given that they are ‘innocent’. Nevertheless, he says: [if] after the Spaniards have used all diligence, both in deed and in words, to show that nothing will come from them to interfere with the peace and well-being of the aborigines, the latter nevertheless persists in their hostility and do their best to destroy the Spaniards, then they can make war on the Indians, no longer as on innocent folk, but as against forsworn enemies, and may enforce against them all the rights of war, despoiling them of their goods, rendering them to captivity, deposing their former lords and setting up new 422 423 424
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Vitoria (n 70) 172. Ibid 185–6. Ibid 154–5.
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ones, yet withal with observance of proportion as regards the nature of circumstances and the wrongs done to them.425
However, Vitoria’s record is certainly stronger than that of Augustine, Gratian and Aquinas because they did not pay much attention to this topic. When compared to Grotius, to begin with, the latter did not even allow such humanitarianism for the first strike or resistance by the original people against settlers. The distance between Vitoria on one hand and Augustine, Gratian, Aquinas and Grotius on the other, as well as the closeness between him and Al-Shaybani, is also seen in his imposition of other limitations on the conduct of war such as prohibiting the killing of women, children and elders and so on. For example, Vitoria thinks that ‘even in a war with the Turks, it is not allowable to kill children … and … the same holds with regard to the women of unbelievers’.426 This is because they are presumed innocent unless it is known otherwise. Also among Christians, harmless agricultural folks and other peaceable citizens are also presumed innocent and thus are not to be killed unless their action shows that they are not as such.427 What is more, he ruled that ‘it is never right to slay the guiltless, even as an indirect and unintended result, except when there is no other means of carrying on the operation of a just war’.428 In addition, ‘foreigners or guests who are sojourning among the enemy’429 are presumed innocent and not to be killed while so. The same also ‘applies to clerics and members of a religious order’.430 In some cases Vitoria goes further than Al-Shaybani, for example, when he stated that ‘[w]hether victory has already been won or the war still in progress, if the innocence of any soldier is evident and the soldier can let him go free, they are bound to do so’.431 As for despoiling enemies, he suggested some limitations even in cases when he allowed the practice. Thus he ordered that ‘[s]oldiers may not loot or burn without authority; otherwise they are bound to compensate for damages’.432
425 426 427 428 429 430 431 432
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Ibid 155. Ibid 179. Ibid. Ibid. Ibid. Ibid. Ibid 180. Ibid 165.
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3.4.3 When Could Non-combatants Be Targeted? Al-Shaybani also addressed this question. For example, if a woman, a child, insane person or an elder is captured after killing a human being, only women and elders could be tried for this act. This is because, Al-Sarakhsi explains, children and insane persons can only be killed to prevent them from killing soldiers while they are fighting. Women and elders, on the other hand, are subject to criminal law and therefore punishable if they commit murder even if the fighting has ceased.433 In contrast, the insane and the child are not punishable under the criminal law if they committed the same offence; therefore, their killing should only be while they are fighting but once they are captured this exception is invalid.434 It is interesting to see how Al-Shaybani as well as Al-Sarakhsi dealt with the topic of child soldier. It raises the question: to what extent was there a concept of child soldier and protection for children in their writings in particular and in the writings of other Siyar scholars in general? Nevertheless, unlike Al-Shaybani’s above rules, to others, not only was the killing of non-combatants permissible, it was even advisable and sometimes even considered to be part of the love for the persecuted. Gratian went even further to suggest that ‘those who punish the wicked men were not guilty of cruelty but were rather ministers of God and avengers of His wrath’.435 As for Grotius, he thought that ‘killing everyone found in the enemy’s territory was not illegal because it was not expressly forbidden by volitional law’.436 ‘This does not mean that such actions are just. Indeed, Grotius believed that killing the innocent was manifestly unjust because it violated principles of Christian charity.’437 However, Grotius still deemed it lawful. Nevertheless, given the above, Vitoria sometimes comes back with some exceptions to the rights of non-combatants. This is clear in his statement: ‘[i]n war everything is lawful which the defence of the “common weal”438 requires.’439 Also, while he stated that ‘[s]laughter of the innocent is never lawful in itself and intentionally’,440 he went on to 433
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 291) 1416. Ibid. 435 Russell (n 27) 59 (footnotes omitted). 436 Bellamy (n 215) 75. 437 Ibid. 438 I have already explained that the common weal to him meant the interest of the Christian world. 439 Vitoria (n 70) 171. 440 Ibid 164. 434
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say that ‘if a war of the present day be just, it will be lawful to kill the innocent’.441 He added: ‘[n]ot only are the things just and allowable but a prince may go even further in a just war and do whatever is necessary in order to obtain peace and security from the enemy.’442 Meanwhile, Vitoria asks, is it lawful to kill the children and youths of the enemy (such as those of the Saracens) because of the fear that they might grow up and fight Christians? His answer was that ‘it is no wise right, seeing that evil is not to be done even in order to avoid greater evil still, and it is intolerable that any one should be killed for a future fault’.443 Nevertheless, he thought that where war is expected to be ‘endless’, rules change.444 ‘As war with pagans is indefinite,’ he said, ‘seeing that it is perpetual and that they can never make amends for the wrongs and damages they have wrought, it is indubitably lawful to carry off both the children and the women of the Saracens into captivity and slavery.’445 Nonetheless, Al-Shaybani stressed that worshippers, who are disconnected from hostilities and do not participate in fighting in any way, are also not to be killed. However, it is clear that to Al-Shaybani, if they participate in the war even by incitement they will be considered as fighters.446 In contrast, St Augustine did not offer such immunity to this category of non-combatant worshippers.447 Some synods and councils in Europe, long after Al-Shaybani, promulgated the Peace of God. However, this only prohibited violence against certain occupational clerics.448 Meanwhile, Gratian, in an attempt to propose some limitation on ‘violence’, exempted ‘pilgrims, clerics, monks, women and the unarmed poor from violence, on pain of excommunication and anathema’.449 However, these were specific limitations applicable to protect some Christians only.450 In comparison, just as St Augustine and Gratian did, Aquinas thought that you could kill even an innocent man with impunity, if directed by the ‘ultimate authority of a divine mandate’.451 441
Ibid 178. Ibid 171. 443 Ibid 180. 444 We may ask: what does that mean? Moreover, who is the judge to deliver the verdict that a certain war is endless and another is not? 445 Vitoria (n 70) 181. 446 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 291) 1429–48. 447 Russell (n 27) 24–5. 448 Ibid 34. 449 Ibid 70. 450 Johnson, The Holy War Idea in Western and Islamic Traditions (n 75) 105. 451 Russell (n 27) 283. 442
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Meanwhile, Grotius, trying to distinguish between combatants and non-combatants in his just wars, called for harsher punishment for some categories than that for others. To Grotius, the prosecution of decision makers should be harsher than that of priests, women, children, students and merchants. Thus, the punishment of the innocent should always be less than that of the ‘nocent’ or ‘guilty’.452 However, Johnson (1975) asserts that ‘Grotius seems to find in nature very few restraints on the prosecution of war against non-combatants’. In support of this claim, he quotes Grotius as saying: [t]he right of licence or impunity in [prosecuting] war extends itself very far, for it reacheth not only to such as are actually in arms, nor unto such only as are subjects to these princes against whom the War is made; but unto all such as side within their territories or dominions …453
Generally, up until the seventeenth century in Europe writers were still considering war between states as war between their subjects too.454 For example, Grotius maintains that war is not only between princes but their people are considered parties to it too in all cases.455 However, Al-Shaybani not only differentiated between war between states and their inhabitants but also further allowed travelling, trade and many other dealings between the subjects of two warring states even during war. In contrast, even foreigners should be given some time to leave the attacked abode, Grotius thinks, but if they do not after the war is declared, they can be a legitimate target.456 Nonetheless, here too we find Vitoria to be the closest in opinion to Al-Shaybani, for he too prohibits targeting foreigners and distinguishes (to some extent) between a war against the state and that between populations. However, Vitoria in some cases allowed an all-out war against all subjects and not only their princes, as in the case when a certain war is deemed endless, as shown above. Of course, neither Al-Shaybani nor any of the just war scholars mentioned in this book understand the principle of non-combatants as we
452 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 227. 453 Ibid 223. 454 Oppenheim (n 2) 205. 455 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 224. 456 Ibid 223.
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do today. For example, the requirement of direct participation in hostilities, as we know it now,457 was only applicable to certain categories of the population by Al-Shaybani. However, his achievement in his time was incomparable, for he considered many as non-combatants while they were still considered to be combatants elsewhere centuries after him. 3.4.4 Military Tactics and Limitations on the Conduct of War Al-Shaybani also addressed other questions such as whether it is permissible to cut or spoil the water supply, use fire or throw missiles at enemy forts. If the answer is yes, which is the case, is that not against the prohibition of killing women and children, for example? The decree seems to adhere to the practical needs of fighting when using these techniques is the only way to break through and to make the enemy forfeit its fortification. Nevertheless, under no circumstances should the army use such exceptional methods in a normal situation. For instance, if the fort is breached and fire is no longer a necessity in the war, no one is allowed to burn any living soul, be it a human or not.458 Although St Augustine required fidelity in dealing with the enemy, he allowed ambushes, ruses and stratagems. Since God allowed it in the Old Testament for Joshua, St Augustine allowed any act of this kind.459 ‘[W]hen one undertakes a righteous war,’ he says, ‘it makes no difference, in respect of justness, whether he fights openly or by ambuscades.’460 Aquinas too followed the same route as Augustine on this issue,461 as he was also not against the use of ambush in war.462 In contrast, however, Bellamy claims that ‘Grotius expressly forbade the use of poison, deception, terrorism and the destruction of artistic and sacred artefacts’.463 However, Johnson argues that Grotius thinks that the ends justify the means in war, thus there is nothing that a just war fighter cannot do in a war.464 457 Mohamad Gazi Janaby, The Legal Regime Applicable to Private Military and Security Company Personnel in Armed Conflicts (Springer, Berlin Heidelberg 2016) 62–6. 458 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 291) 1467–85. 459 Russell (n 27) 23. 460 Grotius, The Law of War and Peace (n 1) 606. 461 Russell (n 27) 271. 462 Dyson (n 44) 243. 463 Bellamy (n 215) 76. See also Sydney D. Bailey, Prohibition and Restrictions in War (OUP 1972) 32. 464 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 230–31.
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Nevertheless, like Augustine, Gratian, who opposed the application of even the Truce of God, thinks that once war was necessary and just, ‘then all possible means to victory must be employed including the use of more effective weapons’.465 Even Aquinas appears to hold the view that if war is ‘just’ then it must have been necessary; therefore, ‘it should be fought by any means and at all times’.466 Moreover, Augustine had already gone so far as to take the view that the destruction of the bodies of sinners could benefit their souls.467 Nevertheless, Vitoria shares the idea that war is a tool of redress and justice, as we know. To him everything that is needed to achieve the goal of war, which is to obtain compensation and to punish the enemy, is justifiable.468 Al-Shaybani would oppose this, for war in his view cannot be carried out for revenge or punishment. However, as we saw earlier, Al-Shaybani agrees with Vitoria when the latter says: [s]ometimes it is right, in virtue of collateral circumstances, to slay the innocent even knowingly, as when a fortress or city is stormed in a just war, although it is known that there are a number of innocent people in it and although cannon and other engines of war can not be discharged or fire applied to buildings without destroying innocent together with guilty.469
3.4.5 Prohibition of Lying Although in limited cases he allowed certain tactics against the enemy, Al-Shaybani also prohibited many. For example, he prohibited lying to the enemy, citing the story of Imam Ali when he was fighting Amer Ibn-Wed. Imam Ali tricked Amar by saying, ‘Have you not promised me that you will seek no help against me?’ while they were duelling. This made Amar turn to see those he thought were coming behind him, and Imam Ali used this trick to defeat Amer. Tricks like this were permissible in Al-Shaybani’s view, but lying is never permissible.470 A somewhat similar approach to this was later found in Aquinas’s writings. He thought that ‘[t]o lie or break a promise was always illicit according to the law of war, hence faith once promised must be maintained even with enemies, yet in another sense word and deed could legitimately be 465
Russell (n 27) 70–71. Ibid 272. 467 Roland Herbert Bainton, Christian Attitudes toward War and Peace: A Historical Survey and Critical Re-Evaluation (Hodder and Stoughton 1961) 92. 468 Vitoria (n 70) 171. 469 Ibid 179. 470 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 120. 466
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employed to deceive an enemy’.471 In just war theory, both Augustine and Gratian took the view that ‘fidelity or good faith must be maintained when it had been promised to an enemy’.472 Thus, Augustine clearly stated that ‘when faith is pledged, it is to be kept even the enemy with whom the war is waged’.473 Meanwhile, Augustine, interpreting a verse from Psalm 5, takes the view that one should ‘conceal the truth wisely, by the use of dissimulation in some degree’.474 Gratian seems to agree with both the opinion and the interpretation.475 Aquinas in this regard agrees with Augustine too: he thinks that the Gospel allows no verbal lies, but the military, he says, should conceal the truth from the enemy.476 Hence, no difference in opinion is found between Al-Shaybani and the latter on this issue. 3.4.6 Treatment of Enemy Personnel As was typical of that age, pre-Islamic Arabia knew countless brutal and humiliating acts towards enemies in war. In contrast, all unnecessary brutality was prohibited according to Al-Shaybani. For example, some of the Arabs used to mutilate the corpses of their enemies and display them in public for a certain period. They had also known the practice whereby the enemy leader’s head is sent back to the leader of the victorious party as a sign of victory. Al-Shaybani, aided by traditions of the Messenger Mohammad and the first Caliph Abu-Bakr, plainly outlawed such practices.477 3.4.7 War Crimes Unlike the just war theorists considered in this book, some crimes that might be committed in wars were also addressed by Al-Shaybani. For example, he addressed the issue where two armies, belonging to the same state, have fought each other during the night by mistake and whether this should be considered a crime and whether any party should face justice as a result. Will there be any blood money paid? He differentiated between this case and when a soldier kills another soldier from the same 471 472 473 474 475 476 477
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Russell (n 27) 271. Ibid 70. Bigongiari (n 52) 182. Grotius, The Law of War and Peace (n 1) 607. Ibid. Dyson (n 44) 246. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 110.
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army by mistake. In the first case, there should be no liability on either side. In the second, Al-Shaybani ruled, the soldier should pay blood money to the family of his comrade-in-arms he killed by mistake. Al-Sarakhsi explained that in the second case it is manslaughter, as the intended action of the soldier resulted in the killing of his colleague without intending the result. Therefore, blood money should be paid in such cases. In the first case, however, both parties were fighting a lawful war with the lawful intention and each party aimed to kill the other while thinking that they were fighting the enemy and defending themselves. This self-defence is an obligation upon both of them. Therefore, their acts were lawful and they should not be held liable for any crime.478 Also interesting is the case where the hired non-Muslim guide did not guide the army to the agreed destination but rather misled them and took them to the enemy army instead. Al-Shaybani ruled that he should receive no payment, as he did not conduct his job as hired. Strikingly, the imam still does not have the right to kill this guide even if his act was a deliberate plot.479 The guide in this case should not be killed, because if this action ‘was conducted by a Muslim he shall not be considered an abandoner of Islam, accordingly when this act is carried out by a covenanting person he should not be considered as abandoner of his ama’an contract’.480 In this parable, it is clear that the clemency that a Muslim would enjoy is accessible to non-Muslim subjects of a Muslim State and even beyond. Moreover, in the previous case it is decreed that the imam still has the right to punish the guide who caused harm to Muslims with the intention of doing so. The punishment should be short of death and the same as that deserved if the offender was a Muslim.481 Unlike Al-Shaybani, even the treatment by Gratian centuries later was still ‘sketchy at best’.482 In fact, the provisions offered by Al-Shaybani on such issues can only be found in post-medieval writing in the West, as demonstrated in this study. Yet Al-Shaybani applied all of these humanitarian rules to all regardless of belief, race or gender. To add to this, not did only Augustine, Gratian and Aquinas fail to achieve this, it seems that Western scholars in general in the Middle Ages ‘knew very little of restraint on how to conduct war’.483 The most pertinent question for them all was, it appears, when can one go to war rather than how to conduct it. 478 479 480 481 482 483
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Ibid 104–105. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 160) 999. Ibid. Ibid 1000. Russell (n 27) 70. Nussbaum (n 5) 26.
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Even Gratian, who combined knowledge of law and theology, still did not consider the importance of humanitarian issues and how to conduct war. Thus, Johnson asserts that ‘from the very first Gratian’s just war doctrine is a doctrine of jus ad bellum’.484 In fact, from Augustine through Gratian and Aquinas and until the sixteenth century, the focus in the West was on jus ad bellum.485 This makes it difficult for us to compare the sophistication of Al-Shaybani’s jus in bello to their general comments in the context of jus ad bellum. For example, it is claimed that Augustine said that ‘soldiers should be showing mercy to defeated enemies once war was over and the wrong righted’.486 However, Dino Bigongiari argues that ‘[o]f all the people that I know of, the man who, I’m sure, would have been most horrified by the trials of Nuremberg is St. Augustine’.487 Additionally, many attempts have been made to relate modern notions such as proportionality and other humanitarian notions to Aquinas. However, these were no more than misquotations. For example, some cite Aquinas’ prohibition of intentional killing in self-defence as support for the claim that he prohibits intentional killing. This, as Stout writing in Johnson and Kelsay (1990) puts it, is an out of context citation.488 He stresses that ‘Aquinas does not mention proportionality in his brief discussion of war, but he does in his discussion of sedition’.489 Lammers (1990) adds that Aquinas paid very little support to the notions of Peace of God and Truce of God: ‘Limitations on the times of war or the targets of war do not appear to have been among his primary concerns.’490 As long as war was just according to his criteria, Aquinas thinks that war should be tireless until the need to fight ceases, whereupon fighting must stop.491 Furthermore, the same applies to Grotius. For example, no restrictions on the conduct of war that Grotius mentioned were unconditional. Thus, if there are any limits in his writings they are ‘absolute limits’ as 484 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 36. 485 Ibid. 486 Bellamy (n 215) 29. 487 Bigongiari (n 52) 355. 488 Johnson and Kelsay (n 102) 23. 489 Ibid 25 (underline added). 490 Lammers, S.E. ‘Approaches to Limits on War in Western Just War Discourse’ in: Johnson and Kelsay (n 102) 64. 491 Dyson (n 44) 247.
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described by Johnson. For example, if he talks about limitations in jus in bello, this does not mean that it abrogates the ‘ends justify the means’ to him.492 Meanwhile, Johnson explains that: just war doctrine, that doctrine which has specifically to do with war, is until the end of the Middle Ages focused foremost on the question of whether Christians may ever in the first place take up arms, not on the related question of what they may legitimately do after war is begun.493
To this, Lammers (1990) adds that ‘[o]ne of the striking things about discussion of the jus in bello in the history of Western religious reflection upon war is how little attention is paid to limitations within war, especially by the specifically religious writers, before the modern period’.494 Additionally, when it comes to jus in bello, Bellamy (2006) asserts that, even Grotius ‘did not add much to traditional just war thinking about the conduct of war’.495 Although Vitoria was indeed an exception when compared to Augustine, Gratian, Aquinas and indeed even to Grotius, he did not go as far as Al-Shaybani, for he permitted certain brutalities that were not acceptable to the latter. The best example of this is his permission to kill, despoil and destroy almost with no limits when war is believed to be ‘eternal’. That aside, he is the only one in this study whose work is comparable to Al-Shaybani as far as the conduct of war and humanitarianism is concerned.
3.5 CONCLUSION Al-Shaybani’s achievement in convincing the then very powerful kingdom (the Abbasid) to abstain from using force except in self-defence or for the cause of freedom of religion (broadly defined) is in itself significant. This should always be seen in the light of the state of law and international relations at the time. The use of force, even until the twentieth century, in any other part of the world did not see such limitations. It was only after the establishment of the United Nations that 492
Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 231. 493 Ibid 41–2. 494 Lammers, S.E. ‘Approaches to Limits on War in Western Just War Discourse’ in: Johnson and Kelsay (n 102) 64. 495 Bellamy (n 215) 75.
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the world largely came to the realization that the use of force should be limited to self-defence and collective purposes. Yet even today, a deep reflection on contemporary international law, and the opinion of many of its advocates, would admit that it has not produced a less warlike world than that advocated by Al-Shaybani. Today, we still use force to change regimes, to impose ideas (such as democracy), to pre-empt attacks and to (allegedly) defend people’s human rights (humanitarian intervention). Even if we count the number of legitimate causes for the use of force many international lawyers are calling for today and compare them to Al-Shaybani’s, the latter would set more limitations on war than we do ‘in practice’ today. In fact, eliminating the use of war seems to be unattainable in our day and age.496 It is notable that Al-Shaybani focused on war rules more than the laws of peace. This is likely to be because first, the world in his time was warlike and to establish peace in that era the expansion of the law of war and limitations on war were needed, and second, peaceful relations on the ground had not been widespread enough to attract further attention in his days. What Al-Shaybani offered on peace cannot be compared to even that of Grotius, centuries later, in terms of both quantity and quality, as we shall see later. Furthermore, James Brown Scott stresses that Grotius: [i]n any event evidently considered as we do that war formed the nucleus of such a work, and that Grotius intended to make of it a treatise on the law of nations, adding what was necessary to the part concerning the law of war. … It may be admitted that the part concerning peace is, so to speak, interpolated in the text, and that it has more the air of an intruder than of an integral part of a project completely conceived in advance. It appears reasonable to believe that Grotius perfected the part which concerns war, which was before his eyes, and which was, according to him, the raison d’etre of the treatise.497
In contrast, however, the law of peace, as we shall see later, was neither merely ‘interpolated in the text’ nor was it an intruder; rather an integral part of Al-Shaybani’s book. All that aside, confusion has been caused by historians writing on just war whereby they often hesitate to clarify the different stages that it had passed through in the Middle Ages. However, throughout the history of just war theory, one could say, just cause, authority and the right intention are the requirements upon which a war could be deemed just. In 496 Christine D Gray, International Law and the Use of Force (2nd ed., Oxford University Press 2004) v. 497 Grotius, De Jure Belli Ac Pacis, Libri Tres. Introduction by James Brown Scott (n 335) xxvi.
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this, Al-Shaybani is in agreement with just war theory. To him, war must be in the right cause and must be led by the authority and all warriors must have the right intention. Nevertheless, the main problem was and still is: who defines what these requirements mean? Is it according to Al-Shaybani or according to any other just war theorist, and why? An even more important question is whether we are going to apply religious or secular standards to answer that enquiry. And even more complex, which religion and which secular standards shall we adopt, and should we choose one single method? Western medieval scholars, especially Augustine, Gratian and Aquinas, were never as comprehensive nor as legally sophisticated as Al-Shaybani. Even Gratian, who is by far one of the most important canon writers and is said to have combined the knowledge of both theology and law, is not comparable to Al-Shaybani. This is because in addition to failing to clarify issues regarding authority and war, he did not assist his readers by defining issues relating to ecclesiastical involvement in war. Further, ‘he neither discussed these wars separately from the wars and police actions of secular rules nor satisfactorily analysed the various elements of Church-related just war.’498 Unlike Al-Shaybani, Augustine, Gratian and Aquinas did not pay much attention to the question of how to conduct war. All that Gratian and even Aquinas, who are much closer to the modern age than Al-Shaybani, had to say about jus in bello is that some church men are not allowed to take up arms and no one is allowed to fight against them.499 The focus of early Western thinkers was mainly on some elements of jus ad bellum whereas contemporary thinkers focus on jus in bello. Al-Shaybani by contrast did offer a sophisticated treatment of the details of both subjects and beyond as he discussed peace, trade, quarter and many other topics related to international relations in great depth. Exceptionally, however, Grotius has to be singled out in two respects. First, his treatment of the subject of war was almost as comprehensive as that of Al-Shaybani. Second, although cherished by many legal historians as the father of international law, whereas there is no mention of Al-Shaybani, Grotius offered very little when it comes to jus in bello in comparison to Al-Shaybani. Compared to Grotius, the latter imposed unprecedented limitations on the conduct of war. Although Vitoria did not write enough to be comparable to Grotius and Al-Shaybani, he held 498
Russell (n 27) 72. Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 85) 41. 499
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enough humanistic notions on restricting war to make him worthy of comparison to both. Yet Al-Shaybani’s humanitarianism and his limitations concerning the starting of wars were not surpassed by any of them.
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4. Rules on the consequences of war Before the time of Al-Shaybani, all captured men, properties or land were considered to be the right of the possessor. This was true, for example, in both Rome1 and Arabia.2 Al-Shaybani’s input to international law in this regard will be examined in this chapter. Although Al-Shaybani treated prisoners of war in a separate chapter, I have deliberately not separated the topic from this chapter because in the Middle Ages prisoners of war were treated, at best, as war booty.3 Al-Shaybani addressed topics such as legality, eligibility, place of acquisition, proration (relative to the degree of participation), authorities and their roles and shares, types of spoils of war and many more. Moreover, as mentioned above, he devoted a separate chapter to prisoners of war. He not only discussed spoils of war in regard to the consequences of war, but he further discussed all related legal issues such as those concerning newly occupied lands and their legal consequences. He also discussed the possibility of losing land to the enemy and the legal consequences: whether they had to do with public authorities or individual rights and duties. Nevertheless, for the purpose of this book, I have selected some of the main topics he treated, which are prisoners of war and ghanimah (spoils of war). However, I shall first give a historical overview of the law on spoils of war and discuss the philosophical approaches to this subject of Al-Shaybani compared to the other named scholars.
1
Stephen C. Neff, War and the Law of Nations: A General History (Cambridge University Press 2005) 31. 2 As will be seen later. 3 Many times, they were treated with revenge and anger unlike the rest of the spoils of war, which were considered as a gain and treated with caution. The prisoner of war was looked at, naturally, as a threat; therefore, he would be the only part of the war booty that is, sometimes, unwanted and thus maybe destroyed. 180
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4.1 HISTORICAL OVERVIEW 4.1.1 General History Historical legal thoughts on spoils and prisoners of war are no less cruel than those on war. Even the most well-respected thinkers and philosophers were unyielding in this respect. For example, Aristotle, who first used the term just war to describe wars against non-Hellenes, saw attacks to capture the property of others and enslave them as just wars.4 Additionally, not only was despoiling and capturing others allowed in law, it was also considered as a proper occupation by some. For example, ‘[i]n the ancient law of Solon there are companies “of those who go out for booty”’.5 Another example is also found in Rome where, according to Justin, ‘up to the times of Tarquin piracy was considered an honour’.6 Both Aristotle and Plato expressed the opinion that it is the law to become the owner of what you have possessed from war.7 Comparably, in Roman law, ‘commanders may turn booty over to the public treasury’.8 This was the Roman rule for both goods and the captives. However, ‘the booty, or part of it, was given at times to the gods, at times to the soldiers, and at times to others.’9 In Rome, although Cicero called for restraint while dealing with enemies, any enemy rights were abrogated by the declaration of war.10 In fact, to him is attributed the saying that ‘Mitylene had come into the possession of the Roman people “by the law of war and the right of victory”’.11 ‘As total war, the Roman just war countenanced capture of civilians, devastation of land and plundering of cities. Booty and territory became the property of the government, although booty was sometimes sold for the common profit of the soldiers.’12 Furthermore: [o]ccupation of immoveable property always led to its acquisition by Roman people, not the individual solider. Similarly, praeda (praedae in plural), booty 4
Frederick H. Russell, The Just War in the Middle Ages (Cambridge University Press 1979) 3–4. 5 Hugo Grotius, Hugo Grotius. The Law of War and Peace: De Jure Belli Ac Pacis Libri Tres (Francis W. Kelsey tr., Indianapolis 1925) (n 74) 394. 6 Ibid. 7 Ibid 664–5. 8 Ibid 676. 9 Ibid. 10 Russell (n 4) 6–7. 11 Grotius, The Law of War and Peace (n 5) 665. 12 Russell (n 4) 7.
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or movable property, became the property of Rome when it was seized by common military action, but when it was seized by the actions of an individual soldier it became his property.13
Although Roman law had known some rules on the consequences of war, as usual most of these norms were developed through comparing and modifying private legal rules, and applying them to international issues. According to the Justinian law, one of the consequences of war with a legally declared enemy was: [t]he captive became the slave of his captor, his legal rights such as the right to make a will were suspended, and his marriage was dissolved. However, in the event that a Roman citizen returned from captivity, he regained his full legal rights. The captive who returned had to take possession of his things anew. Upon their recovery goods captured in war again became the property of their former possessor.14
Crossing the border seems to have been the dividing line as to when the legal consequences of an action will occur. In this regard, Pomponius says: ‘he who has begun to be within our fortified lines has returned by postliminy’.15 In contrast, for Odofredus, who believed that all nonChristians are ipso facto enemies even without a war declared, if a Christian crossed the borders into a non-Christian land he will be eligible for postliminium once he crosses the borders back into Christendom.16 These rules seem to be older than that of Rome; for Joshua is quoted as saying, ‘Divide the spoil of your enemies with your brethren.’17 In addition, David,18 addressing Jewish elders to whom he had sent some war booty won in a war against Amalekites, said: ‘Behold, a present for you of the spoil of the enemies of Jehovah.’19 The West in the Middle Ages continued to consider all captured property as legally belonging to the captor. Nussbaum (1954) points out that during the Middle Ages in the West, ‘[p]risoners and booty were considered as the personal property of the captor, though there were
13
Ibid 53. Ibid 52. 15 Grotius, The Law of War and Peace (n 5) 702. 16 Russell (n 4) 52. 17 Grotius, The Law of War and Peace (n 5) 664. 18 Peace be Upon Him. On every occasion that the study mentions Prophet David, reference to the terminology (Peace be Upon Him) shall be assumed. 19 Grotius, The Law of War and Peace (n 5) 664. 14
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indications of modern conception which leaves the disposition of prisoners and booty to military authorities’.20 Thus, this is a sign that neither Augustine nor Gratian nor Aquinas had changed any of the Roman rules in this area. Even Grotius in the seventeenth century took the view that it is the norm in the law of nations that when someone is captured, they become slaves to their capturer and so do their descendants after this.21 Furthermore, Askin stated that during the ‘Middle Ages,22 the rape and slavery of women were inducements to war, such that anticipation of unrestricted sexual access to vanquished women was used as an incentive to capture a town’.23 Not only did the victor have the right to despoil the losing party and capture its people, some European rules went so far as to impose compensation for the victor’s loss during war. ‘According to the international legal principles of the Middle Ages, it [was] just that the victor should recover the expenses of the war and compensation for the losses which he has suffered.’24 For example, ‘Montjoy, the French herald, alludes to a calculation of the measure of war reparations the French would demand if they were to win in his negotiations with King Harry over a potential ransom.’25 On the other hand, St Augustine and Gratian condemned participating in wars for worldly gains or booty. Meanwhile, the latter advised that once victory is achieved, captives must be dealt with mercifully.26 Besides, it is said that both Saint Maximus of Turin as well as St Augustine opposed joining the army for the sake of acquiring booty and suggested payment of wages to prevent fighting for greed.27 Nevertheless, along with peace and prosperity, plunder was also promised to 20
Arthur Nussbaum, A Concise History of the Law of Nations, Revised Edn (Macmillan 1954) 26. 21 Grotius, The Law of War and Peace (n 5) 691. 22 As we shall see later, Askin is either unaware of the restriction Siyar scholars introduced on such practices or she was limiting herself to the Western Middle Ages. 23 Kelly Askin, ‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles’ (2003) 21 Berkeley Journal of International Law 288. 24 Laurie R. Blank, ‘The Laws of War in Shakespeare: International Vs. Internal Armed Conflict’ (Social Science Research Network 1998) SSRN Scholarly Paper ID 1502850 266 (accessed 22 January 2018). 25 Ibid. 26 Russell (n 4) 61. 27 Ibid 26–7.
