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© Khaled Ramadan Bashir 2018

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Contents
Foreword vi
Preface ix
Acknowledgements x
Glossary xi
List of abbreviations xiv

1 Introduction 1
2 Reading historical sources 49
3 The law of war 98
4 Rules on the consequences of war 180
5 The law of peace 216
6 Conclusion 267

Bibliography 279
Index 289

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Foreword
I rarely get the opportunity to introduce a work that should justly redefine
an entire field of study. But Khaled Ramadan Bashir’s book on Islamic
International law is such a work. For many years, the standard work in
the West on Islamic International law has been that of Majid Khadduri,
who had written on the Siyar of Shaybani and the Islamic law of war and
peace. And for better or worse, Khadduri has influenced generations of
scholars who have taken his representations of Islamic international law
to be established truth. But Khadduri’s failures in understanding and
representing the nuances of Islamic legal discourses have contributed to
the dissemination of entrenched false paradigms about Islamic Inter-
national law. The current book by Khaled Ramadan Bashir does not only
surpass the achievement of Khadduri, but materially reforms and in many
regards, nullifies and negates it. The truth is that Khadduri’s writings on
the Siyar are so incomplete as to be seriously flawed. The present work
by Bashir comes as an urgently needed corrective, not just to Khadduri’s
work but to all previous scholarship on Shaybani and his transformative
contributions to the law of nations. No scholar can afford to write on the
subject of Islamic International law or indeed the history of the law of
nations without referring to Bashir’s authoritative study. Bashir convinc-
ingly demonstrates that Shaybani’s discourse on the law of nations not
only pre-dated Gratian, Aquinas, and Vitoria but it was much more
comprehensive, developed, and complete. Shaybani’s work is comparable
only to Grotius’ famous treatise, The Law of War and Peace, except that
Shaybani wrote his work in the eighth century while Grotius wrote his
treatise in the 17th century. Bashir’s scholarship forces us to reconsider
the often-repeated thesis that the law of nations is rooted exclusively in
the Christian Natural law tradition and to acknowledge the pivotal
significance of the Islamic contribution to the law of nations as a
discipline and field. Bashir’s scholarship will also challenge all those
who are prone to the argument that the roots of the law of nations can
only be found in the Judeo-Christian tradition. It is due time that the
Islamic contribution to the field of international law be given its full
weight and credit, but in order for this to take place, the history of the
law of nations must be substantially re-thought and re-written but from a

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Foreword vii

non-Eurocentric perspective. However, a fair and inclusive historiography

of the law of nations is not possible unless Western writers resist the
temptation of triumphalism, and civilizational and cultural puritanism.
Aside from the issue of historical lineage and recognition, Bashir’s
meticulous analysis of Shaybani’s seminal work, the Siyar, challenges all
stereotypical caricatures of the Islamic law of nations as being purely
functional or pragmatic. It is abundantly clear that Shaybani, like
generations of classical jurists after him, wrestled with what they
perceived as a supreme Higher law, the Law of God, that governs the
interactions and struggles of human kind, and that this law was seen as
imposing moral standards beyond the simply opportunistic or pragmatic.
It is axiomatic in Shaybani’s thought that the prevention of conflict and
the avoidance of war and wanton destruction is the calling of the Higher
law. The same can be said about what Shaybani deontologically saw as
the rules of honor, chivalry, and conduct becoming a Muslim. Shaybani
struggled with striking the balance between a lawless world in which
God and God’s Higher law would cease to exist, and an inflexible and
blind adherence to ideals that could be unworkable. If the ideals of the
Higher law were invoked and asserted dogmatically, these ideals would
be liable to being entirely ignored by the political authorities of Shay-
bani’s day and age. Shaybani did not fossilize Islamic International law
into a set of immutable and eternal rules. Rather, he searched for the
balance between eternal and supernal principles, and functional and
practical applications. As such, Shaybani’s impressive corpus of work is
really a study in the methodology of Islamic legal thinking and the
dynamism and creativity of Islamic law.
The inestimable value of Bashir’s book is not just that it challenges
simplistic historical outlooks that anchor the growth of international law
solely in European narratives, or that imagine that there is a fundamental
civilizational breach between Islam and the West, but Bashir’s work also
reminds Muslims of the rootedness of international law principles in
Islamic normativities. Shaybani was a prominent judge of the Hanafi
School who played an influential role in the early Abbasid dynasty
during the reign of the famed Caliph Harun al-Rashid. Yet Shaybani was
not the first jurist to write on Islamic international law. The Syrian
Awza‘i has reportedly pre-dated him in writing on the Islamic law of
nations although his works have been lost. Some of Awza‘i’s positions
and arguments have reached us only through the rebuttals of his
opponents. But other than Awza‘i, there is cumulative evidence to suggest
that early Muslim jurists such as al-Shaabī, Sufyān al-Thawrī, and Abū
Hanīfah made critical contributions to the discourses on the Islamic law
of nations. Moreover, Shaybani’s own discourses continued to evolve and

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viii Islamic international law

develop through the centuries in the works of generations of jurists who

were forced to wrestle with historical circumstances and contexts that
were very different than those that Shaybani dealt with. What does
remain constant through the centuries of jurisprudential discourses is the
innate understanding that there are basic universal laws that call upon
human beings to temper the vicissitudes of power struggles and human
conflict through the application of higher ethical principles. This is
indeed the basic premise at the heart of all efforts at accomplishing a
regime of international laws applicable to all humankind. The very fact
that generations of Muslim jurists insisted on subjugating politics and
war to the rule of law is a profound civilizational achievement. The
development and persistence of this intellectual and moral enterprise
throughout the existence of the Islamic civilization is a stark reminder
that far from endorsing the logic of unfettered political opportunism or
all-out warfare, Muslim jurists consistently searched for the boundaries
that demarcate the difference between ethical and unethical conduct.
Khaled Ramadan Bashir’s invaluable study offers us the first real
opportunity to properly value Shaybani’s contributions to the develop-
ment of the law of nations as a principled human engagement. But more
than this, Bashir’s work comes as a stark reminder that international law
is truly the collective inheritance of the entire human race.

Khaled Abou El Fadl

Omar and Azmeralda Alfi Professor of Law,
University of California, Los Angeles, School of Law

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Preface
Mohammad Al-Shaybani is one of the greatest scholars of Siyar (Islamic
international law). His book, Al-Siyar Al-Kabīr, is an eighth-century
textbook on international law. In this work I present and discuss the
precise nature of Al-Shaybani’s contribution compared to the other great
contributions on international law made by Augustine, Gratian, Aquinas,
Vitoria and Grotius. I affirm the view that Al-Shaybani made a major
contribution to the theory of international law that had been unacknowl-
edged for a long time, and unjustly so, by scholarship.
Al-Shaybani’s book was a comprehensive treatise on the law regulating
international relations from the Islamic perspective. It was the first
attempt to produce such a book on international law as a discipline
distinct from other legal fields. In terms of legal complexity, it can only
be compared to Grotius’s greatest book on the subject, The Law of War
and Peace. In the area of humanitarian law, the only other writer with
whom he can be compared is Vitoria, although even Vitoria does not go
into the same depth of complexity. Al-Shaybani dealt with war carefully
and limited cases of justified wars in his time to just three categories. He
offered many rules restricting cruel practices in the treatment of enemy
personnel and prisoners of war. The nature of peace and how it could best
be achieved was fully considered. Rules on treaties, diplomacy, travel,
trade and more were discussed in a way that would best give rise to the
peaceful coexistence between nations. Detailed legal rules with the
purpose of guaranteeing the continuity of peace are suggested in his
work. In contrast, Augustine, Gratian and Aquinas engaged only in
limited discussions on some of the subjects of the law of war. Vitoria’s
contribution on these matters was more extensive, but even he lagged far
behind Al-Shaybani.
The work of Al-Shaybani was certainly as detailed, complex, compre-
hensive and useful as that of Grotius on international law. Besides the
presentation and discussion of the merits of his work, a central purpose
of this book is to argue that any future work on the history of
international law has to consider Al-Shaybani’s contribution for it to be
complete.

ix

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Acknowledgements
I am grateful to my grandparents for their immeasurable favours upon me.
I am also grateful to:

+ Professor Anthony Carty who encouraged me, made valuable

comments and gave great support. He was most caring and always
supportive;
+ Professor Khaled Abou El Fadl to whom I am grateful for writing
the foreword and for his support and encouragement (University of
California, Los Angeles);
+ Professor Jean Allain who generously offered valuable comments
on the first two chapters (Monash University);
+ Associate Professor Marie-Luisa Frick who kindly wrote an
endorsement for this book (University of Innsbruck);
+ Associate Prof. Mohd Hisham Mohd Kamal (International Islamic
University Malaysia);
+ Dr Rohimi Shapiee (Universiti Kebangsaan Malaysia);
+ Professor Peter Duff (University of Aberdeen);
+ Dr Zeray Yihdego (University of Aberdeen);
+ Professor Robin Evans-Jones (University of Aberdeen);
+ The Very Reverend Nicholas Coulton and Professor Nigel Biggar
(Christ Church, Oxford);
+ Imam Mohammad Almahdi Shari-Aldeen (Al-Azhar Mosque);
+ Professor Ahmed Abou-El-wafa (Cairo University); and
+ Sheikh Wahbah Alzuhalili, the great scholar (University of Damas-
cus).

Thanks also go to all members of my family and my friends who have

always been supportive and encouraging; they will always be valued and
loved, and no thanks could be enough for their care, patience and
support.
I am also grateful for the support, care and attention of the wonderful
team at Edward Elgar.
Thank you all!

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Glossary

Ahil-al-dimah Non-Muslim subjects of the state.

Ahl al-Kitab (People of the book); Scriptuaries.

Al’aqid shari’at A term equivalent to pacta sunt servanda.
almuta’aqedyan
Al-Kufah A city in Iraq.
Al-Madinah The city of Medina, the birthplace of the Muslim
State.
Al-Siyar Al-Kabīr The grand siyar (a book was written by
Al-Shaybani on international law in the eighth
century).
Ama’an Al-Ama’an (definite), also written as Amān:
guarantee of safety, pledge of security or safe
conduct. A contract or grant that can be made by
any Muslim and would be binding upon all
subject and rulers, in which a foreigner/group of
foreigners or a whole state is granted a pledge of
security over his/her life and property, normally
with permission to enter the country.
Ar’ay The opinion: this refers to the Hanafi School’s
method of reasoning.
Baiet alm’al Literally the house of money referring to where
public money was held.
Caliph (Khalifah) Ruler of the Muslim State considered as a
successor of the Prophet Muhammad as head of
state.
Dar al-harb Territories that are not controlled by Muslims.
Dar al-Islam The territory controlled by a Muslim state.

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xii Islamic international law

Dhimmi A member of the people of the book (such as

Christians and Jews) who lives in the Muslim
State with a covenant granting him/her protection
and obliging him/her to pay poll tax and not to
commit treason.
Fata Man or boy; for women, fatah is girl.
Fatwa An opinion, or responsum, issued by Islamic
jurists.
Fay Wealth acquired from the enemy without fighting.
Fiqih Islamic jurisprudence. It is wider than the mere
study of what is lawful and unlawful. It contains
rules concerning what is detested or abhorred as
well as what is liked, preferred or encouraged.
Ghanimah Legally obtained spoils of war in a legally
permissible action.
Ghazw Raid.
Hadieth (Also Hadith.) Sayings and actions of the Prophet
Muhammad.
Harbi Alien (from Dar al-harb which is: territories that
are not controlled by Muslims.)
Ijma’a General consensus among scholars.
Ijtihad Analogical extraction of rules. It is a scholarly
tool that allows jurists to weigh arguments,
evidence and sources of the Law to come up with
a certain rule. This can only be done by
professionals.
Imam A leading person: including in congregational
prayers or in scholarly achievements.
Istihsan Juristic preference.
Istinbat Elicitation used in the processes of inferring rules
from sources.
Istinqaad Humanitarian intervention upon request and under
defined rules.
Jihad Struggle or fighting a legitimate war.
Jiziyah Tax levied on non-Muslim subjects of a Muslim
state who will not have to pay Islamic obligatory
charity. Similar to Roman poll tax.

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Glossary xiii

Kharaj A type of tax usually levied on cultivated lands.

Makrooh A detested act that is not punishable yet
unacceptable.
Mu‘ahadah Treaty.
Mujtahid A person conducting ijtihad.
Musta’aman A person who is granted ama’an.
Musta’amanoon Plural of musta’aman.
Qiyas Analogical or systematic reasoning.
Qura’an Also Quran or Qur’an: Holy Book; Islamic book
of divine revelation.
Ra’y Juristic opinion.
Ribat Holding steadfast in the frontiers to respond to
any attack by any enemy; it also refers to making
the bordering areas safe for passers-by.
Shari’ah Islamic law or way of life.
Siyar Al-Siyar in the definite form, and the plural of
sirah. It is used by scholars to refer to Islamic
international law.
Sulih Reconciliation, conciliation or armistice.
Sunnah/Sunna Prophetic traditions: a collection of sayings and
actions of the prophet Muhammad.

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Abbreviations

AH Islamic calendar (Hijri)

AJCL American Journal of Comparative Law
AJSS Asian Journal of Social Science
C&S Law Journal of Conflict and Security Law
CIW Carnegie Institution of Washington
EJLS European Journal of Legal Studies
JHIL Journal of the History of International Law
JME Journal of Military Ethics
PUP Princeton University Press
Siyar Islamic international law or as-siyar.
SSI United States Army War College: Strategic Studies
Institute

xiv

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… although also associating partners to Allah is the utmost offence, it is

in the jurisdiction of God alone and God postponed the trial for such
crime to the Day of Judgement. As for the offences that he prescribed
punishments for in this life, it is in the interest of his subjects to prevent
fighting; this prevention cannot be achieved by killing those who do not
fight. Therefore, only those who fight Muslims should be the subject
of fighting.

Al-Shaybani

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1. Introduction
Al-Shaybani’s book Al-Siyar Al-Kabīr deals with every conceivable
aspect of international law relevant to his time. In fact, the reader would
be able to locate it within today’s texts and specialized books on
international law. While some think that his book is based on sources of
Islamic law and was intended to regulate the international affairs of a
Muslim state and is therefore irrelevant to the ‘secular’ world order we
live in today, others observe that such a comprehensive legal work
written in the eighth century is undoubtedly a great asset to those
specializing in the field of international law. They argue that the
contribution of Al-Shaybani to this field is too great to be ignored. By
exploring Al-Siyar Al-Kabīr, I set as this book’s target an investigation of
the latter claim and highlighting to what extent Al-Shaybani contributed
to the field of international law and relations. Noticeably, as this work
was being completed, the Oxford Handbook of The History of Inter-
national Law presented Al-Shaybani as the earliest among 21 names of
the most important contributors to this field throughout history.1 How-
ever, although there have been several attempts, the English library is still
poorly equipped as far as the contribution of Al-Shaybani is concerned.
This book will be the first attempt to offer the reader a genuine and deep
insight into the original ‘grand’2 book of Al-Shaybani on international
law.
As far as the history of international law is concerned, ‘writers
habitually begin with the Greek City-States, describe the Roman period
as immediately following, and then all of a sudden talk about modern
times, neglecting the gap of almost a thousand years’.3 For example,
Oppenheim held ‘that there was no international law in Europe during

1
Mashood A Baderin, ‘People in Portrait’ in Bardo Fassbender et al. (eds),
The Oxford Handbook of the History of International Law (1st edn, Oxford
University Press 2012) 1081.
2
Al-Shaybani has two main books on international law and relations, the
shorter book and the grand book. This study confirms that, so far, only the
former is available in English.
3
Muhammad Hamidullah, The Muslim Conduct of State (5th edn, SH
Muhammad Ashraf 1968) 63.

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2 Islamic international law

the Middle Ages, that there was no need of such at that time, and that
there was no intermediary link between the Roman Period and Modern
Times’.4 Oppenheim and most legal historians failed to recognize the
almost 1,000-year gap, thus overlooking the very existence of Siyar or
Islamic international law5 as some would now call it. This is alleged
despite the fact that Siyar contained great principles on international legal
relations.6 In fact, Siyar is a proper system of international law, which
governed the international relations of Muslim states for many centuries.
Yet it has been marginalized and neglected by legal historians.
Moreover, some question whether great European jurists coming
centuries later, like Vitoria and Grotius, had knowledge of Siyar and
whether they ever drew on it. It is equally important to consider whether
the European founders of modern international law were exposed to the
great amount of Islamic literature translated into Latin and introduced to
most of European centres of knowledge7 before Vitoria and Grotius. In
this regard, the I.C.J. Judge, Weeramantry argues that:

[i]t is sufficient to note that the Spaniards such as Victoria [sic] (1483–1548)
who antedated Grotius’ De Jure Belli ac Pacis of 1625 by nearly a century
were too close in time and space to the recent Islamic civilisation in Spain to
have been totally unaware of the relevant portion of Islamic learning.8

These speculations are particularly important when, especially in the

modern period, Western scholars present themselves in such a way that
their perspective can hardly be attributed to Rome or Greece alone.
Meanwhile, Wheaton, writing in 1845, arrived at the following signifi-
cant conclusions:

[i]n respect of the mutual intercourse between the Christian and

Mahommedan9 Powers, the former have sometimes been content to take the
law from the Mahommedans, and in others to modify the International Law of

4
Ibid.
5
Hereafter Siyar, or Al-Siyar as some would write it, would mean Islamic
international law.
6
Ali Ali Mansour, The Islamic Sharia and Public International Law
[Al-Shari’ah Al-Islamiah Wa Al-Qanoon Al-Dawli Al-A’am] (Al-majlis Al-a’ala
Li Al-shu’on Al-islamiyah 1971) 23.
7
Christopher G Weeramantry, Islamic Jurisprudence: An International
Perspective (Macmillan 1988) 94–111.
8
Ibid 110.
9
A term sometimes used to refer to Muslims.

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Introduction 3

Christianity in its relations to them. Instances of the first may be found in the
ransom of prisoners, the rights of ambassadors, and many others.10

If this is the case, what is the reason then for the clear failure of most
writers working in the field to recognize the contribution of Siyar to the
history of international law? Some people believe that it is the lack of
materials and lack of original studies. Regarding this, Janis maintains that
‘Islamic jurists have the duty of making their legal system better known
to make an effort at reaching a better understanding of Islamic law’.11
From this perspective, this book will, no doubt, help in making Siyar
better known. Relevantly, Abū al-Wafā (2007) asserts that ‘we have
noticed a shortage if not lack of attention paid to Arab and Muslim jurists
and their impact on international law and international relations. This was
despite the fact that their contribution in this area is massive and their
ability cannot be underestimated.’12 In fact, in a recent study, Kosken-
niemi explains that the history of international law has been polemic and
Eurocentric. Most authors dealing with the history of international law
were mainly Europeans and they neglected any other contribution to the
field from any other part of the world. Legal historians have been dealing
with international law as though it was born and bred in Europe and
Europe alone, neglecting other contributions.13
Nevertheless, this book highlights the contribution of one of the most
distinguished scholars of Siyar. It will focus on the contribution of
Al-Shaybani and highlight his individual, as well as the general, contri-
bution of Siyar to the field of international law. This is because
Al-Shaybani was one of the most significant writers of Siyar and his
book Al-Siyar Al-Kabīr was the most striking work of his time in the
area. By analysing the text of Al-Shaybani’s book, an essential contribu-
tion to the history of international law will be made.

