The Islamic law of qital

The Prophet Muhammad was born in AD 570 in Mecca. At around the age of forty, in AD 611, he started receiving revelations regarding different spiritual and temporal issues of his time. The process of revelation came to an end with his death in AD 632. All the revelations were compiled during the reign of the Third Caliph, Uthman (AD 656) (Leaman 2008: 30) in the form of the Koran. After the first revelation in Mecca (AD 611), the Prophet Muhammad started the propagation of his new religion: Islam. The Prophet Muhammad’s own tribe, the Quraysh, strongly opposed his mission and started the persecution of the small number of converts to Islam. Their persecution compelled Prophet Muhammad to advise these Muslims to migrate to Abyssinia (Ishaq 2007: 146; Tabari 2003: 101). In AD 622, the persecution of Muslims, including the Prophet Muhammad, became unbearable, so he, along with other Muslims, migrated to Medina – known as Yathrib at that time – after consultation with and receiving a guarantee of protection from the Muslims of Medina (Tabari 2003: 126). In Medina, the Prophet Muhammad concluded pacts of peaceful coexistence with local Muslims and Jewish tribes (Hamidullah 1994). The most important pact was the Charter of Islamic Alliance (Mubarakpuri 2002: 174). The first part contained the rights and duties of the Meccan refugees (muhajirun) and local Muslims who were called helpers (ansar). The second part contained the rights and duties of the Jewish tribes (see Ishaq 2007: 231). This was the beginning of founding a Muslim community, i.e. the first Muslim city-state. In AD 622, Arab society was divided into tribes and engaged in tribal wars.

Wars were common features of Arab political existence. There was no unified legal system. Individuals owed their allegiance to the tribal head and the interests of the tribe were supreme (Smith 1903). The tribe as a group was responsible for the survival of its members and interests (Leaman 2008: 43; Rahim 2006). By necessity, tribes were forced to enter into alliances with other tribes either by means of intertribal marriages or by political covenants (Watt 2006). Might was right and a small incident could spark a violent tribal conflict (Hitti 1961). ‘In [Arab] society, war … was in one sense a normal way of life; that is, a “state of war” was assumed to exist between one’s tribe and all others, unless a particular treaty or agreement had been reached

with another tribe establishing amicable relations’ (Donner 1991). Islam emerged and had to survive in these circumstances and fighting, sometimes pre-emptively, sometimes defensively, was understood to be the only way to do so (Jackson 2002). As was the Arab tradition, the Prophet Muhammad concluded pacts with the neighbouring tribes of Medina. Outside the Arab peninsula, two empires – Byzantine and Sassanian – were vying for the control of those regions that were militarily or commercially important (Ali 1989: 1025-32; Leaman 2008: 43). Islam was spreading very rapidly in different Arab regions, which caused alarm among the Arab tribes and other powers in the region and beyond, who started to struggle to retain their spheres of influence. The emergence of Islam as a third power specifically worried the Byzantine and Sassanian empires (Ali 1989: 1025-32; Mawdudi 1994: 175-86). It was in these political conditions that the Prophet Muhammad fought different wars first locally and, after consolidating his position in Medina, with neighbouring tribes and rulers. The Prophet Muhammad did not participate in each war himself. In

many cases, he appointed a commander for a specific expedition/battle. This kind of expedition is called suriya (pl. suraya). Suriya is an Arabic word which literally means ‘a detachment or a group of soldiers’. As the Prophet Muhammad did not participate in suraya, he would give specific instructions how to conduct a particular suriya. The number of suraya was about thirty-five (Tabari 2003: 115-17). A military expedition which the Prophet Muhammad led himself was called a ghazwa (pl. ghazwat). The total number of ghazwat was about twenty-seven (Bukhari 2008: 38, 47). Some Muslim scholars, however, do not distinguish between suriya and ghazwa (Bukhari 2008: 489) and therefore provide a different number of ghazwat. Some of these military expeditions ended without qital (actual combat) whereas in others qital took place. Military expeditions in which qital took place are not many, but the way in which these combats were conducted is very significant for the Islamic law of qital. The Islamic rules of qital originated as a result of the real wars the Prophet

Muhammad fought during his time in Medina in AD 622-32. Many issues arose during these wars. These issues were addressed by a specific revelation or a decision by the Prophet Muhammad. This is why there are two primary sources of the Islamic law of qital: the Koran and the war practices of the Prophet Muhammad. The Koranic revelations were issue-specific, piecemeal and pragmatic. Hence, the body of rules governing the conduct of war evolved gradually. The Koranic rules and the practices of the Prophet Muhammad are closely knitted and can be better understood when examined together. As discussed in Chapter 1, not every verse of the Koran or every rule of the Prophetic Sunnah is of a binding nature. The rules contained in the Koran and the Sunnah are studied in five categories: obligatory, prohibited, recommended, approved and disliked. Rules falling in the first two categories have binding effect and are on a par with the positive law of a Muslim state. Practices of the first four caliphs are not binding in nature but reflect their

first-hand understanding of the Koran and the Sunnah and are rightly held in high regard. These practices also reflect custom and good practices of their age. The views of jurists such as Abu Hanifa and Shaybani are not binding in nature but carry the weight of views of eminent jurists and are followed by a large number of Muslims. The purpose of this chapter is to examine the primary sources of Islamic

law with a view to seeing whether Islamic law has the concept of armed conflict and, if it has, are there any rules to govern it. Our main argument is that Islamic law has the concept of armed conflict and an internal armed conflict. It also provides a very humane set of rules to govern armed conflicts. These rules can be gleaned from the verses of Koran and the war practices of the Prophet Muhammad. These rules, however, do not cover every aspect of modern armed conflicts. Therefore, it is proposed that Muslim states should and can develop a code for governing the conduct of qital. Some of the verses of the Koran (9:5) such as ‘slay [the pagans] wherever

you find them’ are examined in detail to see why they have caused controversy among the Muslim jurists. How have they got into the hands of Muslim armed groups justifying armed struggle? The Koran contains numerous verses covering different aspects of jihad: when to start fighting, exhorting Muslims to fight, rewards for those who die during fighting (‘martyrs’) and punishment for those who refuse to fight when it is necessary to fight (‘hypocrites’). All these aspects of jihad are not within the remit of this chapter as we have discussed them elsewhere (see Shah 2008: 13) and briefly in Chapter 1. Here it is sufficient to say that the physical or jihad by the sword is called qital and falls in the second category of jihad known as lesser jihad. It is the rules of qital or the jus in bello which are the focus of this chapter. The chapter is divided into seven sections. The first section deals with the

basic principles and the second section with the general principles of qital. The third section focuses on the less-developed areas of air and naval warfare, the fourth on the law of extradition, the fifth on armistice, the sixth on occupation and the final section on neutrality.