Part one of this piece noted that the Takfiri jihadists have already produced a theological, jurisprudential justification for the use of Weapons of Mass Destruction (“WMDs”). This article explains why their reasoning is wrong. It also illustrates the fundamental compatibility between the modern principles of international humanitarian law with Islamic ethical principles espoused by Muslim jurists.
Takfiris misunderstand the traditional debate in relation to Islamic just war theory. This is why.
The traditional debate in relation to the proper limits of jihad considered the use of weapons only within the context of a broader discussion of the concept of collateral damage. The focus of that debate is on the justification of war rather than the means of fighting.
In both the early traditional period and also during Middle Ages, battle would generally take place on a battlefield where the warriors of each army met each other, face to face. Weapons used were very basic: swords, lances, and arrows that were capable of killing only those present on the battlefield. It also included some related military operations, such as cutting down trees and starting fires.
The real turning point in discussing the legitimacy of particular weapons arose from situations where non-combatants were inevitably endangered, in particular, when the enemy retreated to a fortified settlement. The early jurists generally responded in a pragmatic way. Were they to defeat an enemy, they reasoned, Muslim forces could not be constrained from using weapons and tactics that increase the likelihood of killing indiscriminately: but only on a small scale. Such weapons might include mangonels, which could be used to fire incendiary devices, such as naphtha, or ‘Greek fire’, a weapon borrowed from the Byzantines.
The use of weapons which might cause casualties amongst non-combattants, is thematically comparable to the use of WMDs. The traditional views on the deployment of these weapons as a tactic vary widely. The use of such incendiary weapons gave rise to some serious ethical concerns among the early jurists. According to a well-known hadith, the Prophet prohibited the use of fire against adversaries with the words:
“Do not punish creatures of God with the punishment of God.”
On the basis of this hadith, jurists of three of the four principal law schools in Sunni Islam, the Hanbalis, Malikis, and Shafi‘is, expressed various reservations regarding the use of incendiary weapons. The general rule that they adopted is that the deliberate burning of persons, either to overcome them in the midst of battle or to punish them after capture, is forbidden. However, the use of incendiary devices to overcome enemies setting up their own batteries or weaponries was permissible, if required by military necessity or as a response to provocation by the enemy. The Hanafis, who had fewest qualms with respect to weapons and tactics, took a more liberal view, and permitted the use of fire when attacking the enemy with little regard to collateral damage.
Traditional jurisprudence demonstrates fewer moral concerns about other types of indiscriminate weapons. Most jurists permitted the use of poison-tipped weapons and the poisoning of water supplies. The Malikis, however, departed from the majority on this point, prohibiting such tactics. Some prohibited poison-tipped arrows on sensible grounds, fearing that the enemy would retaliate in kind against the Muslims. Others considered such weapons as unpleasant but permissible in retaliation.
The early jurists tolerated one other tactic with the potential for mass destruction: flooding. As is the case with poison, their rationale comes not so much from the Qur’an or traditions of the Prophet but rather from pragmatic military considerations. Because this tactic was employed by the adversaries of Muslim armies, the jurists legitimated it on the grounds of military necessity or reciprocity. It is important to understand that even those who permitted such military tactics did not derive their conclusions from scripture but were instead purely the product of pragmatic thinking.
With the appearance and proliferation of the WMD, the international community realised the danger of such weapons and laws, multilateral treaties and international institutions were created in order to control the spread of these weapons. Is this jurisprudence in this field in harmony with Islamic ethics of war?
There are various modern Islamic jurists who clearly forbid these weapons. The most prominent among them is Sheikh Dr. Wahba Zuhayli, the renowned Syrian jurist. He states that the consensus among contemporary Muslim scholars is that the modern principles of international humanitarian law are in no way incompatible with Islamic ethical principles. According to this view, the use of WMDs and similar weapons, or attacks that kill indiscriminately, is not allowed as it is illegal in international law. A similar position was adopted by Sheikh Ali Goma, the former Mufti of Egypt.
“Islamic states must abide by the agreements and treaties that they acknowledged and entered into of their own accord; standing firmly with the international community towards achieving global peace and security [only] to the extent of the commitment of the signatory countries.”
In brief, the Takfiri reasoning is fundamentally in error. First, It treats the classical reasoning as authoritative and binding which is not. Second, it ignores the legitimacy of the international laws that govern these matters. It accordingly follows that the possession and use of weapons of mass destruction represents a breach of international agreements and treaties.