War and Law in the Islamic World Brill’s Arab and Islamic Laws Series Edited by Dr. Khaled Abou El Fadl University of California, Los Angeles, School of Law VOLUME 8 The titles published in this series are listed at brill.com/bail War and Law in the Islamic World By Matthias Vanhullebusch LEIDEN | BOSTON This is an open access title distributed under the terms of the prevailing CC-BY-NC License at the time of publication, which permits any non-commercial use, distribution, and reproduction in any medium, provided the original author(s) and source are credited. An electronic version of this book is freely available, thanks to the support of libraries working with Knowledge Unlatched. More information about the initiative can be found at www.knowledgeunlatched.org. Library of Congress Cataloging-in-Publication Data Vanhullebusch, Matthias, author. War and Law in the Islamic World / By Matthias Vanhullebusch. pages cm — (Brill’s Arab and Islamic laws Series) Based on author’s thesis (doctoral) – School of Oriental and African Studies, University of London, 2011 Includes bibliographical references and index. ISBN 978-90-04-29825-5 (hardback : alk. paper) — ISBN 978-90-04-29824-8 (e-book) 1. War (Islamic law) I. Title. KBP2416.V36 2015 341.60917’67—dc23 2015015430 issn 1871-2894 isbn 978-90-04-29825-5 (hardback) isbn 978-90-04-29824-8 (e-book) Copyright 2015 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper. To my grandfather Lucien D’hondt ∵ To arms he rushes at all times and in all places; no bounds to his fury, no end to his destructive vengeance. Together they engage, nation with nation, city with city, king with king; and to gratify the folly or greedy ambition of two poor puny mortals, who shortly shall die by nature, like insects of a summer’s day— all human affairs are disarranged, and whirled in confusion. I will pass over the sad tragedy of war, acted on the bloody stage of the world in times long past. Desiderius Erasmus, Querela Pacis (1521) ∵ Contents Foreword xi Preface xiii Acknowledgements xiv Table of Legal Materials and Cases xvi Introduction 1 PART i Positivist Analysis of the Principles of Protection in Warfare I Principles of Protection in Warfare under Islamic Law of War 17 1.1 Introduction 17 1.2 Territorial and Temporal Jurisdiction 18 1.2.1 On War and Peace 18 1.2.2 During External Warfare 24 1.2.3 During Internal Warfare 30 1.3 The Principle of Distinction 33 1.3.1 On Discrimination 33 1.3.2 In External Warfare 35 1.3.3 In Internal Warfare 36 1.4 The Principle of Proportionality 38 1.4.1 On Means and Methods of War 38 1.4.2 During External Warfare 41 1.4.3 During Internal Warfare 42 1.5 Conclusion 43 II Principles of Protection in Warfare under International Humanitarian Law 45 2.1 Introduction 45 2.2 Territorial and Temporal Jurisdiction 47 2.2.1 On the Fragmentation of International (Humanitarian) Law 47 2.2.2 International Armed Conflicts 51 2.2.3 Non-International Armed Conflicts 54 viii contents 2.3 The Principle of Distinction 57 2.3.1 On Status and Privileges 57 2.3.2 International Armed Conflicts 62 2.3.3 Non-International Armed Conflicts 65 2.4 The Principle of Proportionality 67 2.4.1 On Humanity and Necessity 67 2.4.2 International Armed Conflicts 70 2.4.3 Non-International Armed Conflicts 72 2.5 Conclusion 73 PART ii Historical Analysis of the Self and the Other III The “Western” Self and the Other 77 3.1 Introduction 77 3.2 From Christianity to Colonialism 78 3.2.1 Religious Conscience versus Rationalism 78 3.2.2 Nationalism and Orientalism 83 3.2.3 The Standard of Civilisation 87 3.3 Capitalism versus Communism 92 3.3.1 Imperialism 92 3.3.2 Liberalism 94 3.3.3 Humanitarianism 96 3.4 From Decolonisation to Globalisation 98 3.4.1 Self-Determination versus Sovereignty 98 3.4.2 Professionalism versus Anarchy 100 3.4.3 Moralism versus Terrorism 102 3.5 Conclusion 104 IV The “Islamic” Self and the Other 107 4.1 Introduction 107 4.2 From the Period of Revelation to Western Colonisation 108 4.2.1 The Early Path to Justice 108 4.2.2 The Imperial Venture 113 4.2.3 The Western Colonisation 118 contents ix 4.3 From Sovereignty to Emancipation 120 4.3.1 Nationalism 120 4.3.2 Modernism 122 4.3.3 Revivalism 124 4.4 From Decadence to Devotion 126 4.4.1 Rebellious Fundamentalism 126 4.4.2 Local Secessionism 130 4.4.3 Global Terrorism 132 4.5 Conclusion 134 