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warriors if they had joined Urban II’s call to fight the infidels and free the Holy Land.28 As to rules on division of booty in this era, Iisdore of Seville suggested that booty should be divided ‘according to the merits of the participants’.29 He discusses ‘[t]he disposition of the booty, the just division in proportion to the rank and services of individuals, and the portion of the prince.’30 In these areas, the opinion of Al-Shaybani was similar to his. Thus, it is possible to conclude that there were some common practices of this kind at these times. Treatment of prisoners of war The treatment of the captured after they were enslaved was one of the worst imaginable features of war everywhere. In Rome, for example, as stated above, ‘every thing that has been captured is acquired, along with persons, for the master’.31 In addition, ‘[t]he slave who is himself under the power of another, says Justinian, can have nothing of his own.’32 What is more is the fact that brutality was condoned and was even considered lawful by some. For example, Seneca noted that: there is nothing which a master is not permitted to do to his slave. There is no suffering which may not be inflicted with impunity upon such slaves, no action which they may not be ordered, or forced by torture, to do, in any way whatsoever; even brutality on the part of masters towards persons of servile status is unpunishable except in so far as municipal law sets a limit and a penalty for brutality.33
Gaius too further affirmed that ‘[a]mong all nations alike, we may see that masters have had the power of life and death over slaves’.34 Thus, both before as well as in the days of Al-Shaybani, prisoners of war faced the harshest means of punishment and humiliation. In Byzantine, blinding prisoners of war was just one example.35 Moreover, different sorts of brutal practices were witnessed, such as ‘massacre of defenceless civilians and captured prisoners, particularly of enemy 28 29 30 31 32 33 34 35
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Ibid 35–6. Ibid 27. Grotius, The Law of War and Peace (n 5) 679. Ibid 691. Ibid. Ibid. Ibid. Nussbaum (n 20) 49.
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nationalities such as the Slavs, Magyars, and Turks’.36 Generally, in the West during the Middle Ages the apparent fate of a captured person was either killing or enslavement. Actually, the earliest and only exception to this came in the twelfth century in ‘the pronouncement of the Third Lateran Council against the enslavement of Christian prisoners of war’.37 This is what historians normally use as an example of the earliest legal limitations on the practice of enslavement.38 Yet, in Europe, nonChristians were still subjected to enslavement many centuries later.39 Research hurdle Grotius (1645) viewed Augustine as prohibiting the killing of captives by reference to his statement: ‘[l]et necessity, not inclination cut off the enemy who is fighting. Just as violence is done to him who fights and resists, so pity is now due to the vanquished or captive, especially in the case of him from whom no disturbance of peace is feared.’40 Nevertheless, the task of comparing Augustine, Gratian and Aquinas in this regard is challenging, mainly because they did not write much on this topic. All they offered were some general statements, which have been utilized to support arguments about the contribution of these scholars to the making of international law. For example, Gratian only mentioned a quotation from Ambrose that says when a war is won then the spoils belong to the victor and should be attributed to the king or prince, who should then distribute some of it to the soldiers ‘according to the efforts they had expended’.41 As Russell states, ‘[t]his is perhaps an oblique statement that to the victor go the spoils. In an age of widespread pillaging and conquest this is all Gratian had to say on these issues, and he did not link them to the just war.’42 Aquinas also did not cover these issues in any depth.43 All he had to say about these topics are passing references in relation to other matters. For example, he speaks about enslavement and plunder indirectly and on rare occasions, as in the following example: ‘since the Jews themselves are slaves of the church, she can dispose of 36 Leon Friedman (ed.), The Law of War: A Documentary History, vol 1 (Greenwood 1972) 11. 37 Nussbaum (n 20) 18. 38 Ibid. 39 Ibid 26–7. 40 Grotius, The Law of War and Peace (n 5) 737–8. 41 Russell (n 4) 71. 42 Ibid 20–21. 43 Ibid 280.
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their property, just as secular princes also have enacted many laws in relation to their own subjects in favour of liberty.’44 Notwithstanding the above, what was the position of the later great scholars such as Vitoria and Grotius? The contribution of the latter was not significant; this is because Grotius, nearly a millennium after Al-Shaybani, was still reluctant to challenge the old rules he cited. In his view, the abovementioned rules were international law recognized by all.45 Moreover, according to Naoya (1993), Grotius still took the view that ‘since slaves are regarded as property under the law of nations, there is no difference between the right to enslave prisoners and the right to acquire property taken in war’.46 One cannot blame him for holding such a view, for the whole world was dealing with the matter in virtually the same way until the twentieth century. The only differences related to the humane treatment of the captured and slaves, was the view of Al-Shaybani, as we shall see later. However, the fate of the captured has always been a decision of the captor. Nevertheless, to Grotius it is lawful to kill those who have surrendered47 and all those captured, including women and children.48 Vitoria did discuss some issues regarding the consequences of war and probably in more detail than Grotius did. This is examined in more detail in the following pages. Western scholars in both the Middle Ages as well as ancient civilizations, on which Western scholars would have typically relied to build their legal tradition, did not offer as much literature in this area as on private law matters. ‘The only body of literature that deals with such topics in legal and detailed manner was the Islamic and not the ancient civilizations.’49 Thus, I shall next, after discussing the pre-Islamic Arabia, embark upon the Islamic contribution to this area of law.
44 R. W. Dyson, Aquinas’ Political Writings (Cambridge University Press 2002) 271 (footnotes omitted). 45 Grotius, The Law of War and Peace (n 5) 663–6. 46 Kasai Naoya, ‘The Laws of War’ in Yasuaki Onuma (ed.), A Normative Approach to War: Peace, War, and Justice in Hugo Grotius (Clarendon Press; Oxford University Press 1993) 266. 47 Grotius, The Law of War and Peace (n 5) 826. 48 James Turner Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (Princeton University Press 1975) 223. 49 Christopher G. Weeramantry, Islamic Jurisprudence: An International Perspective (Macmillan 1988) 150.
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4.1.2 Pre-Islamic Arabia Arabs in the pre-Islamic age developed rules on the treatment of prisoners of war, spies and hostages.50 Nevertheless, their treatment of prisoners of war was still nearer to lawlessness. Even most of these rules, one could say, were a question more of chivalrous conduct than of legally binding rules. Some Arabs, typical for their time, enslaved free people not only through capture in war but also through kidnapping and through many other unpleasant methods.51 The era is vitally important for scholars to examine if there were any changes brought about by Siyar, whether through Al-Shaybani or others. Arabs were quite ruthless in their attitude towards the taking of property, the treatment of enemy personnel and the capture and treatment of people. ‘In 7th century combat, a prisoner of war could expect the worst fate.’52 However, Arabs by this time knew some rules that ‘condemned excessive destruction, reflecting both a code of honour that protected the weak – women, children, the aged, and prisoners’.53 Later, ‘these rules are reinforced by the morality of the Qur’an and the sunna.’54 The issue with this era is the fact that there is barely any reliable writings from that age regulating war affairs. Nevertheless, customs and rules, when they existed, were mostly followed by respected entities. In general, the Arabic practice was not so distinguishable from the practices aforementioned in other parts of the world. 4.1.3 Islamic International Law Islamic international law contributed greatly to the regulation of post-war affairs, including the treatment of prisoners, the treatment of inhabitants of newly occupied lands, and the position of subjects in lost-to-enemy
50
Muhammad Hamidullah, The Muslim Conduct of State (5th edn, SH Muhammad Ashraf 1968) 61–2. 51 Muhammad Mutwali Al-Sharawi, ‘Contemplations of Sheikh Muhammad Mutwali Al-Sharawi [Khawater Al-Shiekh Muhammad Mowali Al-Sharawi]’ 5 (accessed 1 March 2018). 52 Youssef H. Aboul-Enein and Sherifa Zuhur, Islamic Rulings on Warfare (Strategic Studies Institute, US Army War College 2004) 18. 53 Terry Nardin (ed.), The Ethics of War and Peace: Religious and Secular Perspectives (Princeton University Press 1996) 259. 54 Ibid.
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lands. Spoils of war were also strictly regulated to mitigate the unrestricted Arab (and world) practice in that age. As for prisoners of war, Siyar offers a wide range of rules governing both Muslim prisoners in enemy hands and enemy prisoners in Muslim hands. Hamidullah extensively discussed Islamic international law rules on prisoners of war, which can be summarized as follows:55 1.
Muslims in enemy hands: when a Muslim is captured by the enemy, he should faithfully observe his parole and liberty, if a parole was not available though, he will then be allowed, if he can, to escape or cause destruction to his capturer. Meanwhile, his state must do its best to free him and if need be payment of ransom should be taken from the Muslim State treasury. Siyar also regulates the practice of exchanging prisoners. Furthermore, the wills and testaments of a Muslim prisoner are valid if received in Muslim territories. Enemy prisoners in Muslim hands: in this case the prisoners could be ransomed or exchanged under specified conditions. They cannot be killed for merely being a prisoner of war; this of course ‘does not preclude the trial and punishment of prisoners for crimes beyond rights of belligerency’.56 Prisoners must be fed, clothed and treated well until a decision is made in their case. The decision is left to the commander who should decide whether prisoners are to be executed (under very limited and strict circumstances), enslaved, ransomed, exchanged with Muslim prisoners or benevolently released.
2.
It should be noted, however, that ‘Muslim jurists asserted that women, children, the elderly, the blind or crippled, the insane, hermits, and, according to some jurists, peasants and serfs may not be executed unless they take an active part in the fighting’.57 The idea of enslaving the captured rather than killing them is quite old and is known to have been practised by the Romans.58 Peculiarly, however, Islamic international law prohibited killing with brutality,59 prohibited mistreating prisoners in any circumstances even if they become slaves and introduced ransom as a third way of dealing with 55
Hamidullah (n 50) 212–21. Ibid 214. 57 Khaled Abou El Fadl, ‘The Rules of Killing at War: An Inquiry into Classical Sources’ (1999) 89 The Muslim World 144, 144, 155. 58 Russell (n 4) 7. 59 As we shall see later, many scholars think that the killing of prisoners of war is prohibited according to Siyar. 56
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prisoners of war; freeing gratuitously (i.e. freeing war prisoners, for the sake of God, without asking for ransom) was also enacted as another option for rulers. Siyar scholars agree that Islamic law placed unprecedented limitations on slavery. However, they disagree on the extent of these limitations. Some would think that Islamic law introduced a system whereby slavery should be eliminated by time. Others would think that Islam closed all the gates to slavery and opened many gates of emancipation. Nevertheless, jurists agree that Islamic law limited the many gateways to enslavement to only one: war. From then on, all other practices by which a human being became a slave were abolished. The reason why this gateway was left open, Imam El-Sharawi explains, is that in wars, enemies would capture Muslims and they should have the captured enemy at hand in case the enemy would exchange prisoners.60 Although the captured could be enslaved, ‘[t]his was not an obligatory or recommended condition but was permitted and was far from being a condition of rightlessness’.61 Moreover, Hamidullah stresses that we should always remember that ‘one must distinguish between an obligatory rule and an optional rule. Slavery, for instance, is optional, and if Muslims give up that practice, they commit no violation of their religious commands.’62 Nevertheless, as Imam El-sharwi puts it, enslavement of the captured should be compared to other options available then and not to freedom. Nevertheless, the Islamic international law position on slavery was altogether revolutionary for it shut all gateways to slavery and opened many gateways to emancipation. Thus, Ali (1885) concluded that: Slaves are mentioned in the Koran defacto, but not dejure. The Koran took several measures to abolish future slavery. Its steps for its abolition were taken in every moral, legal, religious, and political departments. The liberation of slaves was morally declared to be a work of piety and righteousness— (Sura XG, 13 ; II, 172). Legally the slaves were to be emancipated on their agreeing to pay a ransom—(Sura XXIV, 33). They were to be set at liberty as a penalty for culpable homicide—(Sura IV, 94); or in expiation for using an objectionable form of divorce—(Sura LVIII, 4) and also they were to be manumitted from the Public Funds out of the poor-taxes—(Sura IX, 60). They were religiously to be freed in expiation of a false oath taken in mistake— 60
Muhammad Mutwali Al-Sharawi, ‘Contemplations of Sheikh Muhammad Mutwali Al-Sharawi [Khawater Al-Shiekh Muhammad Mowali Al-Sharawi]’ 17–18 (accessed 1 March 2018). 61 Weeramantry (n 49) 139. 62 Hamidullah (n 50) viii.
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(Sura V, 91). These were the measures for the abolition of existing slavery. The future slavery was abolished by the Koran by putting [a] hammer deep unto its root and by annihilating its real source. The captives of war were, according to the clear injunctions of the Koran contained in the 5th verse of the 47th Sura, to be dismissed either by a free grant or by exacting a ransom. They were neither to be enslaved nor killed.63
In all cases, the limitations introduced on slavery by Islamic international law had no equivalent in other parts of the world until recently. In this regard, Weeramantry points out that: [w]e read of slavery in the Islamic books; and narrations of the abuse of human dignity under certain regimes in the Islamic counties have created a picture of total rightlessness among slaves. It is to be noted, however, that slavery as practiced in Greece, Rome or modern America was a condition of rightlessness which had no parallel in Islamic law.64
Islam originates many rules limiting the practice of slavery in many ways. For example, slaves must have as high a standard of living as their masters, must not be ordered to carry out extreme tasks and if they were, it was ordained upon the master to help them in any hard job.65 In addition, ‘[t]he master’s authority was not unlimited or free of the control of the state as it was under the Greeks, the Romans or indeed in America.’66 In fact in his last ceremony, the Messenger Mohammad paid a great deal of attention to this topic and ordered people to respect the dignity of their ‘slaves’. Furthermore, according to his teachings, a Muslim should never even call his servant ‘a slave’ and should rather use the term ‘fata’ (like ‘guy’ or ‘boy’ in English) instead.67 As for the spoils of war, Islamic international law set out large volumes of rules on the definition of spoils of war, differentiating them from other forms of plunder, and detailed the rules pertaining to acquisition, usage, distribution, transfer and so on. This comprehensiveness was a general trait of Siyar scholars. 63 Moulavi Cherágh Ali, ‘Critical Exposition of the Popular “Jihad,” Showing That All the Wars of Mohammad Were Defensive; and That Aggressive War, or Compulsory Conversion, Is Not Allowed in The Koran. With Appendices Proving That the Word “Jihad” Does Not Exegetically Mean “Warfare,” and That Slavery Is Not Sanctioned by the Prophet of Islam’ (1885) 194–5 (footnotes omitted). 64 Weeramantry (n 49) 138–9. 65 El-sharawy (n 60) 17–18. 66 Weeramantry (n 49) 139. 67 El-sharawy (n 60) 17–18.
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4.1.4 Contemporary International Law Plunder was, until recently, an accepted element of war history everywhere in the world,68 and was even a competition for some. For example, in China, ‘England and France, came to compete over the “spoils of war.” By 1858, British and French forces had occupied Canton, and trading concessions were forced on the emperor.’69 International law recognized the taking of booty as a right as late as the beginning of the twentieth century. This was true even in the Hague Convention of 1907. It was only then that the world started to impose some legal limitations on booty.70 Nevertheless, in practice looting continued to exist even after that.71 In fact, as late as 2011, France and the UK along with other participants in the Libyan campaign were promised a large share of Libyan assets when the war was over.72 However, neo-booty type deals are hard to trace and illegalize, as they can be as legal as franchises and contractual privileges. Even without the need to resort to war, contemporary Western international law is unable to restrict the practice of economic coercion, as some powerful states still use it to persue their interests.73 This I describe as neo-booty. As for the treatment of the captured, it is known to all that prior to the Geneva Conventions it was not much different from that of the Middle Ages. Nevertheless, it is not important to probe this any further in this study.
4.2 PERCEPTION OF SPOILS OF WAR From the above, it appears that to Al-Shaybani spoils of war must have been a tangible reality of a practice that was inevitably wide and 68 Elizabeth Simpson (ed.), The Spoils of War: World War II and Its Aftermath: The Loss, Reappearance, and Recovery of Cultural Property (Harry N. Abrams in association with the Bard Graduate Center for Studies in the Decorative Arts 1997) 34–36. 69 Ibid 36. 70 Ibid 38. 71 Ibid. 72 Julian Borger and Terry Macalister, ‘The Race Is on for Libya’s Oil, with Britain and France Both Staking a Claim’ (the Guardian, 1 September 2011) (accessed 22 January 2018). 73 Omer Yousif Elagab, The Legality of Non-Forcible Counter-Measures in International Law (Clarendon Press; Oxford University Press 1988) 207–208.
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unavoidable. Yet, he did, as we shall see, attempt to limit, delimit and organize this practice and humanize it. Most rules adopted by Al-Shaybani were applicable to both his compatriots as well as others. For example, throughout his writings on spoils of war, Al-Shaybani maintained that when an enemy acquires booty from dar-al-Islam and flees to his abode, then the owners of that property will lose title to it and it will be owned by the enemy once they have crossed the borders. This is to say that he did not endorse the practice while prohibiting acts which were not in favour of his compatriots; he rather endorsed the system as it was or not. When he tried to introduce changes to some of these systems, it is evident that people from his country as well as foreign and even enemy parties would benefit from the changes. In fact, in many cases the only party benefiting from these changes was the other party. For example, he addresses prohibiting the mistreatment of prisoners of war.74 This inevitably is something for the enemy to benefit from and it is unlikely that his people captured by enemy would benefit from it in that age. A common ground between Augustine, Al-Shaybani, Gratian, Aquinas, Vitoria and Grotius is found in this area. None of them attempted to prohibit the taking of booty. However, they all seem to abhor wars for no reason other than the taking of booty. For example, Augustine stresses: ‘[t]o make war upon our neighbours, and hence to advance against others, and from the mere lust of ruling to crush people who have not troubled us, what must we call this but wholesale robbery?’75 On the other hand, Vitoria added that ‘others could not be robbed of their property, either as private citizens or as princes, on the ground that they were not true masters (ueri domini)’.76 This opinion, as it seems, washed away an old and commonly held notion in Europe that allows the plundering of others who were perceived as ‘barbarians’ or unworthy of ruling themselves. Nevertheless, all of them share another belief, which is that if war was justified (in their eyes) then so was despoiling the enemy. However, the distinction between them comes in two parts; first, it appears, as we have seen earlier, in their description of justified wars, for they differ from one another on this. They also differ on the allowable extent of despoiling and how to distribute the spoils of war. For example, to Aquinas, as long as war 74 75 76
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See the section on prisoners of war next. Grotius, The Law of War and Peace (n 5) 548. Dyson (n 44) 251.
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is waged according to his criteria of ‘just war’ (authority, just cause and intention), then all acts of plunder will be lawful. Therefore, to him: a prince who rightfully used coercion and violence against his enemies was allowed to retain his plunder, which was not considered rapine, but when a public official unjustly confiscated property, the confiscation was illicit and the official was bound to restore it. This view confirmed the logical valid position that the prime element in determining the status of expropriated property was the justice of the underlying cause for the act of expropriation rather than the act itself.77
Thus, war for booty is unacceptable to all of them but booty of war was a natural legal consequence of war. The real test then is to find out who, if any, did try to limit, restrain, restrict or humanize the practice of booty taking in a ‘legally’ waged war. While the treatment of Augustine, Gratian and Aquinas was more a matter of brief references rather than discussing rules, Al-Shaybani, Grotius and Vitoria have, in contrast, focused quite heavily on property and appropriation, and when it is legal to acquire the properties and assets of others in war and when it is not. They have also focused on the distribution of such properties once acquired. This is a vital and important subject, for property in all of their times and indeed in ours was and remains a main driver of the greed which led to many horrific wars. They all took the view that once something is captured, it becomes the property of the captor. In fact, it seems that Vitoria was then right in saying that, ‘it is a universal rule of the law of nations that whatever is captured in war becomes the property of the conqueror’.78 If this is so, when does despoiling become licit? In this, they vary. To begin with, those who subscribed to just war theory have justified such practice only when war is justified according to their theory. Al-Shaybani also prohibits the despoiling of others in an unlawful war and would support ordering compensation for such acts. The main difference between Al-Shaybani and others is the perception of war (justified wars). Except for Al-Shaybani, they all see war as a tool for justice and as a punishment for wrongdoing. Thus, they went so far as to allow systematic despoiling whereby the total loss caused by the wrong justifying the war and the cost of war are redeemed. The sole judge on how extensively and in what manner to carry out such an act is the prince carrying out the 77
Russell (n 4) 277–8. Francisco de Vitoria, De Indis De Ivre Belli Relectiones, Text of 1696 (Ernest Nys ed., John Pawley Bate tr., The Carnegie Institution of Washington 1917) 155 (emphasis added). 78
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just war. This is what we find even in the opinion of the most lenient of them, Vitoria. ‘There is no doubt,’ he said, ‘that everything captured in a just war vests in the seizor up to the amount which provides satisfaction for the things that have been wrongfully seized and which covers expenses also.’79 Moreover, ‘[a]ll movables vest in the seizor by the law of nations, even if in amount they exceed what will compensate for damages sustained.’80 In fact, this attitude led Vitoria to go so far as to state that: [i]t is certainly lawful to despoil the innocent of goods and things which the enemy would use against us, such as arms, ships, and engines of war. This is clear, because otherwise we would not gain the victory, which is the aim of war. Nay it is also lawful to take the money of the innocent and to burn and destroy their grain and kill their horses, if this is requisite in order to sap the enemy’s strength. Hence follows the corollary that if the war goes on for an indefinitely long time it is lawful utterly to despoil all enemy-subjects, guilty and guiltless alike, for it is from their resources that the enemy is feeding an unjust war, and, on the other hand, his strength is sapped by this spoliation of his citizens.81
However, an indirect link between these thoughts and Al-Shaybani is found in Deuteronomy 20, where it says: ‘[a]ll the spoil thereof thou shalt divide with the army and thou shalt eat of the spoil of thine enemies.’82 Al-Shaybani’s treatment was in line with this passage and also was not against despoiling the enemy in a licit war. Meanwhile, this Deuteronomy verse is commonly cited by the Western scholars considered in this study. Al-Shaybani differs by the fact that nowhere in his hypotheses do we find any traces of allowing war as a punishment or even punishment by war. Moreover, he did not support the view that war expenses must be compensated by despoiling, for he supports war only for the sake of fulfilling a legal duty and the expenses are covered by both the fighters voluntarily and the state. Consequently, the treatment of the captured in a war that is considered to be a punishment would not naturally result in good treatment of a prisoner of war. Meanwhile, as Al-Shaybani is completely against considering war as a punishment, he was not in favour of mistreating the captured in any case. In fact, Al-Shaybani, as did Abu-Hanifa and other Siyar scholars before him, supported the humane treatment of prisoners and quoted the Messenger of Islam ordering such treatment repeatedly. 79 80 81 82
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All things said, what we find in Al-Shaybani’s work is an unheard of attempt to abolish the practice of not only killing but also even enslaving the captured. This is because, as we shall see later, he introduced a scheme whereby states could agree to suspend one practice or another. Thus, his intention was to mitigate the horrors of wars and their consequences permanently. Al-Shaybani was dealing with spoils of war as an inevitable practice, rather than a matter of preference.
4.3 AL-SHAYBANI AND PRISONERS OF WAR Al-Shaybani dealt comprehensively with topics such as testimony, inheritance and criminal regulations applicable to captured people in wars. For example, in some cases the testimony of a captured person will not be accepted in court, as he does not have the required free will to testify or be a witness in court.83 This is because it would be unfair to accept testimony from someone who is not free and whose opinion might easily be influenced and affected by others. Nevertheless, here I shall focus only on the major issues relating to the fate of prisoners of war in Al-Shaybani’s work. Thus, I shall discuss the possible ways that the authority84 is authorized by law to deal with captured persons. These are mainly: execution (subject to limitations), benevolent freeing, distribution or ransom. The other case is when they become ahil-dimah (non-Muslim subjects of the state). I shall explain the main elements of these cases next. However, before I do that, I shall examine Al-Shaybani’s idea of abolishing many of the cruelties of the time. 4.3.1 Abolition of Capturing and Killing One would struggle to find elsewhere Al-Shaybani’s suggestion on prohibiting killing as well as enslaving captured people. This is when the warring states have concluded a deal that requires the parties to abstain from capture during wars. Al-Shaybani inventively suggested that ‘if they put forward the condition that we do not capture any amongst them, then
83 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir LiMuhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 3 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 1149. 84 According to Al-Shaybani, the authority will decide on their fate.
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we must neither capture nor kill them’.85 However, why did he require that they must not be killed while the agreement was only to prevent their capturing? Al-Sarakhsi explains that ‘this is because killing is harsher then capturing’.86 He added that the intention behind this condition must have covered both capturing and killing. Al-Shaybani proceeded to say that one could never kill or capture except if the other had violated the agreement by killing or capturing his people after they had promised abstention from such actions.87 This sort of agreement endorsed by Al-Shaybani to be both allowed and interpreted in favour of the other party and in favour of good faith and humanity is a sign that he was willing to mitigate the horrors of war and its consequences. For he not only established this idea, but also encouraged interpretation of such treaties in favour of humanitarianism and better treatment of enemy personnel. His reliance on al’aqid shari’at almuta’aqedyan or its sister idea pacta sunt servanda, as it is known in Western legal systems, is apparent in his approach. For he proposed that such a condition in a treaty is both possible and must be taken with good faith. The fact that Al-Shaybani had such an idea in the eighth century is astounding, given that the abolition of slavery by an international treaty was only achieved more than 1,000 years after his death.88 4.3.2 Execution In this regard, I will discuss three main points: first, the right to execute captured persons, second, limitations on the right and third, exceptions. The right to execute captured enemy personnel Al-Shaybani took the view that the authority ‘has the choice with regard to captured men’.89 Women and children seem to have no place in this. 85 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir LiMuhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 1 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 303. 86 Ibid. 87 Ibid. 88 For example, it was only in 1956 that the world came to implement what Al-Shaybani had suggested in the eighth century AD. The United Nations 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery was the first internationally recognized treaty on this issue. 89 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1024.
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This is natural as it fits with the general rule prohibiting the killing of women and children even during war. In fact, as we have seen in the previous chapter, if war ends and victory has been declared, women, children and elders cannot be killed even if they had taken part in the fight. Al-Shaybani showed that whether the imam has a right to execute captured men or not is subject to disagreement among Siyar scholars. Yet Al-Shaybani thinks that the imam has the choice and can either execute or distribute (as spoils of war) the captured.90 According to him, both Al-Hassan91 and Hammed Ibn Abi-Suliman used to detest the killing of the captured if war is over. They relied on the Qura’anic verse: ‘And fight in the way of Allah with those who fight with you.’92 This need to fight, stated in the verse, does not exist when the war has ended and men are captured. They also relied on the practice of Omar, the Caliph who refused to kill a chained captured man who was sent to him.93 Moreover, God, in the Qura’an, says: ‘[s]o when you meet in battle those who disbelieve, then smite the necks until when you have overcome them, then make [them] prisoners, and afterwards either set them free as a favour or let them ransom [themselves] until the war terminates.’94 Nevertheless, Al-Shaybani argues that there is another Qura’anic verse that had abrogated (repealed) this verse. That verse says: ‘slay the idolaters wherever you find them’95 and he further argues that the action of rejecting execution of the captured man by the Caliph Omar was due to the fact that the man was chained and not because he was captured after the war was over.96 Thus, in Al-Shaybani’s view, unless unchaining the captured was dangerous or it might cause him to escape, he should not be executed with chains on his hands.97 In addition, he supports his argument by recalling the story of Banu-Quraidah when ‘the Prophet ordered the execution of the captured men after the war has ended’.98 90
Ibid. Probably referring to Al-Hassan Al-Basri, a very renowned scholar of Iraq. 92 Shakir, M. H. (tr.), Holy Qur’an = Al-Qur’ān Al-Ḥakīm (1st US ed., Tahrike Tarsile Qur’an 1982) 2/191. 93 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1024. 94 Shakir (n 92) 47/4. 95 Ibid 9/5. 96 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1026. 97 Ibid. 98 Banu-Kuraidah, breaching the constitution of Al-Madenah and violating their covenant sided with the attackers from Mecca. Immediately after the war ended, the prophet sieged the treasonous tribe until they came to terms. They accepted an independent judge, who then decreed that there was a treason therefore the men of combatant age should be executed and their women and 91
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However, this claim is weak. Banu-Quraidah, in breach of the Pact of Al-Madenah, sided with the attackers from Mecca. Immediately after the war ended, the Prophet besieged the treasonous tribe until they came to terms and agreed to open their fort under the condition that an independent judge was assigned to judge between them. They accepted a certain independent judge who then decreed that they had committed treason; therefore, their men were to be executed.99 It is hard to see the link between killing captured men and the execution of those guilty of treason according to an independent court’s decree. Therefore, Al-Shaybani’s reliance on this case to support his argument is misplaced. In comparison, Vitoria took a view close to Al-Shaybani’s on this issue. For he stated that: speaking absolutely, there is nothing to prevent the killing of those who have surrendered or been captured in a just war so long as abstract equity is observed. Many of the rules of war have, however, been fashioned by the law of nations, and it seems to be received in the use and custom of war that captives, after victory has been won (unless perchance they have been routed) and all danger is over, are not to be killed, and the law of nations must be respected, as is the wont among good people.100
Nevertheless, Vitoria then follows this by stating that sometimes a surrender comes after a granting of promises or guarantees for the safety of its people, but he says that ‘it does not seem unjust that, if a city capitulates without taking any such precautions, the more notorious offenders should be put to death on the order of the prince or a judge’.101 Vitoria’s opinion on the matter regarding executing the captured or the surrendered is very close to that of Al-Shaybani, for he too took the view that whenever a guarantee of life is given, it must be respected. Nevertheless, the qualifications Vitoria makes must be read carefully, for, contrary to how it would at first seem, he permits the execution of all but with some exceptions. For example, he asserts that: [i]f the hostages are in other respects among the guilty, as, for instance, because they have borne arms, they may rightfully be killed in that case; if, children taken captives. Zakaria Bashier, War and Peace in the Life of the Prophet Muhammad (Peace Be Upon Him) (Islamic Foundation 2006) 158–65. 99 Abd-al-Aẓīm al-Ǧanzūrī and Abd-al-Aẓīm Ǧanzūrī, Mabādiʾ al-qānūn ad-duwalī al-islāmī wa-’l-qānūn ad-duwalī al-āmm [The Principles of Islamic International Relations and Contemporary International Relations] (Ṭaba 1, Maktabat al-slāt al-Ḥadīṯa 1992) 679. 100 Vitoria (n 78) 183. 101 Ibid 183–4.
