International Humanitarian Law from the Perspective of Islam (Book)
- abstract
International humanitarian law from the perspective of Islam (in persian: حقوق بشردوستانه بینالمللی از منظر اسلام, is a Persian book authored by Abāsalī ʿAmīd Zanjānī, a Shia mujtihid and legal scholar. This work examines Islamic human rights in the context of war and peace. According to the author, Islam prioritizes peace, yet recognizes three forms of jihad as legitimate—defensive war, liberating war, and war for supporting the oppressed—while upholding human dignity and justice. The underlying philosophy of jihad is peace and the establishment of a monotheistic society; that is why the principle of human dignity is inviolable, regardless of the context of war and jihad, applicable to both combatants and non-combatants (captives).
The management and command of warfare are integral to the role of Imamate (leadership), and obedience to this authority is a duty. In Islam, international agreements are legitimate based on the Quranic verse and the principle of commitment to contracts, and adherence to them is essential. In international disputes, the principle of arbitration and peaceful resolution of conflicts is applicable, and the Islamic state must prioritize peaceful and just resolutions to international disagreements in accordance with the interests and welfare of the Islamic community. Islam's perspective is founded on global solidarity and human compassion, based on the principles of goodness and piety, which can only be realized through the enhancement of awareness, deepening of faith, and moral integrity. In Islamic jurisprudence, the principle of distinction between combatants and non-combatants is recognized to protect civilians (such as children and women), and the rights of captured or injured soldiers, regardless of their beliefs or affiliations, are also acknowledged. Ceasefire agreements or peace treaties, such as amnesty and ransom, reflect the priority of peace in Islam.
Book structure
"International humanitarian law from the perspective of Islam" is authored by Abāsalī ʿAmīd Zanjānī, a legal scholar, mujtihid, and professor at the University of Tehran, in collaboration with four other writers. The publication was released by the University of Tehran in partnership with the International Committee of the Red Cross and the Center for International Studies in 2011.
Authored by Amid Zanjani, the book consists of a lengthy introduction followed by four chapters. The introduction discusses 35 topics related to Islamic human rights, particularly in relation to war, jihad, and peace in Islam (pp. 2-24). The first chapter focuses on Islam's perspectives and practices regarding the principles of international relations and law, analyzing five fundamental principles: human dignity, sovereignty, cooperation (the principle of necessity in contracts), peaceful dispute resolution, and global human solidarity (pp. 25-86). Islam's stance on war and conflict (pp. 87-124), the ethical treatment of military and civilian individuals (pp. 125-148), and the resolution of conflicts in the context of Islamic and international law (pp. 149-184) are the titles and topics covered in chapters two to four of the book.
The author
Amid Zanjani (1937 - 2011) the author of the book, was a mujtihid, university professor, and political science researcher. He studied in the religious seminaries of Qom and Najaf under prominent scholars such as Seyyed Hossein Burujerdi, Seyyed Ruhollah Khomeini, Seyyed Abul-Qasem Khoei, and Seyyed Mohsen hakim. The ten-volume series on political jurisprudence, is his well-known work in political jurisprudence, which has been reprinted multiple times. He also had experience in the political arena, having served as a representative in the Islamic Consultative Assembly and the Assembly of Experts.
Introductory topics
Avoid transforming legitimate defence into an invasion of the enemy's territory
The legitimacy of jihad is one of the 36 topics addressed in the introduction of the book. According toʿAmīd Zanjānī , the Quran, which serves as the primary source of laws and regulations regarding war and jihad in Islam, recognizes armed actions and military jihad as legitimate in three instances: 1- defensive jihad, 2- military support for the oppressed and victims of aggression, 3- liberating jihad (pp. 7-8). In discussing the general rules of jihad, he highlights eight principles that Islamic jurists emphasize regarding the prevention and conclusion of war: 1- respect for human dignity, 2- avoidance of turning defence into aggression against the enemy's territory, 3- striving for scientific, cultural, and humanitarian achievements, 4- transforming violence into brotherhood and aggression into coexistence, 5- calling for an end to war, 6- adherence to the principle and strategy of armed peace, 7- observance of the principle of deterrence at all stages of hostile operations, 8- employing minimal retaliation (p. 10).