10
Henry Wheaton, History of the Law of Nations in Europe and America:
From the Earliest Times to the Treaty of Washington, 1842 (Gould, Banks & Co
1845) 555.
11
Gamal M. Bader, ‘A Survey of Islamic International Law’ in Mark W.
Janis and Carolyn Evans (eds), Religion and International Law (Martinus Nijhoff
Publishers 1999) 101.
12
Aḥmad Abū al-Wafā, Kitāb Al-I lām Bi-Qawā id Al-Qānūn Al-Dawlī
Wa-Al- alāqāt Al-Dawlīyah Fī Sharī at Al-Islām [A Book of International Law
and Relations in Islamic Shari’a], vol 14 (al-Ṭab ah 2, Dār al-Nahḍah
al-Arabīyah 2007) 3.
13
Martti Koskenniemi, ‘Histories of International Law: Dealing with Euro-
centrism’ (2011) 2011 Rechtsgeschichte – Legal History 152, 152–76.

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4 Islamic international law

1.1 SIYAR (AL-SIYAR/ISLAMIC INTERNATIONAL LAW)

Islamic civilization, like any other one, needed laws to establish order in
society. Accordingly, ‘there came into being Islamic Laws or codes of
conduct that govern not only inter-personal relations, but also communal
and inter-civilizational relations.’14 As was the common attitude, ‘Muslim
powers dealt with their neighbors in a way that served their interests and
represented their system of values and what they deemed to be acceptable
behavior.’15 Nevertheless, relying on divine sources, the Islamic legal
systems introduced to the first millennium many humanistic aspects
domestically as well as internationally – aspects that were not familiar at
that time.16
With the expansion of the Islamic territory through the spread of Islam,
Muslim jurists realized the need for regulating many new legal occur-
rences.17 Many non-Muslims had become subjects of the Islamic terri-
tories – the Abode of Peace – where Islam ruled; many new territories
came under the control of the Muslim state. Yet it should be emphasized
that peace was not the norm at that time; the world was governed by war.
This Muslim expansion had ‘a significant influence and effect on the
tadwīn (recording) of the rulings on international relations with non-
Muslims’.18 This regulation of all non-Muslims applied both in the
Islamic territory and beyond, ‘whether these qualified as harbis (aliens,
those belonging to dār al-harb19), dhimmis (non-Muslim subjects of the
caliph …) or free non-Muslims within dār al-Islam’.20,21 The task was
urgent and prompted many Muslim scholars to embark on generating and
compiling rules to govern the Islamic inter-personal, inter-religious and
inter-state affairs, an area which was later to be known as ‘Siyar’. Their
common interest, Bsoul asserts, was:

14
Labeeb Ahmed Bsoul, ‘Historical Evolution of Islamic Law of Nations/
Siyar: Between Memory and Desire’ (2008) 17 Digest of Middle East Studies 48,
57.
15
Ibid.
16
Prohibiting the killing of elderly, women, children in wars; giving women
rights and considering them as subjects of law rather than objects; it went as far
as to giving animals rights. These among many other newly introduced concepts
were the result of having divine law as a source of legal norms, as these concepts
were not known to the Arabs (if not to the world) before Islam.
17
Bsoul (n 14) 57.
18
Ibid.
19
A territory that has no peace agreement with the Muslim State.
20
The abode of Muslims where Islamic law applies.
21
Ibid (emphasis added).

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Introduction 5

to determine the rulings of siyar, drawing on the Prophet’s22 conduct and

relations with non-Muslims in matters of conquest and peaceful agreements.
Some approached the subject from a chronological, historical aspect, while
others strove to study the principles of Shari’a as they applied to the
situation.23

Accordingly, Muslim jurists ‘produced a vast amount of literature and

treatises, which acquired great significance with the passage of time’.24
Nevertheless, ‘the first jurist to compile a treatise on Siyar was Abu
Hanifa al-Nu‘man ibn Thabit (d. 150/767).’25 Abu Hanifa is the founder
of the Hanafi School26 of thought and he had two main disciples who
conveyed his teachings and recorded his thoughts. These were Abu-Yusuf
and Al-Shaybani, who both contributed greatly to the field of Siyar.
Moreover, the teachings of these disciples and their master (i.e. the
Hanafi School) were adopted by the leaders of the Abbasid Dynasty
(approximately 750–1517 AD). As a result, Bouzenita stated that ‘[t]he
most important contribution in siyar-related matters came from the
Hanafi School. The Abbasid Caliphate’s affiliation to the Hanafī School
gave more political weight and relevance to legal rulings of the Hanafite
scholars.’27
However, it is commonly agreed among scholars of his time as well as
those throughout the ages that by far the most dedicated of Islamic
scholars to this task was Al-Shaybani, who wrote his book Al-Siyar
Al-Kabīr in the eighth century, which contained what we would term
international law topics. In the field of Siyar, some suggest that this book
‘serves as a standard work of reference to-date’.28
While this is true, it is important to highlight that although
Al-Shaybani was the most dedicated he was neither alone nor the first to
write on the topic. As Bouzenita puts it, ‘al-Shaabī, Sufyān al-Thawrī,
Abū Hanīfah, al-Awzāaī and many others in the deduction of legal rules,

22
Referring to Prophet Muhammad peace be upon him. On every occasion
that this book mentions Prophet/Messenger Muhammad, reference to the termin-
ology (Peace Be upon Him) shall be assumed.
23
Bsoul (n 14) 57.
24
Ibid.
25
Ibid 58.
26
The largest of the main four Sunni Islamic schools of jurisprudence.
27
Anke Iman Bouzenita, ‘The Siyar – An Islamic Law Of Nations?’ (2007)
35 Asian Journal of Social Science 19, 25.
28
Ibid.

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6 Islamic international law

teaching, jurisdiction, oral and written discussions with other scholars

have largely contributed to the formulation of siyar.’29
In fact, Farouq Hamadah thinks that it was not Al-Shaybani who first
compiled a complete Siyar book, but Alfazari.30 This shall not be
discussed in detail; however, two points are worth considering. First, in
that age, no contemporary book on Siyar comes close to that of
Al-Shaybani in its comprehensive detail and scope. Second, great as it is,
the book by Alfazari is in no way as in-depth as that of Al-Shaybani’s
work. Thus, even Hamadah admits that the method used (casuistic style)
by Al-Shaybani was not employed by Alfazari, who had no intention of
going beyond explaining the legal rules on existing practical matters.
This, Hamadah argues, was probably the reason why minimal details of
what Alfazari wrote have reached us, in contrast to the works of
Al-Shaybani, which are overflowing with analysis and hypothetical
cases.31
From the above, and as will be demonstrated in this book,
Al-Shaybani’s work is outstanding and pioneering. While Al-Shaybani is
truly one of the great writers of international law, he cannot be said to be
the only founder of this field, nor can his thoughts be taken as a
representation of this subject. What distinguishes him is the fact that his
book was a pioneering achievement. It is the first book, thus far known to
us, that has treated international law as a separate field of study and in
such a comprehensive manner.

1.1.1 Definition of Siyar

The term Siyar in terms of its etymology is the plural of the Arabic noun
sirah,32 ‘which means literally a “path”, or “way of walking”’.33 Bsoul
explains its historical evolution as follows:

[e]ssentially, the concept of siyar evolved from its lexicographical meaning –

in particular, from its connotation of behavior or conduct. Siyar is Sira in the

29
Ibid (footnotes omitted).
30
Abi-Ishaq Al-Fizari, The Book of Siyar of the Sheikh of Islam the Imam
Abi-Ishaaq Alfazari, Narrated by Mohammad Ibn Waddaah Alqortobi according
to Abdulmalik Ibn Habib Al-Mesysi [Kitab Al-Siyar Li Shaykh Al-Islam
Al-Imama Abi Ishaaq Al-Fizari: Riwayat Muhammad Ibn Wadaah Alqortobi A’an
Abdu-Al-Malik Ibn Habeeb Al-Masisis A’anho: Dirasat Watahqeeq Farooq
Hamadah] (Farouq Hamadah ed., Mo’asasat Al-Risalah 1987) 80.
31
Ibid 35–6.
32
This term could also refer to the biography of someone.
33
Bsoul (n 14) 48.

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Introduction 7

singular [and] came to be used by chroniclers in their narrative accounts to

mean life or biography, i.e., the conduct of an individual.34

Al-Siyar (the siyar) or Siyar (in its indefinite form) is the term Islamic
scholars used to indicate the rules and regulations concerning topics
related to what is called today international law.35 Hamidullah for his part
has defined it as ‘[t]hat part of the law and custom of the land and treaty
obligations which a Muslim de facto or de jure state observes in its
dealings with other de facto or de jure states’.36 Yet this definition is
lacking as it excludes individuals as being subjects of Siyar. Rather, Siyar
is a branch of Shari’ah that regulates the relations involving a Muslim
state or between Muslims and non-Muslims, domestically as well as
internationally, both in times of peace and war.
As an integral part of Shari’ah, Siyar or Islamic international law looks
to its roots as sources. Shari’ah, while being flexible, flows from
unalterable general principles with divine origins. In general, Islamic
jurists have constructed their reasoning on the major principles derived
from the Holy Qura’an37 and the prophetic traditions. Hence, Islam has
‘fostered an attitude of mind which prompted the Muslims to judge
matters primarily in light of their religious norms. The questions which
they faced in the field of international relations were no exception to
this.’38 However, we must not overlook the fact that other tools of Islamic
jurisprudence are always utilized in the law-making process, while
relying on those general fixed principles.39 This last point has sparked
heated debate between those who believe that Siyar is an international
law of Muslims and those who argue that international law is a different
concept from Siyar, and therefore Siyar should not be called international
law. This is because they believe that contemporary international law
does not rely on divine law as a main source, that Siyar is different as
contemporary ‘[i]nternational law operates between independent and

34
Ibid (footnotes omitted).
35
It is important to stress that although Siyar can be called international
law, the former is far more sophisticated and comprehensive than contemporary
international law.
36
Hamidullah (n 3) 3.
37
On every occasion that the study mentions the Qura’an, reference to the
terminology (the Holy Book) shall be assumed.
38
Muḥammad ibn al-Ḥasan aš-Šhaybānī, The Shorter Book on Muslim
International Law (Mahmood Gazi, tr., ed., Adam 2007) x.
39
These are mainly qiyas (analogical reasoning) and ijma’a (consensus).
Looking at the writings of Siyar scholars, it can be said that reciprocity is also a
source of Islamic international law.

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8 Islamic international law

sovereign states; it deals with relations between nations. Each nation

possesses its own internal law and exercises an authority subject to no
restrictions save those imposed by the law of nations.’40 Nevertheless, if
we were to deny Siyar as Islamic international law because of its nature
and subjects, we would be weighing Siyar with one scale while using
another for the European ‘international’ law. This is so as what we today
call international law was, until the nineteenth century, a law of the
Christian European nations. Other nations at the time were not only
prevented from being subject to this law; they were also considered and
treated as barbaric and uncivilized.41 This was reflected even in the
writings of the Western jurists of the Enlightenment period such as
Gentili and Grotius, who advocated discriminatory treatment against
others, especially against non-Christians.42 In addition, while the
European-based international law lacks many elements of what might be
termed law today, the ‘Siyar as it was called was accepted as law in every
sense of the term from the very beginning’.43 Unlike European inter-
national law, Siyar ‘never faced the problem of lacking proper sanction
and judicial forum to adjudicate disputes’.44 Moreover, while the Euro-
pean conception of international law treated others as barbaric and
uncivilized and thus undeserving of inclusion as subjects of this law,
Siyar had already adopted the principle of reciprocity centuries before
European international law even existed.45
Consequently, the fact that Siyar was designed to govern a Muslim
state’s international relations and is derived from divine sources does not
make it wrong to call it international law. This is because contemporary
international law is based on the European international law. The latter
did not differ much from Siyar in these respects.
Yet, in an attempt to prove that contemporary international law is
distinct from any religious or philosophical legal systems, some commen-
tators reject any attempt to recognize religiously based systems as
international law just because they are based on religion. For example,
Afsah46 argues that ‘international law is primarily a modern phenomenon

40
Bsoul (n 14) 50.
41
Majid Khadduri, ‘Islam and the Modern Law of Nations’ (1956) 50 The
American Journal of International Law 358, 362–7 (footnotes omitted).
42
Ibid 362.
43
Šhaybānī (n 38) 2.
44
Ibid.
45
Ibid 3.
46
Ebrahim Afsah is an Associate Professor of Public International Law at
the Faculty of Law, University of Copenhagen. The European Journal of the

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Introduction 9

serving functional needs not attainable by pre-modern precursors’.47 He

argues that the Westphalian system has no place for such divine law
sourced systems as that of Siyar. This claim is normally built on
unfounded claims such as that states are equal in contemporary inter-
national law.48 No objective reader of the current state of contemporary
international law could accept this as mere truth.49
On the other hand, Afsah questions the validity of ‘Muslim claims for
a particularistic Islamic law of nations’. He thinks that ‘[s]uch claims
include the normative rejection of current international law in whose
creation and continued development colonised peoples had little active
role’.50 Afsah argues that resorting to Siyar by Muslim states is both a
reason and a cause of the Muslims’ inability to reach modernity, which

History of International Law published a controversial article of his arguing that

the Muslim world is unable to advance merely due to using Islamic law. The
article is poorly referenced and the arguments were built on prejudice rather than
knowledge. Having been published in such an influential journal reflects how
common the spread of unestablished claims is, and therefore inevitably there
seem to be some common misunderstandings and misinformation in this field.
This is why I decided to discuss his thoughts here to highlight the importance of
this book for the library on the one hand and to help better inform international
lawyers about the subject area of Islamic international law.
47
Ebrahim Afsah, ‘Contested Universalities of International Law. Islam’s
Struggle with Modernity’ (2008) 10 Journal of the History of International Law/
Revue d’histoire du droit international 259, 259.
48
Ibid 260.
49
For example, only five states in the world have the final say in the
Security Council over matters that concern the whole world’s peace and security,
whereas other countries can just be subservient to one or more of those five. This
system of law, for which Afsah seeks acceptance by all without questioning, is
dubious especially for small and weak states. In fact, the entire contemporary
international legal system is questionable especially ‘the pretence of a universal
international legal order, as represented by the United Nations and its Charter.
The latter is replaced by a coalition of the international community committed to
the forceful implementation of the human rights of liberal democracy and the
rule of law. While these legal values are represented as cosmopolitan or universal
(‘Who wants to be tortured by a vicious dictator?’ etc.) they are also entirely
compatible with the expansion of Western economic interests. What needs the
closest scrutiny is the relationship between the two – cosmopolitan values and
economic interest. Can the result still be characterized in any sense as a global
legal order?’ Anthony Carty, Philosophy of International Law (Edinburgh Univer-
sity Press 2007) 211.
50
Afsah (n 47) 259.

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10 Islamic international law

he explains as the inability to catch up with the modern world techno-

logically as well as institutionally.51 He proposes a Japanese-style
method for Muslims to be able to modernize their states. This should be
done through borrowing, accepting and implementing Western ideol-
ogies, philosophies, laws and methods in all occupations. This is because,
he thinks, the West is dominant and you can only draw near to modernity
by accepting the Western way of life without question, as did the
Japanese, enabling Japan to become part of the modern world.52 Mainly,
he thinks that Islamic law has been and continues to be the main obstacle
to modernity in these states. He accepts that Japan did, to an extent,
differentiate between what it needed to accept and what it did not to
become modern but he thinks that this is inapplicable in the case of
Muslim states.53 He is eager to blame Islamic traditions for being
different from those of the Japanese that they managed to retain while
acquiring ‘modernity’ from the West. Meanwhile, he accepts that the
history of European international law has not been very attractive to
non-European states because of the bad image it had acquired. This was
due to bad practice. For example, breaches of this law are punished
and/or ignored based on who the perpetrator is, relying on double
standards.54 What Afsah did avoid conceding is the fact that Western
international law is still nakedly self-serving for certain Western powers,
both structurally as well as in practice, and that is the main reason for the
failure of many nations to develop. This is the cause of the dissatisfaction
with such a system of law. This is why prominent scholars such as the
Japanese international lawyer Yasuaki Onuma reject the Western hypo-
critical system of law, which Western powers seek to impose on others in
pursuit of their own interests.55 Some Western scholars, such as Carty,
have also voiced concerns about the deficiency of contemporary Western
international law.56 Thus, Islamic law should not be blamed for the
failures and faults of the Western system, which has earned distrust and
dissatisfaction even from Japan, which Afsah takes as a model that he

51
Ibid 260–264, 287.
52
Ibid 268.
53
Ibid 272.
54
Ibid 274.
55
Onuma Yasuaki, ‘When Was the Law of International Society Born?’
(2000) 2 (1) 65 JHIL <http://heinonline.org/HOL/Page?collection=journals&
handle=hein.journals/jhintl2&div=6&id=&page=> (accessed 6 October 2009).
56
Anthony Carty, ‘The Yearning for Unity and the Eternal Return of the
Tower of Babel’ (2007) 1 European Journal of Legal Studies 1 <http://cadmus.
eui.eu/handle/1814/6841> (accessed 6 June 2018).

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Introduction 11

encourages Muslims to follow. This discourse, adopted by many like

Afsah, can never lead to solving contemporary issues apparent in the
international legal system. This is because instead of treating the disease,
it diverts both the attention and the blame towards those who have been
suffering from it.
In addition, Afsah thinks that Siyar puts limits on rationality in the
process of law making, as it is sourced from divine law. When he
discusses this reason, however, he fails to produce evidence to support his
opinion. He misquotes Weal Hallaq by highlighting the latter’s assertion
that there are some divine limitations to the usage of rationality in the
interpretation process of Islamic legal norms.57 What Afsah did not offer
is an honest reflection that Siyar has a lot of scope for both rationality
and reciprocity. From what we will see in this work, such a claim cannot
be sustained and can only expose a lack of honesty or of knowledge on
the part of Afsah.
Ironically, one of the reasons why Muslims should accept Western
international law as it is, according to Afsah, is that Siyar poses some
linguistic and cultural ‘difficulties’. One other reason why, in the opinion
of Afsah, Siyar should not be accepted is because to engage ‘in a
jurisprudential discourse with adherents of a system of a sacred law
requires approaches quite at variance with those familiar to Western
lawyers’.58 This approach leads to absurdity. This is because there are
three scenarios: to impose Western international law on all; to impose
Siyar on all; or to say that both should coexist. Afsah would, it seems,
choose the first option. He rejects all rules derived from divine sources in
favour of complete implementation of one system, that of the West.
Today there are some people who think that God exists and others who
think that He does not. Going by the theory of Afsah, only one of these
views should be followed and the others must be abolished or converted,
even by force. He would not, it seems, suggest that they should both
coexist, each living by their own rules, so long as there are clear sets of
rules governing the peaceful coexistence of both. This is the inference
from his writings. One fact that Afsah and those from his school of
thought are unable to recognize is that there is only one way out of this
dilemma, that is that all nations must be accepted and taken into account
as living peoples represented, but not replaced, by the abstract notion of
the state.

57
Afsah (n 47) 279.
58
Ibid.

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12 Islamic international law

Unlike Afsah, after careful consideration of the theoretical background

of the European system of international law, Carty asserts that:

[i]t is not possible, to separate …, what is belief and what is reason. It is not
possible to banish belief, whether religious or secular, from international life.
Some way has to be found to negotiate what people regard as non-negotiable,
without having to deny the non-negotiability of their positions.59

Afsah, while criticizing the bright picture of Siyar (as a system) drawn by
the ICJ Judge Weeramantry, addressed other writings criticizing some
Muslim states’ practice. Thus, Afsah compared a practice to a system in
order to satisfy a pre-destined outcome of his comparative approach.
Methodologically, this is wrong. Consequently his outcome is unfounded.
In addition, the fact that Western international law is built on state
practice does not necessitate that any other system of international law be
studied from such a perspective. Hence, Afsah fails to recognize the
difference between the two systems he is comparing.60 What is more,
Afsah was not able to admit that the difference between theory and
practice exists in Western international law as well, which sets the two
legal systems on an equal footing.
Afsah falls into contradiction once again when he asserts that the two
main parts of Islamic law, fiqh and siyasa, dominating private and public
life, respectively, are man-made: ‘Despite purporting to implement the
divine will and using revelation as source, both are ultimately man-
made.’61 This statement came after pages in which he was explaining that
the main issue with Siyar is that it is based on divine law and thus
different from Western international law, which, he suggests, is man-
made. This is fundamentally at odds with his claim that the reason why
Muslim states have not been ‘modernized’, whatever that may mean, is
that they have not relinquished the system based on divine law and
replaced it with the man-made Western methods.
In terms of content, he thinks that the barrier between Muslim states
and modernity are twofold. First, he claims that Siyar clashes with
Western international law on issues such as human rights and good
governance standards, democracy and equality. Second, he argues that the

59
Anthony Carty, ‘The Moral Theologian, Oliver O’Donovan and Inter-
national Law’ (2008) 9 Political Theology 339, 355.
60
Afsah (n 47) 278.
61
Ibid 287.