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however, they are innocent, as, for instance, if they be children or women or other innocent folk, it is obvious from what has been said about that they cannot be killed.102
This opinion echoes that of Al-Shaybani, who as we have seen prohibits the killing of women, children and other categories of persons. However, this qualification (guilty and guiltless) deserves closer examination with regard to the specific rules Vitoria set out. For he says: ‘[a]ll guilty could be killed even after victory is secured.’ ‘Even when victory has been won and no danger remains, it is lawful to kill the guilty.’103 This is presumably because, to Vitoria, war is not only to recover loss but also to avenge wrongs and inflict punishment on the enemy. Thus, he leaves it to the prince to decide the fate of prisoners based on the damage being avenged.104 The only difference between this and Al-Shaybani’s view is the language. One begins with the exception and then discusses the rule whereas the other delivered his opinion by employing the opposite method. However, interestingly, leaving the fate of prisoners in the hands of the prince is an idea that we struggle to see in Europe before Vitoria. Nevertheless, Vitoria makes remarks such as: ‘[a]t times it is both lawful and expedient to kill all the guilty, especially in a war against unbelievers.’105 This, however, is not allowed against Christians. The reason why it should be the case with unbelievers, says Vitoria, is that ‘it is useless ever to hope for a just peace on any terms’. Thus, and since peace and security are the aim of the war, ‘the only remedy is to destroy all of them who can bear arms against us, provided106 they have already been at fault’.107 Thus, Vitoria went so far as to allow the killing of all, including women children, and the destruction of everything, including that owned by innocent parties. This is something with which Al-Shaybani would disagree. Grotius took a similar view to Vitoria on this – in fact, more similar than to Al-Shaybani. For to Grotius, even non-combatants ‘may all be taken prisoners, and any prisoner, including women and children, may be killed’.108 Even the exception I found in the work of both Al-Shaybani and Vitoria, who were against the killing of the surrendered if they did so after a promise of 102
Ibid 181–2. Ibid 182. 104 Ibid 182–3. 105 Ibid 164. 106 Spelling mistake corrected. 107 Vitoria (n 78) 183. 108 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 48) 223 (footnotes omitted). 103
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safety, is not found in Grotius. All he had to say about this was that ‘the putting to death of those who had surrendered was sometimes lawful’.109 Nevertheless, Al-Shaybani did make it clear that no prisoner shall be killed if killing prisoners is in violation of an existing treaty.110 In addition, execution is only one of the options available to leaders who may well have been given such power to prevent other states from killing their prisoners by threatening that theirs would be killed. Where other states do kill one’s war prisoners, then the leader of the state can use his right to execute the subjects of that state captured in the same war in retaliation. Nevertheless, the first assumption that this right in the hands of leaders is a tool for preventing others from executing Muslim prisoners is likely to underlie it. This is because in Islamic law, no person should be killed due to the crime of another. On the other hand, the captured are an exception in the ghanimah, possibly for the first time in history,111 in that only the authority could decide on their fate.112 If the imam decides to execute them using the controversial right, which he has according to Al-Shaybani, then so be it. However, although the imam has the choice to execute captured men, many scholars asserted that executing prisoners of war is a repugnant act.113 Moreover, even the scholars who think that the imam has this right do not say that it is a rule that the imam must follow, but they all say it is merely a choice that he has. Limitation on the right to execute captured men Execution is a right given only to the authority; individuals must hand over all men they capture to it first. Nevertheless, Al-Shaybani further ruled that if a captured man who has not accepted Islam, and was not sold or distributed between fighters is killed by the capturer, the latter should bear no criminal responsibility. This is because he has killed a man whose killing does not constitute a punishable crime in itself. This act is makrooh, which is detested by religion but not punishable. It is
109
Grotius, The Law of War and Peace (n 5) 826. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 85) 203–303 and 1024. 111 It is difficult to see such separation between war booty and captured persons in any of the Western writings throughout the Middle Ages. Al-Shaybani did separate between them in his writing by dedicating separate chapters to them, as we can perceive from Al-Sarakhsi’s book, and he did separate between them by giving them different rules from those of general spoils of war. 112 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1026–1027. 113 Ibid 1024. 110
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likened to the case when somebody bears no responsibility for killing a man who was ordered to be executed by a court.114 Gratian did not discuss these matters in as much detail as Al-Shaybani. Yet he explained that if a soldier killed a man in war or killed a culprit of a crime, then he is not guilty of murder. However, Gratian would no doubt approve of Al-Shaybani’s opinion on this matter. This is because in his writings there are ‘several passages that could be interpreted as justifying killing without any express command of superior authority. Thus men did act as avengers of divine wrath and ministers of God when they killed evil-doers, and slayers of excommunicated persons were not guilty of murder.’115 As we have noticed in Augustine’s writings, to Gratian too it seems that misdeeds and transgressions of moral laws or Church doctrine are attributors of guilt. Moreover, as mentioned in the preceding chapter, for Augustine, ‘[m]otivated by a righteous wrath, the just war warrior could kill with impunity even those who were morally innocent’.116 To St Aquinas too, it was acceptable to kill with impunity even an innocent man if directed by the ‘ultimate authority of a divine mandate’.117 Thus, killing a prisoner who was caught while fighting against oneself is apparently justifiable in Aquinas’s view. Meanwhile, I have already shown that to Al-Shaybani, individuals are not permitted to kill their captives unless they try to rebel or escape. Somewhat similar to this is the statement of Augustine that ‘violence is used towards him who resist, so mercy is due to the vanquished or the captive, especially in the case in which further troubling of the peace is not to be feared’.118 In contrast, the only limitation Grotius mentioned regarding the execution of prisoners (and only according to jus gentium) is that ‘prisoners may not be put to death by poison’.119 Furthermore, in any case, according to Al-Shaybani, if the authority decided to execute captives it is not permitted to torture or treat them inhumanely.120 Even the execution, if decided upon, must be done with no cruelty or mistreatment.
114
Ibid 1027. Russell (n 4) 69 (footnotes omitted). 116 Ibid 19–20. 117 Ibid 283. 118 Dino Bigongiari, The Political Writings of St. Augustine (Henry Paolucci tr., Regnery Gateway 1962) 183. 119 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 48) 224 (footnotes omitted). 120 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1024, 1029. 115
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Exceptions to the right to execute There are many exceptions to the right of the authority to execute prisoners, even if they deem it beneficial for the state. In many cases, this right is withdrawn from the authority. For example, this might be the case if there is an agreement according to which no party has the right to execute prisoners, or when the whole town is conquered and becomes part of the conquering state. In addition, there are some other obvious exceptions such as the prohibition on the killing of women and children and other cases where execution is not permitted. For example, when the captive is a musta’aman121 who was lost during the war in dar-al-harb and then captured by dar-al-Islam’s army. These cases and others will be discussed in the following: 1.
The existence of an agreement between the capturing state and the prisoners’ state prohibiting the act. I have already discussed this agreement above.122 What might have led Al-Shaybani to grant this right to the authority is likely to be both precaution and reciprocity. Precaution because it would prevent the prisoners from rejoining their army, and reciprocity because no one in the Middle Ages could see his enemy abstaining from killing prisoners, thus it was reciprocity that could have dictated that the authority should be given the choice to execute. When a part of the enemy land is conquered, the imam has the choice to distribute the assets and its people between the fighters after removing one fifth. Alternatively, he can let its people live peacefully under the rule of the Muslim State and pay kharaj (tax). In this case, they would not be asked to perform any worshipping acts of Islam and they will keep their own faith under the rules of an Islamic ruler. If the people of this town accept Islam, they shall all be set free.123 This and the fact that when the whole town becomes part of the state after the war, execution is not an option, signify the following assumption: the authority has the choice of executing prisoners as they might deem that keeping them alive would be a danger, either by revolting if they are distributed among the fighters or by fleeing and returning to their homes to fight again. This possibility is not available if their whole town is conquered. We have already seen that women, children, insane people and elders
2.
3. 121 122 123
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Person[s] granted ama’an. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 85) 303. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1039–40.
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are not to be killed even in times of war;124 therefore, understandably they should not be executed once captured after the war has ended. Another exception is if any captured man embraces Islam, then the imam will not have the choice of executing him. Nevertheless, although by accepting Islam the captured cannot be executed, he will still be considered part of the ghanimah.125 If a musta’aman was accompanying Muslims in dar-al-harb and he was lost to be found among the captured by a Muslim army, he should not then be executed. The reason is that his ama’an is still valid and he was only lost during war and he has not committed any act to invalidate his ama’an contract. Thus, as musta’aman he cannot be killed without a deserving crime.126 Furthermore, in all cases when captives are sold or distributed, their killing becomes prohibited and even the imam loses the right to execute them. Hence, if one of them is killed afterwards, the killer would have to offer expiation to God127 and pay blood money.128
4.
5.
6.
Such exceptions are not present in the writings of Augustine, Gratian or even Aquinas. Even Grotius offered no clemency in such cases, nor did he address the matter in any depth. Vitoria did, however, address the issue in some detail, as shown above. 4.3.3 Distribution To execute the captured is one of many options the authority has, and there is no single preferred option. However, execution is prohibited in some cases as we have seen above and it is considered to be ‘detested’ by many scholars in all cases. The authority thus has many other options, one of which is to distribute them.129 By distribution (a term used by Al-Shaybani), I mean distributing the spoils of war between the fighters on one hand and the public depository on the other. With regard to captives, this is no different a term from the term enslavement as far as the legal meaning is concerned. However, the usage of this term is very important due to two facts. First, Al-Shaybani 124
Ibid 1415. Ibid 1026–1027. 126 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 85) 457–8. 127 An act commanded by God as a precondition for asking for forgiveness by a sin committer. 128 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1028. 129 Ibid 1024–1041. 125
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used it. Thus, we must be conscious of the original meaning in his thought. Second, I use this term to indicate that the enslavement widely practised then was very different from that advocated in Al-Shaybani’s book. When a person was enslaved elsewhere, the standard practice then, it could mean that the methods of enslavement are unlimited and the type of enslavement is normally inhumane and entails brutal treatment of slaves, as we have seen above. However, when a person is distributed in accordance with the rules set out by Al-Shaybani, they could only be captives and their status, ‘rights’130 and treatment were very different from those of the then conventional slavery. It should be noted, however, that where an agreement existed between the warring parties that no captives should be taken, this will cease to be an option and they must be released. If the authority decides to distribute the captives, then the general rules of ghanimah apply to the distribution.131 However, there are some exceptions to these rules. For example, in the above cases, there shall be no separation of a mother and her child. This is to say that when captured enemy women and children are distributed, children should always be kept with their mothers.132 Moreover, Al-Shaybani went into detail on rules for dealing with them.133 Furthermore, according to Al-Shaybani, if a town or a city is conquered, the authority (as mentioned above) has the choice to: 1.
distribute its people among the fighters after removing one fifth for the public treasury; and let its people pay kharaj and live peacefully under the rule of Islam. In this event, they will have their own faith under the rule of an Islamic ruler. If the people of this city freely accept Islam, they shall be set free.
2.
Vitoria also held a similar view. While he points out the obvious danger in leaving a city in the hands of troops which may result in looting, torture and the slaughter of innocent people, rape and many other types 130
Under Siyar, a slave has obtained more rights than elsewhere. Slaves had the right to be treated as human beings with dignity, the right to food and shelter as good as their masters have for themselves, and many other rights that they never had before. 131 Normally one-fifth will be the lot of the public treasury and the rest shall be divided between the fighters. In this division, no child shall be separated from his or her mother. 132 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1040. 133 These rules start with the way a person should refer to his servant and go on to the rules and regulations one should follow to free, employ and marry them.
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of atrocities, Vitoria thinks that if ‘necessary’, it is not unlawful to ‘leave a city to the soldiery by way of booty, even if it be likely that the troops will perpetrate foul and misdeeds of this kind, which their generals are none the less bound to forbid and, as far as they can, to prevent’.134 The only exception to the general practice in the medieval West, as explained above, was when ‘the church had prohibited the enslavement of Christians’.135 Even later, Vitoria took the view that ‘Christians do not become slaves in rights of war, this enslaving is not lawful in a war between Christians’.136 This is comparable to the rule of Al-Shaybani that Muslims will not be considered slaves even if they were captured and transferred to enemy territory. On the other hand, unlike Al-Shaybani, St Augustine, Gratian and Aquinas did very little to tame the treatment of slaves and there is no mention of any attempt to limit enslavement practices by them. For example, Gratian merely stated that once victory is achieved, captives must be dealt with mercifully.137 Moreover, in light of Aristotle’s teachings, Aquinas discussed the issue of enslaving the captured. First, he explained: the notion that the enslavement of war prisoners was not abstractly just but only just according to human convention. He then attempted to explain what he took to be Aristotle’s position, that since it was unjust for wise men to be ruled by fools, slavery of the vanquished to the victors was justified according to the convenience of human life. The lure of taking captives incited warriors to more strenuous fighting that in turn served to avoid the greater evil of putting captives to death.138
This last part is similar to the Islamic view prevailing then, as the comparison was not between freedom and enslavement; rather it was between enslavement and death. Thus, Hamzah Abu-Faris adds that enslavement in past Islamic practice encompassed better treatment than Abu Ghraib and Guantanamo prisoner treatment in the twenty-first century.139 If this is the case in comparison to prisoner treatment today, enslavement was certainly better than death. Moreover, if captives are enslaved, they could still be sold back to their country or family or could even buy themselves out of slavery and set themselves free. However, if 134 135 136 137 138 139
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Vitoria (n 78) 185. Russell (n 4) 279. Vitoria (n 78) 181. Russell (n 4) 61. Ibid 279. Interview with Hamzah Abu-Fars (March 2010).
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this channel in that age was not available, there would have been no other option but death for captives in that time. Nevertheless, in answering the question whether or not the children of noblemen who were captured and enslaved become slaves, Aquinas answered that enslavement of nobles was unbefitting of their rank and concluded that only barbarians could be enslaved after capture in war.140 This is where Al-Shaybani would strongly disagree with Aquinas. The differentiation between people on the basis of nobility or race, family or any other class reference before the law is absent from Al-Shaybani’s work. Aquinas did not resolve the issue of whether or not people captured in an unjust war can be enslaved.141 However, this issue did not escape the attention of Al-Shaybani. For example, he detailed the rules governing what is considered spoils of war and what is not when subjects arriving from enemy lands do make claims.142 Nevertheless, Aquinas’s treatment here, scanty as it was, ‘must be considered as an interpretation of Aristotle rather than his own opinion’.143 However, his discussion of the issue of slavery is indeed far from being inconclusive.144 As for Grotius, he only made generic references to the subject such as his statement: ‘a conquered enemy becomes the slave of the victor, who has powers of life and death over him.’145 In fact, the treatment of slaves in the age of Grotius seems to have been the same as that of earlier times. 4.3.4 Benevolent Freeing of Prisoners The authority has the right to free prisoners both in return for something and gratis. The relevant authority, whether the army commander in some cases or the leader of the state in all cases, could offer the captives the option of completing a certain job in exchange for their release. In this case, the agreement, if the prisoners accept the offer, will be law. Thus, if the prisoner fulfils the contract, then he shall be set free.146 140
Russell (n 4) 279. Ibid. 142 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir LiMuhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 4 (Salah Al-Deen Al-Munajjid ed, Ma’had Al-Makhtu’tat 1971) 1501. 143 Russell (n 4) 279. 144 Ibid. 145 Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (n 225) 224. 146 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir 141
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Nevertheless, the authority, according to Al-Shaybani, has the right to free prisoners of war gratis. In this case, the prisoners will not have to offer anything in return for their freedom, nor will they have to do anything to obtain this offer. This was clearly taken from the practice of the Messenger Mohammad, as Al-Shaybani quotes some of his practices in this regard.147 4.3.5 Ransom While, the authority also has the choice to gratuitously free captured men, it is important that it verifies the possibility of whether the freed men are likely to rejoin the enemy’s army before taking such a decision.148 Meanwhile, even if such a possibility exists, the authority still can ransom prisoners.149 Interestingly, in A Concise History of the Law of Nations, Nussbaum asserts that the first reported instance of international ransoming between the Eastern Roman Empire and the Muslim State was reported as an Islamic international law rule. This was a treaty between Harun Ar-Rashid (to whom Al-Shaybani was an advisor on international legal matters) and Emperor Nicephorus in 804. Thus Nussbaum comments: ‘[o]ne remarkable feature, apparently of Arabic150 origin, was the large-scale exchange and ransoming of prisoners; the treaty of 804 between the Caliph Harun al-Rashid of Bagdad and the Emperor Nicephorus is an instance of this.’151 In addition, even at later stages of the Middle Ages, when the West started to practise ransom, it was mainly princes or knights who could be ransomed, and ‘the right to ransom was often reserved to the king’.152 On the other hand, Al-Shaybani did not oppose paying money in ransom to release subjects captured by the enemy.153 There are some exceptions to the right of the authority to ransom prisoners. For example, if the foreign party requested handing over one of its subjects residing in dar-al-Islam under ama’an, the imam is not Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 2 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 777–80. 147 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1031–2. 148 Ibid 1024–1041. 149 Ibid. 150 It is common among Western scholars not to differentiate between what is Arabic and what is Islamic. The author here wrote Arabic but meant Islamic. 151 Nussbaum (n 20) 47. 152 Ibid 27. 153 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 142) 1590–96.
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allowed to hand this individual over even to his own country without his consent. This is because, under ama’an, he has become a protectorate of the state and he cannot be paid as ransom even to his own country unless he has wilfully accepted so. This is even stricter if returning him to his country will be a danger to his own life. This should also be the case even if his country threatened to wage war against the state protecting him because he is not handed over.154 4.3.6 Becoming Subjects of the State War prisoners according to Al-Shaybani can become subjects of the state and they will then enjoy full protection of the law. A prisoner of war could become a subject of the state and enjoy such protection through more than one avenue. They can do so either by becoming Muslims or by becoming ahl-dimah. As mentioned above, once the captured voluntarily accepts Islam as his faith he then becomes a subject of the Muslim State and enjoys its full protection, and cannot be returned to his original state without his consent. We have also seen that in some cases, even a non-Muslim could become subject to the state by becoming dhimmi.155 This is in the case above when a whole town was captured and its entire population were rendered subjects of the state. In the last case, they will be allowed to keep their own religion, practising their religious rites so long as these do not affect others, and they will not be asked to discharge duties Muslims will have to carry out. Meanwhile, most (but not all) of the rights and duties of Muslims are applicable to the dhimmi. This is clearly demonstrated in the example that while Muslims will have to pay zakah (obligatory charity), a dhimmi will not have to pay (except jiziyah, which is a fixed tax rate). Meanwhile, while Muslims have the right to be ransomed once captured by the enemy using public money, others will not (according to Al-Shaybani). Nevertheless, they all enjoy the full protection of both the law and the state.
154
Ibid 1612–13. A member of the people of the book (e.g. Christians and Jews) living in a Muslim state with a covenant granting him protection and obliging him to pay poll tax and not to commit treason. 155
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4.4 GHANIMAH (SPOILS OF WAR) I shall now examine properties and possessions lost by war to the enemy or acquired by it. This is what Al-Shaybani called ghanimah, the Arabic word equivalent to the term ‘spoils of war’ or ‘war booty’. Yet there are some differences, which can be inferred from the writings of Al-Shaybani – for example, the need for it to be legal in order for it to be described as ghanimah, along with some other conditions that I shall explain later. Here I shall examine his writings on ghanimah in general by treating some of the main subjects he discussed. 4.4.1 The General Rule on Spoils of War Departing from the prevailing international practices, Al-Shaybani differentiated between legal and illegal spoils of war. He went as far as to discuss the earnings of subjects who have been abroad.156 In some cases, as will be discussed next, their wealth might be earned by trade; and in others, they may have accumulated it by other means, including illegal means. In each of the mentioned or anticipated cases, there is a rule that governs the imported money. However, it is only in some of these cases that such money might be considered lawful spoils of war. Thus, the limitations Al-Shaybani imposed on the practice in this area are many and I shall consider only some of them, as his treatment of these topics was extremely detailed. Nevertheless, although Al-Shaybani did not significantly alter the general rule at the time, he altered its detailed rules and imposed some conditions on its practices. One would then ask what is the position of Al-Shaybani on acquired (occupied) lands and properties. The answer can be summarized as follows. Occupation of lands Al-Shaybani discussed the rules applicable to cases when Muslims occupied enemy lands and when enemy troops occupied Muslim lands. 1.
If Muslims occupy foreign lands as a result of a justified war, then the authority will have two choices: either to divide the new land between the fighters and consider its people as prisoners of war, shown above; or to confer ‘citizenship’157 where each one of them 156
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 142) 1115. I am using this term here in its linguistic meaning and not connotational meaning, as dhimmi is considered a subject of the state but has a slightly different set of rights and duties from other subjects. 157
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becomes dhimmi and they will then continue to both own and use their land provided that they pay land tax (kharaj).158 The first choice is still the practice today.159 If non-Muslims occupied Muslim lands as a result of war, in this case, Al-Shaybani considers these lands as part of dar-al-harb, which means that they have now become part of a foreign land and legally owned by the enemy.
2.
It is important to note here that such legal ownership will only take place if the land was secured by the enemy. In other words, to Al-Shaybani, occupation during war and occupation for short periods cannot suffice to transfer ownership to the new possessor. Thus, Al-Sarakhsi stated that ‘mere entry of the enemy into that part should not give it the status of dar-al-harb’.160 Therefore, Abū al-Wafā, commenting on this passage, said that merely entering these lands does not give the enemy the right to become the owner and does not transfer the legal status of the land from dar-al-Islam to become part of dar-al-harb.161 Therefore, if war has not ended and occupation was only for a short period, the land will still be subject to the ownership of the original owner before the war started. Acquisition of enemy movable property or chattels 1.
When non-Muslims take possession of goods by force from dar-alIslam or from Muslims and they secure it by transferring it to dar-al-harb, it will immediately become their legal ownership. Thus, in order for foreigners to become the owners of goods taken from dar-al-Islam, there are two conditions: first, that they obtained these goods by force and not by lawful agreement, and second, that they have secured the goods in their own country.162 Unlike the other case where Muslims acquire non-Muslim possessions by force, there are more conditions attached in order for it to be legally owned by the Muslim acquirer. This is the case even if he manages to secure it in dar-al-Islam. For example, for a Muslim to be
2.
158
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1039–1040. Aḥmad Abū al-Wafā, Kitāb Al-I‘lām Bi-Qawā‘id Al-Qānūn Al-Dawlī Wa-Al-‘alāqāt Al-Dawlīyah Fī Sharī‘at Al-Islām [A Book of International Law and Relations in Islamic Shari’a], vol 14 (al-Ṭab‘ah 2, Dār al-Nahḍah al-‘Arabīyah 2007) 218. 160 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 142) 1259. 161 Abū al-Wafā (n 159) 218–19. 162 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 142) 1297. 159
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able to become the owner of chattels acquired by force and secured in dar-al-Islam, he must acquire this money while not violating any treaties or contracts with the people from whom he acquired the money. In this case, we can see that Al-Shaybani adopted the generally practised rule that whatever is obtained by war is owned by the possessor once it crosses the borders. He only restricted the practice of Muslims, as they are required to obey Muslim law, whereas others would still practise the customary rule of that time. 4.4.2 Spoils of War and Personal Gains As explained above, unlike the case of foreigners acquiring chattels from Muslims, the latter have to fulfil many more conditions in order to be able to legally own any acquired goods. Thus I shall discuss some cases where both officials and individuals in dar-al-harb import wealth and when would they be considered as spoils of war and when not, as well as when they are considered legal and when not. International gifts Al-Shaybani discusses communications between subjects and foreigners. Whether it was during war or peace, the nature of the dealings is what renders the earnings legal ‘spoils of war’. For example, he discusses the rules that should apply when two parties from the two abodes exchange gifts. For instance, a prince has the absolute discretion as to whether to accept a gift from other states. This rule was inferred from the Messenger’s practices in dealing with such cases. He accepted gifts when he wished and rejected others, especially when he wanted to express his dissatisfaction to those who were hostile to Islam and Muslims. However, if the imam accepts such a gift, it is to be considered as fay and therefore it should be deposited in baiet alm’al163 (the public depository). The wisdom behind this is the fact that the gift is given to rulers out of consideration for their position and strength as a leader of their state; therefore, all subjects should share it with them.164 In some cases, the official or the ruler may keep the gift, either partially or fully. If he has already sent the foreign leader a gift and received a gift from the latter in return, he can keep it for himself so long as there is not much difference in value between what he has given and what he has received. 163
The verbal translation of bayt al-mal is: the house of money, referring to the department where public money was held. 164 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 142) 1237.
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However, if the difference between the two gifts is significant and the ruler favoured acceptance of the gift, the value of the difference has to be paid into the public depository.165 In contrast, the ruler will have the right to return a gift with its equivalent from the public money.166 The above case applies to all those who receive gifts because of their positions. Nevertheless, if the gift is received by an ordinary individual (even if he was a warrior), it should be his and he will not have to share it with others.167 Earnings of subjects abroad If a subject was abroad (in the dar-al-harb) as a musta’aman, he should respect the ama’an and abstain from all evil acts in that abode. Therefore, he will be held liable for any illegal act that he commits during his stay. Even if he escaped dar-al-harb, in some cases, as we shall see, he would still be held liable by the Muslim imam for what he commits in the dar-al-harb. For example, if the Muslim musta’aman in dar-al-harb has joined the Muslim army before returning to dar-al-Islam, his case will be assessed while he has some wealth with him. Where he has legally obtained this money or had it with him before entering dar-al-harb, there is no issue.168 If when joining the Muslim army, in the above case, it was discovered that he had extorted this money from dar-al-harb, then the money would be considered as illegal spoils of war. Consequently, the imam must confiscate all the extorted monies and return them. This is because he has obtained the money through a prohibited action, which violates the ama’an contract. Earnings of foreigners inland From another angle, if a musta’aman obtained the wealth from a non-Muslim in dar-al-Islam while he was in the Muslim army, then the imam should return all returnable objects.169 This is because when the non-Muslim was issued with ama’an to enter dar-al-Islam, the ama’an became effective against all Muslims and non-Muslims in dar-al-Islam. Therefore, the imam has the right forcefully to protect the non-Muslims under this ama’an against all ama’an breaches.170 165 166 167 168 169 170
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Ibid Ibid Ibid Ibid Ibid Ibid
1241. 1244. 1240. 1115. 1119–20. 1120.
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The case of prisoners abroad Al-Shaybani supposed that in the above case, the Muslim who has brought wealth from dar-al-harb was a prisoner in the latter. In this case, if he has entered dar-al-Islam, then all his possessions are his as he was not a musta’aman and had no duties to abstain from his action of collecting their wealth. As he was suppressed by them so even if he killed or stole some of their wealth, he is not a law breaker as he was only a captive in their hands.171 In property law, this prisoner has become the owner of all he brought with him from the land of his imprisonment. Therefore, if among his property was an object that had been extorted from a Muslim in the past, the latter can only claim it back by paying for it. This is because this object had already come under the ownership of the extorter who possessed it in dar-al-harb before the prisoner then extorted it; therefore, the original owner in the dar-al-Islam had lost his title to it when it was transferred to dar-al-harb.172 It is important to note that the trend in Al-Shaybani’s legal writings has been that the same rule applies to both Muslims and non-Muslims alike. In the last example, we saw Al-Shaybani asserting that whatever is taken forcefully by the non-Muslims to dar-al-harb will be owned by them at the point of entry to the dar-al-harb. This is the same if a Muslim has acquired booty from the dar-al-harb and crossed the borders to the abode of Islam. This practice was in fact known before Al-Shaybani, and it seems that it was also common in his time. This was the case even if there was no state of war. For example, in Rome: [t]he Roman lawyer Pomonius, in the second century AD, while conceding that states which did not have treaties with Rome were ‘not precisely enemies’, pointed out that certain marks of war were nonetheless present. Specifically, if any Roman property passed into the hands of such states, then the Roman owner would lose title to it, as in a war. Similarly, a Roman free person who was captured by such a state became a slave.173
Yet, as I have mentioned, Al-Shaybani has introduced many rules governing this loose practice and also many limitations and exceptions. 4.4.3 Division of Spoils of War and the Authority The authority was given a significant role by Al-Shaybani in both storing and transferring spoils of war and dividing them among shareholders. 171 172 173
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Ibid 1122. Ibid. Neff (n 224) 31.
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This was of course after paying all necessary expenses and all due monies and payments. The public depository had the share of one-fifth of legally obtained spoils of war. Al-Shaybani described how to extract one fifth for the imam: the ghanimah should first be divided into five and then the imam’s fifth should be taken out by random selection.174 Al-Shaybani adds that it is better to do it this way in order to avoid any hard feelings that might occur if the imam is left to select his own fifth. He thinks that if the imam is the one who chooses his fifth, people might think that he has chosen the best fifth, or that he has taken more than one-fifth.175 Nevertheless, this fifth for the imam is to be divided by him among the poor, needy and those who were prevented from receiving donations such as those near in kin to the Prophet. It is public money and must be dealt with as such. It is interesting to note here that this rule of division went on to be borrowed by and practised in the West. Thus, Nussbaum revealed that in Islam, ‘[b]ooty had to be delivered to the authorities for distribution, the treasury keeping one-fifth of it – a rule adopted, surprisingly enough, by the Siete Partides of Alfonso X of Castile’.176 Elsewhere he pointed out that in the medieval West, ‘there were indications of modern conception which leaves the disposition of prisoners and booty to military authorities’.177
4.5 CONCLUSION As indicated above, writing this chapter presented two main challenges. First, it has not been simple to select some of the main subjects that Al-Shaybani discussed on the consequences of war. It was more difficult to select topics within the selected main topics. In addition, I found out that the contributions of the scholars whom I am comparing to Al-Shaybani’s thoughts were small in comparison. Neither Augustine nor Gratian nor even Aquinas gave us any basis for comparison with Al-Shaybani, as they wrote little or nothing on the topics discussed in this chapter. The only conclusion one could have here is this: in order to see how advanced and wide-ranging Al-Shaybani’s treatment of these topics was, it seems that we need to search elsewhere, perhaps far beyond 174 175 176 177
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As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 888–9. Ibid 889. Nussbaum (n 20) 52 (footnotes omitted). Ibid 26 (footnotes omitted).
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the Western Middle Ages. From the writings I have examined, we can only find a better but still inadequate comparison in the thoughts of Vitoria and the writings of Grotius almost a millennium later than Al-Shaybani. This chapter, thus, was bound to change, and did change, the course of this research. This is why I had to restructure the whole work to introduce both Vitoria and Grotius. However, while the latter two have proven to be more concerned with topics tackled in this work than Augustine, Gratian and Aquinas, on many occasions they remained unable to compete with the complexity of Al-Shaybani’s legal texts and analysis on these topics. In Al-Shaybani’s work, I found a tremendous contribution to preventing the suffering of prisoners of war. In the context of his time, Al-Shaybani was a pioneer in providing such a detailed and humanistic method of dealing with prisoners of war. The closest comparison to Al-Shaybani in this regard, it seems, was Vitoria and not Grotius. Yet, as we have seen above, even this was not without limitations. For Vitoria, unlike Al-Shaybani, did not set out detailed rules on all topics covered by the latter.