Military management is a responsibility of Imamate
concerning leadership and jihad management, the author of the book highlights public order as a core principle accepted in Islamic jurisprudence, stressing that military leadership and management are among the responsibilities of imamate (p. 12). He has derived fifty characteristics of righteous military commanders from a collection of Quranic verses and traditions, which are detailed in the sixth volume of the ten-volume series 'Political Jurisprudence' (p. 12). Furthermore, based on the authoritative nature of military command, it is an essential obligation for combatants to obey their military leaders during jihad (p. 13). The prohibition of conducting raids, the legitimacy of captivity (p. 14), the rights of enemy prisoners and wounded soldiers, and their fate (pp. 15-17), the legitimacy of seizing enemy property, its various forms, and the laws governing the distribution of spoils (pp. 18-21), as well as the three possible outcomes of war: victory, defeat, and contractual cessation (p. 22), are additional general topics related to jihad and Islamic human rights issues that are briefly examined in the introduction of this book.
Human dignity can never be denied
Human dignity is a fundamental principle of human rights, and other humanitarian principles and rights, such as the prohibition of harm to physical and mental integrity, violence, hostage-taking, and insults to human dignity, are based on this principle. The author of the book elucidates the principle of human dignity in Islam, identifying piety as the core of dignity according to the Quran (p. 26). In his view, the philosophy of human dignity from a religious perspective is rooted in the belief that humans are beloved by God and a manifestation of God's spirit, and thus, they are appointed as His vicegerents on Earth, deserving of respect and honour (p. 26).
Amid Zanjani has also brought forth a controversial discussion on whether human dignity is a God-given right or a divine blessing. He concludes that the right to human dignity is fundamentally different from other rights and cannot be denied under any conditions; even after death, an individual's body is to be honoured and is associated with particular ceremonies (p. 26). Moreover, the right to human dignity entails obligations for others and extends into the political and social spheres, linking it to authority and governance (p. 27). The author continues to discuss the various types, foundations, core principles, and protectors of human dignity (pp. 28-31).
The legitimacy of international contracts and the principle of necessity
Following a discussion on the principle of sovereignty and its features in the second section of the first chapter (pp. 32-38), the author addresses the principle of international cooperation in the third section, detailing eighteen distinct subjects related to this principle (pp. 42-61). A considerable portion of this discourse focuses on international contracts and treaties. Among the most significant topics in the book are the definitions of contracts and agreements, the distinctions between them, the foundational principles for the formation of international contracts in Islam, the validity of international contracts, the various categories of international contracts, the general stipulations for international treaties, the strengthening and oversight of international treaties, and the conclusion or cancellation of international contracts and treaties (pp. 48-61).
Amid Zanjani discusses the validity of international agreements, noting that the principles underlying the necessity of contracts, exemplified by the Quranic verse «أَوْفُوا بِالْعُقُود» (Fulfil your contracts), affirm the legitimacy and necessity of any customary contract unless explicitly prohibited by a specific reason (p. 50).
The application of arbitration in public and international law
The fundamental principle of peaceful resolution of disputes is one of the significant legal tenets in Islam for regulating social relations (p. 62). After highlighting this point, ʿAmīd Zanjānī discusses the importance of arbitration from an Islamic perspective (p. 62), the contextual factors leading to disputes and conflicts (p. 63), the foundations of arbitration and adjudication (p. 65), and the methods for resolving disputes (p. 68). He describes the nature of arbitration in Islamic jurisprudence as a judicial act and defines its application across three domains: private law, public law, and international law (p. 68).
The author emphasizes at the conclusion of this section that the Islamic government must prioritize peaceful and just resolutions to international disputes, based on the interests and welfare of the Islamic or the international community (p. 70).
Global and human solidarity based on the principles of righteousness and piety
As stated by the author, the Islamic viewpoint on individuals and social systems is characterized by a progressive and aspirational approach, founded on the solidarity and unity of humankind (p. 71). He regards the failure to deepen faith and pursue elevated ideals based on divine teachings and the authentic traditions of religious communities as a critical flaw in the global society's capacity to lessen human suffering (p. 71), and he details seven principles that constitute the foundation and elements of global solidarity:
1- Enhancing awareness, deepening faith, and strengthening moral integrity, 2- Encouraging individuals and communities towards brotherhood, 3- Promoting justice and equality in practice, 4- Reinforcing the rule of law both within and among nations, 5- Assisting in intercultural dialogues, 6- Striving for equitable global development, 7- Strengthening the principle of inviting towards a united global community (pp. 72-82).