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Introduction 13

‘universal aspiration’ of Siyar prevents peaceful coexistence and does not

permit permanent peace deals.62
The first point can be dismissed as reality dictates, because most (if not
all) Muslim states have not been practising Siyar and thus it could not
have been the reason that stopped them from reaching ‘modernity’.63
Moreover, many non-Muslim countries are still underdeveloped and
would probably be considered by Afsah as unmodern. Thus, not only
practising Islamic law, but also being a Muslim itself is not the reason for
not reaching ‘modernity’.
As for the second reason – that the ‘universal aspiration’ of Siyar
prevents peaceful coexistence and permanent peace deals – it can only
reveal one of two facts: either that Afsah does not know that Siyar
permits unrestricted (timewise) peace deals or that he generalized one
juristic view over the entire rich body of Siyar. This is not the only
occasion when he has demonstrated a lack of understanding of the Siyar
he is criticizing. He repeats exactly the same mistake when he talks about
the concept of siyasa64 and the concept of jihad.
If there is one point where Afsah was right, this can only be the fact
that the body of Siyar needs to be revisited in order to answer the needs
of today’s world,65 which Siyar is both capable of doing and not opposed
to.
While one would expect that supporters of divine rules would suggest
that the whole world should fall under their legal system, those (such as
Afsah) who claim that such thinking belongs to religious people and
think that they are supporting freedom, rights and respect seem to be the
eager party to impose their way of life on others.
Many honest and open-minded Western thinkers oppose such polemic
discussion led by supporters of the Western hegemony. The contemporary
state-centred Western-sponsored concept of international law, as put by
Carty, ‘has an inherent tendency, which O’Donovan highlights, to ground

62
Ibid 294–6.
63
This debate is indebted to the full article at: Khaled Ramadan Bashir,
‘Article Review, Ebrahim Afsah, “Contested Universalities of International Law.
Islam’s Struggle with Modernity”’, Journal of the History of International Law 10
(2008) 259–307 (July 2008)’ <http://www.islamic-laws.com/articles/universality
article.htm> (accessed 19 February 2018).
64
For more about siyasa (siyasah) in Islamic international law, see Haniff
Ahamat and Mohd Hisham Mohd Kamal, ‘Modern Application of Siyar (Islamic
Law of Nations): Some Preliminary Observations’ (2011) 25 Arab Law Quarterly
423, 426–7.
65
Afsah (n 47) 304.

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14 Islamic international law

international order in the hegemonic claim of one or two countries to

represent the values of the whole of humanity’.66 In the continued search
for alternatives to the decayed Western international law, O’Donovan
proposes a different, richer and more coherent system to replace it.
According to Carty, he argues that ‘[w]ith a theory of political legitimacy
which rests upon representation of national identity, O’Donovan points
the way to an international order based upon mutual respect among
nations under natural law, in the classical medieval sense finally repre-
sented by Grotius and Suarez’.67
The contemporary international law, which faces crises of acceptance
due to the many faults inherent in its structure, dictates the need for an
alternative. The fact that it has been predominantly no more than a tool of
suppression in the hands of the United States and other powerful
countries makes it unworthy of support and raises the alarm indicating
the need for alternative. This is probably why Carty (2007) suggests that
‘international lawyers have to address the society, which they cannot
simply do through authoritarian appeals to their own legal dogmatics.
They have to find a language, which others can speak.’68 Both the
problem and the future risk were highlighted by him when he asserted
that:

international lawyers frequently aspire to affirm the existence of an inter-

national community and the presence of authority to speak on its behalf.
However by forcing a hierarchical representation of legal values upon nations,
which have not accepted them, international lawyers, and the politicians
whom they advise, risk unleashing a whirlwind of violence.69

Be that as it may, it is worth mentioning that one of the greatest scholars

of Siyar, Hamidullah,70 commenting on a compulsory course he had to
take at Osmania University at the beginning of the twentieth century,
asserts that ‘it struck me at once that what was taught to us as
international law was identical in many respects with the teachings of the
books of fiqh and Muslim history’.71 For those who learn about either of

66
Carty, ‘The Moral Theologian, Oliver O’Donovan and International Law’
(n 59) 339.
67
Ibid.
68
Carty, Philosophy of International Law (n 49) ix.
69
Carty, ‘The Yearning for Unity and the Eternal Return of the Tower of
Babel’ (n 56) 1.
70
He is no doubt one of the most renowned authorities of the last century
on the topic.
71
Hamidullah (n 3) x.

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Introduction 15

the two systems and then are exposed to the other, this feeling will
certainly be familiar.72
Furthermore, regardless of whether or not Siyar has a unique nature,
no one can deny its function as a law that is designed to regulate
international legal relations in times of both peace and war. For historical
clarity, it should be recorded that Siyar existed long before international
law was known as a separate field of study in Europe. This might have
motivated some of those who cannot accept calling Siyar international
law to distinguish their historical differences. This may also have been
motivated by the fact that Siyar is wider and more comprehensive; it also
enjoys more features that are advanced and mechanisms that are lacking
in contemporary international law. In this book, however, I use the term
international law to mean Siyar in the context of language. This is the
same as when we use the term jurisprudence rather than the Arabic term
fiqh. In order to address the English reader, the translation of terminology
should always be used as much as possible to avoid having half of the
work written in a different language to the research. Consequently, the
linguistic connotation of the term international law when it is used to
indicate rules that govern the relations between states and individuals in
their cross-border relations is no doubt befitting of Siyar. Moreover,
Hamidullah observes that:

[i]nternational Law means rules of the conduct of states in their mutual

dealings. Obviously, it is not necessary that there should be only one set of
rules, or one system of international law at a time, for the conduct of all the
states of the world. And several systems of international law could, and in fact
did, exist simultaneously in different parts of the globe. Even the modern,
so-called European, International law is not a collection of unanimously
approved rules.73

Similar to this was the opinion of Grotius, who is normally referred to

when some people want to exclude regional, religious or ethnic percep-
tions of international law and argue that they are not part of the latter. He
had clearly held a different view when he said:

[t]he law which is broader in scope than municipal law is the law of nations;
that is the law which has received its obligatory force from the will of nations,
or many nations. I added, … [Grotius said], … ‘of many nations’ for the
reason that, outside of the sphere of the law of nature, which is also
frequently called the law of nations, there is hardly any law common to all

72
Personal experience.
73
Hamidullah (n 3) x.

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16 Islamic international law

nations. Not infrequently, in fact, in one part of the world there is a law of
nations which is not such elsewhere.74

Nevertheless, whether contemporary international law is different, com-

patible, incompatible or even similar to Siyar is a heated debate among
scholars, and it will not be my aim to embark on it in this work. What is
more important here is to emphasize the importance of studying Siyar in
general and the contribution of Al-Shaybani in particular.75 In this regard,
James Crawford acknowledges that although Grotius is a regional
thinker, we treat him as an international lawyer; therefore, there is no
reason why we should not treat Al-Shaybani in the same way.76

1.1.2 Importance of Al-Siyar

Today, we live under rules that embody, mainly, Euro-American values as

a law for all nations to abide by. Yet these rules are commonly branded as
international law and/or the law of nations. In fact, international law is
accepted by most non-Western nations, who, although they suffered from
its misuse by the West,77 found tremendous advantages in practising it.
However, having failed many of its own tests, international law is under
scrutiny. Some thinkers believe that for international law to be accepted
and practised in the four corners of the world, other nations’ views of
international law have to be taken into consideration: this could reveal
some of the differences and will certainly help in developing an
international law that could truly be called the law of nations (all
nations). The search for an alternative or at least an altered version of
international law is imminent. The massive use of force, contrary to
international law by powerful states, the clash of values and the conflict
of interests have emphasized the urgency of such a search.
Furthermore, Gaber emphasizes that Siyar:

[i]n contrast to the modern concepts, international law was respected and
observed, and due to the presence of the coercive force which compelled rules

74
Hugo Grotius, Hugo Grotius. The Law of War and Peace: De Jure Belli
Ac Pacis Libri Tres (Francis W. Kelsey tr., Indianapolis 1925) 44 (footnotes
omitted).
75
As we shall see later, the aim of this study is to discuss the contribution
of one of the writers of Siyar to international law and not to assert whether the
latter is compatible with the former or not.
76
J. Crowford, personal communication, 19 May 2012.
77
This term will be used to indicate that part of the West that dominates the
course of international affairs.

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Introduction 17

and peoples to its obedience, it was rarely violated. Its binding force was not
merely the ‘consent’ of the states, which is the basis of treaties, nor was it
obeyed because it was the alternative to anarchy. Since it was part of religion,
Islamic International Law was purely of a subjective character. It was a divine
law, the violation of which would invoke the divine punishment. Thus it
implied, of necessity, the principle of the good faith of treaties.78

Moreover, many would argue that in reality Siyar is the true international
law of Muslims. This is to say that it is of key relevance to the
populations of around 57 countries and these are strongly connected with
its teachings. Today, over 1.5 billion people from the world’s population
of 6 billion believe in Islam79 and are more likely to admire, respect and
practise Siyar even if their states do not formally adopt it. Moreover, the
vast majority of Muslims attending Friday ceremonies every week around
the globe are more likely to follow the teachings of Siyar regarding their
international affairs than to follow international law.80 In addition, in her
attempt to measure the attitude of Muslims towards the 2003 Iraq war,
Professor Ali has noticed that Muslims from all parts of the world have
sought consultations based on Siyar on what they should do and how
they should react to the invasion.81 This is yet another indication that
people even in secular Muslim states still wish to live under Islamic laws
(domestic or international). In addition, many significant empirical stud-
ies show that without an appreciation of Siyar, we will never have an
international law that could be both practical and effective. For example,
Ali and Rehman (2005) asserted that ‘[o]ur study has established that it is
not possible to ignore rules developed in the Islamic legal system as
regards conduct of inter-state relations including laws of war, which even

78
Mohammad Hosny Mohammad Gaber, ‘The Early Islamic State with
Special Reference to the Evolution of the Principles of Islamic International Law,
632–750 A.D.’ (PhD Thesis, American University of Washington 1922) 24–5.
79
Source: <http://www.pewresearch.org/fact-tank/2017/01/31/worlds-muslim-
population-more-widespread-than-you-might-think> (accessed 15 May 2018).
80
Friday prayer is an obligation upon every Muslim male. They are required
to attend it in a mosque and the vast majority of them do attend it. Friday
ceremonies normally contain the most up-to-date Islamic view on how Muslims
should deal with matters of their day-to-day life, and this includes international
affairs.
81
S. S. Ali, ‘Resurrecting Siyar through Fatwas? (Re) Constructing “Islamic
International Law” in a Post-(Iraq) Invasion World’ (2009) 14 Journal of Conflict
and Security Law 115.

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18 Islamic international law

today form a coherent body of rules comparable with any legal system of
the world’.82
For these reasons, recognizing the Islamic perspective on international
law is undeniably vital to the study and development of international law,
especially in our day and age. Furthermore, in an age that is marked by a
highlighting of the diversity between Islam and the West along with the
claim of a clash of civilizations, the study of Siyar has become more and
more important.

1.1.3 Siyar and Western International Law

Gazi83 has offered a point-by-point account of the comparison between

Siyar and international law. In light of his study, I offer the following
comparisons:

1. While the very nature of international law as a law is contested due

to a purported lack of some elements, thus preventing us from
calling it a law, the nature of Siyar as a law has never been subject
to disagreement.
2. Siyar is the creation of independent jurists, unlike contemporary
international law which is mainly created by political entities acting
in accordance with their interests. Furthermore, in Siyar law creates
political authority as well as the state and not the other way around.
This is evident from the fact that law was enacted first and there
was never a legislative body in the Muslim State’s structure. Thus,
in this regard, ‘the entire concept of Muslim international law is
basically different from that of the Western international law which
not only stems from the will of the rulers but also remains
contingent upon it’.84 Similarly, Bsoul agrees that ‘Islamic inter-
national law was not the product of an attempt to discover the rules
actually observed and practised by states in their mutual inter-
course, as is the case generally with modern systems of inter-
national law’.85 He also adds that ‘its origins lie in what are
perceived to be infallible religious sources, so that its application

82
S. S. Ali and Javaid Rehman, ‘The Concept of Jihad in Islamic Inter-
national Law’ (2005) 10 Journal of Conflict and Security Law 321, 342.
83
Šhaybānī (n 38) 17–21.
84
Ibid 18–19.
85
Labeeb Ahmed Bsoul, International Treaties (Mu āhadāt) in Islam:
Theory and Practice in the Light of Islamic International Law (Siyar) according
to Orthodox Schools (University Press of America 2008) 11.

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Introduction 19

and observation had to operate in accordance with the spirit of

those general rules’.86
3. On top of this, unlike the case in Western international law,
municipal law and Siyar are not in contradiction, because they
come from the same source.87
4. While the universal character of Western international law is
disputed from the very beginning, Siyar from its inception to date
bears a universal one. Gazi argues that Western international law
considered those outside the European circle as uncivilized and
unworthy of its application. Conversely, ‘Muslims never raised the
question whether someone was civilised or uncivilised, a question
on which no clear and commonly accepted criterion could ever be
laid down.’88 In fact, Siyar ‘adopted a criterion which was much
more clear and precise in its application, namely the religious and
political affiliation of the person concerned’.89 In this regard, Bsoul
(2008) argues that Siyar places great emphasis on ‘the universal
brotherhood of mankind.90 The significance of this brotherhood is
that it annuls all racial and material differences between human
beings.’91
5. From the very beginning, Siyar recognized individuals as well as
groups and states as subjects of its domain. Western international
law, conversely, still struggles to accept individuals or even groups
as subjects except in very limited and non-unanimously agreed
upon cases. Siyar ‘has never deprived individuals of seeking redress
available to them under the rules of Muslim international law’.92 On
the contrary, to date no individual can raise an issue with the

86
Ibid.
87
See also Gaber (n 78) 25.
88
Šhaybānī (n 38) 19–20.
89
Ibid.
90
Bsoul notes: ‘[t]his is made clear in two verses of the Qura’an; chapter
49:11 and 13, which read: ‘O you who believe! Let not a group scoff at another
group, it may be that the latter are better than the former, nor defame one
another, nor insult one another by nicknames … ; O mankind we have created
you from a male and female, and made you into nations and tribes, that you may
know one another.’
91
Bsoul (n 85) 3.
92
Šhaybānī (n 38) 20.

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20 Islamic international law

majority of the contemporary international legal bodies.93 In add-

ition to this difference, ‘[n]ot only the citizens of the Muslim state
but also the members of a belligerent army and their compatriots
had the right to move a Muslim court, invoking a relevant rule of
Muslim international law’.94 Gazi argues that only some Western
international law scholars have recently considered this.95
6. When some scholars dispute the universality of Siyar because it
rests upon divine sources, they ignore the historical accounts of the
contemporary system (international law) they deem universal. How-
ever, they will never be able to draw the line between international
law of today and religion. In fact, even the individuals whom they
consider to be fathers of international law did not attempt to claim
what they are claiming. Grotius, for example, concluded his intro-
duction of The Law of War and Peace by saying: ‘if anything has
here been said by me inconsistent with piety, with good morals,
with Holy Writ, with the concord of the Christian Church, or with
any aspect of truth, let it be as if unsaid.’96 Moreover, he also
unequivocally stated that:
[r]eligion is of ever greater use in that greater society than in that of a
single state. For in the latter the place of religion is taken by the laws
and the easy execution of the laws; while on the contrary in that large
community the enforcement of law is very difficult, seeing that it can
only be carried out by armed force and the laws are very few. Besides,
these laws themselves receive their validity chiefly from fear of the
divine power; and for this reason those who sin against the law of
nations are everywhere said to transgress divine law. Therefore, the
Emperors have well said that religion corruption affects all to their
hurt.97
In conformity with this, in Stumpf’s great work The Grotian
Theology of International Law (2006), he concluded that:
Grotius certainly is to a great extent indebted to the Christian theolog-
ical and legal traditions: his theory of Natural Right follows lines
parallel to those of the Salamancan School; his just war doctrine mostly

93
Mohamad Gazi Janaby and Khaled Ramadan Bashir, ‘The Right of
Individuals to Take Judicial Action Against International Persons: The Case of
NATO’s Intervention in Libya’ (2012) 1 Cambridge Journal of International and
Comparative Law 162.
94
Šhaybānī (n 38) 20.
95
Ibid 21.
96
Grotius, The Law of War and Peace (n 74) 30.
97
Ibid 510.

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Introduction 21

pursues the path already paved by medieval canon law, and in his
understanding of function of Christ’s sacrifice for the redemption of
mankind Grotius adheres to orthodox Patristic theology.98
7. Gazi argues that ‘[t]he Western international law, as conceded by
several Christian and Jewish writers, is an offshoot of the Christian
civilization prevalent in Christendom’.99 He further stresses that:
[t]he Christian component of Western international law becomes more
striking in areas where a rule of international law is disputed by one of
the parties. In such a situation, according to a recent but highly
respectable authority, Oppenheim, it lays down that the principles of
Christian morality should be applied. On the other hand, in a similar
situation Muslim international law does not invoke any principle of
Muslim morality. It invokes the principles of natural justice, particularly
the principle of tamathul, mujazah or reciprocity ensuring an equal
footing to both the parties.100

From another perspective, one can also add to the above comparison the
fact that while modern international law feeds on states’ interest as the
main source of life which can be diverted from serving the human cause
to the fulfilment of the cause of the state and its leaders, Siyar feeds on
ethical and moral standards as principles of law. This is why, ‘in the eyes
of Muslim jurists, any system of human relations not based first and
foremost on ethical principles loses all significance’.101
In addition to the abovementioned features of Siyar, international law
as it is taught today inevitably includes Siyar as a source of law both
implicitly and explicitly. It does so when it recognizes customary
practices of nations as a source of international law.102 This is because
Siyar was the practice of Muslim dynasties and states until the beginning
of the twentieth century. Likewise, the Statute of the International Court

98
Christoph A. Stumpf, The Grotian Theology of International Law: Hugo
Grotius and the Moral Foundations of International Relations (De Gruyter 2006)
242.
99
Šhaybānī (n 38) 21.
100
Ibid (footnotes omitted).
101
Bsoul (n 85) 13 (footnotes omitted).
102
Interestingly, custom is also seen as a source of Siyar itself. For more
about this, see Md Anowar Zahid and Rohimi B. Shapiee, ‘Considering Custom
in the Making of Siyar (Islamic International Law) Notes and Comments’ (2010)
3 Journal of East Asia and International Law 123.