PART iii Toward a Naturalist Legal Analysis of the Laws of War V The Structure of the Legal Arguments in Islamic Law of War 139 5.1 Introduction 139 5.2 Jurisdiction and Distinction 140 5.2.1 Authority in Warfare 140 5.2.2 On Jurisdiction 147 5.2.3 On Distinction 154 5.3 Necessity and Proportionality 156 5.3.1 Actions of Warfare 156 5.3.2 On Necessity 158 5.3.3 On Proportionality 160 5.4 Back to Tradition 162 5.4.1 Confronting the Evil 162 5.4.2 Fighting the Inner Jihad 166 5.4.3 Respecting God’s Creation 170 5.5 Conclusion 173 VI The Structure of the Legal Arguments in International Humanitarian Law 175 6.1 Introduction 175 6.2 Jurisdiction and Distinction 176 6.2.1 Agency in Warfare 176 6.2.2 On Jurisdiction 181 6.2.3 On Distinction 189 x contents 6.3 Necessity and Proportionality 192 6.3.1 Actions of Warfare 192 6.3.2 On Necessity 195 6.3.3 On Proportionality 198 6.4 Towards Progress 201 6.4.1 Facing Human Selfishness 201 6.4.2 Awakening the Human(itarian) Conscience 205 6.4.3 Surviving Humanity 209 6.5 Conclusion 211 Conclusion 213 1 On Identity, Knowledge, and Morality 213 2 On War, Division, and Conscience 217 3 On Unity, Protection, and Life 222 Bibliography 227 Author Index 263 Subject Index 271 Foreword Dr Matthias Vanhullebusch has produced an impressive study examining a subject that retains considerable contemporary value and interest. This book—initially produced as a doctoral thesis for the School of Oriental and African Studies, University of London—engages with the issues of identity, power and change with reference to the interpretation and application of international humanitarian law and the Islamic humanitarian laws. The study examines the genesis and the development of the two distinct systems in their efforts to regulate conflicts and violence and in so doing explores critical areas of contradictions and complexities. This book is divided into three substantive parts with each part presenting a comparative survey of the various strands of jurisprudence within Western and Islamic traditions on the laws of war. Chapter I examines the principles of protection as provided within siyar and Islamic laws of war. A similar exercise is conducted as regards the principles emerging from international humani- tarian law in Chapter II. Part II of the book (consisting of Chapters III and IV) provides a highly engaging survey of the divergent yet interrelated progres- sion of the “Western” and “Islamic” civilizations respectively. Part III, which represents chapters V and VI, tests the tenacity of the two systems from the prism of jurisdictional issues as well as through approaches towards conten- tious aspects of the laws of war including proportionality and military neces- sity. The study concludes with a number of thought-provoking though highly significant reflections on the subject. There are many virtues of this research: authoritative in its approach and substantiated through a detailed reading and understanding of the subject, the arguments in this book are carefully constructed. The writing style is crisp and fluent which undoubtedly facilitates the exposition of complexities inher- ent in the debate surrounding the interpretation and application of Islamic laws of war as well as international humanitarian law. Probably the most admirable quality of the work is that amidst tensions of identity, power and change prevalent in the competing systems of both the Islamic laws of war and international humanitarian law, it takes forward a message of reconcilia- tion, rapprochement and mutual coexistence. It is this approach of advocacy for humanitarianism and humanity, which presents the reader with the most profound and positive message. As Vanhullebusch notes the “[s]tudy asserts that there is also another reality beyond the text as well, namely the world as such in which human beings live. This world necessarily can never be fully cap- tured or represented by the text though it can control the knowledge of how xii foreword one looks at this world, namely in conflictual terms. In this way, it is possible to transcend the divisions which the texts have produced and which have started to live their own violent realities within this human world.” (Conclusions) With such maturity of analysis and originality of arguments, Dr Matthias Vanhullebusch has produced an excellent study.