In the seventh principle, Amid Zanjani refers to the Quranic declaration that 'humans constitute a single community,' discussing various dimensions of Islam's view on the necessity of unity and solidarity among people and nations. He then enumerates twelve core principles designed to facilitate global collaboration from an Islamic perspective. These principles, which include international cooperation in tackling issues and disagreements related to beliefs, livelihoods, economics, culture, society, and politics, are considered as derivatives and instances of the two main principles of 'virtue' and 'piety' (pp. 84-85).
Justice, the most significant Islamic approach to war and violence
According to the author, the divine religions and religious reformers, particularly the Islamic religion and prophet of Islam, are among the most serious advocates against war and violence (p. 87). Following this observation, the author references several Quranic verses and traditions that reject war in Islam (p. 87) and further discusses the topic in the section titled 'Islam's Approach to War and Violence,' addressing issues related to the denial of war and violence (pp. 94-101). The author identifies the most important principles of humanitarian law in Islam as justice, followed by peace and peaceful coexistence, the rejection of domination and subjugation, security, equality among humans, compassion, affection and friendship, mutual understanding, and keeping promises.
The philosophy of Islamic Jihad, peace, and the establishment of a monotheistic society
In the second chapter of his book, ʿAmīd Zanjānī elucidates the significance of jihad within the Islamic perspective through an introduction and ten discussions. He defines jihad in Islamic law as the struggle of Muslims against non-believers to invite them to Islam, defend the independence of the Islamic state and its followers, or combat internal riots (p. 104). Furthermore, the true aim and ultimate purpose of jihad in Islam is to achieve peace and adherence to monotheism, with the philosophy of jihad being the fight for the elevation of humanity, the establishment of a monotheistic society, the promotion of justice and Islamic equality, the eradication of polytheism, and the development of the Islamic territory (p. 105). Some Islamic jurists categorize the Quranic verses related to jihad into two types: absolute jihad (against non-believers) and conditional jihad, in addition to verses that discuss military matters and the rewards of jihad (p. 106).
According to both Shia and Sunni jurisprudence, jihad is categorized into two types: primary jihad (jihad for invitation to Islam) and defensive jihad. However, in Shia jurisprudence, some Islamic jurists condition both types of jihad upon the existence and permission of a just Imam or his appointed representative during his presence, while others consider it obligatory even during the period of occultation (pp. 107 and 108). The author further elaborates on the characteristics and types of defensive jihad (p. 111), such as liberating jihad (p. 113), the issue of jihad and retaliation, principles of war management and control, and restrictive rules concerning individuals and non-combatants (119).
Confirmation of the differentiation between armed forces and civilians within Islamic jurisprudence
In the third chapter of the book, the author examines the principles of conduct towards armed forces and civilians from an Islamic perspective. The chapter begins with an overview of international humanitarian law and Islamic concepts, followed by a discussion of the principles of distinction, necessity, and proportionality in both international and Islamic humanitarian law (p. 128). Amid emphasizes that, according to Islamic jurists, the protection and care of civilians is an absolute and inviolable obligation (p. 129). Following the introduction, he outlines the principles of conduct towards combatants and armed forces (p. 130), principles for interacting with civilians (p. 135), and principles regarding treatment of captives (p. 140) across three sections, concluding the chapter with a discussion on the types of conflicts in Islamic law (p. 145).
In articulating the principles of conduct with armed forces and combatants, under the discussion on military equipment, the prohibition of using weapons of mass destruction, incendiary, and toxic agents is described from a jurisprudential perspective (pp. 130-131). Additionally, certain methods of warfare are deemed impermissible in Islam, such as engaging in conflict with the intent to cause bloodshed, slaughter, destruction, and revenge, initiating warfare without warning regarding prohibited actions, mutilating or killing the enemies by torturing them, and killing infants, children, women, and the elderly (pp. 132-134).