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22 Islamic international law

of Justice, particularly article 38, accepts Siyar as a source of inter-

national law by recognizing the teachings of great scholars and great
civilizations as a source of law. Thus, such writings of great scholars
from a great civilization as that of Al-Shaybani should undoubtedly sit
well in such a category.
Additionally, it is undeniable that ‘many of the most modern concepts
of contemporary public international law, such as the principle of
humanitarian treatment of prisoners of war, had been anticipated by
Islamic law’.103 Indeed, the treatises of Siyar ‘on this specific subject had
anticipated by several centuries the first emergence of organised writing
in the West on the subject of Public International Law’.104 Moreover, it
should be emphasized that ‘[a]long with principles now incorporated in
the Geneva Conventions, Islamic law books contained other principles
not yet incorporated in modern conventions’.105 Referring to international
law, the ICJ Judge Weeramantry adds that ‘the eighth-century treatise of
Shaybani had been the subject of a four-volume commentary by
Shamsal-Aimma Sarakhsi long before the topic became the subject of
western juristic writing’.106
Despite all these facts about the importance of Siyar, it is only recently
that some scholars in the West have recognized that Siyar is an integral
part of the history of international law and that it is very important and
complementary to today’s international law.107 Thus, An-Na’im went as
far as suggesting that Siyar should be borne in mind when nations agree
a law according to which they would interact. In this regard, he stresses
that:

the relationship between Islamic law and International Law should be seen in
terms of a more inclusive approach to the latter, rather than conflict or
competition between the two. In my view, there can only be one International
law, but it has to be truly international by incorporating relevant principles

103
Weeramantry (n 7) 109.
104
Ibid.
105
Ibid 135.
106
Ibid 109.
107
As mentioned above, the Oxford Handbook of the History of International
Law (Oxford Handbooks in Law) in its ‘People in Portrait’ part, which explores
the life and work of the prominent scholars and thinkers of international law,
presents Al-Shaybani as the earliest contributor and concludes with Sir Hersch
Lauterpacht. Mashood A. Baderin, ‘People in Portrait’ in Fassbender et al. (n 1)
1081.

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Introduction 23

from different legal traditions, instead of the exclusive Euro-centric concept,

principles and institutions of international law as commonly known today.108

Furthermore, in the same line some scholars think that Siyar should be
used effectively to develop and improve the current version of inter-
national law. For example, Gamal Bader asserts that:

[c]ontemporary Islamic legal thought has no trouble subscribing to all current

principles of International Law. Beyond that it aspires to enrich International
law with its own contributions. What contemporaneous legal systems can
contribute to each other and to international law is a different emphasis on
values, a particular pattern of juridical reasoning and a distinctive methodol-
ogy in the search for solutions to common problems. In all these areas Islamic
law has much to offer to the ongoing process of development of international
law.109

What is more, today ‘a balanced and equitable relationship can only

come about once Islamic values are understood and accommodated in the
international political order’.110 In fact we must always bear in mind that
‘[i]gnoring them in favour of strictly European ideas will only lead to
continued misunderstanding between Muslim and non-Muslim states’.111
It must also be pointed out that Siyar is also capable of recognizing the
developments in the international legal system. Therefore, Siyar scholars
need to make it available for international lawyers to be better informed
when dealing with Muslim communities, they must also exert efforts to
update Siyar in light of the developments international law has seen.
While there are some attempts to carry out the first task, there are barely
any to fulfil the second. This book will offer international lawyers an
unprecedented (in its width) opportunity to learn about Siyar in its
original form.

108
Abdullahi Ahmed An-Na’im, ‘Islamic Law and International Law’ (2004)
<http://www.aals.org/am2004/islamiclaw/international.htm> (accessed 29 Janu-
ary 2010).
109
Gamal M. Bader, ‘A Survey of Islamic International Law’ in Janis and
Evans (n 11) 100–101.
110
Bsoul (n 85) 2.
111
Ibid.

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24 Islamic international law

1.2 AL-SHAYBANI
Many prominent scholars of his time, especially those working in the
field of Siyar, attested that Al-Shaybani112 was one of the greatest
jurists.113 This remains true today. Thus, Abū al-Wafā (2007), writes: ‘it
is possible to say that Imam Al-Shaybani influenced and still today
influences the development, re-shaping and crystallizing of the principles
of international law and international relations in Islam in particular and
in the world in general.’114 Moreover, Al-Shaybani has been described as
‘the chief architect of siyar’.115 His books were clear evidence that he
was a ‘prolific writer who set down the Hanafi Doctrines, as well as
those of other jurists, as his version of Malik’s Muwatta’116 attests’.117
He is also recognized as the founder of Siyar118 as an independent field
of study.119
His book Al-Siyar Al-Kabīr was adopted by the Caliph of the time and
by many other Muslim rulers after him. The power of this book reached
even the Ottoman Empire and was used to regulate Islamic international
relations. Furthermore, Al-Shaybani was appointed by the Caliph as a

112
In Western literature, his name is written in a number of different ways
including: Šaibānī, aš-Šaibānī, al-Šaibānī, Shaybānī, Ash-Shaybānī, al-Shaybānī,
Shaybani, Ash-Shaybani and al-Shaybani. The most accurate in English is
aš-Šaibānī. However, some would transliterate it letter by letter and write the
Arabic (L) and some would drop it, as it is silent in Arabic. Probably the simplest
method, as not all English readers are familiar with Š (sounds like sh), is to use
sh instead. Thus, I used Al-Shaybani.
113
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir
Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad
Al-Sarakhsi], vol 1 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat
1971) ix–x.
114
Abū al-Wafā (n 12) 3.
115
Bsoul (n 85) 14.
116
Muwatta is one of the most authentic and authoritiative books in Islamic
jurisprudence. The book contains a record of traditions of Prophet Muhammad as
heard in Imam Malik’s circles. There are two versions of this book, one of which
was prepared by Al-Shaybani. His version further records the opinions of the
Iraqi jurists on the prophetic sayings that were reported by Imam Malik.
117
Muḥammad Ibn-al-Ḥasan aš-Šaibānī, The Islamic Law of Nations:
Shaybānī’s Siyar (Majid Khadduri tr., Johns Hopkins Press 1966) 36.
118
As mentioned above, some scholars have used this term as a translation of
Siyar whereas others have completely rejected this, claiming that Siyar is
separable from the term Islamic international law.
119
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) ix–x.

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Introduction 25

judge before and after he was dismissed by him. Upholding justice was
his enduring character and the cause for his dismissal when he ruled
against the wishes of the Caliph himself.
According to the Islamic calendar,120 Muhammad Ibn Al-Hasan
Al-Shaybani was born in the year 130 (747 AD).121 He grew up in one of
the most significant centres of learning at the time, Al-Kufah.122 Having
inherited a large amount of money from his father, Al-Shaybani dedicated
his time and wealth to learning. He studied with the greatest scholars of
his time, some of whom became the greatest scholars of Islamic law. He
followed Abu-Hanifa, the head of the Hanafi School, for four years.
Although he studied with many great scholars, ‘the foundation of his
scholarship was laid and his legal and juridical understanding was
sharpened by Abu Hanifah whose academy he joined at the age of
fourteen’.123 After the death of Abu-Hanifa, Al-Shaybani continued his
education with the most outstanding disciple of the former, Abu-Yusuf.124
Al-Shaybani and Abu-Yusuf ‘constitute the nucleus to which goes the
credit of laying the foundations of the largest school of Islamic law and
jurisprudence. Almost ninety percent of the rulings given by Abu Hanifah
have been reported to us by Shaybani.’125 However, not only had
Al-Shaybani learned in the school of Abu-Hanifa which used istinbat
(elicitation) as a source of law, he also travelled to learn in the circles of
Imam Malik, the founder of the Maliki School, and Al-awzai. Both of the
latter upheld different styles of reasoning in Islamic jurisprudence.126
They used to build their opinions mainly on the traditions and narrations
of the Prophet, his companions and the practice of the ‘people of
Al-Madinah’127 as well as the Qura’an. As his study with Abu-Yusuf did
not last for long, Al-Shaybani travelled seeking knowledge across the
Muslim land, but only settled in Medina for some time with Imam Malik.
Thus, ‘[t]he impact of the Madinan128 School on Shaybani’s writings is

120
Hereafter this will be AH.
121
Henceforth where years are in the form of (130/747), this indicates 130
by the Islamic calendar and 747 AD.
122
A well-known city in Iraq.
123
Šhaybānī (n 38) 22.
124
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) ix–x.
125
Šhaybānī (n 38) 21–2.
126
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) ix–x.
127
The term refers to the Muslims residing in the Prophet’s city (sometimes
written as Medina, currently in Saudi Arabia).
128
Referring to the School of Madina, the Maliki School of thought.

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26 Islamic international law

evident from his mastery over the science of Hadith.129,130 The fact that
he had studied with two founders of different schools of thought, and his
travel in pursuit of knowledge, helped him to become one of the greatest
scholars of Islamic Law. His readers note that ‘[h]is writings represent a
unique combination of rational interpretation of early precedents and a
profuse citation of authorities, particularly the sayings and practices of
the Prophet (peace be on him) and his Companions’.131 Yet, in general, in
his writing style Al-Shaybani was no different from his contemporaneous
Islamic scholars as he too ‘employs a dialogue form in some of his
writings, especially when he compares his arguments with those of other
jurists. This form not only keeps the discussion lively but also greatly
helps the reader, in most cases, to follow the line of argument adopted by
the jurist concerned.’132
When Al-Shaybani was only 20, he started teaching in Al-Kufah and
his circles were always full. Not only did many of his students become
popular scholars and sources of knowledge drawn upon to this day,
Imam Al-Shafi’i was also among his students. Al-Shafi’i is the founder of
the Al-Shafi’i School, which is one of the four main schools of
jurisprudence in Sunni Islamic thought.133 Thus, Al-Shaybani studied
with the heads of two of the main Islamic schools and he was the master
of the head of another.
The most distinguished student of his, Imam Al-Shafi’i, has praised
Al-Shaybani on several occasions and once told his audience that ‘the
notes he had prepared in the company of Shaybani were equal to the load
of a he-camel. He would then explain that he was referring to a he-camel
“because it can carry more weight than a she-camel”.’134 Furthermore,
Imam Al-Shafi’i once confessed ‘that he never saw a person more
knowledgeable about what is lawful and what is unlawful and the niceties
of law than Muhammad ibn al-Hasan al-Shaybânî’.135 Later, Al-Shaybani
was often consulted by the Abbasid Caliphate on various legal issues. He
then was appointed as a judge by the famous Caliph Harun A-Rasheed.136
Al-Shaybani died when he was 58 in the year 189 AH. The Caliph

129
Hadith refers to the second main source of Islamic Law, which is the
Prophetic traditions.
130
Šhaybānī (n 38) 23 (footnote added).
131
Ibid (footnote added).
132
Ibid 30.
133
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) x.
134
Šhaybānī (n 38) 23.
135
Ibid.
136
Ibid 24.

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Introduction 27

himself led the funeral and addressed the crowds stressing that ‘they were
not burying the earthly remains of a mortal; they were rather burying the
science of law and jurisprudence itself’.137
As one of the most prolific writers in Islam and by far in the field of
Siyar at the time, Al-Shaybani left a great amount of books. Historians
have related to him many valuable works138 some of which,
unfortunately, have been lost. In the field of international law, the first
book he wrote was Al-Siyar Al-Saghir or ‘the Shorter Book of Inter-
national Law’.139 This was after his Master Abu-Hanifa’s death. He wrote
it under the supervision of his new Master, Abu-Yusuf. Gazi, who
translated this book, refutes Khadduri’s claim that this book was Abu-
Hanifa’s Siyar. He strongly believes that it was the brainchild of
Al-Shaybani. He completely rejects Khadduri’s analysis that because it
mostly contains the opinion of Abu-Hanifa it must have been what was
known as Abu-Hanifa’s Siyar, to which Al-awzai had written his re-
joinder. Thus, Gazi stresses that:

Khadduri’s remarks on the subject seem to be mutually contradictory. He

denies the popular contention that Shaybani had written this book before 157
AH in which case this cannot be considered to be the Siyar of Abu Hanifah of
which a refutation was written by Awza’i. He also conjectures that the Siyar
attributed to Abu Hanifah might have been written by Abu Yusuf and might
not have reached us. On the other hand, Khadduri declares a chapter from
Shaybani’s Kitdb al-Asl as his Siyar and embarks upon its translation without
even perhaps trying to check whether the real al-Siyar al-Saghir was in
existence or not.140

An examination of Khadduri’s book reveals that his translation is replete

with Abu-Hanifa’s opinions pertaining to Siyar questions. If having
mainly relied on the opinion of the latter is a sign of any work to be his,
then even the work translated by Khadduri should not be called Shay-
bani’s Siyar; he should have rather called it Abu-Hanifa’s Siyar. Further-
more, no one else questions the fact that Al-Siyar Al-Saghir was written
by Al-Shaybani. Therefore, and since it contains the opinion of the latter
as well as Abu-Hanifa’s, it will always be more appropriate to call it
Al-Shaybani’s Siyar.
Luckily, Al-Siyar Al-Saghir is preserved as it was written and it has
reached us in its original shape. In fact, now it is available even in

137
Ibid (footnotes omitted).
138
Ibid.
139
As Gazi, the translator of this book, calls it.
140
Šhaybānī (n 38) 31.

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28 Islamic international law

English entitled Muhammad al-Hasan al-Shybani, Kitab Al-Siyar

Al-Saghir, or The Shorter Book on Muslim International Law, translated
by Mahmood A. Gazi and published in New Delhi by Adam Publishers in
2005.141 The translator asserts that:

al-Hakim al-Shahid Muhammad ibn Muhammad al-Marwazi had prepared a

summary of Shaybani’s six books of Zdhir al-Riwdyah which included his
two works on Siyar as well. In this summary, Hakim had adopted the entire
text of al-Siyar al-Saghir of Shaybani in the original form instead of
attempting to make his own summary of the two Siyars. This assertion has not
only been verified by its most popular and authoritative commentator,
al-Sarakhsi, but is also supported by the fact that most of the extant
manuscripts of al-Kafi use the title al-Siyar al-Saghir for the relevant chapter
in al-Kafi.142

As mentioned earlier, Al-Shaybani wrote this book while in Iraq, far from
the borders of the Muslim State where one would expect the need for
Siyar to govern interactions with others. This prompted Al-awzai, the
great scholar based in Syria at the time, to offend Al-Shaybani by his
famous statement when he questioned ‘what has Mohammad (Al-
Shaybani) to do with this’, referring to Siyar. He uttered this statement
when he read Al-Siyar Al-Saghir. Bouzenita recalls Al-awzai’s statement
that ‘[t]he people of Iraq are not entitled to a composition (tasnīf) in
these legal fields, as they have no knowledge in siyar. The military
campaigns of the Messenger of Allah took place in Shām and the Hijāz,
not in Iraq, as the latter has been opened to Islam only recently.’143 When
this proclamation reached Al-Shaybani, he embarked upon improving
Al-Siyar Al-Saghir (the small Siyar) to produce Al-Siyar Al-Kabīr (the
major or grand Siyar). This new book was and is indeed a great
achievement and a magnificent contribution to the field of Siyar. In fact,
when a copy of it reached him, even Al-awzai admitted that it was a
unique and valuable book. On this occasion it is reported that he even
said, ‘[h]ad it not been evidenced by ahādīth, I would have said that he
has taken the knowledge out of himself, and that Allah has destined the
correct answer in his legal opinion (rahy).’144

141
One of the most recent and useful reviews of this book is that of my
friend Jean Allain. See Jean Allain, ‘M. A. Gazi (Ed.), the Shorter Book of
Muslim International Law Reviews’ (2016) 1 Jus Gentium: Journal of Inter-
national Legal History 183.
142
Šhaybānī (n 38) 33–4 (footnotes omitted).
143
Bouzenita (n 27) 25–6.
144
Ibid (footnotes omitted).

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Introduction 29

Clearly, Al-Shaybani was the most significant Islamic scholar in the

field of international law in terms of his voluminous writing. Although,
as we have seen above, he was not the first to write in this field, but
writing his sophisticated book on international law (Al-Siyar Al-Kabīr)
made him deserve the title.145 Moreover, Al-Munajjid (1971) argues that
Al-Shaybani was ahead of many prominent scholars such as Vitoria,
Suarez and Vasquez. He thinks that Al-Shaybani was ahead of his time
even compared to Grotius (1583–1645).146 Meanwhile, Johnson (1997),
commenting on the likening of Al-Shaybani to Grotius, suggests that:

a better comparison is with another major figure in Western moral tradition on

war, the Spanish Dominican schoolman Vitoria, who after spending the
majority of his career as a teacher, lecturer, and writer, concluded it as a
consultant to his monarch, the emperor Charles V, on matters pertaining to the
just use of force by the Spanish against the Indians in the New World.147

Related to this, Robert Flint, one of the masters of philosophy of history,

stresses that ‘the man of genius who is called the founder of a science
merely brings together its already existing elements; he confines himself
to uniting its disjecta membra and breathing into them the breath of
life’.148 Although Al-Shaybani had some precursors, none of them dealt
with the subject of Siyar in its entirety in one book as he did. Thus he, I
conclude, with no doubt deserves the title of the father of Siyar.
Furthermore, many scholars deem him to be the pioneering author of
international law, both public and private.149 Nonetheless, the question of
whether he is the father of international law is outside the scope of this
book. Yet it must be noted that he is now increasingly regarded to be one
of the foremost contributors to the field of international law.150

145
Šaibānī (n 117) 22.
146
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) xiv.
147
James Turner Johnson, The Holy War Idea in Western and Islamic
Traditions (Pennsylvania State University Press 1997) 69.
148
Ernest Nys, ‘Introduction’ in Francisco de Vitoria, De Indis De Ivre Belli
Relectiones, Text of 1696 (Ernest Nys ed., John Pawley Bate tr., The Carnegie
Institution of Washington 1917) 55.
149
See, for example, the author of ‘The Imam Mohammad Ibn Al-Hasan
Al-Shaybani and his Impact on International Relations’ (PhD Thesis at Al-Azhar
University: Faculty of Law and Sahri’a in 1997), Authman Juma’a Dmeriyah,
‘The Imam Mohammad Ibn Al-Hasan Al-Shaybani and His Book Al-Siyar
Al-Kabir (2-2) [Al-Imam Muhammad Ibn Al-Hasan Al-Shaybani Wa Kitabuhu
Al-Siyar Al-Kabir 2-2]’ (Midad, 29 December 2007) <http://www.midad.me/arts/
view/aut/10691> (accessed 27 November 2011).
150
Mashood A. Baderin, ‘People in Portrait’ in Fassbender et al. (n 1) 1081.

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30 Islamic international law

Nevertheless, Al-Shaybani wrote Al-Siyar Al-Kabīr in the eighth

century and it has been consistently consulted by Islamic governments
ever since. However, this original work on the Islamic law of nations is
not available in its entirety today.151 Nevertheless, Muhammad Ibn
Ahmad Al-Sarakhsi in the eleventh century made a valuable attempt to
rewrite it while adding his own comments.
Al-Sarakhsi’s book Sharih Kitab Al-Siyar Al-Kabīr Li-Muhammad Ibn
Al-Hasan Al-Shaybani was combined and republished by Salaah Al-Deen
Al-Munajjid (5 vols, Cairo: Ma’had Al-Makhtu’tat 1971). The book is
in Arabic and its title reads: Explanation of Al-Siyar Al-Kabīr of
Al-Shaybani by Al-Sarakhsi, edited by Al-Munajjid, 1971. This book is
extremely valuable; first, because it contains the original book by
Al-Shaybani on international law (Al-Siyar Al-Kabīr), and second,
because Al-Sarakhsi critically analysed Al-Shaybani’s rules in it.
Al-Sarakhsi’s commentary on Al-Shaybani’s book has reached us in its
entirety. However, some scholars argue that it is very difficult to
distinguish the original text of Al-Shaybani from the opinion of the
commentator, Al-Sarakhsi. For example, Gazi points out that ‘[t]he text
and the commentary are so interwoven that it is extremely difficult to
separate the two. Any effort to distinguish the two is bound to be
arbitrary.’152 He adds that ‘[t]he editors of the Hyderabad edition of the
commentary have tried to identify the text placing them in parentheses.
But their identification differs in several places to the text identified by
Saláh al-Din al-Munajjid.’153 While this may be true in some editions, in
the Cairo edition (Al-Munajjid’s) it is not impossible to distinguish the
opinion of Al-Shaybani, as it is always attributed to him. Any opinion in
the book is normally attributed to its holder. Therefore, this is no great
cause for concern. In fact, even Gazi states in the same book that ‘in spite
of the conjectural nature of the text identification by the learned editors
of the two editions, the text can be distinguished with a fairly high degree
of certitude in most cases’.154
I shall now first introduce the author of this masterpiece, Al-Sarakhsi.
Following that, I will address Al-Shaybani’s book as found in the latter’s
work and relate it to this study.

