Det korte svar er nej og det længere både ja og nej, men det ligger fast at hellige krige (jihad) ikke er en religiøs forpligtelse for muslimer – tværtimod påbyder Koranen mild behandling af fjender og udbredt hensyntagen til deres kår som besejrede.
DUBAI, 24 April 2014 (IRIN) : With the majority of today’s conflicts taking place in Muslim countries or involving Muslim combatants, aid agencies are operating – arguably more than ever before – in situations where Islamic norms govern the terrain in which they work.
Islamic law contains a rich but complex set of rules on the protection of civilians. But can that centuries-old canon be reconciled with modern international humanitarian norms?
In a series of reports IRIN explore the tension (and overlap) between Islamic jurisprudence (retsfilosofi) and international humanitarian law: we report on how jihadists are interpreting Islamic edicts , and how humanitarians are using those same principles to further access.
Do humanitarian norms exist in Islamic law?
As one expert of international humanitarian law (IHL) and Islamic law put it: “Islam has always handcuffed its fighters’ hands.”
What are the sources of Islamic law?
The primary sources of Islamic law are the holy book, the Koran ; the teachings and practices of Prophet Muhammad, the Sunnah; and the military conduct of the Caliphs and military commanders of the time.
However, at times, these sources can be seen to contradict (modsige) each other. As such, “Islamic law is a jurist’s law,” says Andrew March, associate professor of Islamic law at Yale University, noting: “It is determined by scholars.”
Scholars (skriftkloge) have translated these sources into a legal system through two recognized methods – Ijma Ulama, the unanimous consensus of scholars, and qiyas, analogical or deductive reasoning – which have themselves become sources of law.
Islamic law is also shaped by commentaries and rulings, known as fatwas, by Muslim scholars.
Jurists developed the Islamic law of nations – known as the siyar – to regulate the conduct with non-Muslim states during the rise of Islam.
Not doing more harm than necessary
This is the basis of the rules of war, which were first codified (samlet /ordnet) by Muslim jurist Mohammad Ibn al-Hassan al-Shaybani in the eight century AD.
Islamic norms emphasize restraint (tilbageholdenhed) and stress the importance of not doing more harm than is necessary to accomplish the goal at hand.
“While according sanction to fighting in self-defence…[the Koran] enjoins (påbyder) concurrently, humanitarian rules of warfare to mitigate (lindre) the human suffering it inflicts,” writes former Pakistani Foreign Minister Agha Shahi in his book The Role of Islam in Contemporary International Relations.
“Fight in the way of Allah with those who fight with you, and do not exceed the limits,” says the Muslim holy book, the Koran, “surely Allah (God) does not love those who exceed the limits.”
Much like in IHL, “Muslim jurists balanced practical interests against various imperatives,” writes Khaled Abou El Fadl, a professor of Islamic jurisprudence at the University of California, Los Angeles (UCLA), adding:
“Muslim juristic discourses (stridsmål) were neither purely functional nor moralistic. Even more, they were far from dogmatic or essentialist in nature.”
Famous decree: “Stop O people”
The actions and statements of the Prophet Muhammad and of the early Caliphs of Islam point to strong humanitarian considerations.
In a famous decree, Abu Bakr al-Siddiq, the first Caliph, told his military commander: “Stop, O people, that I may give you ten rules for guidance on the battlefield. Do not commit treachery or deviate from the right path”.
“You must not mutilate (lemlæste) dead bodies; do not kill a woman, a child, or an aged man; do not cut down fruitful trees; do not destroy inhabited areas; do not slaughter any of the enemies’ sheep, cow or camel except for food; do not burn date palms, nor inundate (oversvømme) them; do not embezzle (økonomisk svig) (e.g. no misappropriation of booty (rov) or spoils of war) nor be guilty of cowardliness…You are likely to pass by people who have devoted their lives to monastic services (munkeliv); leave them alone.”
More than a millennium before the codification of the Geneva Conventions, most of the fundamental categories of protection which the Conventions offer could be found, in a basic form, in Islamic teachings.
According to Islamic tradition, Muslim rulers have the right and even obligation to suspend the law in the interest of justice.
In addition, the evidentiary standards (bevisbyrden) of many Islamic laws are so high that they should, in principle, rarely be implemented.
Still, for Mohammad Fadel, associate professor of law at the University of Toronto, tension sometimes exists between morality and legality.
In other words, between “religious values – which tend to be on the more humanitarian side and that’s reflected in popular Muslim discourse – and technical, juridical discourse – which tends to be a lot more abstract and a lot more concerned with philosophical problems.”
Is Islamic law reconcilable with International Humanitarian Law (IHL)?
It depends on who you speak to.
Many scholars, especially those with a contemporary view (nutidigt syn) of Islamic law, see in early Islamic rules of war many roots of modern IHL.
“By affirming the principle of humanity in the midst of war, al-Shaybani and [Imam] al-Awza’I helped pioneer the modern law of armed conflict,” writes the International Committee of the Red Cross, mandated by the Geneva Conventions as the guardian of IHL, referring to early codifiers of Islamic rules of war.
The limits placed on Muslims in the conduct of war “gives to jihad [ holy struggle or war ] an ideological-cum-ethical dimension that is obviously missing from the pre-Islamic practice of war,” writes Kanina Bennoune in the Michigan Journal of International Law, adding:
“More than a millennium before the codification of the Geneva Conventions, most of the fundamental categories of protection which the Conventions offer could be found, in a basic form, in Islamic teachings.”
Go far beyond humanitarian law
In fact, many of the restrictions placed on combatants by Islamic law go far beyond what is required by IHL, especially in the arena of non-international armed conflict.
When Human Rights Watch organized meetings with civil society leaders in the Muslim world to discuss the protection of civilians, “we were not encountering arguments that Islamic law had different standards,” says Joe Stork, deputy director of the Middle East and North Africa division.
“If anything, people would stress the congruence (overensstemmelse) of IHL and Islamic law, and perhaps even overstate that congruence”, notes he.
One of the basic tenets of Islamic law is that treaties must be respected. As such, some scholars argue that combatants in Muslim countries are religiously bound by the Geneva Conventions signed by their governments.
Mainstream Muslim theologians and authorities, including al-Azhar, Saudi Arabia, Iran and Pakistan, all accept the principle of Muslim states and sovereign authorities signing international agreements.
However, neo-classical Muslim scholars – now the minority – who interpret Islam to be fundamentally at war with the non-Muslim world, see Islamic law and international law as inherently irreconcilable (uforenelige).
When is the use of force permissible under Islamic law?
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