In articulating the principles of conduct with civilians, the author highlights the general rule of distinguishing between armed forces and civilians in international law, and compares this rule to the interpretation of Islamic jurists as «لایقتل غیر المقاتل» (non-combatants should not be killed) (p. 135). The author also notes the particular emphasis found in traditions and jurisprudential texts regarding the wounded and victims of war (pp. 135-136), as well as the protection afforded to women, children, the elderly, clergy, and religious personnel accompanying armed forces (pp. 136-139).
Protection of the rights of the captives
Humane treatment of prisoners of war is a significant topic within international law and Islamic principles, occupying various sections of the text. ʿAmīd Zanjānī defines a prisoner in Islamic law and jurisprudence as an enemy combatant, typically regarded as part of the forces under military command (p. 140), or as an individual captured during a civil conflict (p. 141). He asserts that the care, custody, and oversight of prisoners are communal obligations, which may be directly managed by the Islamic state and its treasury, or indirectly delegated to the state under the principle of hisbah (p. 142). Furthermore, the employment and labour of prisoners of war do not have specific rulings in Islam and fall under general labour regulations; however, forced labour and compulsory work cannot be considered acts of kindness, as emphasized in the Quran and traditions regarding the treatment of prisoners (p. 142).
It is important to note that holding opposing beliefs or divergent political views does not prevent a captive from enjoying their rights (p. 142). ʿAmīd Zanjānī further illustrates this by providing examples from the Quran, Hadith, and the Prophet's conduct regarding treatment of captives, and subsequently clarifies the conclusion of captivity and its various forms in Islam: 1- Unconditional and unilateral freedom and restitution, 2- Freedom through ransom by payment or exchange of captives (p. 144).
The principle of human dignity, as the foundation for both domestic and international human rights
In the third chapter of his book, ʿAmīd Zanjānī discusses the treatment of military forces and civilians, focusing on various forms of armed conflicts at both international and non-international levels from an Islamic perspective. International armed conflicts are defined as situations where at least two states engage in warfare, which also includes conditions of military occupation and the struggles of liberation movements. Non-international armed conflicts refer to the struggles of non-state armed groups against a central government or multiple governments (p. 145). He cites the rebels and the Khawarij who rose against the Imam (Islamic ruler) as examples of non-international armed conflicts. According to him, rebellion against the Imam, whether under command or not, constitutes a form of civil war that necessitates a counter-response, as outlined in verse nine of Surah Al- Ḥujurāt (p. 146).
According to Amid Zanjani, Islamic humanitarian law is closely interconnected in both domestic and international spheres, and in both contexts, the principle of human dignity must be preserved and protected (p. 147).
The priority of peace through the covenants of security (amān) and protection (dhimma)
The final chapter of the book on humanitarian law from an Islamic perspective discusses the conclusion of conflicts. The author emphasizes the significant importance of peace and the cessation of armed hostilities in Islam (p. 149). In the first section, various types of agreements for ending hostilities in Islam are outlined, along with their jurisprudential references, categories, effects, rulings, and other related matters, including the temporary peace agreement or truce (hudna) (pp. 150-162) and the permanent peace agreement or selm (pp. 162-164).
In the second section of this chapter, the author discusses the contract of amān and its jurisprudential documentation, such as verse six of Surah At-Tawbah (p. 165). This contract can take two forms: a public and formal amān, exemplified by the Treaty of Hudhaybīyah, and a specific, informal, and situational amān. The duration of the amān contract is temporary, with Hanafi scholars considering it permissible and revocable, while Shia and Zaydi scholars regard it as obligatory and irrevocable (pp. 166-168).
In the third section, the concept of dhimma and its jurisprudential documentation, including verse 29 of Surah At-Tawbah, is examined (p. 170). The dhimma agreement can be established either with a state or with an individual (p. 171). It is obligatory and perpetual (p. 173). In Shia jurisprudence, the dhimma contract is exclusively for the People of the Book, although differing opinions exist among Sunni scholars (pp. 173-175). Islam recognizes the freedom of belief and religion for dhimmis, as well as their right to choose their residence, in exchange for the payment of jizya and adherence to Islamic laws, regulations, and rulings (p. 179). The author also addresses the competent authority and the jurisprudential disputes regarding the granting of protection (pp. 167 and 169) or the establishment of dhimma (pp. 171-173) in the context of the two contracts of protection (amān) and dhimma.