151
There are only few scripts that are kept in some museums around the
world.
152
Šhaybānī (n 38) 32–3.
153
Ibid.
154
Ibid.

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Introduction 31

1.3 AL-SARAKHSI
Muhammad Ibn Ahmad Abu-Baker Shamsu Al-imam Al-Sarakhsi,155
who died at the end of the fifth century AH (483/1090), was one of the
great scholars of fiqh (jurisprudence) and language.156 He was impris-
oned because he ruled that the marriage of the local governor with his
emancipated woman was unlawful, as it happened before a required legal
period.157 He served 15 years, during which period he taught his disciples
from his cell. It is said that he dictated his book Sharih Kitab Al-Siyar
Al-Kabīr by heart while his students wrote outside his cell. When they
reached the chapter of al-shoroot (the conditions), he was released and
completed this work as a free man (480/1087).158 It is worth noting that
Al-Sarakhsi dropped some chapters of the original work of Al-Shaybani.
He confesses this without referring to them specifically.159 It is
unfortunate that the original work of Al-Siyar Al-Kabīr is only available
in this book; therefore, we have to accept the narration of Al-Sarakhsi
and rely on his memory and sincerity, as Al-Munajjid comments.160 Gazi
speculates that it is difficult to assert whether Al-Sarakhsi had a copy of
Al-Siyar Al-Kabīr at hand while he was dictating his commentary. He
further argues that in case he did not:

… It is difficult to determine as to how much of the original he was able to

incorporate in his commentary by dint of his extraordinary memory, even
though that was something not unusual among the Muslim scholars of the
early centuries of Islam. However, it may well be probable that the students
sitting around the pit possessed copies of the original and read out to the
imprisoned teacher the passages of the original which Sarakhsi set out to
elaborate and explain. Recitation of the text by the students in order that it be
explained by the teacher was, and still is, a prevalent practice in the traditional
centres of Islamic learning.161

Some people would claim that ‘Sarakhsi’s works are considered gener-
ally as the commentaries on Shaybani’s works and to that extent only as

155
In Western literature, his name is written in a number of different ways
including Sarakhsī, As-Sarakhsī, al-Sarakhsī, Sarakhsi, As-Sarakhsi and
Al-Sarakhsi. The latter is adopted in this book.
156
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) iv.
157
Ibid xvi.
158
Ibid.
159
Ibid xvii.
160
Ibid.
161
Šhaybānī (n 38) 32.

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32 Islamic international law

exposition of his works’.162 However, Kassim (1994) disagrees with this

claim and points out that Al-Sarakhsi further contributes to the various
fields in a great way. For example:

1. ‘Sarakhsi systematizes the doctrine of juristic preference to its

fullest and seeks its justification directly from Shari’a sources.’163
2. He ‘shows the relevance of the doctrine of juristic preference and
its application to the muwada‘a (treaties), mu‘amalat (mutual
relations) of Muslims with other nations concerning the ahkam
al-dunya (worldly affairs)’.164

To be just to both, Al-Shaybani had offered the first comprehensive book

on Siyar and Al-Sarakhsi thereafter had offered us that book together
with his valuable commentary. Therefore, in our age, neither of them can
be mentioned with regard to the field of international law without
mentioning the other. This is because, as shown above, today, the work of
Al-Shaybani can only be traced through that of Al-Sarakhsi, and the work
of Al-Sarakhsi is greatly indebted to that of Al-Shaybani.

1.4 AL-SIYAR AL-KABĪR

As we have noted above, Al-Siyar Al-Kabīr by Al-Shaybani is only
available through reading Al-Sarakhsi’s commentary book on it (Sharih
Kitab Al-Siyar Al-Kabīr). This book in its original form is only available
in a few museums and institutions around the world. Two key attempts
have been made to revive it: one version was published in Hyderabad and
the other in Cairo. Some other attempts were also made to revive this
book such as the version by Mohammad Hassan Ismail Al-Shafi’i,
published in Beirut (1417/1997).165 Furthermore, an attempt to produce

162
Husain Kassim, Sarakhsi, Hugo Grotius of the Muslims: The Doctrine of
Juristic Preference and the Concepts of Treaties and Mutual Relations (Austin &
Winfield 1994) 4.
163
Ibid.
164
Ibid.
165
Mohammad Hassan Muhammad Ismael Al-Shafi’i, Explanation of
Al-Siyar Al-Kabier of Muhammad Ibn Al-Hasan Al-Shaybani; Dictated by
Muhammad Ibn Ahmad As-Sarakhsi [Sharih Kitab Al-Siyar Al-Kabir
Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad
Al-Sarakhsi] (Dar Al-kutob Al-ilmiyah 1997).

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Introduction 33

another copy of this book was made at the University of Cairo, resulting
in the production of one volume only, edited by Mohammad Abu-Zahra
in 1958.166
In addition, a further copy of the commentary on the book of
Al-Shaybani (Sharih Kitab Al-Siyar Al-Kabīr Li-Muhammad Ibn
Al-Hasan Al-Shaybani) was discovered. This commentary was produced
by Mohammad Al-muneeb Al-e’nitabi Al-Istanbuli and was handwritten.
This copy is retained in Aarif Hikmat’s library in Medina. The book is
called Tayseer Al-maseer fi Sharih Al-Siyar Al-Kabīr [The Book of
Facilitating the Understanding of the Commentary on the Grand
Siyar].167 This book adds yet another extraordinary work to the works of
both Al-Shaybani and Al-Sarakhsi, for it further elaborates on the
Explanation of Al-Siyar Al-Kabīr written by Al-Sarakhsi.168
However, as I am content with its inclusiveness, significance and
reliability, I shall work with the Al-Munajjid edition. This edition seems
to be both complete and preferred by many of the great scholars working
on the subject such as Abū al-Wafā. Thus, in this book I will be working
with the Cairo version in particular, as it has been possible to authenticate
it by comparing it to an original script held in Leiden.

1.4.1 Al-Munajjid’s Edition

The Institute of Arabic Manuscripts169 and the League of Arab Nations

successfully unearthed, translated and combined the work of Al-
Sarakhsi.170 By this great work, these institutions and Salaah Al-Deen
Al-Munajjid in particular have saved the only book containing most
of Al-Shaybani’s ‘grand siyar’. Al-Munajjid combined the book and
forwarded it to the aforementioned institutions to be published in 1971 in
five volumes.171

166
Dmeriyah (n 149).
167
Ibid.
168
Muḥammad Munīb ibn Abd Allāh Aynatābī al-Istanbūlī, The Book of
Facilitating the Understanding of the Commentary on Al-Siyar Al-Kabīr. [Tay-
seer Al-Maseer Fi Sharih Al-Siyar Al-Kabīr Istaktabahu Mualifahu Al-Sayed
Mohamad Muneeb Ibn Al-Haj Al-Intabi Alistanbuli] (handwritten in 1215 Hijri,
1800).
169
‘The Institute of Arabic Manuscripts’ <http://www.malecso.org/institute/
who-we-are> (accessed 31 December 2017).
170
Al-Munajjid travelled from Cairo to Damascus, Paris, Beirut, Istanbul and
many other cities wherever a copy of this book or part of it was saved in
museums, universities or libraries.
171
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) iv.

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34 Islamic international law

The book contains rules governing the relationship between Muslims

and non-Muslims both as individuals and as polities in a comprehensive
manner. It discusses jihad (use of force), ama’an172 (safe conduct),
prisoners of war, the rules of ransom, spoils of war, war crimes, the rights
of those granted asylum, delegations and envoys and their rights,
international and transnational property law, treaty law, international
trade law and rights of religious minorities. In addition, the book deals
with hundreds of other rules governing the relationship between Muslim
and non-Muslim states, as well as individuals,173 in times of both peace
and war at home and abroad.
The first volume deals with defence and war in Siyar in a comprehen-
sive manner. It even discusses what should people wear and eat during
war. Not only does the volume contain rules to protect diplomatic envoys,
it also provides civilians with the right to move and trade freely after
being granted the state of ama’an. In the second volume, the book
continues to deal with conduct of ama’an whereby a foreigner[s] is
granted pledge of security over his/her life and property with permission
to enter the country. Almost half of the volume is concerned with this
topic. The second main topic discussed is the characterizations of spoils
of war and the rules regulating the practice.
The third volume is mainly concerned with the regulation of spoils of
war. It also deals with property acquisition, conveyancing and possession.
It goes as deep as to regulate even renting and hiring equipment in a
foreign land. Following this, the writer clarified the rules for what the
army should obtain or use and what they should not within foreign lands.
The book then goes on to deal with the rules on prisoners of war and
whether they should be freed, ransomed, distributed or executed. A major
part of the fourth volume contemplates the position of merchants and
trade regulations internationally. It also deals with various other topics
such as the position of subjects in a foreign land. The position of
religious minorities as subjects of a Muslim country was also given a
great deal of attention by Al-Shaybani. For example, he discussed their
right to freedom of belief and their right to maintain their places of
worship. He also explained the rights and duties of visitors and traders as
well as inhabitants in Muslim lands.174 In contrast, the following chapter
explained the status of Muslims in a non-Muslim land.

172
Khadduri describes it as safe conduct, pledge of security.
173
Individuals are considered subjects of international law according to
As-Siyar.
174
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr
of Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir

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Introduction 35

Shifting the focus, the first chapter in volume five deals with peace
agreements between Muslim and non-Muslim entities. This peace agree-
ment is called mowada’ah175 and the writer explicitly considered all
possible terms and conditions that such an agreement could contain. The
rest of this volume delves into what we know today as matters of private
international law. It is concerned with matrimonial legal issues in both
Muslim and non-Muslim lands. It also considers succession law and
many other issues regulating the position of foreigners in a Muslim
territory and the position of subjects in foreign territories.
It is noteworthy that Al-Sarakhsi debates the teachings of Al-Shaybani
and rejects them whenever he thinks it is appropriate to do so, which
makes his book a very valuable work. As was the trend, whenever an
opinion of another scholar is mentioned/discussed, acknowledgement
would follow. Thus, we can easily distinguish the opinion of Al-Shaybani
from the author’s as well as opinions of others or other opinions
mentioned.
Al-Munajjid published this book after being examined by three
prominent Hanafi scholars and the old copy of Al-Sarakhsi’s book at the
American University in Beirut was selected to be the main source,
especially in the second volume.176 In addition, Al-Munajjid stated that
‘after the publication of the first volume we managed to view another
copy of the original book Sharih Kitab Al-Siyar Al-Kabīr Li-Muhammad
Ibn Al-Hasan Al-Shaybani’.177 This copy is still retained in Leiden
University today. It ‘dates back to the year eight hundred of the Islamic
calendar (i.e. 1422 A.D.). It was copied by hand by Mohammed Ibn
Hussein Ibn Ali Al-Ameeli.’178 The fact that Al-Munajjid used many
copies held at different institutions around the world highlights the
authenticity of his work.
Furthermore, War and Peace in the Law of Islam (The Johns Hopkins
Press, Washington 1955) and Law in the Middle East (The Middle East

Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad

Al-Sarakhsi], vol 4 (Salah Al-Deen Al-Munajjid ed, Ma’had Al-Makhtu’tat 1971)
1689.
175
Ibid 1528–53.
176
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir
Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad
Al-Sarakhsi], vol 2 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat
1971) iii.
177
Ibid.
178
Ibid.

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36 Islamic international law

Institute, Washington 1955), both written by M. Khadduri, were used as

secondary sources by Al-Munajjid. Coinciding with these, Hans Kruse’s
article in the Journal of the Pakistan Historical Society, Al Shaybani on
International Instruments,179 was also consulted.180
Nevertheless, the reader might be confused by the discovery that the
book covers of volumes four and five have Al-Munajjid as an editor but
the name mentioned on the first page is Abd-Al-Azeez Ahmad. Even so,
as the book covers stated the same publisher as for the past three
volumes, I decided to keep citing Al-Munajjid to avoid confusion.
The editor of this book (Al-Munajjid) affirmed that the original book
written by Al-Sarakhsi was divided into two volumes only. Nevertheless,
it seems that the original book was structured by way of topic-based
chapters, as the connection between the chapters is obvious even if they
are about different fields of law.181
The page numbering is consecutive throughout the five volumes. This
raises the question of whether the five-volume division was merely a
necessity dictated by the amount of unearthed work of Al-Sarakhsi.
Whatever the case is, the continuity of the page numbers across all the
volumes is a sign of the connectivity, originality and reliability of this
work, which claims to present Al-Sarakhsi’s book in its original form.
Moreover, as chapters and pages were chronologically related and in
consecutive order, Al-Munajjid’s statement that the original work was
divided into two volumes seems likely to be true.

1.4.2 The Leiden Manuscript

To reaffirm the authenticity of the version of the book I am using, I

accessed a copy of the manuscript held at Leiden University and
compared it to Al-Munajjid’s edition of Sharih Kitab Al-Siyar Al-Kabīr.
Just as Al-Munajjid stated, this copy testifies that it was written in the
year 800 according to the Hijri calendar, which is the year 1422 AD. It
was handwritten by Al-Ameeli, as mentioned above. Moreover, the
Leiden copy was handwritten and bears a signature which I cannot verify.
This copy of Al-Sarakhsi’s work was almost identical to the book I am

179
Vol I (1953) 90–100.
180
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 176) ix.
181
For example, although he treatment of spoils of war in volume III is very
extensive, in volume IV, whenever Al-Shaybani felt the need or the connection to
the topic, he tackled it again.

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Introduction 37

using. Al-Munajjid, the editor of the latter, did, as mentioned above, refer
to the Leiden copy in his book.182
The table of contents is also almost identical in the two versions.
However, some sub-headings or subdivisions are not mentioned in
Al-Ameeli’s version. For example, on page 89 Al-Munajjid has a
subheading called (raising the voices) between the subheadings ‘the
detestation of bells’ and ‘fighting in sacred months’; this subheading
‘raising the voices’ is not found in the Leiden version.183 However, the
text of the two books is exactly the same if we take out this subheading
which appears in Al-Munajjid’s version. On the other hand, from the
Leiden version I can now say that the original book, just as Al-Munajjid
stated, was unlikely to have been in five volumes as divided by him. This
is because Al-Ameeli produced it in two volumes. Nevertheless, it must
be emphasized that topics, chapters and the text are still the same in both
versions.
Also worth mentioning is the fact that even when Al-Shaybani had
used two different words to convey the same meaning on two separate
occasions, this was still conveyed by Al-Sarakhsi. An example of this is
the point at which Al-Sarakhsi writes ‘Chapter of War: How to Prepare
for it’, and in another version ‘How to Enter it’.184 This means that
Al-Sarakhsi not only was drawing on the original book of Al-Shaybani
but he also mentioned any differences between the original copies he
(seems to have) had of it. This is further support for the fact that
Al-Sarakhsi was citing the original book of Al-Shaybani in great detail
and with identical wordings. Meanwhile, Al-Munajjid’s version has also
proved to be very authentic because we see exactly the same original
(additional185) comments in the main body of the book in his edition
too.186
The various minor differences between the two versions are not easy to
locate. For example, some added words in Al-Ameeli’s version are not

182
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 176) xix–xxi.
183
Mohammed Ibn Hussian Ibn Ali Al-Ameeli and Muhammad Ibn Ahmad
Al-Sarakhsi, ‘Explanation of Al-Siyar Al-Kabīr of Muhammad Ibn Al-Hasan
Al-Shaybani; Dictated by Muhammad Ibn Ahmad Al-Sarakhsi Written 800 Hijri.
[Sharih Kitab Al-Siyar Al-Kabir Li-Muhammad Ibn Al-Hasan Al-Shaybani –
Imla Muhammad Ibn Ahmad Al-Sarakhsi; Tama Sanat 800 Hijri] (Microfilm,
Leiden University Library 2009, OR 373)’.
184
Ibid 29.
185
These comments would not have been essential if Al-Munajjid wanted to
convey the mere thoughts and comments of As-Sarakhsi; however, he proved that
he has committed himself to conveying the text of the book exactly as it was.
186
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 113) 116.

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38 Islamic international law

present in Al-Munajjid’s. These are, for example, the words ‘he said’
(referring to Al-Shaybani) at the beginning of one of the chapters of the
former version,187 which are not found in the latter.188 In addition, some
additional words such as ending a chapter by saying ‘Allah knows best’,
found in Al-Ameeli’s version,189 were slightly different from those in the
version I am working on, as it said: ‘and Allah is the one who helps us to
successes.’190 Another example is when Al-Munajjid wrote ‘and said
Mohammad may the mercy of Allah be upon him …’,191 whereas
Al-Ameeli wrote ‘and said Mohammad, may Allah confer mercy on
him …’.192
Considering the above, it can be confidently said that the book
presented by Al-Munajjid is the same as the original copy held at Leiden,
which was presented by Al-Ameeli. The minor differences are inconse-
quential. Unless one reads and compares them both word by word and
letter by letter, it is difficult to spot the minor differences in some usages
of words. The differences could also rightly be likened to the difference
between using the term ‘in addition’ in one copy and using ‘moreover’ in
the other. Thus, the meaning and the main body of the text in both
remains the same.
On the other hand, this copy kept at Leiden University since the
seventeenth century raises the question of whether early European
international law scholars could have learned about Al-Shaybani’s writ-
ings. Furthermore, was there any link between Grotius, a graduate of
Leiden who was very familiar with the international law writings in its
library in that era, and Al-Shaybani’s works?

187
Al-Ameeli and Al-Sarakhsi (n 183).
188
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 176) 546.
189
As is found in the chapter discussing the case when a foreigner becomes
dhimmi.
190
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir
Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad
Al-Sarakhsi], vol 5 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat
1971) 2243.
191
Ibid 2244.
192
This too was in the chapter ‘when does a foreigner become dhimmi
(subject)’.