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5. The law of peace Peace, peace-making tools and conflict resolution are highly regarded and thoroughly examined in Al-Shaybani’s writings. Although it may seem that the largest share of Al-Siyar Al-Kabīr addresses rules governing war, the law of peace and peace-making tools have always presented themselves clearly to the reader throughout this book. For example, the subject of ama’an occupies a significantly large proportion of the book and comes almost at the beginning of it after some introductory rules about defence and war law. Al-Shaybani also dedicated a large section of his work discussing mowada’ah, which could be translated as ‘peace agreement’ or ‘accord of harmony’. Not only did Al-Shaybani extensively write about peace treaties and pacts but he also dealt with treaties at large, international trade, international taxation, rights of minorities, cross-border marriages and divorce and many other rules governing peaceful coexistence between different religious and international groups and individuals. Thus, he addressed all peace-related topics in quite a detailed manner. For example, he ‘discusses rules relating to the interpretation of treaties, examining among other matters rules regarding implied and express terms’.1 Consequently, discussing such a topic in detail, I assume, will prove to be more beneficial than discussing many main topics without resorting to any details. For this reason, in this chapter I will discuss the rules applicable to only some of the main peace-creating tools in his book. Thus, I shall discuss treaty law, peace treaties, ama’an, diplomatic law and one of the conflict resolution tools proposed by Al-Shaybani, which is arbitration. Before that, I will, as was the case in the previous chapters, draw attention to writings around the Middle Ages with regard to these topics.
1 Christopher G. Weeramantry, Islamic Jurisprudence: An International Perspective (Macmillan 1988) 140.
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5.1 HISTORICAL OVERVIEW 5.1.1 General History History bears evidence of the existence of peace making attempts. Even in the second millennium B.C. there is evidence of peace treaties, with the most important of them being that between Rameses II of Egypt and Hattusili II of the Hittites.2 As for the concept of peace itself, it must have varied, as it may today, between peoples and thinkers. For instance, peace to the Hebrews ‘meant security and for that reason the word shalom could be a component in the name of an impregnable fortress, Yeru’shalom, Jerusalem’.3 Meanwhile, for the Greeks peace was ‘a state of order and coherence … [whereas] … among the Romans peace came closer to being the absence of war’.4 In fact, sometimes we can see that peace was mainly a form of bestowing favours by the stronger on the weaker or the loser in wars. Thus, it is discussed by analysing good faith, promises and oaths, as Grotius did in his famous book on The Law of War and Peace. The latter also referred to ancient peace practices by citing quotations related to these subjects as if peace was only either a promise or an oath that requires the good faith of the king in order to be respected. Moreover, Cicero, in his treatise on Duties, ‘attributed to promises such force that he calls good faith the foundation of justice’.5 Furthermore, Grotius stresses that the perfect promise is ‘manifested by an outward sign of intent to confer the due right upon the other party’.6 In addition, Eustathius the Greek, said that ‘[t]he one to whom a promise is made in some way captures and binds the promise’.7 Even when Grotius discussed interpretation after addressing the subject of treaties he went on to discuss the interpretation of promises as if they were the most important aspect. Thus, he continued to stress the need for good faith in promises (whether in treaties, contracts, or even oaths). For example, in the part entitled Interpretations, he quoted Cicero saying: ‘In 2 Arthur Nussbaum, A Concise History of the Law of Nations, Revised Edn (Macmillan 1954) 2. 3 Roland Herbert Bainton, Christian Attitudes toward War and Peace: A Historical Survey and Critical Re-Evaluation (Hodder and Stoughton 1961) 17. 4 Ibid. 5 Hugo Grotius, Hugo Grotius. The Law of War and Peace: De Jure Belli Ac Pacis Libri Tres (Francis W. Kelsey tr., Indianapolis 1925) 330. 6 Ibid 330–31. 7 Ibid 331.
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good faith what you meant, not what you said, is to be considered’.8 Nevertheless, it is imperative to read the writings of Cicero and others in their totality in order to obtain a full picture of their views on promises and good faith as well as on treaties. This is because although they have shown great support for the keeping of promises, their handling of the details might hinder such a general statement. For example, Cicero said that ‘promises ought not to be kept if they are of no advantage to those to whom you have made the promise, or if they are more harmful to you than they are advantageous to him to whom you made the promise’.9 On the other hand, it is difficult to establish the Christian perspective of peace. This is largely because of the change of perception with the change in time influencing different theologians who held different views on what peace is. There is no doubt however, that the birth of Christianity brought an unwaveringly clear pacifist approach to the world. The teachings of Jesus as well as his early followers rejected any involvement in war. Peace, in part, to them was the total rejection of such involvement. They are likely to have thought that there is nothing in this world worth doing violence to others for. The issue was then how to interpret such a stance. Were Jesus and his early followers distancing themselves from violence and war as a lesson to others on how to be more spiritual or was it a lesson to Christian generations to come?10 Both interpretations have succeeded in finding many supporters throughout history. For example, we have already seen how Augustine turned the quest for peace into a goal that can be reached by war and not by abstaining from it.11 The meaning of peace, it seems, was almost entirely different from how it is perceived today. The absence of war is what peace meant to many, it seems. One could infer that this was also the case up until very recently. In addition to this, despite the existence of some (what we would today consider as) unfriendly activities, including despoiling, people still did not consider themselves at war with others. This would be understandable if we could imagine the world without the United Nations and without the contemporary international legal order. In Roman law, for example, the principle was: if it is considered that neither friendship nor hospitality nor any treaty for the sake of friendship has been made with any people these are not indeed public 8
Ibid 409. Ibid 328. 10 James Turner Johnson, The Quest for Peace: Three Moral Traditions in Western Cultural History (Princeton University Press 1987) 13. 11 Grotius, The Law of War and Peace (n 5) 861. 9
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enemies; yet whatever has come to them from the Romans should belong to them, and a free Roman captured by them would be a slave. The same thing, again, would happen if any one came from them to the Romans; and in this case also postliminy should be granted.12
Thus, we can see that in spite of activities such as despoiling and enslaving, others were not considered enemies. At the same time, they had no peace-making accord or agreement between them. From all of this I can establish that the absence of war or attack made others unfit for the title ‘enemy’, and any other activities less serious than those mentioned in the passage above did not constitute war. Even the absence of any peace treaty did not mean war or enemies. Thus, peace was the absence of war in its simplest forms and this should be distinguished from peace treaties. For being promises of peace, they do not collide with the fact that when they do not exist, peace might still exist. Grotius recalls the example when ‘Bocchus Sallust says: “known to us neither in peace nor in war”. Hence the taking of plunder from barbarians was commended by Aristotle, and in Latium the word hostis means only a stranger.’13 Thus, by the absence of peace here, Sallust could only have meant a peace treaty. On the other hand, speaking of the West in general, ‘there was in the Middle Ages very little honesty in treaty matters’.14 This is probably why different mechanisms were introduced to guarantee the fulfilment of duties. Unlike in modern usage, ‘treaties were frequently strengthened not only by oaths but by the pledging of places or forts or jewels or other valuable property, and by the giving of hostages’.15 Moreover, not only hostages, in the old ages, but ‘even life could be lawfully pledged as security’.16 As for the termination of wars, once they were started in the Middle Ages, one could assume that it was mainly victory which would end wars, with the victor deciding when and how to end them. Nevertheless, Augustine seem to support surrender when in his City of God – book eight – he stated that ‘[a]mong almost all nations this utterance of nature has in some way been heard, that they should prefer to yield themselves to the conquerors rather than to be exterminated with every kind of war’s destruction’.17 However, the general feeling that one would accumulate from readings on peace treaties of that age is that they were mainly 12 13 14 15 16 17
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Ibid 394. Ibid. Nussbaum (n 2) 19. Ibid 24. Grotius, The Law of War and Peace (n 5) 407. Ibid 262.
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agreements of either surrender or termination of war between the stronger and the weaker parties to war. This is what we get from Grotius’s The Law of War and Peace, for example. This is even clearer to readers when he discusses the interpretation of peace treaties. He, thence, took the view that as the stronger party normally dictates the terms of peace treaties, the interpretation of words in doubt should not be in his favour.18 Elsewhere, while the Eastern Roman empire had known some sort of limited scope of peace treaties with others such as Persia, ‘moral insensibility and ruthlessness were conspicuous in the public life of the Greek Empire. The unbridled power of the emperor also distorted the concept of war.’19 However, around Arabia in that age it seems that not only Romans but also Persians were not always true to their word when, in some exceptional times, they signed some sorts of peace treaties.20 As with regard to refugees, the ancient Greeks knew some kind of asylum system. However, it was neither always respected nor applied to nonGreeks and non-allies. It was a system whereby some places were considered sacred and therefore those who sought refuge in them should be safe.21 Nevertheless, mediation and other peaceful conflict resolution tools seem to be deeply rooted in history. Although, it was neither common practice nor was it always successful, the Greeks, for example, knew arbitration. However, this practice was mainly utilized between ‘peoples who looked upon themselves as a kin’.22 Furthermore, the Romans too knew arbitration, and in more than one form. For example, Proculus professed that: there are two kinds of arbitrators. One is of such a sort that we ought to render obedience, whether he is just or unjust; and this kind of arbitration, he says, is found when the parties resort to an arbitrator under mutual promise to abide by his decision. The other deals with matters of such a kind that they ought to be referred to the decision of a just man.23
Arbitration was practised later among the European nations and quite heavily in the thirteenth and fourteenth centuries.24 On another level, it seems that ambassadors and envoys appear to have had both the attention and the support of international law authors for a very long time. ‘Everywhere, Grotius says, we find mention of the sacred 18 19 20 21 22 23 24
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Ibid 813. Nussbaum (n 2) 48. Ibid. Ibid 7. Bainton (n 3) 36. Grotius, The Law of War and Peace (n 5) 823. Bainton (n 3) 118.
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affairs embassies, the inviolability of ambassadors,25 the law of nations which is to be observed with reference to ambassadors, divine and human law, … and the sacredness of the persons of ambassadors.’26 Furthermore, Cicero stated: ‘I think that the rights of ambassadors have not only been fortified by the protection of men, but also guarded by divine law.’27 In fact, the Romans considered ambassadors as sacred and they must not be harmed if a war exists between them and the sender.28 Nevertheless, generally, it seems that Stephen Neff was right in describing human history around the old and Middle Ages when saying that: [t]he idea of peace as the normal condition of human affairs was far from a natural one. For a very long time, the prevailing view in the ancient world was that war was simply a constant feature of the political landscape, as routine as the coming and going of the seasons of the year.29
As we saw earlier, the Romans were the true inheritors of the Greek conceptions of war and peace. They, at least in principle, saw others (barbarians) as a legitimate target for warring, despoiling and enslaving. Unfortunately, even the men most of us would regard as wise, in that age, saw war as an accepted norm, especially against those they perceived as barbarians or a lower class of people. This applies to Plato, Aristotle and to many other philosophers of that age.30 Alternatively, as pointed out earlier, ‘[t]he conception that peace was the natural condition of the world would seem to have been first articulated in China, in the Confucian tradition.’31 This is because there the world was seen as, ‘at least in principle, a single order society, with the terrestrial world functioning as a sort of mirror of its heavenly counterpart, with all of its parts in (ideally) perfect harmony’.32 For while both the Greeks and the Romans, as I have pointed out earlier, found in what they called barbarians a natural case for war, the Chinese saw them differently. The Chinese paid much more attention to peace and peaceful means when dealing with others: 25
Footnote omitted. Grotius, The Law of War and Peace (n 5) 438–9. 27 Ibid 439. 28 Ibid 446. 29 Stephen C. Neff, War and the Law of Nations: A General History (Cambridge University Press 2005) 30. 30 Ibid 30–31. 31 Ibid 31. 32 Ibid. 26
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[a]ccording to the Confucian … , even barbarians were not utterly alien. They were merely imperfectly integrated into the great global order. The best way of dealing with them was gradually to reform them by setting a good example of what a fully civilised society was like. This normal peaceful relation with the neighbouring barbarian states was symbolised by the ritualistic exchange of ‘gifts’ or ‘tribute’ between the Chinese government and envoys from the barbarian states.33
5.1.2 Pre-Islamic Arabia To the Arabs, in the pre-Islamic era: war (harb, used in the senses both of an activity and of a condition) was in one sense a normal way of life; that is, ‘a state of war’ was assumed to exist between one’s own tribe and all others, unless a particular treaty or agreement had been reached with another tribe establishing amicable relations.34
This is somewhat similar to the Romans who did not consider those not known to them in war or in friendship (peace agreement) as public enemies.35 They, similarly to Arabs, practically considered themselves at war with others in terms of legal jurisdictions so long as there was no peace deal between them. Thus, for example, any property acquired from such a state by force is considered as licit war booty. Thus, this was the norm of that age. Nevertheless, despite the ruthless hostilities that they had among them, Arabs knew many peace-promoting practices that were later adopted by Islam. An example of this is ama’an (safe conduct).36 Later this practice dictated, with little change of the main theme, that ‘[a]ny Moslim originally had the power to grant foreigners protection by a one-sided act (ama’n) which was binding upon the whole community. The foreigner became thereby a mustami’n.’37 This was possible in times of both war and peace. Peace treaties were also known in Arabia. ‘Arabian tribes concluded various alliances and treaties of mutual assistance (mussanadah) or of peace and non-aggression (muwâda’ah).’38 Arabs, as well, had a great 33
Ibid 32. Fred M. Donner, ‘The Sources of Islamic Conceptions of War’ in: James Turner Johnson and John Kelsay (eds), Cross, Crescent and Sword: The Justification and Limitation of War in Western and Islamic Tradition (Greenwood Press 1990) (n 272) 34. 35 Grotius, The Law of War and Peace (n 5) 394. 36 Nussbaum (n 2) 53. 37 Ibid (footnotes omitted). 38 Sobhi Mahmassani, ‘The Principles of International Law in the Light of Islamic Doctrine’ (1966) 117 Recueil Des Cours 230 (accessed 16 November 2011) 267. 39 Irfan Kawar, ‘The Arabs in the Peace Treaty of A.D. 561’ (1956) 3 Arabica 181, 181–213. 40 Muhammad Hamidullah, The Muslim Conduct of State (5th edn, SH Muhammad Ashraf 1968) 54–6. 41 Majid Khadduri, War and Peace in the Law of Islam (1st AMS ed., AMS Press 1979) 232. 42 Ibid 232–3. 43 Hamidullah (n 40) 60–61. 44 Ibid 61.
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declares explicitly that it is impossible to establish a single religion on earth (VI, 118). Jihad is the only form of bellum justum permissible in Islam; according to the Our’an it can be justified only in → self-defence against an aggressor (XXII, 39) or to rescue an ally or brother in Islam (IV, 75).45
Thus in Siyar peace is the normal state of affairs except when others choose to take a different stance towards the Muslim State. Thus, ‘[c]ontemporary jurists generally agreed with the need for Muslims to maintain peaceful relations with their fellow human beings, including non-Muslim communities.’46 Peace is not only a legal possibility or permissibility in Islamic law but also a philosophical requirement of the entire Islamic system. Consequently, Mahmassani argued that ‘Islam considers that all mankind are equal before the law, in their rights as well as in their obligations, without any distinction of race, nationality, colour, family or creed. Piety alone is the measure of dignity in Islam’.47 The following Qura’anic verses reaffirm this position: O mankind! Lo! We have created you from male and female, and have made you nations and tribes that ye may know one another. Lo! the noblest of you, in the sight of Allah, is the best in conduct. Lo! Allah is Knower, Aware.48 O mankind! Be careful of your duty to your Lord Who created you from a single soul and from it created its mate and from them twain hath spread abroad a multitude of men and women.49 Your creation and your raising (from the dead) are only as (the creation and the raising of) a single soul.50
Not only the Qura’an, but also the practice and teachings of the Messenger reiterate the same position. For example, he says: You are sons of adam, and adam came from dust. Let the people cease to boast about their ancestors.51
45
S. Ahmed El-Kosheri, ‘Islam’ in R. Bernhardt (ed.), Max Planck Encyclopedia of Public International Law (1981) 223. 46 Labeeb Ahmed Bsoul, International Treaties (Mu‘āhadāt) in Islam: Theory and Practice in the Light of Islamic International Law (Siyar) according to Orthodox Schools (University Press of America 2008) 171. 47 Mahmassani (n 38) 243–4. 48 Marmaduke William Pickthall (tr), The Glorious Qur’an: Translation (Tahrike Tarsile Qur’an 2009) 49/13. 49 Ibid 4/1. 50 Ibid 31/28. 51 Sahih Muslim 41/5097.
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I am the brother of every pious man, even if he were an Abyssinian slave, and I disclaim every wicked man, even if he were a noble Koreishite.52 No superiority has an Arab over an alien, nor a white man over a negro, save in piety.53,54
From these divine orders we can see that Muslims are taught to see themselves as part of the human family over which no human can be superior. No human has the right to subdue or harm the other. Peace thus is a concept nurtured into the hearts of the believers. As for treaties, which are one of the most significant sources of peace and peace keeping, they deserved unprecedented attention and were empowered by Islamic international law to the point of sacredness. ‘The sanctity of treaty obligations is the most fundamental rule of Islamic international law.’55 Indeed, ‘the principle of good faith has, from earliest times, been regarded not only as a matter of common concern to the whole community of states, but also as a matter of legal duty between the parties to the treaty.’56 Just as any other state, the Muslim State in its relations with other states used treaties as a method of interaction. The law of treaty in Siyar was, to begin with, regulated by the Qura’an, which provided general principles. Indeed, the law of treaty: forms an impressive part of Islamic doctrine. In Celebrated sura57 the Koran obligates the believer to keep his covenants even towards pagans (polytheists) until the end of the term, provided the pagans do not fail the Moslems in any way and do not help anyone against them; a fortiori, the same rule obtains in relations with Christians and Jews.58
Treaties ‘have provided the framework for peaceful relations in the spheres of both internal and external relations between Muslims and non-Muslims’.59 International treaties, thus: were of particular interest to classical Muslim jurists, chief among them Shaybani. These jurists constructed a system of drawing up such instruments 52
Cited in Mahmassani (n 38) 243–4. He refers here to: cited by M. R. Rida, in Al-Wahi al-Muhammadi (Cairo, 5th ed., 1367 A. H.) 226. 54 Mahmassani (n 38) 243–4. 55 Mohammad Hosny Mohammad Gaber, ‘The Early Islamic State with Special Reference to the Evolution of the Principles of Islamic International Law, 632–750 A.D.’ (PhD Thesis, American University of Washington 1922) 97. 56 Ibid. 57 Koran, x 9, 4. 58 Nussbaum (n 2) 53. 59 Bsoul (n 46) 107. 53
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that covered all aspects of the process, such as the establishment, conclusion, effects and termination of international treaties.60
Even during war, treaties must be respected and issued with honour and faithfulness: deception is unacceptable. ‘Explicit Qur’anic verses enjoin Muslims to seek accords with non-Muslims in order to eliminate conflicts. They oblige Muslims to respect the letter and the spirit of treaties once concluded, even when it may seem expedient not to do so.61,62 Although there is an opinion that a sovereign Muslim state could end a treaty before the end of its term if it were favourable to it to do so, this opinion also highlights that a formal denunciation was still required in such cases.63 International treaties once agreed upon have the force of a legal contract in Islamic law. ‘Strict adherence to the treaty is thus ensured, from the Muslim side, not by vague notions of international convention or ethical considerations but by the full force of Islamic law itself.’64 Islamic scholars agree that ‘[v]iolating any of the conditions or even the spirit of a treaty is tantamount to violating the law as set down in the Qur’an and Sunna’.65 The only exception to this is when the other party ‘violates a treaty’s conditions’.66 Nonetheless, ‘[o]ne of the main sheet anchors of Grotius’ formulation of international law principles was the proposition that treaties should be honoured.’67 What is less well known is that ‘[t]his had long been a principal foundation of Islamic international law. The prophet himself had set forth the principle pacta sunt servada.’68 Honouring treaties was highlighted, stressed and practised by the Prophet Muhammad, who ordered people to respect covenants and pacts. Additionally, ama’an (which is described as a ‘pledge of security given to non-Muslims upon entering to dar al-Islam for a fixed period of time’69) was practised by the Arabs before Islam and formulized and enhanced by 60
Ibid. Bsoul here quotes the following: ‘Qura’an. 16: 91–2: “fulfil the Covenant of Allah when you have made a covenant, and do not break oaths after making them … be not like her who unravels her yarn, disintegrating it into pieces after she has spun it strongly.”’ 62 Bsoul (n 46) ix–x. 63 Nussbaum (n 2) 53. 64 Bsoul (n 46) 136. 65 Ibid. 66 Ibid. 67 Weeramantry (n 1) 132. 68 Ibid. 69 Bsoul (n 46) 39. 61
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Siyar. ‘It was known also to earlier systems such as the Roman but worked into the fabric of Islamic international law as an important principle.’70 In relation to offering peace to aliens, ama’an was not the only method introduced by Siyar, for according to it a foreigner can become dhimmi and have the rights and duties of non-Muslim citizens. This option is available to individuals as well as groups and can be offered to a whole region or a town. This type of contractual peace relationship can be permanent, which distinguishes it from ama’an.71 Moreover, it is interesting to note that ‘[b]oth the status of dhimmi and the requirement of paying jiziyah are similar to concepts that existed in other legal systems and which the Romans knew as deditio’.72 In ama’an as well as in dhimmi peace agreements, ‘Islamic international law sets forth strict guidelines for the agreement, assigning rights and obligations on both sides. These guidelines are extremely fair, however, and realistic as well.’73 The main purpose of these peace tools was to facilitate freedom of movement, trade and peaceful coexistence between states as well as between individuals and states. Thus, ‘to make such relations possible, the protections offered are considerable and legally binding – in theory at least, Muslims were obliged in some circumstances to wage wars against other Muslims should the lives of musta’min be endangered.’74 Moreover, in general, peaceful methods to resolve international disputes were highly regarded in Islamic international law. For example, arbitration was very well established as a part of Siyar to settle such disputes. Thus, Shameem Akhtar, quoted by Bouzenita (2007), stated that ‘[t]he practice of arbitration is a well-established institution in Islam’.75 Yet even if war becomes inevitable, negotiations were still required before taking final action and proceeding with war. ‘Negotiation was a religious obligation in advance of an appeal to force.’76 However, even if hostilities take place Muslims must always follow the example set by the Prophet. Thus, ‘they should not be the first to open hostilities. In keeping with this principle, fighting should be considered a last resort, especially when jiziyah can be imposed in order to avoid 70
Weeramantry (n 1) 141–2. Bsoul (n 46) 39–40. 72 El-Kosheri (n 45) 223. 73 Bsoul (n 46) 81. 74 Ibid. 75 Anke Iman Bouzenita, ‘The Siyar – An Islamic Law of Nations?’ (2007) 35 Asian Journal of Social Science 19 32. 76 Gaber (n 55) x. 71
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bloodshed or continued hostilities.’77 Furthermore, the commanders of the opposing parties must always strive ‘to reach an agreement that leads to a temporary cessation of hostilities, an armistice, a cease-fire, covenant or pledge’.78 Additionally, Islamic international law offers a great wealth of regulations and rules governing diplomacy since the inception of Islam. Thus, Bassiouni (1980) points out that: The Koran and the Sunna contain numerous references to the protection and immunity of diplomats (referred to in these sources, as well as in the writings of scholars, as emissaries, envoys, deputations, delegations, and embassies) their staff, and accompanying persons. Throughout these sources of Islamic law diplomats are entitled to immunity from prosecution, freedom from arbitrary arrest and detention, and proper care and treatment.79
Finally, in general, ‘Muslim jurists active in the field of siyar realize that evidence from both the Qur’an and Sunna of the Prophet favoured co-existence and peaceful relations with non-Muslims were of prime importance in their texts’.80 Hence, it is not surprising that, in his research, Boisard uncovered a significant influence of the Islamic world on Europe in this regard. There are various examples in all fields of international law such as diplomacy, coexistence and tolerance.81 Moreover, he established that ‘Muslim Law offered two fundamental principles to the West, on which were to later stand the future structure of law: equity and good faith’.82
5.2 PERCEPTION OF PEACE Whatever we might think peace is, in the age of Al-Shaybani and beyond up until 1945 when the UN peace deal was concluded, peace was a separate entity that could easily and did for a long time exist without the need for concluding any treaty. For, to start with, most wars in that age were between some states or nations that were normally adjacent to each 77
Bsoul (n 46) 171. Ibid. 79 M Cherif Bassiouni, ‘Protection of Diplomats Under Islamic Law’ (1980) 74 American Journal of International Law 609, 609–610. 80 Bsoul (n 46) 173. 81 Marcel A. Boisard, ‘On the Probable Influence of Islam on Western Public and International Law’ (1980) 11 International Journal of Middle East Studies 429, 442. 82 Ibid 441. 78
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other. Anywhere else that had no connection to the hostilities between such states was and should be considered to have been at peace with them. We cannot claim that the absence of peace treaties in that age meant anything other than peace between them for the absence of war in that age was normally considered peace and peace alone. In addition, even the existence of some peaceful dealings can be separated from both peace and peace treaties. For the situation can exist where some trade, exchange, or any other peaceful interaction agreement exists while the two states party to it are still at war or otherwise parties to a peace treaty. In the age of Al-Shaybani, in fact, it was possible to have peaceful engagements such as trade treaties while states were not parties to a peace treaty preventing them from attacking one another.83 This is because peace treaties and peaceful coexistence were separate matters in that age. This in fact seems to have been the understanding of Al-Shaybani and his contemporaries, as we shall see next. It is important to note that Al-Shaybani in his book dedicated a significant proportion of text to subjects related to peace. In contrast, in the work of Augustine, Gratian and Aquinas, the treatment of peace subjects is scant, especially when compared to Grotius. Moreover, when the latter is compared to Vitoria he seems to have offered more on this. What is then left is to compare Al-Shaybani’s writings to those of Grotius. There, we can still see that the former offered more on the topic of peace in terms of both details and analyses. For while the topic of peace is treated as a secondary object in Grotius’ writings, the book of Al-Shaybani bore the topic of peace as a main object of his study. Al-Shaybani did not offer a definition of peace and this was also the case with Grotius, who did not define peace (pax). However, Vollenhoven argues that the latter’s ‘“law of peace,” is not meant as one half of a thing called “international law,” this it has only become by the terminology of modern authors’.84 This is because ‘Grotius’s “law of peace” is the substantive law of duties binding on mankind, in contradistinction to the adjective law regarding enforcement of these duties’.85 Moreover, ‘[s]everal chapters of Grotius’s law of peace mainly relate to duties and rights of individuals.’86 In fact, in his book Grotius ‘nowhere distinguished between private peace (pax private) and public peace (pax publica)’.87 83
Gaber (n 55) 110. C. van Vollenhoven, The Framework of Grotius’ Book De Iure Belli Ac Pacis (1625) (Noord-Hollansche 1932) 101. 85 Ibid. 86 Ibid 102. 87 Ibid. 84
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Furthermore, Al-Shaybani paid an enormous amount of attention to treaties, whereas Grotius was more concerned with contracts and did not pay much attention to treaties as a source of international law or as a peace tool. Thus, Vollenhoven asserts that ‘[i]nternational legislation, by way of treaties, also had merely incidental significance in Grotius’ book. The law of mankind was paramount for him; treaties are either contracts, or statutes for matters of limited and passing importance.’88 In reality, ‘treaties organising the world for peace were outside his scope (1625)’.89 I have already indicated that treaties in Grotius’ work were discussed as if they were merely individual promises between two people whether these people were kings or not. The issue one should raise is whether Grotius was writing with the view that a state should have its own independent legal entity. It does not appear that this can be answered in the affirmative. This is because he treated international treaties as mere promises of human beings as if states had no separate legal personality from their rulers. Al-Shaybani was, meanwhile, dealing with states as legal entities, which can create legal obligations and can receive legal rights that do not end upon the end of life of the king or the sovereign. As we have seen earlier, the text of both Grotius and Al-Shaybani on war subjects was more extensive than that on peace topics, however, peace was merely an ancillary topic to Grotius, or so it would seem to his reader. For in his book De Jure Belli ac Pacis, ‘the law of peace is treated as incidental to the law of war rather than as coordinate with the law of war, which is the method of modern treatise on international law’.90 On the face of it, all of this signifies that Vitoria was more concerned with peace than any of his predecessors, even including Grotius. However, Al-Shaybani (who came after Augustine and before the others) paid much more attention to the topic. Secondly, in his treatment of peace, Al-Shaybani seems to have concentrated, mainly but not only, on peace treaties and truce, treaty law, rights of foreigners and diplomacy. Both Al-Shaybani and Al-Sarakhsi offered an exhaustive account of the rules for mowada’ah.91 To accept mowada’ah or a peace treaty between states, in that time, however, was not always seen as a sign of strength as the powerful states with the free will to wage wars would always impose degrading and humiliating conditions in order to agree a peace deal. The best example of this is when the conditions of Al-Hudybiya were agreed between the weak party 88 89 90 91
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Ibid 135. Ibid. Nussbaum (n 2) 107. Peace agreement.