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Introduction 39

1.5 MAIN WRITINGS IN THE AREA

Although there are quite a few works on Siyar in other languages,
especially in Arabic, in this area there are only few authorities available
in English today. One of the main and most recent works in Arabic is the
work of Abū al-Wafā, head of the international law department at Cairo
University. One of his works is an encyclopaedia entitled A Book of
International Law and Relations in Islamic Shari’a, published by Dar
A-Nahdah Al-Arabiah in Cairo, 2007/1428, in 17 volumes. It is a
magnificent contribution to knowledge.193 It is probably the most up-to-
date Arabic text on the topic of Siyar. In English, although there are few
works available on the general topic, the works of Hamidullah194 and
Al-Ghunaimi195 are among the most recommended ones. However, on the
contributions of Al-Shaybani, there are fewer authorities such as Gazi,
the translator of Al-Siyar As-Saghir, Husain Kassim and his book
Sarakhsi-Hugo Grotius of the Muslims, and Khadduri the author of The
Islamic Law of Nations. In addition, a few articles (see bibliography)
have embarked upon studying some of the works of Al-Shaybani.
However, at least in English, there is no trace of any work that has
comprehensively addressed the latter’s contribution to international law.
Moreover, there is a lack of thorough investigation of the position of
Al-Shaybani among other international law authors in history.
Nevertheless, after a deep reflection on Khadduri’s book The Islamic
Law of Nations Shaybani’s Siyar, one might conclude that while this
book might only be categorized as ‘a sample of classical’ Islamic law of
nations, it is hard to relinquish thinking about the advisability of the rest
of the title. Although Khadduri’s work contained a large portion of
Al-Shaybani’s writings on international law, his book goes further to
encompass the opinions of both Al-Shaybani’s masters Abu-Hanifa and
Abu-Yusuf. For example, more than half of the translation consists purely
of discussions held by Al-Shaybani’s teachers.196 This point indicates that
not all of the book consisted of Al-Shaybani’s Siyar. It is also clear that

193
The book title in Arabic is kitab alaa’lam biqawaa’d alqanoun aadouli
wala’laqat aadouliah fi shria’ah al-islamiyah.
194
Especially his works The Muslim Conduct of State and Battlefield of the
Prophet. The vast majority of writers in the area cite his works.
195
His The Muslim Conception of International Law and the Western
Approach is one of the very few major sources for an English reader on the
relations between Western international law and Siyar.
196
From page 96 until page 253, Khadduri’s book mainly contains questions
by Abu-Yousf answered by Abu-Hanifa.

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40 Islamic international law

Khadduri (1966) did not literally translate the original book Al-Siyar
Al-Kabīr as it was offered by Al-Shaybani. Instead, he tried to collect
some of Al-Shaybani’s writings on the law of nations, to construct the
latter’s Siyar. Hence, the translation by Khadduri, although containing
some of the writings of Al-Shaybani on Siyar, does not necessarily
signify a translation of Al-Siyar Al-Kabīr of the latter.197 Khadduri did
not rely on Al-Sarakhsi’s explanation of Al-Siyar Al-Kabīr. Instead, he
relied on his own work through importing Al-Shaybani’s writings on
Siyar from other sources that were not always even other works of
Al-Shaybani himself.198
Khadduri justifies this approach in his book by claiming that
‘Sarakhsi’s commentary amounts virtually to a new book; he failed to
reproduce Shaybani’s original text, to which access was denied him in
the prison, although it may be regarded as an exposition of Shaybani’s
doctrines on the siyar as he understood them’.199 He further argues that
the original text of Al-Siyar Al-Kabīr failed to reach us even through
Al-Sarakhsi’s commentary, as it is hard to distinguish from the overall
text. For this reason, Khadduri thinks that Al-Sarakhsi’s commentary
symbolizes Siyar according to the Hanafi School in the eleventh century
and not in the eighth century of Al-Shaybani.200
Notwithstanding this claim, the allegation that the original text is
difficult to distinguish from Al-Sarakhsi’s commentary is easily coun-
tered after the re-publication of Sharih Kitab Al-Siyar Al-Kabīr in 1971.
Further to our earlier argument, in Al-Sarakhsi’s commentary book,
republished five years after Khadduri’s, the original text of Al-Siyar
Al-Kabīr can easily be distinguished. Al-Sarakhsi clearly separated
Al-Shaybani’s arguments by saying: ‘Mohamed said’; ‘and he stated’;
‘and he narrated’ (referring to Al-Shaybani) so as to keep it as it was in
the original book Al-Siyar Al-Kabīr. However, Al-Sarakhsi also added his
own explanations.201
Furthermore, throughout Khadduri’s book, Al-Sarakhsi’s Sharih Kitab
Al-Siyar Al-Kabīr is consulted as a primary source of Al-Shaybani’s

197
This discussion builds on my previously published article: Khaled
Ramadan Bashir, ‘Reconsideration of Khadduri’s The Islamic Law of Nations
Shaybani’s Siyar by Majid Khadduri, The Johns Hopkins Press, 1966, ISBN
978-0801869754’ (2013) 9 Journal of Islamic State Practice in International
Law 9.
198
Šaibānī (n 117) 44.
199
Ibid.
200
Ibid.
201
Bashir (n 197).

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Introduction 41

Siyar. As for the credibility of Al-Sarakhsi, it was never a subject of

suspicion even by Khadduri.
From the above, it follows that if we are to choose between the
credibility of a writer who commented on Al-Siyar Al-Kabīr in the
eleventh century (three centuries after the original text was written) and
between a twentieth-century scholar who tried to infer the original text
from more than one source including the one produced by the writer in
our first choice, it is obvious that the text of the eleventh century by
Al-Sarakhsi is the worthy one. In fact, Gazi, who is credited with
combining and translating Al-Siyar Al-Saghir, stressed the point that:

[i]n his effort to make his readers believe that both the Siyars of Shaybani had
been lost, Khadduri arbitrarily picks up a chapter from Kitdb al-Asl and
presents it as Shaybani’s Siyar. The material included by him in this book
does contain Shaybani’s ideas on the Siyar, but it can in no case be called
al-Siyar al-Saghir of Shaybani or Shaybani’s Siyar.202

Nevertheless, it is worth mentioning that Khadduri’s book The Islamic

Law of Nations Shaybani’s Siyar, which was published in 1966, involved
a huge amount of work to unearth, collect and translate old scriptures that
embodied the rules of Siyar in Al-Shaybani’s era.203 As stated above,
Khadduri has offered the English reader insights into classical Islamic
international law in general; he also provides the reader with the
opportunity to learn about some of the writings of Al-Shaybani in this
field. Nonetheless, Khadduri’s work being different from the work of
Ma’had Al-Makhtu’tat (Arabic Institution of Manuscripts) means that the
latter would, with no doubt, be evaluated differently: as a specialized
institution offering the best available account of Al-Shaybani’s work by
providing the aforementioned work of Al-Sarakhsi.204
Thus from the above, Al-Sarakhsi’s work Sharih Kitab Al-Siyar
Al-Kabīr Li-Muhammad Ibn Al-Hasan Al-Shaybani represents the best
available version of the first (known) book written on international law
separately from all other fields of law. The fact that this work encom-
passes the book205 of Al-Shaybani, independently, makes it worthy of
preference.

Šhaybānī (n 38) 33.

202
203
I.e. the eighth century.
204
Al-Munajjid (1971) stated that the only available copy of Al-Siyar
Al-Kabier of Al-Shaybani is the one that could be inferred from As-Sarakhsi’s
Sharih Kitab Al-Siyar Al-Kabier Li-Muhammad Ibn Al-Hasan Al-Shaybani.
205
This fact is only restricted by the fact that As-Sarakhsi has admitted
omitting some of the original work of Al-Shaybani in his commentary.

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42 Islamic international law

1.6 THE BOOK’S OBJECTIVE

The above facts on ‘the contribution of Shaybani in the systematization
and codification of the international law of Islam has invited the attention
of a number of Western scholars’.206 In addition, Al-Shaybani’s work was
published in Turkish translation in 1825. This had prompted Hammer
Purgstall, the well-known Austrian historian examining Al-Shaybani’s
work, to call him ‘the Hugo Grotius of the Muslims’.207 However, Gazi,
who is familiar with the writings of Al-Shaybani and the translator of one
of his books, argues that Al-Shaybani (d. 804 CE) came centuries before
Hugo Grotius (d. 1645 CE); thus some credit should go to the former
scholar who pioneered in this field.208
In addition, a group of international law scholars who were impressed
by Al-Shaybani’s work founded the Shaybani’s Society of International
Law in 1955 in Germany.209 In addition, the UNICCO translated one of
his books into French.210
Al-Shaybani’s book Al-Siyar Al-Kabīr was far more precise and firm
than one could imagine, considering the time in which it was written. It
dealt comprehensively with international legal aspects of the eighth
century. This led Al-awzai211 to confess: ‘had this book contained no
clauses from Quran or Sunnah, I would have said that it is an invention
of Al-Shaybani.’212 Abū al-Wafā has also stressed that ‘Al-Shaybani did
compile a comprehensive and conclusive work on the rules of inter-
national law especially those that must be followed in war times’.213
Indeed, Abū al-Wafā, who studied the rules of international law in
Al-Shaybani’s writing in light of those of contemporary international law,
went on to say that ‘what Al-Shaybani introduced in the eighth century is
not less, if not more, than what the practice is now’.214
Although Khadduri has offered the English reader some account of
classical Siyar, it cannot be considered as Al-Shaybani’s Siyar, as I
pointed out before.215 However, Al-Shaybani’s short Siyar was translated

206
Šhaybānī (n 38) 33.
207
Ibid.
208
Ibid.
209
Ibid.
210
Abū al-Wafā (n 12) 3.
211
A great scholar who lived in the time of Al-Shaybani.
212
Al-Munajjid, vol 1 (n 113) 277.
213
Abū al-Wafā (n 12) 4.
214
Ibid 5.
215
Bashir (n 197) 9.

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Introduction 43

by Gazi as shown above and it is truly a great loss not to have

Al-Shaybani’s grand Siyar (as in Al-Sarakhsi’s book) in English. Even if
we may not agree with every rule in it, it is far from being just a simple
textbook on international law. The book went as far as to discuss what a
person should eat and what should not be done in a foreign land.
Furthermore, an easy comparison can be seen between rules contained in
the Geneva Conventions and a major part of this work in particular and
between this book and contemporary international law in general.
Furthermore, today, ‘it is being increasingly realized that Shaybani
played an exceedingly impactful role on the development of international
law as such, so much so that he merits to be considered one of the
founders of this branch of law’.216 Besides, as we have seen above,
‘[a]part from dealing with questions of international law in quite a few of
his works, two of Shaybani’s works are exclusively devoted to this
subject’.217 In a relevant vein, Baron de Taube went so far as to speculate
that ‘the modern public International law of declarations of war was a
direct descendant of Islamic doctrine’.218 Christopher Weeramantry has
also offered evidence of ‘the influence of Islamic doctrine in the writings
of Hugo Grotius on the law of combat’.219
Despite the above, there are not enough studies of the extent to which
Al-Shaybani has contributed to the advancement of international law.
There is no study that has considered his contribution compared with
those of other renowned contributors to the field. This book takes
filling this lacuna as its goal, focusing on Al-Siyar Al-Kabīr as it
is Al-Shaybani’s main international law work. Studying this work of
Al-Shaybani in a historical context, as will be explained next, should
allow us to explore the extent to which his contribution helped further
and develop the field of international law.

216
Šhaybānī (n 38) xi.
217
Ibid.
218
James Cockayne, ‘Islam and International Humanitarian Law: From a
Clash to a Conversation between Civilizations’ (2002) 84 International Review of
the Red Cross 598 <https://www.icrc.org/eng/resources/documents/article/other/
5fld2f.htm> (accessed 5 September 2017).
219
Ibid.

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44 Islamic international law

1.7 METHODS OF STUDY

The aim is to study Al-Siyar Al-Kabīr as a textbook on international law
of the eighth century as well as the texts of some of other scholars who
came before and after Al-Shaybani regardless of the sources of their law.
When examining this work of Al-Shaybani, it must be borne in mind
that it was written in a different time at a different stage of human
history. This is why I will discuss matters that are different to contempor-
ary international law within their historical context. I intend to focus on
some of the main topics discussed in Al-Shaybani’s book in order to be
able to evaluate his contribution to this field. Nevertheless, the research
shall not be a historical analysis of events – where law, I believe, might
be respected or might be abused – for in this research I will not be
comparing a system to a concept. I will only refer to events where they
are important to understand the law or to interpret it. This means that
relevant events will mainly be earlier practices. The fact that contempor-
ary international law takes the practice of states as a source of law cannot
affect my approach. This is because contemporary international law is not
necessarily a yardstick to measure other civilizations’ view of inter-
national law. In fact, limiting ourselves to the notion that any legal norm
to be considered as part of international law must be a practice of states
is a very narrow approach.
In order to ensure a high standard in dealing with historical texts such
as this book, I have looked at some works where similar old living works
are considered, for example, the works of Khadduri on the texts of
Al-Shaybani and Abu-Yusuf, the work of Gazi on Al-Shaybani’s Al-Siyar
Al-Saghir and the work of Ra’afat Abdulmutalib on Al-um
of Al-Shafi’i. My method of understanding the text, analysing its contents
and authenticating its narrations will largely conform to their conven-
tional approaches.
Nevertheless, I will aim to study Al-Shaybani’s thoughts and methods
in Al-Siyar Al-Kabīr in a historical context. This will be done through
comparing him to some of the renowned historical contributors to
international law, namely Augustine, Gratian, Aquinas, Vitoria and
Grotius. In my opinion, this must be done before any attempt to establish
the relationship between our contemporary international legal order and
the writings of this great eighth-century jurist, because ‘[t]he Islamic
contribution to the development of international law has to be evaluated
in an historical perspective that takes into account the situation which

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Introduction 45

existed before the birth of Islam’.220 This is because Siyar could change
according to the change of time and circumstances.

1.7.1 Sources and Materials

This study was mainly library-based. However, this did not prevent
discussions with eminent scholars in rare fields where necessary. I have
relied on both Arabic and English language sources. I should establish
the relationship between Al-Shaybani’s work and the work of other
selected thinkers first, and then through this examine the contributions of
Al-Shaybani to the field of international law.
It has already been explained that Sharih Kitab Al-Siyar Al-Kabīr is the
most authentic book containing the original work of Al-Shaybani
of Al-Siyar Al-Kabīr. However, I will still compare its text to that of
Al-Siyar Al-Saghir by Al-Shaybani translated by Gazi. Moreover, I will
also consult the authentic copy held at Leiden University.

1.7.2 Augustine, Gratian, Aquinas, Vitoria and Grotius

Dolezalek argues that comparing Al-Shaybani to European scholars of

the Middle Ages is not fair because European scholars like Augustine and
Gratian were not in a position to write on international law in such
sophisticated terms.221 Nevertheless, this claim, in my view, should be
thoroughly tested. Furthermore, these scholars were carefully selected.
For example, Augustine was by far the most cited authority on ‘just war’
throughout the Middle Ages and beyond. ‘The die for medieval just-war
was cast by St Augustine, who combined Roman and Judaeo-Christian
elements in a mode of thought that was to influence opinion throughout
the Middle Ages and beyond.’222 Therefore, even if Dolezalek was right
and Augustine did not write as prolifically or as eloquently as
Al-Shaybani, he is comparable to the latter, as he played a significant
role in reshaping war in international law as perceived in the West.223
Another reason for selecting Augustine is to look for any similarities

220
S. Ahmed El-Kosheri, ‘Islam’ in R. Bernhardt (ed.), Max Planck Ency-
clopedia of Public International Law (1981) 229.
221
Interview with Gero Dolezalek, Professor of Civil Law, School of Law,
University of Aberdeen (Aberdeen, 11 May 2009).
222
Frederick H. Russell, The Just War in the Middle Ages (Cambridge
University Press 1979) 16.
223
I am aware of the fact that Augustine is not a Western scholar by birth; he
was born in North Africa in 354 AD. However, we may still use the description

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46 Islamic international law

between him and Al-Shaybani who succeeded him. I will also, for many
of these reasons, consider the teachings of Gratian, who is by far one of
the most important figures of canon law in the Middle Ages. Another
motive for drawing a comparison with him is that unlike Augustine,
Gratian came centuries after Al-Shaybani; thus comparing Gratian to
the latter would be fairer from a Western perspective. Furthermore, the
appearance of his Decretum (Concordia Discordantium Canonum)
‘marked a watershed in the history of canon law, for it climaxed the
development of early medieval canon law collections and inaugurated the
period of systematic canonical jurisprudence’.224 Russell stresses that
‘[f]or centuries Gratian reigned as the foremost auctor in the jurispruden-
tial speculation about war’.225 Furthermore, Johnson (1975) adds that in
the West, ‘[b]oth the theological and the legal streams of thought on
justice in war in the late Middle Ages seem ultimately to flow from
Gratian’.226 Gratian is also ‘celebrated as the founder of the science of
canon law’.227 In addition, ‘Gratian’s Decretum was in fact a valid law
book, the oldest and most voluminous part of the so-called corpus iuris
canonici, in catholic ecclesiastical courts until 1917.’228 Thus, Winroth
(2000) stresses that ‘Gratian’s Decretum was one of the cornerstones of
canon law’.229
However, I will also consider some of the most outstanding authors of
the modern world. Thus along with Augustine and Gratian I will consider
Aquinas, Grotius and Vitoria. Both Vitoria and Grotius referred to
Aquinas, heavily relied on his work in many cases and cited him almost
everywhere in their texts just as they did with Augustine. I have thus
selected him because of this and because he is a prominent post-medieval
scholar who was very close to the Islamic world, and therefore to
Al-Shaybani, through Italy and Spain as we shall see later. The selection
of Grotius is self-explanatory. As for Vitoria, I have intentionally selected

‘Western scholars’ to include him and the other Western scholars I intend to
compare with Al-Shaybani.
224
Russell (n 222) 55.
225
Stephen C. Neff, War and the Law of Nations: A General History
(Cambridge University Press 2005) 85.
226
James Turner Johnson, Ideology, Reason, and the Limitation of War:
Religious and Secular Concepts 1200–1740 (Princeton University Press 1975)
26.
227
R. W. Dyson, Aquinas’ Political Writings (Cambridge University Press
2002) 286.
228
Anders Winroth, The Making of Gratian’s Decretum (Cambridge Univer-
sity Press 2000) 2.
229
Ibid.

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Introduction 47

him among the other outstanding scholars related to this research because
I noticed that it is widely held that his writings were revolutionary in that
they added a much more humanistic flavour to international relations
than others such as Gentili230 and other contemporary scholars.231
Knowing the outstanding level of humanism in the treatment of
Al-Shaybani made Vitoria another obvious selection in this study. Fur-
thermore, Grotius acknowledged that he greatly benefited from Gentili.
Hence, Nussbaum comments that ‘with respect to organization and
documentation, Grotius owes much to Gentili’.232 ‘Grotius,’ he adds,
‘even borrowed several of Gentili’s miscitations.’233 Thus, knowing that
they both had much in common and that Grotius’ work would have
included Gentili’s,234 I decided to select Vitoria instead of the latter.
Grotius had access to Vitoria too, for he was mentioned by him in more
than one work and as early as 1604.235 Nevertheless, it will still be
worthwhile to examine the thoughts of the latter in contrast to the former
for the reasons mentioned above.

1.7.3 Translations and Citations

As I am working on an Arabic text as the main source of Al-Shaybani’s

writings, I will offer my own translations into English. However, I will
seek support by consulting translations of some of the passages in books
by other scholars where these are available. In many cases, I will be able
to do this with regard to passages included in the Al-Siyar As-Saghir of
Al-Shaybani translated by Gazi. As for the translation of the Holy
Qura’an, I will be using different translations, in each case selecting the
translation closest in meaning to the actual interpretation of a verse. This
is because most translations aim at translating the meaning, which cannot
always be contained in one concise translation, as the original words
normally bear wide meanings.
Despite objections by some scholars who think that using international
law terms to indicate Siyar’s is an abuse of the latter,236 I will use English
terms wherever it is possible to establish that there is no harm to the

230
Vitoria (n 148) 61.
231
Ibid 61–9.
232
Arthur Nussbaum, A Concise History of the Law of Nations, Revised Edn
(Macmillan 1954) 108.
233
Ibid 331.
234
Vitoria (n 148) 61.
235
Ibid.
236
Bouzenita (n 27) 31.

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48 Islamic international law

general meaning. I believe that using too many Arabic terms in this work
would turn it into a compulsory language course. However, I will use
Arabic terms when equivalent terms are hard to find in English and when
the only way to translate a term will be through using multiple-word
terms.
Sometimes I had to omit footnotes included in quoted texts for various
reasons. For example, in some cases the footnote is in a language other
than English or Arabic. In addition, sometimes the quoted text itself is in
another language. In all cases, however, the quoted text is the words of
the quoted author and therefore the author of the quoted text is always
cited even if we are unable to trace the sources they used. This was
necessary, as the wording was the cited author’s and because I was not
able to trace the footnotes included in the quoted passage in most cases.
For scientific purposes, I have noted that footnotes are omitted whenever
I had to omit them.
In the following chapter, I shall undertake the task of reading through
and comparing the methodologies of the above selected scholars in
comparison to Al-Shaybani. Prior to this, I will try to relocate
Al-Shaybani’s historical position by explaining the historical pattern of
international law scholarship throughout the civilizational phases that his
work could have passed through. Following that, I will embark on
comparing his work to that of the other selected scholars. This shall be
done by selecting some major topics: the law of peace and the law of war
along with consequences of war. I shall conclude my work by establish-
ing the degree to which Al-Shaybani participated in the furthering of the
cause of regulating international relations in accordance with the out-
come of this comparative study. The reason why I have selected these
topics is that they were the most popular topics in the works of the
scholars compared in this book.

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2. Reading historical sources

In order for today’s reader to properly understand and objectively
evaluate the writings of Al-Shaybani, attention should be paid to the
required methods and mechanisms for the analysis of such a historical
source. As mentioned in the previous chapter, it would be neither
objective nor efficient to assess historical writings merely by comparing
them to contemporary writings on international law. This results from
two issues: first, the world has changed in many ways. For example, the
way we perceive capture, slavery, and prize is different from the way it
was perceived when Al-Shaybani was writing. Second, Islamic inter-
national law responds to change through time and geography; as a result,
this source (Al-Siyar Al-Kabīr), written as it was in the eighth century,
will not necessarily represent what Islamic international law should be
today. Therefore, these factors have to be considered in order for a proper
evaluation of this book be made. In order to achieve this goal, the
following should be considered:

1. The nature of international relations at the time when Al-Shaybani

was writing: this will be considered in order to compare the writing
of Al-Shaybani in relation to the then existing state of international
regulations.
2. Sources of Al-Shaybani’s writings: by recognizing them we can
assess whether Al-Shaybani drew on the work of others or devel-
oped his through his own initiative. Therefore, I shall, in this
chapter, discuss the relationship between his thoughts and others in
the area during, before, and after his writing. The objective being
the exposure of the sources that he relied upon in his writings.
3. Identifying his methodology and his style of reasoning: in this
chapter, I will also highlight the main elements of Al-Shaybani’s
methodological approaches in his writings in Al-Siyar Al-Kabīr.
4. In order to paint a fuller picture of Al-Shaybani’s thought, they will
be placed in the centre of the writings of other, selected, authors.

49

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50 Islamic international law

2.1 SOURCES OF AL-SHAYBANI’S WRITINGS AND

OTHER CIVILIZATIONS
What is the relationship between Al-Shaybani’s writings and other
civilizations? In order to answer this question, one must first look at the
possibility of borrowing from writers of other civilizations or vice versa.
Secondly, one must examine the sources of Siyar. Once this is achieved,
it will be possible to elucidate the right answer to this question.

2.1.1 Al-Shaybani and Other Civilizations

It must first be emphasized that the focus here is on civilizations that

could possibly have interacted with Al-Shaybani or vice versa. For
example, if the prehistoric civilizations of South America had developed
international law at that time, there would be no link between them and
Al-Shaybani because there was only geographical contact with that
region several hundred years beyond his lifetime. Therefore, it is not
worthwhile to attempt to discuss any influence of that world upon him.
This applies to all civilizations that could not have had any intellectual
contact with the Arab world before Al-Shaybani’s time. Furthermore, it is
important to note that there is no need to discuss here any influence
within the Islamic world on Al-Shaybani. This is so because, as already
mentioned, Al-Shaybani fully cited the opinions of those Islamic scholars
he borrowed from.

Other civilizations’ possible influence on Al-Shaybani

Many scholars think that international law is as old as history. Montes-
quieu, for example, stated that ‘[a]ll the nations possess an international
law, even the Iroquois who eat their prisoners. They send and receive
envoys, they know the rights of war and peace. Only evil is that this
international law is not based on right principles.’1 However, the oldest
traces of international law (known to us) may be found in the peace
treaty in the thirteenth century BCE between Egypt and the Hittites of
Northern Syria. It invoked a perpetual peace and strong alliance against
enemies as well as immunity for trade between these two realms.2
The Ancient Greeks borrowed from the Phoenician civilization some
rules governing their inter-state relations and they went so far as to

1
Muhammad Hamidullah, The Muslim Conduct of State (5th edn, SH
Muhammad Ashraf 1968) 49 (footnotes omitted).
2
Ibid (footnotes omitted).

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Reading historical sources 51

establish the Amphyctionic League (similar to the League of Nations).3

However, they were not ready to extend the international law they knew
to others. Paradoxically, it was Aristotle the great philosopher who
advocated that non-Greeks were barbarians who should be enslaved.4 The
Romans who succeeded the Greeks built on the Greek systems and
established their own law. They set up a body called fetials (group of
priests) to which international relations was entrusted. However, with the
exception of ambassadors to some degree, the lives and property of
non-Romans were not safe in Rome unless they belonged to a state that
had a friendship or treaty with the latter.5
The Roman Empire, which ruled over Egypt and Syria, had vicissi-
tudinous wars with ‘Iran’ with which it had common frontiers.6 Later,
this great Empire was divided into two: the Eastern and Western Roman
Empire. The former, which is more relevant to this inquiry as it shared
frontiers with the Arabs before and since Islam, developed fairly import-
ant rules for peace but its war rules were subjective and therefore quite
unyielding. This is because its ‘laws of war were in the main based on
the discretion of individual commanders’.7
Moreover, a very important fact has been marginalized, if not con-
cealed. As ancient Greece had two international legal systems (one
applicable to the Greek city-states and Greek allies and friends and
another to the rest of the world), the Romans inherited these two systems
and developed them. One applied to the Roman states in Rome and the
other applied to other states. The law applied among the Greek states and
among the Roman states is what writers today introduce as Greek and
Roman international law, respectively. The latter law, Hamidullah argues,
‘is what our enthusiastic writers call the successor of the Greek system of
international law and the precursor or its namesake of modern times’.8
Perhaps, he added:

one may be entitled to doubt the correctness of this statement. Why not give the
name of Roman International Law to that set of rules which the Romans
observed in their dealings with non-Roman countries, in terms of war as well as
peace? These rules might not have been very elaborate nor greatly developed to

3
George Grafton Wilson and George Fox Tucker, International Law (5th
edn, Silver and Burdett and Company 1910) 13–14.
4
Hamidullah (n 1) 51.
5
Stephen C. Neff, War and the Law of Nations: A General History
(Cambridge University Press 2005).
6
Hamidullah (n 1) 52.
7
Ibid.
8
Ibid 64.

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52 Islamic international law

the extent of being systemised, yet they alone would legitimately be entitled to
be called Roman International Law, and not that set of administrative rules
which were applicable only to the component parts of the Empire itself.9

From another perspective, Casassa (1946) argues that ‘[t]he Roman ius
gentium was never more than the common law of all mankind, the law
common to all men whatever their race. Universal rather than inter-
national, it was likewise private rather than public law.’10 Thus the
Roman ‘international law’, overvalued by many, was, at best, ‘a law of
men, not of states; certainly it did not deal with the relations between
states. When the Empire was conceived as a world-state and actually was
such as far as the civilized world was concerned, there was no room for
ius inter gentes.’11 Casassa hence concludes that ‘[m]odern private
international law may be traced to the Roman conception of ius gentium,
but not public international law’.12
The reality is that in Rome as well as in Greece, ‘nations owed duties
to one another if they were the same race, but not otherwise. States as
such possessed no rights and were subject to no obligations.’13 The
Greeks, for example, ‘recognised no duties towards those nations which
were not of Hellenic descent’.14
On the other hand, even canonists working towards the end of the
Middle Ages did not develop an international law that was meant to deal
with others, beyond Europeans. Thus, Muldoon stresses that:

[t]he canonists, by examining Christian-infidel relations only in ecclesiolog-

ical terms, were building their discussion of international law and relations on
a framework that was too small to bear the weight of a fully developed theory
of international law. Even the inclusion of the theory of just war did not
broaden the intellectual basis sufficiently to enable the canonists to develop
such a theory.15

9
Ibid.
10
Charles S. Casassa and Francisco de Vitoria, The Political Thought of
Francisco de Vitoria (Pontifical Institute of Mediaeval Studies 1946) 141
(emphasis in the original).
11
Ibid (emphasis in the original).
12
Ibid (emphasis in the original).
13
Mohammad Hosny Mohammad Gaber, ‘The Early Islamic State with
Special Reference to the Evolution of the Principles of Islamic International Law,
632–750 A.D.’ (PhD Thesis, American University of Washington 1922) 30.
14
Ibid 31.
15
James Muldoon, Popes, Lawyers, and Infidels: The Church and the
Non-Christian World, 1250–1550 (University of Pennsylvania Press 1979) 155.

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Reading historical sources 53

It should be emphasized that scholars writing in these areas, who have

usually considered just war theory throughout history, left many gaps
unexplained. When they consider just war theory, for example, they
normally first examine St Augustine around the fifth century and then
examine Gratian in the eleventh century and then Aquinas, followed by
late-medieval Western and the early-modern writers. There is no mention
that just war as explained in the fourth century is quite distinct from the
notion of just war in the fourteenth and nineteenth centuries. Moreover, it
is important to note that while others throughout the history of Europe
had been interested in international relations as a topic:

it had been the canonists of the early Italian universities who first tried to
identify a distinct set of Christian public international law in the 11th and
12th century. Gratian, as one of the most prominent canon lawyers, focused
on the questions of an international order in his famous Decretum.16

Therefore, it is difficult to imagine any sort of lending from these

civilizations to Al-Shaybani. Nevertheless, this question will be explored
in full by evaluating his work in relation to that of Augustine of the
fourth century AD.
Nevertheless, I should note that the Eastern Roman Empire (Byzan-
tium) and the Persian Empire shared frontiers with the Arabs and both
had Arabic ‘colonies and protectorates and even buffer States of purely
Arab people in different parts of Arabia’.17 Thus, if they had any
influence, it is likely to have been on the Arabian practices of inter-
national law prior to Islam. However, this should be a separate investiga-
tion; as the Arabian Peninsula is the birthplace of Siyar, it should be
examined in detail. Hamidullah, although believing that the history of
Siyar could not be studied separately from ancient doctrines, asserts that
‘[f]or me it will suffice to describe conditions in Arabia only, from the
point of view of international law, since it was the rules prevalent in this
country that were in the main utilized by the Muslims with adaptation,
amendment, addition and adoption’.18 Al-Ghunaimi rightly agreed with
this approach and pointed out that:

[g]ranting that it is a general tenor of the Qura’an that the status quo, in
pre-Islamic Arabia, is tacitly ratified unless it is explicitly amended, we are

16
Christoph A Stumpf, ‘Christian and Islamic Traditions of Public Inter-
national Law’, (2005) 7 Journal of the History of International Law 72.
17
Hamidullah (n 1) 52.
18
Ibid.

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54 Islamic international law

confident that a study of the international situation of pre-Islamic Arabia is

indispensable to grasp the core of Muslim international law.19

From this, it follows that there may have been reliance on Arabic
practices by Al-Shaybani. Thus, Arabia will now be examined.

Pre-Islamic Arabia
Prior to Islam, Arabs lived in tribal entities where they belonged in all
senses of the word. To them, their tribe was the means of their existence.
Therefore, they were ready to die for it, as there was no life for them
without this belonging. Although some tribes changed their territory from
time to time, some still called them city-states as they ‘had their own
political organisation. They administrated justice, they waged war and
concluded treaties just as other states.’20
Strong as tribalism used to be in these states, they managed to have
some rules governing the peace they had. For example, they practised a
system that was known as ‘sacred months’, during which no fighting was
allowed for four months every year. They had also developed a great
escort system, which helped protect their trade. Moreover, they knew the
system of Ilaf (pact) under which they traded with others and sent
envoys. One of the customs was to tear a treaty into two pieces with each
party holding one piece so that both would be required when the
document is to be consulted. The Arabs also recognized the immunity
and the decisions of envoys, they appointed certain individuals known for
their impartiality as arbitrators regardless of their tribes and they accepted
their decisions.21 Furthermore, peace rules such as refuge, asylum and
quarter, naturalized and domiciled aliens, hospitality of foreigners, extra-
dition and even laws of shipwreck were known.22 Most important was
Hilf Al-fedal or the League of the Virtuous, whereby the tribes signing a
pact vowed to defend the oppressed against enemies until justice was
done.23 Perceptibly, Arabic laws governing war were even more devel-
oped in this era.
The nature of Arabia and the style of its socio-political structure
offered some other interesting practices considered by some to be
customary law. Among these practices were:

19
Muhammad Tal’at Al-Ghunaimi, The Muslim Conception of International
Law and the Western Approach (Nijhoff 1968) 10.
20
Hamidullah (n 1) 54.
21
Ibid 54–6.
22
Ibid 60–61.
23
Ibid 61.

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Reading historical sources 55

1. Dhakhiel: the system of promising protection to a stranger who is

being targeted by others. Any attempt to harm this stranger will be
considered as an assault against the honour of the protecting entity.
This might resemble the Greek practice of isotele; however, the
exact legal status of the latter practice is unclear.24
2. Jiwar: under which the mujawir (client, a stranger who adheres to
the service of a sanctuary) will have a common war cry with a
certain political entity.25

Arabs also developed rules to regulate war, consequences of war,

cessation of hostilities and neutrality.26 Nevertheless, kinship and tribal-
ism were, more often than not, stronger than any law. Mostly, Arabs were
ready to fight on the side of their relatives and clans regardless of what
was right or wrong. Although Arabs knew some very important practices
such an elaborate system of arbitration and blood money instead of
revenge, lawless practices such as looting others’ wealth (gazow) and
going to war for this or any other reason, no matter how insignificant it
might be, was still considered part of daily life.27
Up until the beginning of the seventh century, when Islam came to
light, ‘the Arabic literary tradition was very slight’.28 Although it is a fact
that the Arabs excelled in language to the extent that they had a market29
for exchanging and debating poems they had produced and memorized
by heart, they were not known for producing any significant literature.
‘Poetry and oratory apart, there was not, however, any writings of
particular significance in the Arabic language.’30 Nevertheless, the dawn-
ing of the Qura’an31 changed this. Several hundred years later, ‘Arabic
literature could only be numbered in terms of thousands of books’.32
These covered a range of subjects including ‘history, geography, phil-
osophy, political theory, historiography, literary criticism, science and
medicine, and above all jurisprudence’.33 The Islamic world, while

24
Al-Ghunaimi (n 19) 11.
25
Ibid 13.
26
Hamidullah (n 1) 61–2.
27
Al-Ghunaimi (n 19) 14–19.
28
Christopher G Weeramantry, Islamic Jurisprudence: An International
Perspective (Macmillan 1988) 14.
29
The famous annual poetry conference called Sooq Auqad.
30
Weeramantry (n 28) 14.
31
Muslims believe Gabriel (an angel) revealed it to Mohammad, who was
then illiterate.
32
Weeramantry (n 28) 14.
33
Ibid.

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56 Islamic international law

Europe was passing through the Dark Ages, thus kept the civilizational
torch lit on earth. In all fields, without exception, Islamic scholars were
now leading experts.34
Therefore, while Al-Shaybani was writing, civilization was based in
Arabia and in the Islamic world, which renders the speculation that he
might have borrowed from European ideas very weak. It is said that in
the libraries of Baghdad alone, as early as the twelfth century, there were
more than 850,000 volumes, not including other libraries such as those of
Cordova, Damascus and other cities. In contrast, centuries later the
University Library at Oxford still only had very few volumes and Oxford
students were being taught orally.35 These facts rule out speculations that
Europe might have contributed to the furthering of knowledge in the
Muslim state where Al-Shaybani was resident. Today’s most prominent
and most advanced universities in the West could only have been
recipients, not providers, as they all flourished long after Al-Shaybani’s
time.36
Nevertheless, although there was limited writings in pre-Islamic
Arabia, this period represents the background of the Islamic jurispruden-
tial tradition of the law of war and peace. Thus, Donner (1991) rightly
explained that:

[t]he attitudes of the first generations of Muslims towards questions of war

and peace were shaped by several factors. Paramount among them were
(a) the cultural norms of pre-Islamic societies to which they had belonged,
(b) the attitudes towards war contained, implicitly or explicitly, in the Qur’an,
and (c) the dramatic events of their own lifetimes. All of these factors
contributed to the formation of the ‘classical’ Islamic conception of war, that
is, the juridical notion, as well as to popular attitudes.37

Islamic era
It is an established feature of the Muslim civilization that Islam has
always been open to accommodating and adopting other civilizations’
wealth of knowledge and sciences in many fields. Thus, some people
would claim that traces of other legal systems are found in the Islamic

34
Ibid.
35
Ibid 16.
36
Friedrich Heer, The Medieval World: Europe 1100–1350 (Janet Sond-
heimer tr, New American Library 1962) 235–60.
37
Fred M. Donner, ‘The Sources of Islamic Conceptions of War’ in John
Kelsay and James Turner Johnson (eds), Just War and Jihad: Historical and
Theoretical Perspectives on War and Peace in Western and Islamic Traditions
(Greenwood Press 1991) 33.

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Reading historical sources 57

one.38 However, Islam is by nature against adopting the law of others.

This is because its core civilizational base is built on divine principles in
this particular area. A state that does not adopt Shari’ah (Islamic law)
will not be an Islamic state. This has remained true throughout the
history of Muslim states. Even the Ottoman Empire in its latter stages
remained true to this idea. For example, it is true that the sultans adopted
many techniques and mechanisms from others, but they ‘were not
prepared to adopt the new political and legal concepts which would
materially change the judicial structure of Islam’.39 ‘Law in particular
was not among the subjects which the Arabs were keen on translating
into their language. Thus there was no bridge between Roman law and
the emerging Islamic legal system.’40 Hence, it is unlikely that
Al-Shaybani, working at the centre of Islamic jurisprudence, would have
broken with this tradition and adopted other practices.
However, one should explain the claim that ‘[t]he researcher in the
history of Muslim International Law will deal with Roman, Persian,
Buddhist and other systems of international law’.41 The fact that many of
the jurists who worked to develop this law were not Arabs is also hugely
important. It is well known that in the Islamic world, jurists were never
limited to being Arabs only as there was no room for racial discrimin-
ation. This could have made some think that these scholars who came
from different parts of the world, including Rome, might have introduced
international laws cultivated in their original homelands. While one
cannot deny the fact that this may have occurred to some extent, it should
be emphasized that there is a difference between Muslim and Islamic
international laws. The first, advocated by many, is the general practice in
the field throughout the history of the Muslim states. This may have been
affected by other theories and practices of international law or may not.
Meanwhile, Siyar was originally based on the sources and principles of
Shari’ah, which could not have been largely influenced by others.
Nevertheless, a large degree of influence is unlikely to have happened
before Al-Shaybani’s time. The clarification of the named sources of
Siyar in the times of Al-Shaybani explained later in this chapter highlight
this.

38
Joseph Schacht, ‘Foreign Elements in Ancient Islamic Law’ in Wael B.
Hallaq (ed.), The Formation of Islamic Law (Ashgate/Variorum 2004) 67.
39
Majid Khadduri, ‘Islam and the Modern Law of Nations’ (1956) 50 The
American Journal of International Law 358, 364–5.
40
Gamal Moursi Badr, ‘Islamic Law: Its Relation to Other Legal Systems’
(1978) 26 The American Journal of Comparative Law 187, 193.
41
Hamidullah (n 1) 52.