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(Muslims) and the strong (people of Mecca). In it the weak party was loaded with unjust and many humiliating conditions.92 This is probably why Al-Sarakhsi explains the condition that only when Muslims are weak are they allowed to sign a peace agreement with others. One other explanation to this is that if Muslims sign a peace treaty, then they would not be able to fight the other party in case Muslims would need to do so because preaching, practising or accepting Islam was hindered in the other party’s land. Thus, he explains his opinion by saying that ‘this is because mowada’ah will mean abandoning or at least postponing the fighting which is “compulsory”’.93 This explanation however might not pass such a if it is to be taken against the fact that Abu-Hanifa, as shown in the law of war section, was against fighting except when necessary. Al-Shaybani and Al-Sarakhsi are in agreement and they both seem to rely on the opinion of Al-Shaybani’s master Imam Abu-Hanifa.94 He thinks that Muslims should never contract mowada’ah with those who associate partners with Allah (unbelievers), unless Muslims were forced to do so by being weak and having no power against them.95 This is quite an interesting and important point as the perception of Al-Shaybani and his Master Abu-Hanifa on peace and war is clearly different. In Chapter 3, we saw that the perception of war is different to Abu-Hanifa, who would have explained that the reason why mowada’ah is not allowed except when Muslims are weak is because mowada’ah could deprive Muslims of many rights or inflict burdens on them and not because the option of war should not be blocked in case freedom of religion is threatened. This is logical, as although war, to him, is the exception, the absence of a peace treaty does not necessarily mean that it is war. In that 92
Bsoul (n 46) 110. As we saw in Chapter 3, war was the normal state of affairs in that time. On top of that, Al-Shaybani thought that everyone on earth had the right to hear about Islam. Thus he concluded that the imam should contact leaders and preach Islam to them and give them one of three options: (1) to accept Islam and allow preaching it to the people and remain in power; (2) to pay tribute to the Muslim state; or (3) if neither of the first two options is accepted, to accept the declaration of war to allow freedom for people to choose if they wished to join Islam. By saying compulsory here, he must have intended the case when the foreign leader did not accept any of the other two choices. This means that his assumption is unsustainable. 94 Imam Abu-Hanifah is the head of the Hanafi School, one of the main four Islamic schools. 95 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir LiMuhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 5 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 1689. 93
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time, this is understandable as mowada’ah and peace agreements, in general, were not the norm, as it is arguably today with the UN Charter. However, mowada’ah to all of them is the same, it seems, but the justifications or the reasoning behind it is entirely different. Hence, the imam has no right to conduct it without a pressing need for it. The argument is supported by the Qura’anic verse: ‘And be not infirm, and be not grieving, and you shall have the upper hand if you are believers’.96 Thus, our explanation above is the best fit for the perception of peace treaties. For in this verse God orders people not to be infirm and not to be humbled while they have the faith. This can be linked to peace treaties when it is meant that it is a treaty that is perceived as a burdensome and a humiliating act. Consequently, Abu-Hanifa97 stresses that, if Muslims have no strength to fight them, then there is no harm in mowada’ah.98 The reason why this is so is that the latter is in the interest of Muslims, which is why it should be carried out. In addition, God, in the Qura’an, says: ‘And if they incline to peace, then incline to it and trust in Allah.’99 In addition, mowada’ah is permissible as it was practised by ‘the Messenger Mohammed peace be upon him and Muslims after him’.100 Conversely, with regard to the perception of peace, the view of St. Augustine as understood by some commentators is comparable to Al-Shaybani’s. For example, John Eppstein (1935) explains that: St. Augustine is the first to appraise the active principle of peacemaking in the international sphere and thus to elucidate the true meaning of the beatitude Beati pacifici. For that has nothing to do with the mere absence of war, nor yet with refraining from violence, nor yet with the difficult precept of non-resistance. It is not the peaceful that are blessed with so divine a promise; it is the peacemakers.101
The clear difference between Augustine, as explained in this passage, and Al-Shaybani, as demonstrated above, is the fact that peace is the priority to the latter whereas peace-making is the priority to the former. For to 96 Shakir, M. H. (tr.), Holy Qur’an = Al-Qur’ān Al-Ḥakīm (1st US ed., Tahrike Tarsile Qur‘an 1982) 3/139. 97 Here, as the argument is forwarded by Abu-Hanifa, he must have intended mowada’ah to be an accord to terminate an existing war, as war is the exception to the norm to him. 98 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1689. 99 Shakir (n 96) 8/61. 100 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1690. 101 John Eppstein, The Catholic Tradition of the Law of Nations (Burns Oates & Washbourne Ltd 1935) 91.
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Al-Shaybani, it seems, the ultimate goal is to bring the world under the control of the law of God, provided that peaceful means are always prioritized, whereas to Augustine the act of war as a punishment for the wicked is what is required. Finally, Al-Shaybani and his Master Abu-Hanifa seem to agree on two principles. First, peace is one thing and peace treaties are another. For the first can exist without the need for the latter. Peace treaties once agreed must be fully respected throughout their term, whereas the mere existence of peace in the absence of war has no guarantee of continuity, as compared to peace accords. Secondly, as a peace treaty at that time meant that the weaker party was loaded with burdens and humiliated by unjust terms, such deals must not be accepted except when the state has no other option and it is so weak to the point that it would not be able to exist without a treaty that prevents others from attacking it. That aside, Al-Shaybani and Abu-Hanifa wrote extensively on how peace should be maintained through diplomatic links and legal bonds. They elaborated on forms of peace dealings such as international trade, international travel, peace treaties and accords, cease fires and ama’an (pledge of security) and many others tools of peace-making and co-existence. Moreover, they considered many forms of peaceful conflict resolution tools such as arbitration and meditation. The immense commitment to these topics underlines their belief that peace must always be sought and when reached must always be maintained. Peace was always a sacred object, be it an ama’an, peace accord or mowada’ah or any other form of peace, as we shall see later.
5.3 THE LAW OF TREATY One of the most recent authoritative contemporary scholars in the Englishspeaking world on treaty law in Siyar, Bsoul stresses that ‘[w]ith regard to the treaties or mu‘ahadat between Muslims and non-Muslims, works on siyar and in particular that of Shaybani devote much attention to the problem of their conclusion, duration, validity, conditions and whatever might render them void’.102 As treaties were to be highly respected by Islamic law and as they were almost the only way to guarantee the peaceful coexistence or to initiate peace between enemies, Al-Shaybani did pay much attention to their conditions. According to him, the rules governing 102
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Bsoul (n 46) 171.
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treaty relations and treaty making and international agreements, in general, could be summarized in the following points. 5.3.1 Fulfilment of Promises (A legal principle) Al-Shaybani paid an enormous amount of attention to the importance of respecting promises and treaties. Thus, once you agree to enter into treaty relations you must show a high level of respect for the treaty’s terms, he says. In this, his view is likened to the principle of pacta sunt servanda.103 The principle of ‘alwafa bil’ahd’ or fulfilment of promises promoted by Al-Shaybani dictates that once you promise you must fulfil. It should be noted that it is clear in his writings that fulfilment of promises is not only required towards a certain race or religious group, if you promise you must fulfil your promise even if the other party is from a completely different race or religion.104 For example, Abū al-Wafā (2007) here recalled Al-Shaybani’s example when the Prophet Mohammad ordered some people to return the goods that they had acquired from the Jewish residents of Madinah as this happened after signing a peace treaty with them. On top of that, he ordered that no one had the right to obtain the goods of the Jewish people of Medina except by their approval (by trade, gifts, endowments … etc) and that doing so will be considered a breach of the treaty which cannot be accepted. From reading Al-Shaybani’s explanation of this principle, Abū al-Wafā rightly extracts the following implications:105 + Fulfilment of promises in any treaty is a must except when the other party has violated its terms. + Revoking a treaty or withdrawing from it must only be carried out by the appropriate authority.106
103 Aḥmad Abū al-Wafā, Kitāb Al-I‘lām Bi-Qawā‘id Al-Qānūn Al-Dawlī Wa-Al-‘alāqāt Al-Dawlīyah Fī Sharī‘at Al-Islām [A Book of International Law and Relations in Islamic Shari’a], vol 14 (al-Ṭab‘ah 2, Dār al-Nahḍah al-‘Arabīyah 2007) 66. 104 The reason I mentioned this is that some people might think that, as is the case in some other religious rules, the fulfilment of promises is tied up with religion. This is certainly not the case with Al-Shaybani, nor with Islamic law. 105 Abū al-Wafā (n 105) 68–70. 106 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir LiMuhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 1 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 304.
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+ The authority must prevent the breach of treaties (by any of its subjects). + Even if the other party has died his successor[s] should benefit from the promise. Grotius also paid much attention to good faith in promises, especially those made by kings. He agrees with Al-Shaybani in most parts in this regard. For example, he too rejected the claim that promises should only be kept if the promised party was from a certain religious or ethnic group. Grotius had to explain that ‘treaties with those who are strangers to the true religion107 are permissible by the law of nature’.108 However, how about if the religion of certain people does not permit such treaties and it does not permit utilizing the law of nature either? To avoid such gaps, probably, Grotius concludes that ‘treaties with those who are strangers to the true religion are not, generally speaking, prohibited by Hebraic law’.109 In addition, he argued that Christian law also permits such treaties.110 Just as Al-Shaybani did, Grotius went further and made it clear that a promise, contract or an oath must be respected towards all parties.111 5.3.2 Flexibility While mutual respect and recognition is important, compromises should be made if need be. For example, Prophet Muhammad, while signing an agreement, was asked not to write ‘the Messenger of God’ in the treaty. The other party told him ‘had we accepted that you are so, we would not have fought you from the start’.112 This made the Messenger order the removal of the controversial sentence in order for the peace deal to go ahead. The book suggests that one should learn from the practice of this agreement how to conduct peace treaties. 5.3.3 Writing Treaties If a treaty is intended to last for a number of years, it should be conducted in writing. It is noted that Prophet Muhammad wrote down his peace agreement with the People of Makah in two copies, one for each 107
Being a Christian himself, one could suggest that he intended Christianity
here. 108 109 110 111 112
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Grotius, The Law of War and Peace (n 5) 397. Ibid. Ibid 401. Ibid 334–80. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1781.
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party. This agreement was intended for ten years.113 Thus, writing is required for long-term treaties only, which suggests that it is not part of the treaty. Similar to this is Grotius’ assertion that ‘unless it has been otherwise agreed, we ought to believe that writing has been employed as evidence of the contract, not as a part of its content’.114 5.3.4 Clarification of Terms and Conditions Making all of the important terms and conditions and the details of the agreement clear was required by Al-Shaybani. For example, he required that the dates when the agreement starts and when it ends must be very precise and clearly written.115 All of the main terms and conditions should be made clear and in writing. On top of that, if one party or another has some general principles in law related to the subject of agreement and cannot be overridden by treaties; these rules must be made clear in the treaty116 to all parties. For example, it is the rule that treaties cannot override some of the related general principles in Islamic law, as they are general principles of law (jus cogens). Thus, these conditions related to the subject of the agreement should be made clear for the non-Muslims who might not know them.117 5.3.5 Payment for Peace Parties could even pay money in order to secure a peace agreement. Whether this is a monthly, yearly or one off payment, there seems to be no restriction on that.118 Grotius too seems to agree with Al-Shaybani for he says, ‘peace should also be accepted even at a loss, especially by Christians.’119 Paying tribute by the weaker party in order to secure peace deals was a norm. For example, in 689 (70 Hijri) the Caliph Abd-Almalik ibn Marwan, in an agreement with the Byzantine emperor Justinian II, ‘agreed to pay a tribute in exchange for cessation of hostilities’.120 Later,
113
Ibid 1780. Grotius, The Law of War and Peace (n 5) 428. 115 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1782. 116 Ibid 1780–87. 117 Ibid. 118 This is the general rule; however, further complex details can be traced in ibid 1690–92. 119 Grotius, The Law of War and Peace (n 5) 861. 120 Bsoul (n 46) ix. 114
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however, when the powerful state became weaker the same two states agreed a peace treaty in which Byzantine now had to pay a tribute.121 5.3.6 Ratification of Treaties Al-Shaybani indicated that the effectiveness of treaties should depend on the ratification of the relevant authority.122 Thus in the case of a muslim state, he demonstrated that the final say on international treaties is in the hands of the caliph. From this principle, if an official, for example, was not authorized to accept certain sensitive terms his mere approval would not be sufficient and the issue would have to be referred back to the authority to approve or disapprove of it.123 In comparison, Grotius differentiated between sponsions124 and treaties by requiring the former to be ratified before they can take effect against the state. This is because, he says, ‘the point which ought to be maintained above all others is that the one who holds the sovereign power is under no obligation whatsoever’.125 Thus sponsions must first be approved by the right authorities. If a sponsion was not approved there are two cases; either that the commander who agreed the sponsion falsely claimed that he has the authorization to do so in the name of the state (he should not normally have such power), or not as he should not normally have such power. In the first case, only, the commander must ‘make restitution for the loss suffered by reason of their deceit’.126 Furthermore, Grotius ruled that ‘in such sponsion first the property is liable up to the amount of loss; and if that is not sufficient, then the person is subject to slavery’.127 5.3.7 Flexibility in Implementation of Treaties In the present day, according to the law of treaty, we could separate the provisions of a treaty so that it would not be nullified in the absence of one of its conditions so long as there are clauses that can be implemented without contradicting the sole purpose of a treaty.128 This is what we now call the 121 122 123 124 125 126 127 128
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Ibid. Abū al-Wafā (n 103) 74. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 2180–82. Probably agreements or promises made by field commanders with enemies. Grotius, The Law of War and Peace (n 5) 406. Ibid. Ibid. Abū al-Wafā (n 103) 74–5.
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principle of ‘separability of treaty provisions’.129 The rule provided by Al-Shaybani was comparable to this. In one case, for example he ruled that: if the sulih (conciliation) dictated that the Muslims must handover one hundred captured people and in return the non-Muslims hand over a hundred ones, then the Muslims realized that the captured in the hands of the non-Muslims were fewer than a hundred; the Muslims must not revoke the conciliation. Rather they should hand over as many captured as the other party has whether they were few or many.130
From this example, we can see that treaties must be maintained so long as that is achievable even if this requires some further conciliation.131 This kind of clinging to peace once it is being achieved is also present in the words of Grotius. He stated that ‘peace, when made, must be kept with the utmost scruple’.132 He further added that ‘peace, whatever the terms on which it is made, ought to be preserved absolutely, on account of sacredness of good faith’.133 5.3.8 Legal Capacity in Accepting Conditions It is not allowed to accept terms to which fulfilment would be in violation of important legal principles of the law. Once again, even if such conditions are already accepted, they, exceptionally, should not be observed. This is because you are not allowed to promise what you are not allowed to fulfil according to the main principles of law.134 Abū al-Wafā stresses that this is somewhat similar to the principle that all terms in violation of jus cogens norms should automatically be considered void.135 Similar but not identical to this is the opinion maintained by Grotius in which he ruled: ‘in order that a promise may be valid, that which is promised ought to be within the power of the promise.’136 Additionally, Grotius made it clear that ‘[n]o right whatsoever is sufficient to warrant committing what will probably be harmful to religion, indirectly, if not directly. For as a matter of first 129
This principle, instated in article 44 of the Vienna Convention on The Law of Treaties, is clearly somewhat similar to what Al-Shaybani was advocating. Whether it was he who first talked about this or not, we do not know, but we also should not deny it. 130 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1814. 131 Ibid. 132 Grotius, The Law of War and Peace (n 5) 862. 133 Ibid. 134 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1788. 135 Abū al-Wafā (n 103) 83. 136 Grotius, The Law of War and Peace (n 5) 335.
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importance the kingdom of heaven is to be sought, that is, the spread of the Gospel’.137 Thus not only has Grotius agreed with Al-Shaybani that no treaty should be in violation of the main principles of law, he further went on to assert that even if indirectly affecting the religious rules it must not be concluded. 5.3.9 International Treaties and Domestic Rules It is possible to agree to international terms inconsistent with some domestic rules. Today we can sign and ratify international treaties that contradict or at least do not agree with our domestic laws. Al-Shaybani had also established this principle.138 This is because Al-Shaybani in many cases approved of treaties that have even violated domestic laws. This was so even in extreme cases and even during wars. For example, if the besieged fortress was granted ama’an in violation of the domestic rules that allocate the right of signing this type of treaty to the imam alone, the ama’an will be considered valid and cannot be neglected. This is a case where not only has the international treaty contradicted domestic rules, but its creation has also been in violation of them. This is because the domestic rules of jurisdiction do not allow anyone in such cases to grant ama’an without consulting the imam. Thus, the person who grants ama’an to this fortress without consulting the imam is in violation of the domestic rules of jurisdiction. Yet Al-Shaybani still thinks that even if the person who violated the domestic rules by issuing ama’an can be prosecuted for his action, the treaty shall still be valid towards others in good faith.139 Abū al-Wafā sees in this a similarity to what the practice is today in two points: + International treaties can contradict domestic rules and laws, in which case the state must still respect the treaty even if it was issued in violation of domestic jurisdictional rules. + Violating domestic rules and laws on a domestic level; in this case the authorities have the right to inflict the related punishments on the violators to prevent the reoccurrence.140 137
Ibid 403. Abū al-Wafā (n 103) 78. 139 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir LiMuhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 2 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 576–83. 140 Abū al-Wafā (n 103) 80. 138
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5.3.10 Limited Application of Treaties In the 1969 Vienna Convention, (articles 34–8), we can see that a treaty can only bind its ratifying parties. Al-Shaybani had already endorsed this principle as well.141 He maintained, throughout his writings, that a treaty should create rights and duties only towards its parties. In one example, he talked about a peace treaty between state X and state Y and at the same time another peace treaty between state X and state Z. If state Z attacks state Y and despoils it, state X will not have the duty to act. In fact, state X can even buy the spoils of war from Z.142 This is because the peace treaty creates rights and obligations only between its parties and the third party can only be required to accept the terms of a treaty if it was a party to it. 5.3.11 Rules of Interpretation Al-Shaybani introduced many principles and rules that ought to be followed in interpreting international treaties. These could be summarized as follows:143 + What is evident with bainah (evidence144) is as what is evident by agreement. + What is evident by a custom is as what is evident by a clause (what is known as a custom should be taken as if it was a clause in a treaty) + In case of contradictions and inability of inclination towards one interpretation or another, we must take the most careful approach. + Building on what is apparent is a must until contradictory interpretation is proven. + What is proven by evidence is like what is proven by sight. + The general meaning of the words is restricted by the reality of the situation and by the aim of the treaty.
141
Ibid. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1737–9. 143 In this, as well as in many parts of this work, I am indebted to Ahmed Abū al-Wafā, the head of International Law Department at Cairo University. To read more, see Abū al-Wafā (n 103) 76–7. 144 Ḥārith Sulaymān Fārūqī, al-Mujam al-qānūnī: Arabī-Inkilīzī: yashtamilu alá muṣṭalaḥāt al-fiqh, al-qadīm wa-al-ḥadīth, wa-al-ṭibb al-sharī wa-al-tijārah wa-al-bunūk wa-al-ta’mīn wa-al-diblūmāsīyah wa-qawānīn al-batrūl wa-alṭayarān al-madanī [Faruqi’s Law Dictionary: Arabic–English] (Ṭabah jadīdah, Maktabat Lubnān 2006) 80. 142
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+ When an explicit declaration emerges, any previous contradictory interpretation of events falls. + It is not acceptable to prove in a subdivision something that goes against what is evident in the main part (i.e. what is evident in an original provision cannot be contradicted by what is in its subdivisions). + When addressing a group of people using a plural tense verb, the task required by the verb should be split between all members of that group.145 As for Grotius, he, as we have already mentioned, discussed interpretation within the scope of promises, not international treaties per se. However, the rules he applied are both quite useful, on one hand, and quite similar to those of Al-Shaybani, on the other. To him, ‘[t]he measure of correct interpretation is the inference of intent from the most probable indications. These indications are two kinds, words and implications; and these are considered either separately or together.’146 In general, it could be said that the rules of interpretation offered by Al-Shaybani were sometimes similar to those offered by Grotius; and sometimes they are either more in one way or less in the other than those offered by the latter in another. The example of the first case is Al-Shaybani’s rule that building on what is apparent is a must until a contradictory interpretation is proven. To me this is exactly what Grotius meant when saying: ‘[i]f other implications are lacking, words are to be understood in their ordinary sense.’147 However, when their rules were different, Al-Shaybani seems to offer more general rules than Grotius does, while the latter seems to offer more specific rules than the former.148 5.3.12 End of Treaty In the present day a treaty could, for example, end by achieving its aim, the disappearance of its parties or objects, fulfilment of its terms, withdrawal of 145 For example, if a teacher tells students, ‘Open your books’, this should mean that each student opens his or her book. I have only mentioned this rule here to illustrate how deep Al-Shaybani’s input in this area is. 146 Grotius, The Law of War and Peace (n 5) 409. 147 Ibid. 148 When rules are only offered by Grotius, they tend be very specific rules, such as his different rules of interpreting the different types of promises he offered (favourable, odious, mixed and median); see ibid 414. Nevertheless, when Al-Shaybani was different in what he offered regarding interpretation of treaties, it was more general than specific rules. This is such as the rule: what is evident by a custom is as what is evident by a clause. This is not found in Grotius’ book.
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its parties, change of circumstances, impossibility of achieving its aim, or start of war in some treaties. In his writings, Al-Shaybani did not fall short of discussing many of these points. However, Al-Shaybani paid much attention to the rule that before one can take actions in response to the ending of a treaty, one must clarify and ensure that it has been genuinely ended.149 Thus, for example, one must not act on the news that the other party has violated and therefore ended a peace treaty until one can verify such news. 5.3.13 Reinstating the Original Situation If the condition[s] of the treaty is not fulfilled, things must be returned to their original state. For Al-Shaybani, this should be case even in times of war.150 In comparison, Grotius discussed somewhat similar rules to these, specifically concerning peace treaties. There he ruled that if the party is unable to fulfil a promise or to meet a condition due to external causes the rule may differ. For example, ‘if the thing has been destroyed or lost, or that the act rendered impossible by some chance, the treaty of peace will not be considered as broken’.151 Instead he ruled, somewhat similarly to Al-Shaybani, that ‘the other party will have the choice, whether he prefers to wait, if there is any hope that the promise may be carried out later, or to receive an equivalent in estimated value, or to be freed from mutual engagement corresponding with that item of equal value’.152 5.3.14 Period of Treaty It seems that Al-Shaybani was not opposed to indefinite treaties in terms of time.153 In fact, he agreed with indefinite treaties154 with the exception of two cases: (a) disappearance of its subject. (b) agreeing to end an indefinite treaty.155 However, how can we count the time if the dates are defined?156 Al-Shaybani offers a satisfactory answer to this question too.157 149
Abū al-Wafā (n 103) 84. See, for example, the case he discussed in As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1799–80. 151 Grotius, The Law of War and Peace (n 5) 818. 152 Ibid. 153 Abū al-Wafā (n 103) 85. 154 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1759. 155 Abū al-Wafā (n 103) 86. 156 Ibid. 157 For example, he discussed: ‘and if they have agreed with them upon a coming year; then if this was at the beginning of the month, it should be for twelve months with this included. … but if this was in another time of the 150
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5.3.15 Breach of Treaty Breaching a treaty gives rise to the right of the affected party to act as if it was null and without the need to notify the other party or allowing a period of time to prepare for actions inconsistent with it. For example, in peace treaties, if breached by a party, the other can take hostile actions without the need to notify or allow a period of time to the breaching party.158 Grotius agrees with Al-Shaybani in that breaking the treaty by one party allows the other to withdraw from it. In this, he says: [i]f one party has violated a treaty of alliance, the other party will be able to withdraw from it’.159 On top of that, Grotius added that this rule does not apply if the agreement does not permit withdrawal in such cases.160 Just as Al-Shaybani did, Grotius seems to have benefited immensely from being a jurist and a lawyer familiar with domestic laws. They both demonstrated a great deal of sophistication when dealing with treaties in which, I think, they were hugely aided by their immense experience in contract law. This had enabled both to write as well as they did. In contrast, all we know about Augustine’s input as far as treaties are concerned is what some scholars, like Bellamy (2006), claimed that Augustine ‘argued that agreements should always be respected (even those concluded with enemies)’.161
5.4 PEACE TREATY (MOWADA’AH) 5.4.1 Definition and Characteristics of Peace Treaty It may appear at first glance unclear whether mowada’ah is a peace treaty, an accord or a pact to end an existing war. It seems that mowada’ah is a peace treaty before war, as shown above in the example of the Jews of Medina. It also seems to be a pact or an agreement of terminating war. This is apparent in the example where while Muslims were besieged in Medina during the battle of Al-Ahzab, the Prophet negotiated a treaty with the Jews of Medina in order to pay them in month, they should count 11 full longer months and compensate the missing days of the current one by taking the missing days of this month from the thirteenth month with the assumption that it is a 30 day-long month.’ See As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1714. 158 Ibid 1786. 159 Grotius, The Law of War and Peace (n 5) 405. 160 Ibid. 161 Alex J. Bellamy, Just Wars: From Cicero to Iraq (Polity Press 2006) 29.
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exchange for their cessation of hostile activities supporting the enemy.162 Therefore, the conclusive description of mowada’ah would be a peace treaty as it applies to both cases when there is no war and when war has started.163 Thus, mowada’ah is a treaty of peace concluded under quite flexible terms to prevent war or stop an ongoing war or attack. In this regard, Bsoul makes two comments on how Al-Shaybani defined mowada’ah. In the first, he stated that Al-Shaybani uses the term mu‘ahada (treaty) interchangeably with mowada’ah, which he calls truce; and ahid, which he calls pact, and many other international treaty terminologies. The second is when he claimed that ‘for Shaybani, a mu‘ahada is a muwada‘a between Muslims and non-Muslims for a fixed period of time’.164 However, it is true as I explained above that Al-Shaybani uses mowada’ah interchangeably with other terminology, which can be translated as treaty, pact, truce and other forms of international conventions. Meanwhile, I disagree with Bsoul on his second point for many reasons, of which the simplest is that mowada’ah to Al-Shaybani, as I have already noted above, can actually be permanent. It is important to note that the jurisdictions and beneficiaries of peace agreements according to Al-Shaybani are unique. This is because the peace agreement with another abode benefits all of those who enter it with a pledge of security (ama’an), as well as all of those whose abode has already signed a peaceful agreement with it. Therefore, any one of
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As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1693. It is interesting to see Al-Shaybani using this term for almost all types of peace-making treaties between states. Although he used the term sulih, which is more likely to indicate a truce or an accord from the context, he has not maintained the usage of this term in this meaning all the time. In fact, he sometimes uses this term to talk about mowada’ah, which means that the latter must be the peace treaty in general. The proof of this assumption is when he discussed the timing of treaties, mentioned earlier. He said that if mowada’ah is to be intended for a number of years, then it should be conducted in writing. This is to say that short-term peace agreements are called mowada’ah by him as well. Thus and throughout his text the reader will notice that mowada’ah is the peace-making treaty which could be a truce or an accord, or more than that. Abū al-Wafā (2007) used sulih in the writings of Al-Shaybani to show that the latter has written about truce; while Al-Shaybani did talk about truce, sulih was only used to describe a mutual agreement without mediators but was still used to mean mowada’ah. Therefore, mowada’ah is the peace-making tool or treaty with many different ranges. 164 Bsoul (n 46) 108. 163
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the categories above shall be safe if they enter dar-al-Islam through an abode that has a peaceful agreement with it.165 5.4.2 Interpretations of Peace Treaty In addition to the general rules on interpretation mentioned above, Al-Shaybani was keen to stress the role of language. In a peace treaty, the wording of the agreement determines, to a considerable extent, the duties and obligations arising from it. If, for example, the people agreed to pay an enemy seizing their city a sum of money if the latter is to ‘leave them alone’, this agreement does not prevent them from following and attacking the enemy if it occurred to them to do so afterwards. However, if the wording of the agreement contains any term suggesting that the mowada’ah guarantees to the seizing army their return to their base, then the people of that town cannot attack them and if they do so, it would be considered to be in breach of the agreement.166 However, if the wording of the peace agreement does not prevent one party from fighting the other party, there should be no restriction on them in this regard. Yet in Islamic law the implicit term could amount, it seems, to an explicit one.167 For example, if the besieged party says: ‘we will pay you a sum of money provided that you do not fight us until you go away from us’,168 then it is explicitly comprehensible that fighting is the action of more than one party; therefore, the implicit term dictates that both parties will have to abstain from it.169 It is also the same if the agreement implicates a binding rule of abstaining from fighting for a certain amount of time, because it would be considered mowada’ah and must be respected by both parties.170 Grotius also worked on some specific interpretation rules for peace treaties. For example, here, he supports the application of the Greek principle that: the interpretation of ambiguous clauses ought to be directed to the end that the party who had a just cause of war should obtain that for which he took up
165 166 167 168 169 170
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As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1698–700. Ibid 1711–12. Ibid 1713. Ibid 1712. Ibid. Ibid 1712–21.
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arms, and should likewise recover for damages and costs, but that he should not also recover anything by way of penalty, for that would arouse more hatred.171
It is apparent from this that Grotius’s perception of peace is different from that of Al-Shaybani. This is because no matter what the terms of the peace treaty are, it seems that the one to whom belongs the ‘just cause’ of war must always benefit from interpretations. Thus, even when a peace deal is concluded a biased method of interpretation would still be applied. This is unlike the case of Al-Shaybani who advocated, as we can see, equal shares in benefiting from interpretations of peace agreements. Nevertheless, Grotius has also stated that considering the reality that parties do not normally confess wrong when concluding peace, an interpretation should be assumed which puts the ‘parties as far as possible on an equality with regard to the justice of the war’.172 This could, according to him, be achieved either by returning the properties acquired to whom they belonged or by accepting the new reality and ‘things remain as they are’.173 One more interesting point was made by Grotius regarding interpreting peace covenants when he stated: ‘[i]n case the meaning is doubtful, an interpretation is preferably to be adopted contrary to the interest of him who dictated the conditions, because ordinarily he belongs to the stronger party.’174 5.4.3 Guarantees in a Peace Treaty In the Middle Ages, in general, there was little assurance or any form of guarantee for states to not be concerned about being attacked even when a peace treaty existed. It is understandable, therefore, that some parties might exchange hostages, for example, to guarantee that no party is going to breach it. Al-Shaybani discussed such issues and always maintained that deception and treachery are utterly unacceptable in international relations. The general rule, according to Al-Shaybani, is that exchanging hostages as a guarantee is permissible, except in some circumstances. For example, if a non-Muslim party asked a Muslim party to exchange some of their subjects and allow them to be taken as hostages to guarantee the 171 172 173 174
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Grotius, The Law of War and Peace (n 5) 809. Ibid. Ibid. Ibid 813 (footnotes omitted).
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effectiveness of the agreement, Muslims are not allowed to accept such terms except in very exceptional circumstances.175 Al-Sarakhsi comments: ‘[t]his is because non-Muslims are feared to kill the Muslim hostages due to the apparent reason of being different in faith’,176 and because they do not have a strong belief in a faith that would prohibit them from doing so.177 Due to these reasons if Muslims were pushed to accept such terms they are allowed to accept them only when there is no alternative.178 Once keeping hostages is no longer required, they must be returned. Nonetheless, if the hostages decide to become Muslims, they should not be returned to non-Muslims at all. This would be the case even if non-Muslims threatened to kill Muslim hostages held by them. The reason for this is that it is the duty of the imam to protect all Muslims, old and new. Therefore, he should not hand over Muslims to be killed to prevent other Muslims from being killed regardless of their origin.179 Even if they were slaves, only the equivalent of their worth can be returned in this case.180 However, if the non-Muslims threatened to kill the Muslims held by them unless hostages are returned and the hostages (now Muslims) agree to be returned, they can only be sent back if killing is not their apparent destiny.181 Nevertheless, if after the exchange in the above case non-Muslims killed Muslim hostages held by them, Muslims should not kill nonMuslim hostages they hold in retaliation. This is because they have become musta’amanoon (under a safe conduct) right from the moment they were exchanged as hostages as part of a peace agreement (or mowada’ah). In addition, Islamic law does not allow punishing someone for the crime committed by another.182 Meanwhile, to Grotius both hostages and pledges were considered as accessories of treaties.183 Furthermore, in comparison to the aforementioned views held by Al-Shaybani, it was stated by Grotius that: according to the strict law of nations a hostage can be put to death; but that is not also according to moral justice, unless there is a fault on the part of the 175 176 177 178 179 180 181 182 183
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As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1750. Ibid. Ibid. For more details on the subject refer to ibid 1750–51. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1753. Ibid 1751. Ibid 1754. Ibid 1753. Grotius, The Law of War and Peace (n 5) 828.
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hostage meriting such punishment. Hostages, moreover, do not become slaves. Furthermore, by the law of nations they can both hold property and leave it to their heirs.184
Nevertheless, in relation to some issues regarding hostages, Grotius was not clear. Sometimes he does not permit their detention for any reason other than that for which they were taken. Meanwhile, he appeared to agree with the opinion that if ‘good faith has already been violated in another matter, or a debt contracted, the hostage can then be retained, not as a hostage, but in accordance with the law of nations, according to which subjects can be detained “by reprisal” … on account of an act of their rulers’.185 Therefore, we can see that there Al-Shaybani agrees with Grotius on one point and disagrees on another. First, they both prohibit the killing of hostages except if they deserve death because of committing a crime. However, in no way would Al-Shaybani accept that hostages could be punished for the acts of their rulers, as shown above. 5.4.4 Cancellation or Nullification of Peace Treaties Nullifiers of a peace treaty To Al-Shaybani, it seems, not every small action would amount to a nullification of a peace deal. Thus, once such a peace agreement is reached; if an individual or a small group from the other side commit a big offence in dar-al-Islam, this will not be considered a breach of the agreement on their part. However, this will not be the case, if a group that was supported by its country or was big enough to support itself in isolation committed it. Here the case is different, as they will be considered in breach of the agreement. However, if their breach was not known to or approved by their king, the latter would still be considered as abiding by the agreement. If, however, their king knew about their breach and did not stop them or at least alert the other party about their action, then the whole agreement would be considered null and void.186 We could compare this to the statement of Grotius: ‘[i]f subjects do anything by armed attack without public orders, it will be necessary to see whether the act of individuals can be said to have been publicly approved.’187 In principle, both scholars agree on this issue. Yet he is 184 185 186 187
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Ibid 828–9. Ibid 829. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1697. Grotius, The Law of War and Peace (n 5) 815.
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slightly different from Al-Shaybani when he considers the knowledge of the authority without taking measures to punish the group as an act sufficient to break the peace. Furthermore, unlike Al-Shaybani, Grotius does not seem to distinguish between the knowledge of the authority of such an incident before it occurs or afterwards. Whereas, we have seen above that to Al-Shaybani only prior knowledge of the authority or simultaneous knowledge combined with the authority’s inaction could amount to the revocation of the treaty. Furthermore, Al-Shaybani does not consider the violation of a small group even with the knowledge of the authorities as a nullifier of the peace treaty. Cancellation Peace treaties at that time seem to be under the absolute discretionary power of the sovereign. Thus, states still can make the same treaty null and void at any point in time. Thus, any party had the right to cancel the treaty. However, if Muslims want to cancel a treaty some extra conditions must be fulfilled as explained in the following: Cancellation by a Muslim state The essence of mowada’ah is that no party has the right to fight the other party without terminating that agreement. Thus, if the imam decides to fight the other party he must first, inform them and make sure that they are well informed before launching any attack against them.188 Secondly, it is also the responsibility of the imam to allow the leader of the other party a reasonable amount of time to inform his entire territory about such action. Yet if this leader fails to do so, Muslims should take no responsibility for that.189 Nonetheless, if Muslims were sure that a certain part of that entity has not been informed yet, it is preferred that they should not attack it until they inform its people about the expiration of the accord with their ruler.190 Cancellation by non-Islamic states Unlike the case above, Al-Shaybani did not require a declaration from the other party nor did he require a period of time from the other party as he did from the Muslim party. This is not a suggestion that this is a law exclusive to Muslims but it is recognition of the right of other sovereign entities. However, these entities were not prevented from using his rules. Nevertheless, if the agreement has come to an end by an act or a request from a non-Muslim 188 189 190
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As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1697. Ibid. Ibid.
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leader and Muslims take any form of hostility against them, they will not have to wait until that entire entity has been informed about the new state of relations.191
5.5 AMA’AN (PLEDGE OF SECURITY) This topic is spread throughout his book, demonstrating both its importance and Al-Shaybani’s focus on peaceful means of interaction between societies and states even during war. I will first try to define ama’an according to his perspective and then import and analyse some of the main points around this topic as follows: 5.5.1 Definition Ama’an (Al-ama’an in its definite form), also written as Amān, is ‘safe conduct’ or ‘pledge of security’ as Khadduri puts it.192 It is where an individual or a group of foreigners are provided with the right to safely enter and invest in a Muslim state for a named period of time.193 Any adult Muslim woman or man can grant ama’an.194 A dhimmi or a child normally195 has no right to grant ama’an. In ama’an foreigners (individuals or groups) who are granted a pledge of security over their lives and properties are assured that any subject of the Muslim State, including the Muslim leader, shall not subject them to any harm. Thus, the status of ama’an could be granted by any adult Muslim and must be respected by all. Ama’an could be given to one person as well as to a whole nation. Al-Shaybani produced detailed rules 191
Ibid 1698. Muḥammad Ibn-al-Ḥasan aš-Šaibānī, The Islamic Law of Nations: Shaybānī’s Siyar (Majid Khadduri tr., Johns Hopkins Press 1966) 298. 193 This section and the following section (Diplomatic Missions and Emissary) build on my previously published article: Khaled Ramadan Bashir, ‘AlShaybānī and Amān: Treatment of Foreigners in the Classical Islamic State with Special Focus on Diplomatic Envoys’ in Marie-Luisa Frick and Andreas Th Müller (eds), Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives (Martinus Nijhoff Publishers 2013). Sections have been reproduced here with kind permission of Koninklijke Brill NV. 194 To Abu Hanifah, a Muslim slave, however, can only grant an ama’an if he or she was fighting along with the army. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 106) 252–6. 195 Exceptionally, in some cases a teenager may be given the right to grant ama’an, see ibid 257. 192
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to govern all aspects of this ‘contract’.196 Al-Shaybani’s writing shows that ama’an can be granted both during war and during peace. In fact, it is important to note that in a volume mainly dealing with warfare, more than a third of it deals with this peace creating conduct. The importance of ama’an can never be underestimated in an age that knew few boundaries to war or to killing others. In that age, as we saw above, a foreigner was always a legitimate target to kill, enslave or despoil, as there was no international rule prohibiting this. 5.5.2 Legal Implications and Validity of Ama’an The legal consequences of ama’an represent a very large chapter in Siyar. Some of these are already implied in the definition above. However according to Al-Shaybani, they can be summarized as follows: 1.
The beneficiary of ama’an whether an individual (musta’aman) or a group (musta’amanoon) will be free to safely enter, and reside and even trade (subject to agreed terms) in a Muslim state even when it is at war with their own state. The beneficiary will be assured that his life and property are safe throughout the period of ama’an and until returning to a place of safety. The beneficiary will be assured that all of their assets and properties will go to the heirs or according to their will when available in the case of death. If the musta’aman is robbed, killed or harmed in general the authority will apply the relevant law and enforcement to put things right if possible or pay compensation or blood money in the case of murder.197 As for the validity of the ama’an contract, it is an obligation upon all subjects to respect it, even if it was only made by some or even just by one of them.198 As we will see later, the mere fact that someone believed that he is a beneficiary of ama’an could be enough to oblige all subjects of the Muslim State not to harm this person and to abstain from all actions that could violate his ama’an.199 Al-Shaybani was always in
2.
3.
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5.
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196 Even though it has some special characteristics, ama’an, legally speaking, is still a type of contract or treaty. 197 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 106) 258. 198 Ibid. 199 Abū al-Wafā (n 103) 89.
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favour of approving of the existence of ama’an whenever there was a belief by the recipient that it existed.200 Even committing a crime does not nullify ama’an although punishment might be imposed for the crime.201
7.
5.5.3 Conditions Related to the Ama’an Giver As previously mentioned, any person who meets the following conditions can grant ama’an to any foreigner: 1.
The person must be either an adult Muslim man or woman (with the exception of fighting teenagers).202 This is very important because in a Muslim state one would expect that a sensible adult Muslim male or female would not give ama’an to anyone who could be entering for illegal or unpleasant causes. It is, in our view, a security measure. The fact that it must be given by a person who has reached the age of puberty supports this assumption. In addition, ama’an is a legally binding contract, which requires legal capacity represented by being both free and adult. However, one should wonder why a fighting teenager is excluded from the requirement of being an adult? Could this be so that every fighter will be able to grant security to others?203 An ama’an issuer must act with free will and must not be under any coercion. This is why Muslims lacking free will are also stripped of this right. Thus, an ama’an issued by a person in the hands of the enemy is not valid, although it might have some valid legal consequences.204
2.
Grotius, who does not seem to recognize an equivalent peace tool to that of ama’an,205 discussed promises in general and to him too ‘what is done without deliberate intent does not … attain to the force of obligation’.206 200
See, for example, As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 106) 281–4, 263, 258–9. 201 Ibid 305. 202 For details, see ibid 255–6. 203 For the answer, see ibid 252–7. 204 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 521. 205 While discussing peace, Grotius, made it very clear that only the king or the highest authority can make peace. Thus, this peace-making tool offered by Al-Shaybani had no equivalent whatsoever in Grotius’s perspective, as it seems. See Grotius, The Law of War and Peace (n 5) 848. 206 Ibid 332.
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He also added, in line with Al-Shaybani’s teachings, that ‘the promise of madmen, idiots, and children are null and void’.207 5.5.4 Types of Ama’an Ama’an to Al-Shaybani is defined by the actual contract, whether it was a unilateral decision or grant or even if it was done through negotiations. Thus, to him, it seems that the wording of the contract determines the type, the jurisdiction as well as the terms and conditions of ama’an. He did not talk about the need to write down this type of contract, unlike the case of treaties. Thus, it could be verbally granted. This leaves us with many types of ama’an as far as its conditions and limits are concerned. However, Al-Shaybani discussed many possible types and forms of ama’an. What could be said however is that he explained that the wording of the ama’an contract could be used in any way that could correspond to how a linguist would interpret it.208 5.5.5 Ama’an as a Sacred Peace Tool Al-Shaybani dealt with this contract as if it was a sacred peace promise in which the foreigner receiving it shall come to no harm during its term and within its jurisdiction. Indeed, in all cases Al-Shaybani dealt with ama’an as if it was, once granted, a sacred covenant. Even when the ama’an giver was ordered by the authority not to grant ama’an, if he does grant it to anybody the beneficiary will benefit from it and the ama’an giver could face punishment, as seen above. There is a great deal of evidence of the sacredness of this covenant as in the following examples. It is better to extend this pledge of security to those who did not have it, than to harm anyone who has been granted it. In one case, for instance, Al-Shaybani takes the example of Muslims besieging people in their stronghold, with four of those people having been granted ama’an, after which they came out from their fortification in a group of twenty people. In this case, if the four men are identified they should be safe. Meanwhile the rest are considered to be fay.209 Al-Shaybani asserts that the four musta’amanoon should under no circumstances be harmed. Even if conciliation is not reached with them, they still have the right to go 207
Ibid. Some examples and further explanation can be found in As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 421–2. 209 Spoils of war taken from non-Muslims without war or violence. 208
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back to their safe place, wherever it may be. Even in the event of their refusal to return to dar-al-harb they may not be killed or enslaved. However, the imam has the right to give an ultimatum, after which if they still refuse to leave they can be made dhimmi and can be transferred to the dar-al-Islam.210 If in the last case, however, everyone in that group from the besieged fort claimed to be one of the four musta’amanoon and there is no precise way to know which are telling the truth, they should all be considered to be what they claim to be.211 Al-Sarakhsi justifies this judgment of Al-Shaybani by stating the general Islamic rule: abandoning the right (to execute or capture the non-musta’amanoon of this group) is better than doing the forbidden (e.g. executing those with ama’an among the group).212 Moreover, in many cases Al-Shaybani ruled that people must be safe as long as they believe that they are granted ama’an, even if this was not the case. For example, if Muslims told the people of dar al-harb that they would give them ama’an if they allowed them to enter that country, the former should not kill any of the latter because an ama’an contract has been concluded. This should mean that even if it is the intention of the ama’an provider to trick the other party and gain entry (with the intention to kill, capture or acquire booty), the ama’an will still be valid. This is because, Al-Sarakhsi explains, the ama’an is a very sacred and important contract in Islam and the receiver of ama’an should always be safe when accepting it in good faith. Hence, even if the Muslims in this case claimed to be merchants they have no right to violate the implicitly understood ama’an therein.213 Even when ama’an is made under a condition not fulfilled by the beneficiary, it will still be (in most cases) valid until the musta’aman reaches a place of safety. Furthermore, in such cases Al-Shaybani took the view that it is the duty of Muslims to make sure that the person reaches a place of safety in all cases.214 It is understandable that if the ama’an is still valid, the duty of returning the person to his place of safety or to dar al-harb must still be fulfilled. However, the idea of 210
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 409–10. This is probably the principle we know today: ‘Let A Hundred Guilty Be Acquitted But One Innocent Should Not Be Convicted.’ However, being a jurist and chief justice himself Al-Shaybani is no stranger to principles of justice, therefore for those familiar with his writings, it would be no surprise to see him applying such legal principles to international legal issues. 212 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 4109–111. 213 Ibid 507. 214 See example in As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 526. 211
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making the contractor responsible for fulfilling a contract, even if the other party has not done so, is what makes this ‘contract’ an exception. Al-Sarakhsi, explaining this, gives another example of when Islam rendered the contract valid even if one party did not fulfil his duties. He likened it to the case when a master has agreed to emancipate his slave in exchange for a deferred payment of 1000 dinar by the latter, who will have to strive and earn the named amount to pay to the former by a specified date. The slave will be set free even if he does not fulfil the agreement by failing to pay the agreed amount to his master.215 From the above, it is clear that ama’an is an extraordinary peacemaking tool. This in itself indicates the nature of Islamic international law in the eyes of Al-Shaybani and whether it is dominated by motives of peace or by war. However, although Al-Shaybani often discussed the rules applicable to those entering foreign lands with ama’an, it has been very difficult to locate any treatment of this topic in the work of Augustine, Gratian, Aquinas and even Grotius. The only exception is Grotius’s hint in his statement that when a person ‘comes either from the enemy or from a foreign country and entrusts himself to the good faith of another people or king … such a person tacitly binds himself to do nothing against that government under which he seeks protection’.216 It is difficult to establish whether he was referring to ama’an or refuge. In addition, it is difficult to compare this view to that of Al-Shaybani, even if we assume that he is discussing ama’an here, because Grotius only set out one rule similar to that already stated by Al-Shaybani on the topic of ama’an requiring the respect of the host country. Nevertheless, what in Vitoria’s view should be granted to foreigners is much more extensive than that of Al-Shaybani. This is because, according to Vitoria they can travel, reside, explore, fish, hunt, mine and marry anywhere they wish on earth. They are not required to have any form of permission such as that required by Al-Shaybani. Instead, they are free to do all of the above while fully protected by the law of nature and no one has the right to prevent or stop them from so doing.217 Vitoria here assumes that the law of nations grants all persons a right of movement to all parts of the world; a right of using rivers, seas, harbours and all communal things to all foreigners. This concept was also 215
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 526. Grotius, The Law of War and Peace (n 5) 857. 217 Francisco de Vitoria, De Indis De Ivre Belli Relectiones, Text of 1696 (Ernest Nys ed., John Pawley Bate tr., The Carnegie Institution of Washington 1917) 151–4. 216
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stretched by Vitoria to grant foreigners the absolute right protected by law to trade, have access to mining, explorations and all matters of this kind in foreign lands. Thus, he supposes that the Spaniards could have travelled anywhere and the people of the host land have no right to prevent them from entering so long as they are not ‘hurtful’. Thereafter the aborigines would have no right to expel the Spaniards and if they try to do so they would be violating both the law of nations and divine law at the same time. Therefore, a war against them to stop them expelling the Spaniards would be lawful.218 To justify this Vitoria was saying that ‘it was permissible from the beginning of the world (when everything was in common) for any one to set forth and travel wheresoever he would. Now this was not taken away by the division of property.’219 In this point, we can see that Grotius, who, as we have seen above, was in favour of allowing free travel in order to occupy ‘empty lands’ and utilize them, succeeded Vitoria. The danger of this notion is all too clear. Vitoria continually emphasized the point that his ideas must not be employed in any other way than how he has expressed and explained them. Yet this notion he supports snatches any right of resistance from the hands of the powerless. He states this by claiming that such resistance to foreign admission and stay is illegal. Thus, his notion could easily permit a ‘legal’ occupation by the powerful and the many of the powerless or the few without any resistance.
5.6 DIPLOMATIC MISSIONS AND EMISSARY Diplomacy is a very important tool of dialogue, which can prevent wars and conflicts and even turn hostile relations into peaceful ones. Al-Shaybani discussed rules for the respect and guarantee of safety and comfort of envoys even during war.220 Ama’an in his writings is used to facilitate peaceful interactions between states and peoples during peace and war. Diplomatic immunities are also discussed within this topic. In addition, the privileges of diplomats and even the conditions of their ama’an were made easier and more prestigious for official envoys and diplomats, as we shall see. Here, one could imagine that almost a thousand years later Grotius would have a more advanced world of diplomacy than that which Al-Shaybani had witnessed or even hoped for. However, whether this 218 219 220
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Ibid 151–3. Ibid 151. Abū al-Wafā (n 103) 95.
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affected Grotius’s contribution is what should be discovered through comparing Al-Shaybani’s input as follows. 5.6.1 Diplomatic Immunities and Privileges Al-Shaybani granted an exceptionally high level of immunity and various privileges to diplomats and envoys, some of which are not found even in today’s legal systems. The following examples of these immunities are not an exhaustive list. Grotius too, in this field, had a similar approach to that of Al-Shaybani in terms of giving importance to the topic and the many privileges and immunities for diplomats. For example, agreeing with Cicero, he thinks that there could be no better example of just cause of war than that of the ‘ill-handling of ambassadors’.221 The right of automatic safe conduct As we have seen above, ama’an can be granted for trade or a visit but must be issued by an eligible person[s] and it is defined by the wording of the contract. However, for envoys it is considered an automatic right to have ama’an and there is no need to issue one. In addition, envoys entering dar-al-Islam with no formal invitation or permission will still be automatically covered by ama’an. This is a level of tolerance that does not appear to have been reached before Al-Shaybani and remains distinctive because clearly, even today’s diplomatic rules still fall far short of them.222 Al-Shaybani promoted this level of tolerance and insisted that it must be the case even during war. This is apparent from the example given by him of the case of a message carried from a foreign king to the head of a Muslim campaign. In such a case, the messenger is considered a musta’aman until he reaches the Muslim commander and conveys his message.223 Furthermore, Al-Sarakhsi adds that: indeed the messenger is safe on both sides, this is the case both in Islam and before it. This is because the decision of war and peace cannot be taken without messengers, so the envoy must be safe to convey the message. When an envoy uttered some unacceptable words in the presence of the Messenger peace be upon him, the latter said ‘had you not been a messenger, I would have killed you’ so with this it is clear that envoys must be safe.224 221
Thomas Alfred Walker, A History of the Law of Nations: From the Earliest Times to the Peace of Westphalia, 1648, vol 1 (Cambridge University Press 1899) 304. 222 Abū al-Wafā (n 103) 96. 223 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 515–16. 224 As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 106) 296.
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Interestingly, the absolute prohibition on the killing of ambassadors in Grotius’ writings appears when he stressed that an ‘ambassador may not be put to death by way of retaliation for similar treatment of an ambassador by his principal’.225 For the ‘right of retaliation’, says he, ‘can not be claimed against ambassadors’.226 Yet, according to Grotius, ‘if an ambassador should attempt armed force he can indeed be killed, not by way of penalty, but in natural defence.’227 As indicated above, whether there is a prior arrangement and agreement to receive the envoy is not important to Al-Shaybani, as his safety must be respected in all cases.228 In this regard, he said: if Muslims found a harbi (foreigner) in dar-al-Islam and he claimed that he entered with ama’an, he should not be believed […]. The same applies if he claims to be an envoy of his king to the Caliph, he should not be believed and he should be considered as fay … However, if he has demonstrated a letter bearing a resemblance to a letter from his king and claimed that it is from the king he should be safe until he delivers the message. The ama’an here is respected as we highly suspect that he could be right.229
In comparison, to Grotius the rights and duties of embassies ‘in so far as they are matter of jus gentium, affect those ambassadors only who are employed by Sovereign Powers inter se’.230 As it will be difficult to determine with whom the sovereign power lies in some cases of civil war, the principle may, exceptionally, be departed from in such cases.231 In addition, Grotius agrees with Al-Shaybani largely as he thinks that ‘[t]he law of nations accords to ambassadors, (1) a right of admission, (2) immunity from violence’.232 However, he takes the different view that in some cases ambassadors could be denied access, something with which Al-Shaybani might not agree.233 Thus, the right of admission is not absolute in Grotius’s law. He sees it obligatory only in the absence of reasons for rejecting admission. The problem is the way Grotius explained the legitimate reasons for rejection, among which we find: (1) if the sending state is planning war or is at war with the recipient; (2) if 225 226 227 228 229 230 231 232 233
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Walker (n 221) 304. Grotius, The Law of War and Peace (n 5) 447. Ibid 444. Abū al-Wafā (n 103) 96. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 106) 295–6. Walker (n 221) 302. Ibid. Ibid. See also Grotius, The Law of War and Peace (n 5) 440. Walker (n 221) 302.
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the sending state is a ‘wicked nation’; and (3) if the sender is an atheist.234 Thus, it is hard to see how the system envisaged by Grotius would support peace initiatives, or avoid or stop wars by utilizing the important ambassadorial role on such occasions when these are highlighted as proper reasons for rejecting the entry of ambassadors. Freedom of movement According to Al-Shaybani, not only has the diplomatic envoy the right to enter and reach the authority, he also has the right to move and return whenever he wishes.235 For example, in the previous case, although it is during wartime, if he decides to leave the Muslim military camp, he would normally be allowed to do so and shall be safe. Al-Shaybani further rules that the musta’aman does not become a citizen and does not have to abide by the rules;236 rather he has entered the abode for a certain aim, then returns to his abode. Hence, he should not be prevented from going back.237 The only exception to this is in the event that the Muslim commander fears that the musta’aman (whether a messenger or not) has learned about strategically sensitive issues that he might convey to an enemy. The authority then has the right to halt their movement until the danger has passed. Exceptionally, the commander here has the right to keep this person until the danger has passed. Therefore, he could even take them back to dar al-Islam.238 Parallel to this is Grotius’s rule that, if need be, ‘an immediately threatening peril may be met, if there is no other proper recourse, ambassadors can be detained and questioned’.239 We can see that Grotius went further to allow questioning on top of the necessary restriction of movement permitted by Al-Shaybani. However, to both scholars, this should be an exception to the rule that should only be authorized in serious cases. The right to dignified treatment Not only during peace but even at war and even when, as in the previously mentioned case, the movement of the envoy represents a danger to the State, dignified treatment must always be maintained with
234 235 236 237 238 239
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Grotius, The Law of War and Peace (n 5) 440–41. Abū al-Wafā (n 103) 123. Regarding religious duties. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 106) 305–307. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 515–17. Grotius, The Law of War and Peace (n 5) 444.
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respect to envoys. For instance, in no case would the authorities have the right to chain or by any means persecute envoys.240 The right to support and protection In all cases, envoys should be treated well and if the authority sees that the return of the envoy no longer represents a threat (such as in the previous case), it has to provide him with whatever means are needed to reach a place of safety. This includes money, a means of transport and even guards when needed.241 The legal responsibility of diplomats Al-Shaybani addressed issues related to the responsibility of visitors from abroad and subjects visiting other states. For example, a person was allowed to take as much money as he wished out of the country he was visiting if he did not accumulate it through breaking his ama’an conditions. Thus taking monies forcefully or without the permission of the owner will be considered a violation of the ama’an. In such a case, if he brings this money to dar-al-Islam he will be ordered to return it to the person to whom it belongs. Nevertheless, the imam does not have the right to force him to do so because he has violated his own oath by breaking the ama’an in that abode he was in.242 This rule applies to envoys as well, especially if they have used their official status to accumulate this money.243 Meanwhile, Grotius, discussing the same topic from a different angle, asserts: ‘[i]t is the better opinion that the movables of an ambassador and other articles annexed to his person are exempt from all seizure by way of pledge or for satisfaction of a debt, whether by process of court or by royal hand.’244 As for immunities, Grotius took the view that: if an ambassador commits an unimportant offence, it may be winked at; or the ambassador may be ordered to quit the country. If the crime be heinous, and such as injuriously affects the public weal, the ambassador must be sent to him who accredited him, with a request that he shall either punish him or 240
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 516. Ibid. 242 Abū al-Wafā (n 103) 115. 243 Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir LiMuhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 4 (Salah Al-Deen Al-Munajjid ed, Ma’had Al-Makhtu’tat 1971) 1138–40. 244 Walker (n 221) 304. 241
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surrender him for punishment … in case of extreme necessity, nevertheless, not by way of punishment but by way of preventing some grave, especially a public, evil an ambassador may be apprehended and examined, and, if he be guilty of armed assault, he may be slain in self-defence by the person assailed.245
In this area, it should be noted that both Al-Shaybani and Grotius have discussed this topic in principle, but the details they go into sometimes differ considerably. Lifting diplomatic immunity and its consequences In Al-Siyar Al-Kabīr it is stated that if the imam decides to withdraw the ama’an for some reason (in accordance with the rules), he should ask the musta’aman to leave within a certain period of time. However, he must not narrow this period for them in such a way that could be harmful.246 This was explained as follows: this is because he (the imam) is responsible for both his people as well as those with ama’an.247 Furthermore, Al-Shaybani went on to discuss the different possible scenarios such as if the person owns land, is married to a subject of the state or other possible scenarios in which the legal issues would be more complex and flexible answers were given by Al-Shaybani to all of these. 5.6.2 Responsibility of the Sending States In the twenty first century, an ambassador can make his state legally responsible once he has signed an agreement on its behalf. The question asked here is: what would the case be if an envoy sent by a Muslim leader in the eighth century had made a binding agreement on behalf of his state if he was not authorized to do so? In answering this hypothetical question, Al-Shaybani would say that the envoy’s state is legally responsible for the agreement.248 Verifying messages sent through envoys In Al-Shaybani’s view, the Siyar principle, dictating that verification and authentication in international relations is required, must always be followed.249 The following example illustrates the intent of Al-Shaybani in this regard. If the prince and the Muslims made ama’an, Al-Shaybani 245 246 247 248 249
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Ibid 303–304. See also Grotius, The Law of War and Peace (n 5) 444. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1868. Ibid 1869. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 471–2. Abū al-Wafā (n 5) 118.
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says, and then he sent a man to inform the other party of the termination of it; then this man returns and informs the prince that the message is delivered; the Muslims still must not breach the ama’an until they verify that the message has reached the other party. He added that if this was the other way round and the leader of dar-al-harb sent two envoys to notify their withdrawal from the ama’an carrying a sealed letter, then this should be sufficient as their testimony against their own people is accepted considering the fact that they were both musta’amanoon until the message was delivered.250 Ensuring that diplomats have carried out their missions The purpose of sending envoys is usually to carry out a mission; the sending state must ensure that the mission is accomplished. Accordingly, this mission must be facilitated.251 For example, Al-Shaybani, in many cases, stresses that simply sending an envoy does not always mean that the message is delivered. Thus, the legal implications of such a diplomatic move can only take effect if the message is actually delivered.252 The principle of reciprocity Al-Shaybani had already promoted this principle in this field long before the world came to recognize it as an international law principle.253 Throughout his writings, Al-Shaybani reminds his reader of the principle of reciprocity as a main tool in international relations. He is consistent in deploying this principle while addressing international interactions. He, for example, ruled that ‘if they do not take the tithe from what Muslims carry while entering their land but they do this to non-Muslim subjects of the state, we must take the tithe from them as they do to our subjects’.254 Thus, if other states do not charge subjects of the Muslim State then their subjects must not be charged. Although Al-Shaybani applies this principle in diplomatic relations, to him, this principle must not allow betrayal of other states in retaliation.255 Thus, reciprocity must never be taken as pretext to allow one people to betray others in retaliation.
250 251 252 253 254 255
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As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 476–7. Abū al-Wafā (n 103) 101. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 468–70. Abū al-Wafā (n 103) 102. As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 2144. Abū al-Wafā (n 103) 103.
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Diplomats exceeding mission confines Al-Shaybani took the view that the sending state is responsible for what its envoy[s] are doing even if the latter have exceeded the boundaries of their mission.256 For example, if the envoy was authorized to convey a certain message and then he abused this mission by adding to the message something that could be harmful for the recipient or beneficial for the envoy, the sending authority remains responsible for actions of the envoy. In fact, he ruled that whatever rights were initiated by the action of the envoy must still be respected. Whereas, whatever burdens were inflicted on others by exceeding the confines of the mission must be rendered void. Where some have already been implemented they must be redeemed or compensated for by the sender.257 Impersonating diplomatic envoys If this happens, Al-Shaybani advised that the perpetrator should not be able to benefit from immunities and privileges. To him this is one of the absolutely prohibited acts in international relations. For example, in a case mentioned above, he ruled that: if some Muslims entered dar-al-harb and said: we are the messengers of the Caliph. Whether they produced a letter similar to his or not, and this was used by them to trick the others; then the latter allowed them into their country; then it is prohibited unto them to kill any of the people of that abode or take any of their wealth so long as they are there.258
Accordingly, Al-Shaybani was against deception as a tool in diplomacy. What Al-Shaybani initiated in the eighth century is what we now have in Article 38/1 of the Protocol Additional to the Geneva Conventions of 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977.259 Once again, the attention paid by Al-Shaybani and Grotius to this topic is enormous. However, given the fact that he himself was an ambassador, Grotius could have said more about the topic: he was appointed by Sweden as an ambassador to France in 1634.260 Hence, it is curious that he did not cover all the topics of diplomatic law, at least in the 1645 edition. 256
Ibid 105. See the example discussed by Al-Shaybani in As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 571. 258 Ibid 507. 259 Abū al-Wafā (n 103) 109. 260 Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford University Press 1999) 95. 257
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5.7 ARBITRATION Arbitration is one of the most important conflict resolution tools and it is a relatively old practice. Al-Shaybani explains arbitration as another tool that was used by the Messenger to resolve international disputes and maintain peace and security. This is similar to arbitration as known in contemporary international law. Al-Shaybani discussed rules and procedures that should be followed in arbitration as follows: 1.
An arbitrator must be an independent body agreed upon by all parties. Also, all parties must agree to submit to the arbitrator’s decision.
2.
In one case, he discussed the situation where two enemies have decided to end hostile activities by arbitration. In this case, the two parties shall assign the task of judging between them to a named person (or group). They both should agree that whatever the judgment should be it must be respected and implemented.261 Al-Shaybani, to justify this method, discussed the famous case of Banu-Kuraidah, the Jewish tribe that committed treason (during war) after signing an agreement with Prophet Muhammad that they would respect the peace agreement and would not help his enemy against him. Conversely, they joined the masses of Arab tribes who gathered in a plot to eliminate Muslims by killing every Muslim in Medina. The Arab tribes decided to leave after a long lasting siege after losing hope of entering the city due to the big ditches that had been dug by the people of Medina to protect themselves. Following this, the Muslim army was directed to besiege Banu-Kuraidah in their stronghold. After a certain period, they agreed with the Prophet to accept the judgment of the Muslim Sa’ad Ibn Mua’ad (who was a member of their tribe). Sa’ad, using the common punishment for treason at the time, decreed the execution of all those who were capable of carrying arms and capturing the rest.262 From this example and based on the writings of Al-Shaybani, Abū al-Wafā draws the following conclusions:263 first, Al-Shaybani sees arbitration as a permissible tool in resolving international issues between Muslims and non-Muslims. Secondly, Muslims knew the principle of 261 262 263
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As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 587–92. Ibid. Abū al-Wafā (n 103) 126.
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taradi (to agree to be bound by the decision of a certain arbitrator) in arbitration as a main principle, which could be resorted to in resolving international conflicts. Thus Al-Shaybani recalls one example when the selected arbitrator asks one party: ‘and upon you is the oath of God and his Covenant that the verdict in your case is what I judge? They said: yes.’264 Meanwhile, Grotius held the opinion that ‘war was only justified when there was no possibility of effective arbitration’.265 He proposed that ‘[f]irst, war may be obviated by a conference … Second, war may be obviated by arbitration … Third, war may be obviated by lot.’266 If this is true, then there are two points to highlight here: first, Grotius was in favour of peaceful conflict resolutions before war can be justified. Second, Grotius endorses arbitration as one of the means of conflict resolution, something that I did not find in Aquinas before him, which raises the question of whether there was any link between Al-Shaybani and Grotius in this regard too. What is more is that while arbitration, to Al-Shaybani, can be used to settle differences and to resolve disputes before, during and after war, to Grotius it seems that it is a facility that is no longer available once war begins. This is because Grotius held the position that ‘a good man should not prosecute a just war any longer than needed to secure satisfaction for harm done’.267 Thus to end wars it is satisfaction of the party and not other settlements which could end them. This is because he did not speak of any other means or even need to end war but the satisfaction of the party with a ‘just cause’. Nevertheless, Grotius was in favour of the same type of arbitration discussed by Al-Shaybani in which the decision of the chosen arbitrator is binding upon parties without the need for any further referral or judgment.268 However, Grotius is different in that he professes some further limitations on the arbitrator’s jurisdiction. He is of the opinion that ‘arbitrators ought not to decide concerning possession’, as he thinks it is a matter for domestic law alone.269
264
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 590. Quoted in: Bellamy (n 161) 73. 266 Grotius, The Law of War and Peace (n 5) 560–63. 267 James Turner Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts 1200–1740 (Princeton University Press 1975) 227. 268 Grotius, The Law of War and Peace (n 5) 823. 269 Ibid 825. 265
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5.8 CONCLUSION In this chapter, it has been shown that Al-Shaybani and Grotius offered many peace-making tools and rules to govern peace and peaceful relations. Here, the contributions of Augustine, Gratian and Aquinas are very limited in comparison to either Grotius or Al-Shaybani. In fact, I can confidently say that in this chapter the comparison can only take place between Grotius and Al-Shaybani and Vitoria. Yet the work of Vitoria was not more relevant than Augustine, Gratian and Aquinas for he only offered some discussions of some of the detailed rules I have considered above. In most cases, he did not discuss the issues I discussed. For example, he did not consider diplomacy at all. Even when we compare his notes to Al-Shaybani as in the case when I discussed the facility of ama’an, Vitoria’s input was very small. Grotius too was not included in many of the cases I considered simply because he had not paid attention to many of them. Nevertheless, when both Grotius and Al-Shaybani discussed the topics, it was clear that there are significant parallels. Differences sometimes occur either in the details or in the subdivisions, but it cannot be said that one of them was more accurate or sophisticated than the other. Moreover, while I assumed that Grotius, who lived nearly a millennium after Al-Shaybani, should have been much closer in opinion and complexity of legal details to contemporary international law, this was only correct in very few instances. However, some topics were discussed by Al-Shaybani in detail while readers will struggle to find any traces of them in Grotius. The example of this is the subject of ama’an. Important as it is, Grotius seems to have given it no consideration in the The Law of War and Peace. Apart from this, which is a key difference, the two scholars otherwise are comparable in approach. On the other hand, as far as treaties are concerned we have seen that Al-Shaybani discussed them as a legal outcome of a legal action taken on behalf of a legal entity (a state), whereas Grotius discussed treaties as if they were mere promises by individuals whether they were kings or others. Thus, it is not clear whether Grotius was writing with the legal personality of the state in mind. Nevertheless, both Al-Shaybani and Grotius believed that individuals were responsible for their behaviour before the law and this was the foundation of good behaviour in international society.
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6. Conclusion As a cornerstone of what is believed by one-sixth of the world’s population to be their international law, the book of Al-Shaybani and its author cannot be underestimated. In this book, I completed the task of highlighting the importance of one of the oldest books on international law, Al-Siyar Al-Kabīr, written in the eighth century. Al-Shaybani’s book, I have demonstrated, was unique in that era, and indeed no comparable work existed until the seventeenth century when Grotius wrote The Law of War and Peace. Yet most legal historians have paid Al-Shaybani very little attention. The aim was to evaluate Al-Shaybani’s contribution to the field of international law from a historical perspective. I looked at Al-Shaybani as a missing page in the Western histography of international law. Thus, I compared him to Augustine, Gratian, Aquinas, Vitoria and Grotius as far as their contributions to this field were concerned. I selected these latter five scholars because they were each deemed the most significant contributor to this field in their own time. I noticed that most legal historians working on international law draw heavily on the work of these scholars. The selection of St. Augustine from the fifth century was to see whether he had influenced Al-Shaybani in any way or form or whether Al-Shaybani was entirely original in his contribution. Initially, along with St Augustine, I only selected Gratian from the twelfth century and Aquinas from the thirteenth century. However, as these scholars did not cover most of the topics dealt with by Al-Shaybani, scholars from later times were introduced and thus Vitoria and Grotius were selected as well. Chief as they all are, I first would like to express concern about a practice that has been noticed in many of the works consulted. Many scholars either implicitly or explicitly suggest that the views of the scholar they are examining are a complete representation of his culture, state, religion or civilization’s views on the issues discussed. An example of this is when somebody tries to give the impression that the views of St Augustine on war are those that Christianity or Christians unanimously held. This was never the case as other Christian thinkers before and after him held different views. Thus, I firmly believe that the opinion of Al-Shaybani should not be taken as if all Muslim jurists shared it nor 267
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should those of any of Augustine, Gratian, Aquinas, Vitoria or Grotius be taken as representative of what all Europeans or Christians believed. This common mistake must be avoided in all future studies. Meanwhile, a significant finding of this study was the fact that Islamic international law, although not fully adopted by many governments, is still active. I have demonstrated that more than 1.5 billion (one-sixth) of the world’s population would follow this law if they had to select between its rules and the rules of the contemporary power-centred international law.1 In the first chapter, it was demonstrated that more than one international law could and did actually exist together. The question left to be answered is whether a single system of law should be imposed on all nations without taking into account any cultural, religious or social differences. This, as shown above, is the source of disarray in which the state of international law has recently been. Therefore, the world has either to agree one legal system that takes into account differences or to choose to live with anarchy. Imposing one legal system that belongs to one theory (capitalism) or one culture (Western) on the world would have no less bitter results than those we live with today.2 Thus, an urgent reform of the current system by appreciating the reality of the world’s legal, cultural, social and religious map would be the only solution to have an effective and practical as well as more just system.3 As we have seen above, there is no doubt that both Siyar and Western international law were grounded in religious and divine origins. It is true, however, that they both have great juristic input but all of this was still based, in part, on religious notions and can often (if not always) be traced back to religious origins as I demonstrated in this work. Nevertheless, Western international law today, by the effort of many jurists, is attempting to distance itself from such facts.4 However, these attempts can only succeed if they can cut contemporary Western international law from its 1 See, for example, S. S. Ali, ‘Resurrecting Siyar through Fatwas? (Re) Constructing “Islamic International Law” in a Post-(Iraq) Invasion World’ (2009) 14 Journal of Conflict and Security Law 115, 115–44. 2 Anthony Carty, ‘The Yearning for Unity and the Eternal Return of the Tower of Babel’ (2007) 1 European Journal of Legal Studies 1 (accessed 6 June 2018) 1. 3 Yasuaki Onuma, ‘When Was the Law of International Society Born?’ (2000) 2(1) 65 JHIL (accessed 6 October 2009) 65. 4 Martti Koskenniemi, ‘Colonization of The “Indies” – The Origin of International Law’ (University of Zaragoza, December 2009) (accessed 22 January 2018).
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historical origins. In fact, some of the most well-grounded Western philosophers of international law today are now calling for greater consideration of religious thought in order to enrich what they see as a morally bankrupt and politically corrupt contemporary system of international law.5 That aside, in this book, I was able to assure the reader that this work is built on the true and original thoughts of Al-Shaybani. I did this by studying and analysing the available texts on the commentary of Al-Sarakhsi on his book, through which I was able to select the most authentic and complete text. I was also able to compare this selected text to the original manuscript held at Leiden and assure readers that this undoubtedly is the original text. Otherwise, all scholars studied in this book are distinguished scholars in their fields and more importance is attached to them than many others in their times. Further, Al-Shaybani, Gratian and Grotius were all jurists and theologians, with the exception that only Al-Shaybani worked as Chief Judge of the State. Meanwhile, Augustine, Al-Shaybani and Grotius had a direct link with the rulers of their states. They had a direct impact on the practice of international law in their states both in their time and after they died. All of these scholars lived in different times with centuries dividing their contributions. It can also be said that all of the considered thinkers were religious individuals and were greatly affected by this in their writings. All of them except Al-Shaybani followed the Christian faith. Yet Gratian, Aquinas and Grotius heavily relied on Greek and Roman philosophies available to them in supporting their arguments. Meanwhile, Augustine and Al-Shaybani were more interested in religious rules and practices to arrive at answers to their legal questions. Vitoria appeared to take a middle way between the two. Meanwhile, Al-Shaybani did not rely directly on Roman or any other ancient legal systems. The only possible linkage could be his employment of the principle of reciprocity.6 He also referred to some Arabic practices, but normally he did this more indirectly by referring to these practices only when they were practised by the Messenger or by his companions. Notwithstanding the above, I have noticed that it is unlikely that Al-Shaybani borrowed from other civilizations, as I have struggled to 5
See, for example, Carty, Tuck and O’Donovan discussed in Anthony Carty, ‘The Moral Theologian, Oliver O’Donovan and International Law’ (2008) 9 Political Theology 339, 339–62. 6 This, for example, is apparent when he said that foreigners must be made to pay as much tax as subjects are paying when they’re visiting the country of these foreigners.
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find any link between him and other civilizations or something that they could have offered him as there were no works comparable to his. From another angle, however, I discovered that there were many similarities between what Al-Shaybani produced and what modern European thinkers offered. The question that should be asked, therefore, is whether the great European jurists coming centuries later, like Vitoria and Grotius, had any knowledge of Al-Shaybani’s teachings and whether they were influenced by his ideas. What is equally important too, therefore, is to know whether European founders of modern international law had been exposed to the great amount of Islamic literature translated into Latin and introduced to most European centres of knowledge7 just before Vitoria and Grotius and others started to write. What I can add to this today is the fact that I found many indications of such a relationship supporting the speculations of many experts I discussed. I have shown on different occasions that especially with regard to Aquinas, Vitoria and Grotius, there are substantial conjectures and indications that they had knowledge of Islamic teachings on the issues they were discussing. If we take, for example, the well-known European philosopher Aquinas, who had a significant influence on both Vitoria and Grotius, we find that he was greatly affected by his exposure to Islamic writings. Given this, I strongly believe that the speculation that great European international lawyers must have been influenced by Al-Shaybani in one way or another is a substantive assumption and not mere guesswork. In addition, despite the fact that a very large amount of Arabic knowledge was readily available in Latin as it was translated and imported through Italy and Spain, we struggle to see any acknowledgement of such works in Western writings when Europe emerged from the dark ages. Moreover, I have discovered two facts about Vitoria and Grotius. First, they both had substantial knowledge of the international law perspective Al-Shaybani took. They both showed an unmistakably similar approach and held opinions identical to that of Al-Shaybani whereas such practices were not possible to trace in Europe before them. Understandably, it may have been difficult for some of them to acknowledge such influences in that age even if they had wished to. Nevertheless, building on that stated above, I think that it is worthwhile for future studies to consider the influence Al-Shaybani could have had on later flourishing European scholars. Related to this, while Augustine, Gratian and Aquinas limited themselves to a small number of questions centred around whether or not a 7 Christopher G. Weeramantry, Islamic Jurisprudence: An International Perspective (Macmillan 1988) 94–111.
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Christian is allowed to fight, Al-Shaybani and Grotius applied a relatively comprehensive approach when dealing with international legal issues. Once again, Vitoria offers much more than the others but not as much as the latter two. Meanwhile, especially on the issue of humanitarian grounds of comparison, it was only Vitoria who could be compared to the outstanding humanistic approach of Al-Shaybani. However, Al-Shaybani, who was writing in the eighth century, was the first to come up with a ‘comprehensive’8 treatment of international law subjects. His book was and still is a great achievement. In a letter to Louis XIII, Grotius dedicated his book to the king and requested his support for its implementation in Christian nations and churches.9 Thus, Grotius was undeniably targeting Christians as his main audience and Al-Shaybani’s main audience was Muslims. Therefore, the audience of both Grotius and Al-Shaybani are religious individuals. The only difference in this regard is that the latter shared the same source of law with all of his audience, whereas the former did not. This is probably why Grotius referred to natural law and relied on Roman law and other sources in order to make it appealing to all Christian nations. Meanwhile, distinctively, the similarities between the opinion of Al-Shaybani and that of Vitoria are many. Although Vitoria did not write as much as the former, where they both addressed a subject it takes some time to distinguish their differences. For example, they both seem to uphold the view that freedom of religion must always be guaranteed and if not, it must always be granted, even if force is required. I have elaborated above that this is not a very different approach to that of the supporters of imposing a Western style of democracy and capitalism on ‘non-democratic nations’. Al-Shaybani, opposing many, including the head of his school, thinks that even force is allowed to be used in order to allow others to learn about the message of Islam. Thus, it is obvious that any obstruction to this knowledge transmission could justify the normally prohibited use of force. This is because he believes that people must be able to hear about Islam (their right) and to freely accept its call or reject it. Meanwhile, to Vitoria, while you are not allowed to fight people because of their difference in religion (a new concept in Europe), he allowed individuals to travel, reside, invest, mine, exploit and fish or hunt anywhere in the world, provided that this is only done in non-privately owned spaces. However, if individuals were prevented from exercising this freedom, the preventer would become a legitimate target of just war. 8
Considering the time he was writing in and even centuries later. Hugo Grotius, Hugo Grotius. The Law of War and Peace: De Jure Belli Ac Pacis Libri Tres (Francis W. Kelsey tr., Indianapolis 1925) 5. 9
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Also, even after individuals travel and reside anywhere they wish, any attempt to evict them or hinder their activities or the preaching of Christianity would permit war. Furthermore, if there is a considerable number of Christians in an area and they would like to dismiss their ruler, Vitoria allowed the Pope the right to install a Christian ruler over that land, and any objection would be faced by use of force. There is mainly only one exception, therefore, to the prohibition of the use of force for both Al-Shaybani and Vitoria; however, the explanation and the details are at variance, as we have seen. Such hypotheses held by those scholars, centuries ago, should be considered in light of the current wave of support for the toppling of regimes, invading countries and intervening in the civil and domestic affairs of other states under the pretence of spreading democracy or safeguarding human rights and freedoms. Although all of these latter rationales are mere justifications by certain jurists for the actions of some powers, they are becoming, by the day, widespread factual legal notions of Western international law. This is especially true after the Security Council permitted the intervention on such grounds in the recent (2011) war in Libya by Resolution 1973. The Council has also turned a blind eye to the fact that this mission was no more than regime change and another attempt to install a pro-Western ‘democracy’ in Libya. In fact, today, in the West, especially the USA, it is manifest in the elites and the ruling class and their advisers on international legal matters that democracy can be and indeed should be imposed on others. This is done not for the sake of the masses, as is being claimed, but in order to keep control of the world in the face of the growing powers of other states which are considered by the same individuals as undemocratic. There is a real risk represented in notions such as the so-called ‘Coalition of the Democracies’. In fact, foreign policies of the USA, including that of Obama, contain explicit support for such dangerous ideologies.10 This is especially dangerous, as it seems that whenever such movement succeeds in causing a regime change for such a cause, the outcome would be the spread of terrorism, civil wars and bloodshed. This is true, at least, in the cases of Iraq, Libya and Yemen. The difference between the views of Al-Shaybani and Vitoria on one hand and this dangerous notion on the other is apparent. For although they all support the use of force in order to convey ideas, neither Al-Shaybani nor Vitoria support the forceful implementation of the 10 Anthony Carty, ‘From a Unipolar to a Multipolar World: A Post-Bush US Presidency for a Post-Western World’ in Marie-Luisa Frick and Andreas Oberprantacher (eds), Power and Justice in International Relations: Interdisciplinary Approaches to Global Challenges (Ashgate 2009) 13–15.
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knowledge they preach. They both support guaranteeing the right to preach these ideas but not to impose them. In contrast, the current Coalition of Democracies goes so far as to the point where the use of force is justified to impose a ‘democratic system’ in another state that has triggered no need for such action. This league, which believes in the spreading of Western-styled democracies even by force, is fundamentally hypocritical. The same democratic system they are ready to impose by force in one nation, they are ready to fight in another according to what their interests dictate.11 After all, as set out in the first chapter, if the world is to be a better place, no one should have superiority over the other, especially in terms of international law. For the latter to be implementable and respectable, it must first respect every nation and it must contain the respect of each and every living civilization. This is particularly important in a fast-moving world where the Western powers do not and cannot be the only controller of world affairs or the only prescriber of what the law should be in international society. Thus, Carty argues that: the need still remains for an ontology of international society, which is not imprisoned by the inevitable unilateralism of the Western subjectivism, but can reveal a vision of a large whole of international reality, of which the West should have the maturity to accept that it is a significant but not dominant part.12
In fact, what the world might need most is to be freed from the disguised Western freedom. This must not be understood in a way that supports the argument of Al-Shaybani or Vitoria, but it must be interpreted as an indication that their writings were genuine attempts to place limitations on the use of war at their time. This is because war knew no limits in their times and places. There was no United Nations Charter during the time of both Al-Shaybani and Vitoria and the world was warlike indeed. However, today, using force to advance any idea is extremely dangerous and entirely unacceptable after the world has reached the peace deal of the UN. This peace deal, although not complete, is the best achieved so far and must be improved by way of furthering mutual respect rather than furthering selfish interests through the misuse of noble notions such as democracy and human rights. Nevertheless, I have come to conclude that all of the six scholars, considered in this study, are distinguished and that they have earned their reputations by hard work and great achievements and not by mere 11 12
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polemic historical recordings. St Augustine, to begin with, was indeed a great thinker, eloquent and a goal achiever. He was a prolific writer whose contribution to theology, philosophy and history cannot be underestimated. Reading his works was challenging only because of the volume he wrote. Nevertheless, unlike what many legal historians have concluded, he did not offer much legal text on issues relating to international relations. Gratian, on the other hand, was, as considered by many legal historians, a contributor to the field of law as much as he was to that of theology. Yet still when it comes to international relations his legal input was not much more significant than that of Augustine. In contrast, the often-cited thinker of the late Middle Ages, Aquinas did offer a deserving contribution to theology and philosophy. As far as legal rules to govern international relations of his time are concerned, I accept that he did mention some; however, they were indeed very minor. The issue is not these three great minds but legal historians who have us believe that their contributions to the fields of international law, especially the law of war, was as great as their contributions to theology, philosophy and history. What they offered to international law, great as it might be, was no more than general moral and theological comments on some subjects on international relations. What they were concerned with in this area was mainly the question of when is it permissible for an individual to join or go to war. However, Al-Shaybani, Grotius and Vitoria, although they were theologians, have offered what legal historians interested in international relations can never exclude. Al-Shaybani as early as the eighth century did offer a complex legal detailed discussion of all topics related to international relations of his time. He offered to his reader a manual of legal rules on all subjects related to what we today call international law. This, in addition, is still very much relevant to today’s international legal system and sometimes a clear anticipation of what humanity has finally reached in the field. No one, I found, among all those working on the area throughout the Middle Ages to the seventeenth century was comparable to Al-Shaybani in terms of comprehensiveness and legal complexity except Hugo Grotius, who lived 900 years after him. They both excelled in being comprehensive at covering the wide subjects of the area, and in exploring the details of the topics they covered. Second, but not as comparable, lies Vitoria, who did offer quite a good deal of treatment of war topics and international relations. Overall, Al-Shaybani’s contribution to the field of international law is too great to be ignored or even marginalized. The previous works of legal historians ignores his contribution to an unacceptable extent. There are
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many ways by which Al-Shaybani contributed to the field of international law, most importantly is that, in ‘explored’ history, he was the first to study the subject of ‘international law’13 separately from other fields of law. On the other hand, Al-Shaybani, along with other Islamic international law scholars, employed a method in which he limited the scope for manoeuvre that leaders and warriors had in deciding upon international law matters. This was done by offering a detailed casuistic treatment to all possible scenarios with juristic rules to prevent decision makers from inventing different and possibly biased ways of interpreting the law to further their own aims. Here the achievement of Grotius is comparably commendable. From another perspective, I was able to show the following features of Al-Shaybani’s writings on international law. First, Al-Shaybani throughout his work seems to have held the role of custom in high regard. This is apparently a direct outcome of his application of the principle of reciprocity in international legal relations. I observed that his rules applicable to others were somewhat common in the related brief historical accounts I wrote. For he would only change the then widely practised international rule in two cases: 1.
He would impose some limitations on the rule to humanize or otherwise limit the injustices it bears. He usually does this by imposing these limitations on his fellow compatriots. He suggested that some existing cruel rules could be done away with or otherwise amended by an international treaty.
2.
Second, the international law of Al-Shaybani is a universal one. This is because in the eighth century, no one could have envisaged the world as a place that is shared by one human race whose members have to live with each other and not claim superiority over one another for any reason. Human beings were only different in their level of piety, which is judged by God alone and in a life other than this and in a world other than that in which we live. In fact, it can confidently be said that Al-Shaybani was explicitly suggesting the possibility of changing the course of international law and humanizing the harsh practices of the Middle Ages by utilizing the law of treaty he offered. For example, he originated the possibility whereby some states could agree a cessation 13 As I have already noted, international law here does not necessarily mean the contemporary international legal system. Grotius too was not writing on an international law of the twenty-first century, yet he is still held by many to be the father of international law.
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of the then common practice of killing/enslaving captives. Thus, the UN, in principle, as a universal peace agreement was, at least in spirit, present in the writings of Al-Shaybani, the international lawyer of the most powerful state at the time. In addition to the points above, Al-Shaybani put forward some outstanding principles to follow in international relations as legal obligations and not just as moral teachings. Some of these principles can be identified as follows: 1.
2.
3.
4. 5.
6.
7.
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The principle of reciprocity: Al-Shaybani maintained that while states have the sovereignty and right to impose regulations internally, international reciprocity should always be upheld, especially when clear mutual rules had not been agreed. The unity of the human race: to Al-Shaybani there is only one human race, any other distinctions are made by God for his wisdom and thus are acceptable as they are and no one has the right to distinguish or be distinguished before the law because of race, gender, colour, capacity or any other involuntary human distinctions. The relationship with other states and other people on the international level must always be built on respect for the dignity of the human being and must always be built on good faith and mutual respect. Individuals are subjects of international law and therefore they are directly affected by its rules. All agreements must be respected and honoured. Even when parties have the right to withdraw from them, other parties must be given due notice before any action based on the withdrawal is taken. While peace was not the norm and the world was warlike, Al-Shaybani did limit the use of force to only three specific cases: self-defence; defence of the oppressed; and defence of the freedom of religion. He considered all other types of war illegal. War should always be the last resort in international relations. Peace must always be the goal if a war had to be fought and not the other way around. If war was inevitable, it must never be carried out in a way as if it were the goal. Thus he introduced many limitations on the conduct of war. He established the principle of non-combatants and emphasized many rights for prisoners of war and belligerents. It can be said that Al-Shaybani did humanize war to a very large extent by imposing limits on the conduct of war that can only be found in contemporary international humanitarian rules.
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9.
10.
11.
12.
13.
14. 15.
16.
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Women and children and elders must always be protected: even in the event that an enemy has killed women and children, the other party must not retaliate for such an act. If two states are at war, this should not mean that the war is against all subjects. Instead, subjects of enemy states have the right to travel, trade and reside in other countries even when their state is at war with them. This is what he organized under the institution of ama’an, under which subjects of enemy states would enjoy all the rights mentioned above. Furthermore, subjects of other states can become subjects of the state as dhimmi, in which they will still have their own religion and they will not be asked to perform any other religious duties. Protection for subjects of the states is granted based on their status as subjects, not on their religious or racial affiliations. The rights of human beings incorporated into Al-Shaybani’s writings are, in many aspects, not less significant than those contemporary international human rights that the law would claim to guarantee. Peace must be respected once agreed. Even breaches by subjects of other states should not provoke the nullification of a peace treaty unless it was clearly understood to be the will of the other state to breach such agreement. Diplomacy must be given a high status, and protection and privileges and immunities for diplomats must be granted. On the other hand, Al-Shaybani established that diplomats are the responsibility of the sending state. Thus, their actions are considered to be their state’s wish. Public interest must always be taken into consideration when concluding treaties with others. When treaties are concluded, they must be honoured and their conditions must be fulfilled. Treachery is totally prohibited and so is injustice. Lies and deception must never be used in international relations. Even when others commit such acts, the principle of reciprocity does not allow for retaliation.
Finally, from the above, there is no doubt that the historical writings studied in this book could be utilized to nurture a better understanding between civilizations. They could be used to further peace and to initiate a dialogue that should only lead to making the world a better place for everyone. The idea that one nation, one religion, one civilization or one approach should dominate the whole world has only resulted in failures,
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wars and destructions for everyone. Appreciation, acceptance and mutual respect between all nations, civilizations, religions and schools of thoughts have always led to making the world a more peaceful place for all.
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SELECTED WEBSITES www.archive.org: Internet Archive www.icj-cij.org: International Court of Justice www.icrc.org: International Committee of the Red Cross www.un.org: United Nations
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Index Names beginning with Al- and El- appear in alphabetical sequence as though these prefixes are missing. For example, entries for Al-Shaybani appear under S and not A. Abbasid Caliphate vii, 5, 26, 85, 176 Abou el Fadl, Khaled viii, 86 Aboul-Enein, Youssef H. 111, 118–19, 121 Abu-Hanifa, al-Nu’mān ibn Thābit (founder of Hanafi School) vii, 5, 25, 27, 39, 79, 80, 90, 194, 231–3 authorship of Al-Siyar Al-Saghir postulated 27 on peace 233 mowada’ah (peace treaties with non-Muslims) 35, 216, 230–33, 243–5 war for proselytism rejected 133, 134, 136, 231, 271 see also jihad (use of force) see also Hanafi School of Islamic jurisprudence Abu-Yusuf 5, 25, 27, 39, 44, 79 Afsah, Ebrahim 8–13 agreements see covenants; treaties Alfazari, Abu-Ishaq 6 Ali, Moulavi Cherágh 189–90 ama’an (safe conduct) 34, 216, 227, 233 ambassadors, automatic right to 257, 258 see also diplomatic missions authority to grant 239, 250, 252 definition and types 250–51, 253 legal consequences and validity 251–2 sacredness 253–6
musta’amanoon (persons protected by ama’an) harming or killing prohibited 203, 247, 251, 253–4 hostages as 247 liabilities of 203, 212, 252, 259 ransom prohibited 207–8 war against prohibited 133, 203 war to protect 227 pre-Islamic roots of 110, 222, 226–7 travel and trade between warring states 170, 277 see also cross-border travel and trade see also international relations, between Muslims and non-Muslims; peace amān see ama’an (safe conduct) ambassadors see diplomatic missions Al-Ameeli’s edition of Sharih Kitab Al-Siyar Al-Kabīr (Leiden edition) 35, 36–8 see also Al-Siyar Al-Kabīr (Al-Shaybani) An-Na’im, Abdullahi Ahmed 22–3 appropriation of land and property see law of war under Al-Siyar, ghanimah (spoils of war); spoils of war, non-Islamic thought Aquinas, St Thomas 46, 67, 274 Islamic scholarship, influence on 62–3, 270 jus in bello 166, 175, 178 civilians, killing of 167, 169
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lying to the enemy 172–3 just war theory 53, 62, 103, 152, 154 conditions of a just war 105, 149 forced conversion rejected 139 peace as the objective of war 123, 124 reprisal 154 self-defence 131 war to punish non-believers and sinners 105–6, 124, 127, 138, 139–40 Al-Shaybani compared with 96, 267, 269 just war theories see Aquinas, St Thomas, just war theory; jihad (use of force) use of divine authority 73 spoils of war 183, 192–3 prisoners of war 185–6, 201, 203, 205, 206 Summa Theologica 62 Arabia early Islamic era 55–6 pre-Islamic era 53–6, 59, 108–10, 187, 222–3 arbitration (sulih) 220, 227, 233, 244, 264–5 see also mowada’ah (peace treaties with non-Muslims); peace Aristotle 62, 76, 95, 100, 219, 221 prisoners of war, enslavement 51, 59, 181, 205, 206 see also prisoners of war, non-Islamic thought, enslavement spoils of war 88, 181 Askin, Kelly D. 183 Augustine, St 273–4 civitas terrenae and civitas dei division 82–3, 88 jus in bello 166, 167, 175, 178 civilians, killing of 165, 169 lying to the enemy 173 military tactics harming civilians 171 surrender 219 just war theory 52–3, 149, 154
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biblical authority for war 71, 76, 103–4, 104, 142–3 peace as the objective of war 103–4, 122–3, 124, 126–7, 218 reprisal 154 self-defence 131 sovereign authority 103–4, 150, 151, 152, 162 war to punish non-believers and sinners 103–4, 106, 116, 123, 124, 126–7, 142–3, 165, 233 wars of conversion 106, 138 Al-Shaybani compared with 45–6, 94–5, 267, 269 just war theories see Augustine, St, just war theory; jihad (use of force) on peace 232–3, 243 use of divine authority 71, 73 spoils of war 183, 192, 193 prisoners of war 185, 201, 203, 205 Averroes (philosopher, aka Ibn Rushed) 62 Al-awzai, Abd al-Rahman (founder of Awzai School) 25, 28, 42, 75 Ayala, Pedro López 63, 64, 67 Bader, Gamal 23 Bassiouni, M. Cherif 228 Bellamy, Alex J. 76, 149, 156, 171, 176, 243 Boisard, Marcel A. 62, 63, 228 booty see law of war under Al-Siyar, ghanimah (spoils of war); spoils of war, non-Islamic thought Brown Scott, James 177 Bsoul, Labeeb Ahmed 4–5, 6–7, 18–19, 233, 244 Byzantium (Eastern Roman Empire) 53, 84, 107, 113, 184–5, 223 see also Roman international law
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Cairo edition of Sharih Kitab Al-Siyar Al-Kabīr (edited by Al-Munajjid) 30–38, 40, 45, 128 see also Al-Siyar Al-Kabīr (Al-Shaybani) Carty, Anthony 10, 12, 13–14, 273 Casassa, Charles S. 52, 95 chattels, appropriation of see law of war under Al-Siyar, ghanimah (spoils of war); spoils of war, non-Islamic thought Cherágh Ali, Moulavi 114, 190 children ama’an, no right to grant 250, 252 see also ama’an (safe conduct) child soldiers 168, 252 enslavement 204 see also civilians; women China, ancient, views on peace 100, 221–2 Christianity biblical authority for war 20, 71, 76–7, 103, 104, 136, 142–3 Christian and non-Christian relations see international relations, between Muslims and non-Muslims Grotius’s views on 20–21, 77 Christian and natural law distinguished 76, 155–6 Judeo-Christian basis of Western international law 20–21, 268–9 pacifism 71, 102–4, 218 Cicero 155, 181, 217–18, 221 civilians killing of under Al-Siyar 117, 160, 161, 162–4, 168, 169, 277 Western jurisprudence 165–7, 168–9, 170, 172 military tactics harming under Al-Siyar 164, 171, 172 Western jurisprudence 171 prisoners see prisoners of war, non-Islamic thought; prisoners of war, under Al-Siyar see also children; women
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conciliation (sulih) 220, 227, 233, 244, 264–5 see also mowada’ah (peace treaties with non-Muslims); peace Confucianism 100, 221–2 conversion, religious see religious conversion covenants ama’an see ama’an (safe conduct) dhimmi agreements (with non-Muslims in dar al-Islam) 4, 208, 209, 227 treaties see treaties cross-border travel and trade 34, 91, 227, 229, 233, 255–6 between warring states 170, 277 see also ama’an (safe conduct); international relations Crusades 60, 100, 142 customary law customs of war see international humanitarian law, Western; law of war under Al-Siyar Siyar as customary international law 21–2 see also Siyar (Islamic international law) as source of Siyar 75–6, 275 see also Siyar (Islamic international law), sources dar al-harb and dar al-Islam division 81–90, 202–3, 210 ama’an see ama’an (safe conduct) cross-border travel and trade see cross-border travel and trade diplomatic missions see diplomatic missions ribat (safeguarding the borders of dar al-Islam) 120–21, 128–9 see also jihad (use of force) see also international relations, between Muslims and non-Muslims
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De Jure Belli ac Pacis (On the Law of War and Peace) (Grotius) 2, 20, 66, 97, 150–51, 157, 217, 230, 266 Decretum (Concordia Discordantium Canonum) (Gratian) 46, 53, 94, 126 dhimmis (non-Muslims in dar al-Islam under covenant) 250, 254, 277 dhimmi agreements 4, 208, 209, 227, 250 diplomatic missions 277 diplomatic immunities and privileges 221, 228 ama’an automatically granted 257, 258 see also ama’an (safe conduct) dignified treatment 259–60 freedom of movement 259 support and protection 260 withdrawal 259, 261, 263 duties of ambassadors and sending states 260–61, 262 ambassadors exceeding missions 262–3 deception 263 messages, verifying 261–2 reciprocity 262 see also reciprocity doctrine of Al-Siyar see also peace dispute settlement (sulih) 220, 227, 233, 244, 264–5 see also mowada’ah (peace treaties with non-Muslims); peace distribution of prisoners see prisoners of war, non-Islamic thought, enslavement; prisoners of war, under Al-Siyar, enslavement divine authority biblical authority for war 20, 71, 76–7, 103, 104, 136, 142–3 Shari’ah see Shari’ah Donner, Fred M. 56
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Eastern Roman Empire (Byzantium) 53, 84, 107, 113, 184–5, 236 see also Roman international law emissaries see diplomatic missions enslavement of prisoners of war see prisoners of war, non-Islamic thought, enslavement; prisoners of war, under Al-Siyar, enslavement envoys see diplomatic missions Eppstein, John 232 Al-Fizari, Abi-Ishaq 6 fiqh see Islamic jurisprudence forced conversion see religious conversion; wars of conversion foreigners ambassadors see diplomatic missions relations between Muslims and non-Muslims see international relations, between Muslims and non-Muslims Vitoria on the rights of 255–6 see also Vitoria, Francisco de Gaber, Mohammad Hosny Mohammad 16–17, 58 Gazi, Mahmood A. 18, 19, 20, 21, 27, 28, 30, 31, 41 Gentili, Alberico 8, 47, 63, 64, 147 Gentilis see Gentili, Alberico ghanimah (spoils of war) see law of war under Al-Siyar, ghanimah (spoils of war) Al-Ghunaimi, Muhammad Tal’at 39, 53–4, 64, 107, 141, 146 Gratian 274 Decretum (Concordia Discordantium Canonum) 46, 53, 154 jus in bello 166, 172, 175, 178 civilians, killing of 167, 168, 169 lying to the enemy 173 just war theory 53, 130, 142, 154, 178
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peace as the objective of war 123, 124, 126 sovereign authority 149, 150, 151, 152 war to punish non-believers and sinners 104, 105–6, 123, 124, 126, 127, 143 wars of conversion 106, 138 Al-Shaybani compared with 46, 267, 269 just war theories see Gratian, just war theory; jihad (use of force) use of divine authority 71, 73, 76 spoils of war 183, 185, 192, 193 prisoners of war 201, 203, 205 Greece, ancient 50–51, 52, 59 Aristotle see Aristotle just war theory 88, 99, 108, 154 peace, views on 217, 220, 221 Plato 99–100, 181, 221 refugees and asylum 220 spoils of war 88, 181 Groot, Hugo de see Grotius, Hugo Grotius, Hugo 8, 15–16, 46, 47, 97, 274 Christianity, views on 20–21, 77 Christian and natural law distinguished 76, 155–6 Islamic scholarship, influence on 2, 38, 63, 65, 66–8, 270 jus in bello 166, 175–6, 178 civilians, killing of 167, 168 military tactics harming civilians 171 just war theory 20–21, 122 alternatives to war 148–9 Christian and natural law distinguished 76, 155–6 conditions of a just war 157 enforcement of legal rights 156 neutrality 153 peace as the objective of war 123–4 pious intent in fighting, need for 149, 157 reprisal 156
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self-defence 131–2, 151, 156, 157 sovereign authority 150–51, 152–3, 157, 159 war to punish non-believers and sinners 139, 143, 144, 146, 156, 159 peace 177, 266 arbitration 265 definition of 229 diplomatic missions 221, 256–7, 258–9, 260–61, 263 as good faith 217–18 peace treaties see Grotius, Hugo, treaties tribute to secure peace 236 promises 252–3 of refuge or safe conduct 255, 266 see also ama’an (safe conduct) Al-Shaybani compared with 29, 42, 65, 73, 269, 274 just war theories 155–9 see also Grotius, Hugo, just war theory; jihad (use of force) peace theories see Grotius, Hugo, peace; peace scope of international law theory 95, 97, 130 treaties see Grotius, Hugo, treaties; treaties, under Al-Siyar use of divine authority 20, 71, 76 use of sources 92, 269, 271 spoils of war 158, 183, 192, 214–15 land occupation 256 prisoners of war 185, 186, 199, 203, 206, 247–8 treaties 230, 266 see also treaties breach, consequences of 243 cancellation and nullification 248–9 implementation 238 interpretation rules 241, 245–6 pacta sunt servanda principle 65, 196, 226, 234–5
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ratification 237 reinstating original situation 242 Al-Shaybani’s views compared see treaties, under Al-Siyar terms breaching jus cogent norms 238 written treaties 235 works De Jure Belli ac Pacis (On the Law of War and Peace) 2, 20, 66, 97, 150–51, 157, 217, 230, 266 Truth of Christian Religion 66–7 Hamadah, Farouq 6 Hamidullah, Muhammad 7, 14, 15, 51–2, 53, 63–4, 189 Hanafi School of Islamic jurisprudence 5, 25, 40, 79–80, 136 see also Abu-Hanifa, al-Nu’mān ibn Thābit (founder of Hanafi School) Holy Qura’an see Shari’ah, Holy Qura’an hostages 187, 198, 219, 246–8 as musta’amanoon (persons protected by ama’an) 247 see also ama’an (safe conduct) ransom 188, 197, 207–8 see also prisoners of war, non-Islamic thought; prisoners of war, under Al-Siyar human rights 277 humanitarian intervention 133 Ibn Rushed (philosopher, aka Averroes) 62 India, ancient 100–101 international humanitarian law, Western anticipated by Siyar 22, 43, 62, 63–4, 65, 109, 214 historical development 99–108 jurists see Aquinas, St Thomas; Augustine, St; Gratian; Grotius, Hugo; Vitoria, Francisco de
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jus in bello civilians, killing of 165–7, 168–9, 170, 172 defensive force, response to 166–7 lying to the enemy 172–3 military tactics harming civilians 171 prisoners of war see prisoners of war, non-Islamic thought just war theory see just war theory modern era 155, 176–7, 191, 272–3 spoils of war see spoils of war, non-Islamic thought see also international law; international relations; jihad (use of force); law of war under Al-Siyar international law customary law 21–2, 75–6 international humanitarian law see international humanitarian law, Western; law of war under Al-Siyar Islamic see Siyar (Islamic international law) treaties see treaties Western ancient Greek sources of see Greece, ancient Eurocentrism of 3, 8, 13–14, 23 Judeo-Christian basis 20–21, 268–9 perceived deficiencies of 10, 14, 16 Roman sources of see Roman international law Siyar comparison 18–21 Siyar influence on 22, 43, 60–68, 270 Westphalian system 9 international relations between Muslims and non-Muslims ama’an see ama’an (safe conduct) dar al-harb and dar al-Islam division 81–91, 192, 202,
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207, 210–13, 226, 245, 248, 254, 257–60 dhimmis see dhimmis (non-Muslims in dar al-Islam under covenant) diplomatic missions see diplomatic missions forced conversion see religious conversion; wars of conversion Islamic hostility to non-Islamic world refuted 81–90, 228 reciprocity doctrine 8, 11, 59–60, 76, 202, 262, 275, 276 travel and trade see cross-border travel and trade treaties see treaties war for proselytism see jihad (use of force), war for proselytism Western jurisprudence 8, 51–2, 59, 88–90 see also just war theory, war to punish non-believers and sinners peace see peace war see international humanitarian law, Western; jihad (use of force); just war theory; law of war under Al-Siyar international travel and trade see cross-border travel and trade Isidore of Seville 104, 184 Islamic international law see Siyar (Islamic international law) Islamic jurisprudence (fiqh) 12, 14, 31, 68, 78 Awzai School see Al-awzai, Abd al-Rahman (founder of Awzai School) Hanafi School 5, 25, 40, 78, 80, 136 see also Abu-Hanifa, al-Nu’mān ibn Thābit (founder of Hanafi School) Maliki School 25–6, 80–81 see also Malik Shafi’i School 26, 78
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Shari’ah see Shari’ah Islamic law see Shari’ah ‘Islamic law of nations’ controversy 9–11 see also Siyar (Islamic international law) Islamic Law of Nations: Shaybani’s Siyar (Khadduri) 39–41, 42 istinqaad (humanitarian intervention) 133 Italy, Islamic intellectual legacy 63–4, 65, 270 Japanese model of Western engagement 10–11 Jewish law Judeo-Christian basis of Western international law 20–21, 268–9 on peace 217 on war 100 jihad (use of force) 13, 34, 176–8, 223–4 definition 86, 120–22 ‘war of words’ connotation 83 istinqaad (humanitarian intervention) 133 jus in bello see law of war under Al-Siyar, jus in bello musta’amanoon see ama’an (safe conduct), musta’amanoon (persons protected by ama’an) neutrality 153 peace as the objective of war 124–6, 127–8 secured with jiziyah (tribute or poll tax) 83, 133–4, 135, 137–8, 142, 148, 227–8, 236 readiness for war, need for 127–8 reprisal 156–7 ribat, relationship with 120, 128–9 self-defence 116, 131–2, 156, 174 sovereign authority 151, 152, 162, 177 threshold of injury justifying war 153–4 war for proselytism 133–42, 146–9, 271–2
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alternatives to war 83, 133–4, 135, 137, 138, 142, 148 forced conversion rejected 83, 113, 134, 138–9, 272 pious intent in fighting, need for 128, 149, 177–8 Shari’ah basis for 137, 140 Al-Shaybani’s and Abu-Hanifa’s views contrasted 133, 134, 136, 231, 271 Al-Shaybani’s and Vitoria’s views contrasted 135–6, 144 Al-Shaybani’s views explained 141–2, 146–8 war to punish sinners 164–5 see also law of war under Al-Siyar jiziyah (tribute or poll tax) to secure peace 83, 133–4, 135, 137–8, 142, 148, 227–8, 236 see also jihad (use of force); peace Johnson, James Turner 155–6, 170, 171, 175, 176 jus ad bellum see jihad (use of force); just war theory jus in bello Al-Shaybani’s views on see law of war under Al-Siyar, jus in bello Western jurisprudence see international humanitarian law, Western, jus in bello just war theory 52–3, 62–3 of ancient Greece 88, 99, 108, 154 biblical authority for war 20, 71, 76–7, 103, 104, 136, 142–3 conditions of a just war 105, 149, 157 humanitarian intervention 133 Islamic see jihad (use of force) modern era 155, 176–7, 191, 272–3 neutrality 153 peace as the objective of war 122–7, 218 see also peace of pre-Islamic Arabia 55, 108–10 reprisal 154, 156 Roman law 101–2, 108, 147, 148 self-defence 131–2, 151, 156, 157
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under Al-Siyar see jihad (use of force) sovereign authority 103–4, 149–51, 152–3, 157, 159, 162 war to punish non-believers and sinners 99, 102, 113–14 Aquinas 105–6, 124, 127, 138, 139–40 Augustine 103–4, 106, 116, 123, 124, 126–7, 142–3, 165 Gratian 104, 105–6, 123, 124, 126, 127, 143 Grotius 139, 143, 144, 146, 156, 159 Vitoria 63, 105, 135–6, 143–6 wars of conversion see wars of conversion Western jurists see Aquinas, St Thomas, just war theory; Augustine, St, just war theory; Gratian, just war theory; Grotius, Hugo, just war theory; Vitoria, Francisco de, just war theory see also international humanitarian law, Western; law of war under Al-Siyar Kelsay, John 96, 120, 160 Khadduri, Majid 8, 27, 35–6, 68, 250 Islamic Law of Nations: Shaybani’s Siyar 39–41, 42 kharaj (land tax) 202, 204, 210 Koran see Shari’ah, Holy Qura’an El-Kosheri 82, 223–4 Lammers, S.E. 175, 176 land, appropriation of see law of war under Al-Siyar, ghanimah (spoils of war); spoils of war, non-Islamic thought land tax (kharaj) 202, 204, 210 law of nations see international law law of war under Al-Siyar 34, 98–9, 110–12, 118–19, 276
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ghanimah (spoils of war) 180, 187, 190, 191–2, 193, 200, 203–4, 208–9 see also spoils of war, non-Islamic thought division of 213–14 earnings, treatment as 212 gifts, treatment as 211–12 land occupation 209–10 non-Muslims excluded from 121 prisoners see prisoners of war, under Al-Siyar property or chattels, appropriation 210–11 spoils obtained by prisoners abroad 212–13 jus ad bellum see jihad (use of force) jus in bello 115, 117–18, 160–61, 178 casualties, treatment of 117, 161, 173 child soldiers 168, 252 civilians, killing of 117, 160, 161, 162–4, 168, 169 flags, colour of 119 horses, use in war 119 laying siege 161 lying to the enemy 161, 172 military tactics harming civilians 164, 171, 172 mistaken killing, remedies for 173–4 travel and trade between warring states 170, 277 unnecessary suffering and punishment 164–5, 171 war crimes 173–4 just war theory see jihad (use of force) peace see peace prisoners of war see prisoners of war, under Al-Siyar ribat (safeguarding the borders of dar al-Islam) 120–21, 128–9 Al-Shaybani’s realist approach to 96, 147–8 soldiers, permission for combat 119
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Western international humanitarian law anticipated 22, 43, 62, 63–4, 65, 109, 214 see also international humanitarian law, Western; Siyar (Islamic international law) Leiden University Islamic manuscript collection 65–6 Leiden edition of Sharih Kitab Al-Siyar Al-Kabīr (edited by Al-Ameeli) 35, 36–8 see also Al-Siyar Al-Kabīr (Al-Shaybani) Malik 24, 25, 79, 80 Maliki School of Islamic jurisprudence 25–6, 78–81 Al-Muwatta (Malik) 24, 80 Maximus of Turin, St 183 mediation (sulih) 220, 227, 233, 244, 264–5 see also mowada’ah (peace treaties with non-Muslims); peace Montesquieu 50 mowada’ah (peace treaties with non-Muslims) 35, 216 cancellation or nullification 248–50 definition 243–5 guarantees under 246–8 interpretation rules 245–6 Al-Sarakhsi’s commentary on 230, 231, 247 Al-Shaybani’s and Abu-Hanifa’s views compared 231, 232, 233 see also law of war under Al-Siyar; peace; sulih (dispute settlement); treaties Muldoon, James 52, 95, 130, 139 Al-Munajjid’s edition of Sharih Kitab Al-Siyar Al-Kabīr (Cairo edition) 30, 31, 33–6, 37–8 see also Al-Siyar Al-Kabīr (Al-Shaybani) Muslim and non-Muslim relations see international relations, between Muslims and non-Muslims
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‘Muslim law of nations’ controversy 9–11 see also Siyar (Islamic international law) musta’amanoon see ama’an (safe conduct), musta’amanoon (persons protected by ama’an) Al-Muwatta (Malik) 24, 80 Neff, Stephen C. 107, 111–12, 116, 155, 221 negotiations to avoid war arbitration 220, 227, 233, 244, 264–5 diplomatic missions see diplomatic missions see also mowada’ah (peace treaties with non-Muslims); peace neutrality 153 see also jihad (use of force); just war theory non-combatants see civilians non-Muslim and Muslim relations see international relations, between Muslims and non-Muslims Nussbaum, Arthur 47, 100, 145, 182–3, 207, 214 O’Donovan, Oliver 13–14 On the Law of War and Peace (De Jure Belli ac Pacis) (Grotius) 2, 20, 66, 97, 150–51, 157, 217, 230, 266 Oppenheim, Lassa 1–2, 21, 108 Ottoman Empire 57 pacta sunt servanda principle 65, 196, 226, 234–5 see also treaties pacts see covenants; treaties peace ama’an see ama’an (safe conduct) ancient Chinese views on 100, 221–2 ancient Greek views on 217, 220, 221
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arbitration 220, 227, 233, 244, 264–5 Christian pacifism 71, 102–4, 218 defined as the absence of war 218–19, 228–9 diplomatic missions see diplomatic missions Grotius on see Grotius, Hugo, peace Islam, peace as tenet of 223–5 Islamic hostility to non-Islamic world refuted 81–90, 228 as the objective of war, under Al-Siyar 124–6, 127–8 see also jihad (use of force) secured with jiziyah (tribute or poll tax) 83, 133–4, 135, 137–8, 142, 148, 227–8, 236 as the objective of war, Western jurisprudence 122–7, 218 see also just war theory peace treaties see treaties, peace treaties pre-Islamic Arabia, views on 222–3 Roman views on see Roman international law, peace Al-Shaybani’s general writings on 96, 177, 216, 229, 232–3, 266, 276 see also international humanitarian law, Western; law of war under Al-Siyar Plato 99, 181, 221 plunder see law of war under Al-Siyar, ghanimah (spoils of war); spoils of war, non-Islamic thought poll tax (jiziyah) to secure peace 83, 133–4, 135, 137–8, 142, 148, 227–8, 236 see also peace prisoners of war, non-Islamic thought 182–3 civilian prisoners see also civilians killing of 184, 186, 188, 198, 199 women, rape and sexual slavery 183
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combatants, killing of 198–9, 201, 203 enslavement 183, 184–6, 205, 206 Aristotle’s views on 51, 59, 181, 205, 206 hostages 187, 198, 219, 247–8 prisoners of war, under Al-Siyar 34, 187–90, 192, 194–5, 215 agreements on prisoner protection 195–6, 202, 204 becoming subjects of the state 208 benevolent freeing of 188, 197, 206–7 capture of enemy settlements 202, 204, 208 civilian prisoners, killing of 188, 196, 199, 202 combatants, killing of 196–200, 201–3 enslavement 188, 189, 205 ‘distribution’ term preferred 203–4 mothers and children 204 Muslims exempted 205 slavery prohibited except for POWs 189–90 upper class prisoners 206 hostages 246–8 as musta’amanoon 247 see also ama’an (safe conduct), musta’amanoon (persons protected by ama’an) ransom 188, 197, 207–8 humane treatment 188 Muslim converts 203, 208, 247 Muslims in enemy hands 188, 208 see also law of war under Al-Siyar promises 65, 196, 226, 234–5, 252–3 see also covenants; treaties property, appropriation of see law of war under Al-Siyar, ghanimah (spoils of war); spoils of war, non-Islamic thought proselytism, war for see jihad (use of force), war for proselytism; just war theory, war to punish non-believers and sinners; wars of conversion
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punishment prisoners of war see prisoners of war, non-Islamic thought; prisoners of war, under Al-Siyar war as see just war theory, war to punish non-believers and sinners Qura’an, Holy see Shari’ah, Holy Qura’an reciprocity doctrine of Al-Siyar 8, 11, 59–60, 76, 202, 262, 275, 276 see also international relations, between Muslims and non-Muslims; Siyar (Islamic international law) religious conversion converts to Islam, prisoner status 203, 208, 247 forced conversion rejected in Western jurisprudence 136, 139, 272 rejected under Al-Siyar 83, 113, 134, 138–9, 272 wars of conversion see wars of conversion war as punishment see just war theory, war to punish non-believers and sinners war for proselytism see jihad (use of force), war for proselytism wars of conversion see wars of conversion ribat (safeguarding the borders of dar al-Islam) 120–21, 128–9 see also law of war under Al-Siyar Roman international law 51–2, 57, 59, 88–9 of Byzantium (Eastern Roman Empire) 53, 84, 107, 113, 184–5, 236 just war theory 101–2, 108, 147, 148 peace 217, 218–19, 221, 222 arbitration 220
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Cicero on 217–18, 221 pax Romana 82 tribute to secure peace 236 Seneca 98 spoils of war 181–2, 213 prisoners of war 184–5 safe conduct (ama’an) see ama’an (safe conduct) St Augustine see Augustine, St St Maximus of Turin 183 St Thomas Aquinas see Aquinas, St Thomas Al-Sarakhsi, Muhammad Ibn Ahmad 31 commentary on Al-Siyar Al-Kabīr see Al-Siyar Al-Kabīr (Al-Shaybani), Al-Sarakhsi’s commentary on self-defence, war in under Al-Siyar 116, 131–2, 156, 174 see also jihad (use of force) Western jurisprudence 131–2, 151, 156, 157 see also just war theory Seneca 98 Al-Shafi’i (Imam Al-Shafi’i) 26, 91 Al-Sharawi, Muhammad Mutwali 189 Shari’ah 7, 61, 68 Holy Qura’an 7, 70–71, 72, 111 on equality of mankind 224 on fighting non-Muslims 137, 140 on prisoners of war 197 on readiness for war 127 ijma’a (consensus of opinion) 68, 73–4 qiyas (analogy) 73, 74 as source of Siyar hierarchy of sources 69–70, 72–3 sourcing principles 68–9 Sunnah 71–3 Al-Shaybani, Muḥammad ibn al-Ḥasan biography 24–7, 79
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eminence as international jurist, views on 24, 29, 42, 43 Islam, view of 141–2 methodology and reasoning style see Al-Siyar Al-Kabīr (Al-Shaybani), methodology and reasoning sources see Siyar (Islamic international law), sources Western jurists, compared with see under Aquinas, St Thomas; Augustine, St; Gratian; Grotius, Hugo; Vitoria, Francisco de works Al-Muwatta (Malik), version of 24 Al-Siyar Al-Kabīr see Al-Siyar Al-Kabīr (Al-Shaybani) Al-Siyar Al-Saghir (Shorter Book of International Law) 27–8, 42–3, 160–61, 162 writing style 26, 68 sinners, war to punish under Al-Siyar 164–5 see also jihad (use of force) non-Islamic thought see just war theory, war to punish non-believers and sinners Siyar (Islamic international law) concept 6–16, 18–20 critiques of 10–13, 81–2 as customary international law 21–2 as divinely based law 7, 8, 11, 12, 16–17, 20, 57 see also Shari’ah, as source of Siyar doctrines ama’an see ama’an (safe conduct) jihad see jihad (use of force) non-Muslims, relations with see international relations, between Muslims and non-Muslims peace see peace reciprocity 8, 11, 59–60, 76, 202, 262, 275, 276
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sulih (dispute settlement) 220, 227, 233, 244, 264–5 see also mowada’ah (peace treaties with non-Muslims) on treaties see treaties unity of human race 275, 276 early scholars of 5–6 forced conversion rejected 83, 113, 134, 138–9, 272 see also religious conversion; wars of conversion importance of 16–23, 268 individual application of 19–20, 93, 276 international law character, controversy 7–11, 15 ‘Islamic law of nations’ controversy 9–11 neglect by Western jurists 1–2, 62, 267, 274 origins 4–5 rationality of 11 recognition of 17–18 Al-Siyar Al-Kabīr see Al-Siyar Al-Kabīr (Al-Shaybani) sources ancient Greek 50–51, 52, 59 see also Greece, ancient customary law 75–6, 275 non-Islamic sources generally 56–60, 75 pre-Islamic Arabian 53–6, 59, 108–10, 269 Roman 51–2, 57, 59, 88–9, 269 see also Roman international law Shari’ah see Shari’ah, as source of Siyar taxation jiziyah (tribute or poll tax) 83, 133–4, 135, 137–8, 142, 148, 227–8, 236 kharaj (land tax) 202, 204, 209 war conduct of see law of war under Al-Siyar justification of see jihad (use of force)
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Western international law see also international law, Western comparison with 18–21 influence on 22, 43, 60–68, 270 Al-Siyar Al-Kabīr (Al-Shaybani) 5, 24 background to 28 editions 32–3, 269 Cairo edition (edited by Al-Munajjid) 30, 31, 33–6, 37–8 Leiden edition (edited by Al-Ameeli) 35, 36–8 English language studies of 39 Islamic Law of Nations: Shaybani’s Siyar (Khadduri) 39–41, 42 influence on Western international law 22, 43, 60–68, 270 method of analysing Islamic historical sources, treatment of 44–5, 49 sources, non-Islamic see Siyar (Islamic international law), sources translations and citations 47–8 methodology and reasoning 26, 68, 90–97 casuistic method 6, 90, 275 Hanafi and Maliki School influences 90 Al-Sarakhsi’s commentary on (ie: Sharih Kitab Al-Siyar Al-Kabīr) 30–32, 37, 40–41, 137, 154, 196, 210 on diplomatic missions 257 distinguished from Al-Shaybani’s text 40, 125–6, 129 editions 32–3, 269 Cairo edition (edited by Al-Munajjid) 30, 31, 33–6, 37–8 Leiden edition (edited by Al-Ameeli) 35, 36–8 juristic value 32, 35 on mowada’ah (peace treaties with non-Muslims) 35, 216, 230–33, 243–5, 247, 249
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Islamic international law
themes see Siyar (Islamic international law), doctrines slavery see prisoners of war, non-Islamic thought, enslavement; prisoners of war, under Al-Siyar, enslavement Spain, Islamic intellectual legacy 60–61, 63–4, 65, 67, 270 spoils of war, non-Islamic thought ancient Greece 88, 181 modern era 191 pre-Islamic Arabia 187 prisoners of war see prisoners of war, non-Islamic thought Roman law 181–2, 213 Western jurisprudence 158, 182–4, 192–4, 214–15, 256 see also law of war under Al-Siyar, ghanimah (spoils of war) Stumpf, Christoph A. 20–21 sulih (dispute settlement) 220, 227, 233, 244, 264–5 see also mowada’ah (peace treaties with non-Muslims); peace Sunnah 71–3 see also Shari’ah taxation, Islamic see Siyar (Islamic international law), taxation Al-thawri, Sufyan 134, 137, 140 travel and trade, cross-border see cross-border travel and trade treaties pacta sunt servanda 65, 196, 226, 234–5 peace treaties 50, 107, 217, 219–20, 230, 233 see also peace as bar to war under Al-Siyar 133, 134, 136, 225–6 cease fire agreements 228 dhimmi agreements 4, 208, 209, 227 guarantees under 246–8 mowada’ah see mowada’ah (peace treaties with non-Muslims)
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in pre-Islamic Arabia 54, 222–3 under Al-Siyar 266, 276, 277 breach, consequences of 243 flexibility in negotiations 235 fulfilment of promises 65, 196, 226, 234 Grotius’s and Al-Shaybani’s views compared see Grotius, Hugo, treaties implementation 237–8 interpretation rules 240–41, 245–6 limited application of 239–40 period of treaty 242 ratification 236–7 reinstating original situation 242 status 140, 196, 225–6, 233 termination 241–2 terms breaching domestic rules 239 terms breaching jus cogent norms 236, 238 written treaties 235–6 see also covenants; international law; Siyar (Islamic international law) tribute (jiziyah) to secure peace 83, 133–4, 135, 137–8, 142, 148, 227–8, 236 see also peace Tuck, Richard 157, 158–9 Vitoria, Francisco de 46–7, 67, 96–7, 274 biblical authority, use of 71, 76–7, 136 foreigners Christian and non-Christian relations 89–90 rights of 255–6 Islamic scholarship, influence on 2, 62, 64, 270 jus in bello 176 civilians, killing of 168–9, 170, 172 defensive force, response to 166–7
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Index
just war theory 106–7, 129–30, 178–9 defence of religious freedom/proselytism 63, 105, 135–6, 143–6, 271–2 forced conversion rejected 136, 272 humanitarian intervention 133 neutrality 153 peace as the objective of war 124 self-defence 132 sovereign authority 150, 152 war to punish sinners 165–6 peace 124, 230, 266 Al-Shaybani compared with 29, 71, 73, 76–7, 95, 269, 271 acceptance of alternative legal systems 89–90 individual application of international law 93–4 just war theories see jihad (use of force); Vitoria, Francisco de, just war theory reasoning style 65 use of divine authority 71, 76–7 spoils of war 158, 192, 193–4, 214–15 land occupation 256 prisoners of war 198–9, 203, 204–5 Vollenhoven, Cornelius van 97, 229, 230 al-Wafā, Abū 3, 24, 33, 39 on arbitration 264–5 on dar al-harb and dar al-Islam division 81–9, 210
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on humanitarian intervention 133 on Al-Shaybani’s eminence as jurist 24, 42 on sourcing principles of Al-Siyar 68–9 on treaties 234, 238, 239 Walker, Thomas A. 116–17 war, under Al-Siyar see law of war under Al-Siyar wars of conversion under Al-Siyar 83, 113, 134, 138–9 Crusades 60, 100, 142 Western jurisprudence 105, 106, 108, 113, 124, 138 rejected 136, 139 Weeramantry, Christopher G. 2, 12, 22, 43, 64, 82, 190 Wells, H.G. 141 Western international law see international law, Western Wheaton, Henry 2–3 women ama’an, right to grant 250, 252 see also ama’an (safe conduct) killing of see civilians, killing of mother and child slaves 204 rape and sexual slavery 183 see also children; civilians wrongdoers, war to punish under Al-Siyar 164–5 see also jihad (use of force) non-Islamic thought see just war theory, war to punish non-believers and sinners Al-Zuhili, Wahbeh 112–13
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Job: Bashir-Islamic_international_law
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Division: Index
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Date: 5/9