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58 Islamic international law

Moreover, the fact that Al-Shaybani undertook such detailed work does
not mean that he necessarily borrowed from others before him. It is
known that ‘given similar circumstances, men, more often than not, think
alike; and it will be absurd to conclude that the later in time must
unavoidably have borrowed his ideas in all cases from those who lived
earlier’.42 This is true even if they were great in the field and a link is
likely to be proven between them; and also where these two factors are
absent, such as in Al-Shaybani’s case.
Nevertheless, while these facts permit the speculation that Al-Shaybani
might have borrowed from his peers in other nations, one could dispute
that he borrowed from civilizations preceding the Islamic one. It is true
that the Caliph in Baghdad had founded a great institute for research
called Bayt al Hikmah.43 In it the great works of previous civilizations
(whether from India, Babylon or Greece) were translated into Arabic.
This was in fact ‘the first great internationalisation of scientific and
philosophical knowledge’.44 Nevertheless, there is no evidence that
Al-Shaybani was influenced by any of the old civilizations preceding the
Islamic one. This is because this institute was only established in the
ninth century,45 whereas he wrote in the eighth century. Additionally,
among the writers working on Al-Shaybani’s texts, none claimed that he
had borrowed from other civilizations.
What is more, many scholars have come to two conclusions: first, that
non-Islamic works on jurisprudence were not the target of translation by
Islamic scholars and secondly, that Muslim scholars have always
acknowledged without hesitation all of their sources as they did in all
other fields of knowledge but we see no such acknowledgement in the
field of law which means that they did not resort to non-Islamic works on
jurisprudence. Thus, Gaber concluded that:

[t]here is no doubt that the Muslims were not acquainted with Roman books
of jurisprudence, that they did not translate any of these books, and that they
did not make any reference to them. If they had known these books they
would have acknowledged the fact in their works, as they acknowledged the
translation of Greek and Persian books on science and philosophy.46

42
Ibid 48.
43
Literally translated: the house of wisdom.
44
Weeramantry (n 28) 18.
45
Ibid 17.
46
Gaber (n 13) 32–3.

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Furthermore, ‘to say that Islamic law evolved from Arab customary law
is unwarranted, since it is a well-known fact that the new religion
prohibited many bad practices and accepted some good ones.’47
In conclusion, it would be naïve to imagine that international law is
only 400, 500 or even 1,000 years old when we know that great
civilizations coexisted thousands of years ago and that they must have
had some legal system or tradition to regulate their affairs.48 On the
contrary, it is known that ancient societies such as the Greeks and
Romans had known some forms of international law. However, as set out
above, the Greeks knew international law as a law that governed relations
between their cities alone.49 Others were considered by them to be
barbaric and they were there only to serve the Greeks (as Aristotle used
to claim).50 Moreover, although the Romans applied international law in
relation to allies and friends, they treated the rest of the world as they
wished, not as the law dictated.51 In addition, Walker (1899) stresses that
in ‘the Dark Ages, between 476 and 800 A.D., International Law reached
its nadir in the west’.52 The idea of setting up legal norms to be respected
by the establishing power in relation to others was only newly introduced
by Islamic writers.53 At any rate, since the translation institute mentioned
above was only established after Al-Shaybani, it would not have been
possible for him to learn about these two ancient systems.
What is even more indicative of the fact that Al-Shaybani did not
borrow from other civilizations is the fact that he referenced all ideas of
other jurists. None of these were non-Islamic jurists.
Having said this, Al-Shaybani’s judgement, as he was writing his book,
could had been influenced by that time’s realities. This is because one of
the main principles of Islamic law is reciprocity when dealing with

47
Ibid 34.
48
Y. Onuma, ‘When Was the Law of International Society Born?’ (2000) 2
Journal of the History of International Law / Revue d’histoire du droit inter-
national 1, 4.
49
Arthur Nussbaum, A Concise History of the Law of Nations, Revised Edn
(Macmillan 1954) 5–6.
50
Aḥmad Abū al-Wafā, Kitāb Al-I lām Bi-Qawā id Al-Qānūn Al-Dawlī
Wa-Al- alāqāt Al-Dawlīyah Fī Sharī at Al-Islām [A Book of International
Law and Relations in Islamic Shari’a], vol 1 (al-Ṭab ah 2, Dār al-Nahḍah
al- Arabīyah 2007) 9.
51
Ibid.
52
Thomas Alfred Walker, A History of the Law of Nations: From the
Earliest Times to the Peace of Westphalia, 1648, vol 1 (Cambridge University
Press 1899) 64.
53
Abū al-Wafā (n 50) 9.

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60 Islamic international law

others. Thus, in this way a possible influence of other civilizations on

Al-Shaybani’s writings could be envisaged.

Al-Shaybani’s possible influence on other civilizations

Evidence shows that modern Western civilization only started after
contact with the Islamic world.54 For example, Sicily was part of the
Muslim state from 831 until 1090 and there is evidence of Islamic
knowledge transformation through this channel to Europe.55 Surprisingly,
many scholars of legal history in Europe today are still reluctant to
acknowledge such a link. They sometimes leave gaps in their texts to
avoid mentioning this channel of transfer. For example, the great book on
Europe’s legal history by Lesaffer ambiguously stated that ‘civil law
tradition has its origins in the late eleventh century, in the rediscovery of
ancient Roman law in Italy’.56 This is said as if this discovery was made
entirely separately from the massive civilizational interaction between
Italy and the world of Al-Shaybani, which transpired over more than two
centuries.
The other point of transformation of Islamic knowledge was during the
Crusades. It is undeniable that ‘[t]he growth of scholasticism in Europe
was promoted by contact with the grapplings of the Islamic mind with
philosophical problems that were similar to the Christians’.57 Not only in
philosophy, but also in all fields of knowledge during this period, had the
European scholars gained much knowledge from the Islamic world. For
example, ‘[n]ew thrusts in chemistry, physics, astronomy, geography,
history, poetry and commerce […] were part of the intellectual and
cultural follow-on from the Crusades.’58
A third source of European flourishing is the Islamic intellectual
heritage in Spain. Toledo could be named as one example. The great
medieval historian Heer asserts that ‘[it] was from the example of Toledo
that Europe first learnt to understand that learning knows no frontiers’.59
He adds that ‘[a]t Toledo Arabs, Jews and Greeks worked with Spaniards,
Frenchmen and Germans, with Slavs from the Balkans and, last but not
least, with Englishmen’.60 Could all of those have returned home, leaving

54
Heer (n 36) 235–323.
55
Weeramantry (n 28) 19.
56
Randall Lesaffer, European Legal History: A Cultural and Political
Perspective (Jan Arriens tr., Cambridge University Press 2009) 3.
57
Weeramantry (n 28) 14.
58
Ibid.
59
Heer (n 36) 240.
60
Ibid.

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Reading historical sources 61

all the knowledge they gained in Spain behind? Could they have kept it
for themselves? Moreover, a massive movement of translation of world
knowledge made it feasible for Europe to benefit from these Islamic
centres of knowledge.61 This represented a valuable channel whereby
knowledge flowed into Europe ‘without which the dramatic take-off
in European intellectual life could well have been some centuries
delayed’.62
With this in mind, jurisprudence was self-evidently pre-eminent among
all other subjects of knowledge. This is because in the Islamic world,
‘Quranic principles applied to every aspect of law and living, and as such
jurisprudence came to be the central concern of scholars in all branches
of learning’.63 Furthermore, some scholars hold that ‘God had not in the
Qur’an revealed Himself or His nature, but rather His law. The Divine
Being was beyond the comprehension of humans but His commands
were expressly revealed so that they may be known and understood.’64 As
a result, many Islamic scholars prefer to work on God’s command (the
law) rather than concentrating on theology. Islamic jurisprudence there-
fore, was the topic discussed in virtually every mosque where circles of
learning were held.65 From this, it is clear that the Qura’an was the main
source of inspiration to legal scholars who were mainly developing tools
to analyse, understand and interpret its main unalterable principles and
trying to extract minor rules from the major ones to govern issues arising
in daily life. Thus, it was not theology that was the focus of Islamic
jurists, but law.66 In this regard, Hamilton (1962) stressed that:

[t]he master science of the Muslim world was Law. Law, indeed, might be
said to embrace all things, human and divine, and both for its comprehensive-
ness and for the ardour with which its study was pursued it would be hard to
find a parallel elsewhere, except in Judaism.67

The fact that law and jurisprudence were central to Islamic learning led
to the introduction of unprecedented contributions to all fields of law
including international law.

61
Ibid 239–40.
62
Weeramantry (n 28) 20.
63
Ibid 27 (emphasis added).
64
Ibid.
65
Weeramantry (n 28) 27.
66
Hamilton AR Gibb, Mohammedanism: An Historical Survey (Oxford
University Press 1962) 9.
67
Ibid 9–10.

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62 Islamic international law

In the West, there is now, among students of religion, an acknowledge-

ment of ‘the influence of Muslim philosophers on medieval Christian
scholastic theology and philosophy’.68 Nevertheless, ‘scholarship on
Islam has been hampered by a legacy from a previous ages of compara-
tive study that represented the religion and culture of the Islamic world as
inferior to that of the West.’69
From these facts, it should not be difficult to establish the possibility of
a strong relationship between Al-Shaybani’s writings and some of the
principles of contemporary international law. This is principally import-
ant, as we learn that great Western scholars (especially those who played
a key role in the renaissance of Europe) had in fact benefited greatly
from Islamic erudition. For example, Thomas Aquinas and Pope Syl-
vester II learned much from Islamic sources.70 In fact, Al-Shaybani
among other ‘classical Islamic scholars wrote about truces, types of
combat, prisoners of war, division of spoils, and debated and developed
principles that are very similar to St. Thomas Aquinas’ concept of just
war’.71 If it is considered whether this was just a coincidence, no one can
deny that Aristotle’s thoughts, which Aquinas heavily relied upon in his
analyses, came to Europe through the Islamic world. The Muslim
philosopher Ibn Rushed, known in the West as Averroes, offered both
them and their radical interpretation.72 One of the clear signs of Aquinas
being influenced by Islamic scholastic thoughts is his consideration of
the doctrine of double truth as developed by Averroes. In fact, this
principle ‘became one of the principal bases for his own intellectual
system, as he went on to produce an elaborate theology harmonising the
truth of reason with the truth of revelation, thus carrying forward the
work of the Arab philosophers’.73 Furthermore, ‘[i]t is indeed said that
when Aquinas was composing the Summa Theologica he had the works
of Averroes constantly by his side.’74 This and further research carried
out by Boisard on Aquinas led him to the conclusion that ‘the Islamic

68
James Turner Johnson and John Kelsay (eds), Cross, Crescent and Sword:
The Justification and Limitation of War in Western and Islamic Tradition
(Greenwood Press 1990) xi.
69
Ibid xi–xii.
70
Weeramantry (n 28) 28.
71
Youssef H. Aboul-Enein and Sherifa Zuhur, Islamic Rulings on Warfare
(Strategic Studies Institute, US Army War College 2004) vii.
72
Lesaffer (n 56) 244.
73
Weeramantry (n 28) 103.
74
Ibid.

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Reading historical sources 63

influence on him was “incontrovertible”’.75 Moreover, many scholars

today have confirmed that he was both acquainted with Islamic works
and used them. In addition, they confirm that he influenced European
thinkers who came after him as a result of his exposure to the Islamic
teachings.76 Yet we see no mention of this in Aquinas’s writings. This is
unsurprising, as Aquinas did not always cite the sources from which he
borrowed: he borrowed from both St Augustine and Gratian without
acknowledging his sources.77
Aquinas is not the only example: Vitoria and Grotius were also
influenced, for example. As for the former, there is much evidence that
he was heavily influenced by Islamic legal teachings. For he ‘conceived a
universal law, an affirmation of need to respect treaties, and preached for
freedom of communication. He dared to suggest that the suppression of
paganism was not sufficient cause for a just war.’78 All of these and many
more of his ideas, in Boisard’s view, could only have come from Islamic
sources. As for Grotius, he had demonstrated his knowledge of Islamic
rules and his conception of the matters he considered. ‘It is true’, Boisard
stressed, ‘that we now know how many western authors in fields other
than law drew from Muslim works without mentioning their sources, so
that it does not seem absurd to ask that there at least be a study of direct
or indirect influence of Islam on Grotius.’79
Moreover, the history of European international law shows that the
greatest contributors to its development came through scholars from Italy
and Spain, most of whom lived centuries after Al-Shaybani.80 This
should be noted while bearing in mind the facts mentioned above about
the role of Italy and Spain as channels of knowledge transmission from
the Islamic world of Al-Shaybani to Europe. Furthermore, ‘it is also to be
noted that books on jura belli (laws of war) by Ayala and Vitoria, Gentilis
and Grotius and others have no counterpart in the Roman and Greek
literature, and they are the product of an age when European erudition
was not so highly developed as today.’81 Hamidullah, commenting on

75
Marcel A. Boisard, ‘On the Probable Influence of Islam on Western
Public and International Law’ (1980) 11 International Journal of Middle East
Studies 429, 444.
76
Majid Khadduri, War and Peace in the Law of Islam (1st AMS ed., AMS
Press 1979) 58.
77
Joan Doreen Tooke, The Just War in Aquinas and Grotius (SPCK 1965) 29.
78
Boisard (n 75) 445.
79
Ibid 446.
80
See, for example, Nussbaum (n 49) 1081–3.
81
Hamidullah (n 1) 64.

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64 Islamic international law

this, said that ‘[t]o us, therefore, they are but echoes of these Arabic
works on jihad (war) and siyar (conduct in time of war and peace)’.82 In
the same line, the ICJ Judge Weeramantry further argues that:

[i]n relation to vital discipline on international law there was no literature

from Greece and Rome comparable to their literature in private law. We do
not have treatises dealing with such questions as the binding force and
interpretation of treaties, duties of combatants, the rights of non-combatants
or the disposal of enemy property. The only body of literature in this
discipline was the Islamic one.83

Similarly, Al-Ghunaimi (2007) in The Law of Peace in Islam came to the

conclusion that there are many of the European pioneering authors of
international law, such as Vitoria, Ayala and Gentili, whose works had no
equivalent in Greek or Roman literature, had emerged from Spain and
Rome. Thus, they must have been ‘influenced by Islamic writings, as
Islam preceded to the seats of knowledge in Spain and Italy’.84 In
addition, Boisard established that ‘[t]he first legal doctrine taught in both
Spain and Italy was Muslim law; what was borrowed from Roman times
and canon law came later’.85
Thus, the fact has been stressed that ‘Islamic international law had
worked out a set of mature juristic principles. This raises the question
whether this was a legal phenomenon separate from and unrelated to
the resurgence of international law that occurred in the West from the
seventeenth century onwards.’86 As a result, one should ask: ‘was this
Western development an independent take-off or did it draw upon the
pre-existing body of Islamic knowledge?’87
It is ironic how contemporary international law roots are normally
traced back to seventeenth-century Europe, strengthening the belief that
Grotius is the father of international law. The reasons why this view is
indefensible are many and they could best be summarized as follows:

1. ‘The prior existence of a mature body of international law worked

out by accomplished Islamic jurists in textbooks upon the subject is
an incontrovertible fact.’88

82
Ibid.
83
Weeramantry (n 28) 158.
84
Muhammad Tal’at al-Ghunaimi, Qanoon Alsalam Fi El Islam [The Law
of Peace in Islam] (Munsha’at Alma’arif 2007) 64.
85
Boisard (n 75) 445.
86
Weeramantry (n 28) 149.
87
Ibid.
88
Ibid.

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Reading historical sources 65

2. It is indisputable that in all departments of knowledge, the West had

started to receive a great deal of literature from the Islamic world
from the eleventh century.
3. The principle pacta sunt servada, attributed to Grotius, a well-
established legal rule in Siyar centuries before him.
4. Being very close to the Islamic world and having to deal with it in
in times of peace and war, the West must have observed Siyar as it
was practised towards them.
5. While it is undeniable that Western scholars have greatly contrib-
uted to developing the contemporary principles of international law,
‘some at least of the original impetus both in regard to the general
concept and in regard to a number of specific ideas must clearly
have come from the world of Islam – the only power and cultural
bloc comparable to that of the world of Christianity’.89
6. Western scholars built their achievements from the bases estab-
lished by the Romans and the Greeks. This is true in all humanistic
fields except in international law, as they had not left literature on
this subject as they did with private law. Prior to the European
intellectual resurgence, ‘[t]he only body of literature in this subject
was the Islamic’.90
7. Knowledge of Arabic was ‘part of the literary equipment of the
accomplished fifteenth- and sixteenth-century scholar, particularly
in Spain and Italy’.91 Therefore, Arabic literature was ‘not a great
unknown in the days when the first seeds were being sown of what
was to become Western international law’.92

In fact, most topics addressed by Grotius in The Law of War and Peace
are similar to those addressed by Al-Shaybani. However, in many cases it
is hard to see in early European writings such topics or styles, which
suggests a link between Al-Shaybani and Grotius. More significant is the
style of reasoning Vitoria employed: a reader of Vitoria and Al-Shaybani
cannot avoid linking them both together, especially as far as their style of
reasoning is concerned.
Furthermore, one of the main academic institutes in Europe (Leiden
University), from where contemporary international law emerged, started
collecting Arabic manuscripts on all subjects centuries ago. In fact, its
Collection Guides notes:

89
Ibid 150.
90
Ibid.
91
Ibid.
92
Ibid.

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66 Islamic international law

[c]ollection of c. 4,000 Arabic manuscripts dating from the 9th till the 20th
century. The core of the collection consists of the legacy of Levinus Warner
(1619–65), Orientalist and diplomat, after whom the entire Leiden collection
is still known as ‘Legatum Warnerianum’ (Warner’s Legacy). However, many
scholars before and after him have contributed to its growth. The collection
covers the entire range of the Arabic written heritage.93

What is particularly important about this collection is that an original

copy of Al-Sarakhsi’s book, as indicated in Chapter 1, is still held at this
library. It is held there under Oriental Manuscript number Or 373 and
was acquired by the library, among other scriptures, between 1609 and
1665.94 This raises some critical questions such as whether Grotius
and other international lawyers after him familiar with Leiden Library
consulted this book, in particular in view of the fact that Grotius in his
famous work The Law of War and Peace demonstrated quite a substantial
knowledge of both Siyar and the style Siyar writers used: his writing is
very similar in style and comprehensiveness to that of Al-Shaybani and
other Siyar scholars. He demonstrated awareness of Siyar rules when he,
from time to time, mentions its detailed rules using ‘Mohammedan’
instead of ‘Islamic’ to refer to Siyar rules.95 He also refers to some rules
of Siyar as ‘rules with Turkish origin’.96 This too possibly indicates his
knowledge of Al-Shaybani’s thought as it was formally adopted by the
Ottoman Empire as mentioned earlier. It would be unwise to think that a
man of his intelligence and position was unaware of Al-Shaybani’s
writing.97 In addition, in his book The Truth of Christian Religion Grotius

93
‘Collection Arabic Manuscripts’ (Leiden University Library). <https://
socrates.leidenuniv.nl/R/TNPF53LH5IIAVYG43XC629RAF3JDJVG84TIFSKL9
8JBA19M676-01728?func=results-jump-full&set_entry=000005&set_number=0
02656&base=GEN01-EAD> (accessed 4 October 2010).
94
Jan Just Witkam, ‘Inventories of Collections of Oriental Manuscripts
Vol 1; Compiled by Jan Just Witkam’ <http://www.islamicmanuscripts.info/
inventories/leiden/or01000.pdf> (accessed 4 October 2010).
95
See, for example, his reference to the Messenger Mohammed’s saying on
war in Hugo Grotius, Hugo Grotius. The Law of War and Peace: De Jure Belli
Ac Pacis Libri Tres (Francis W. Kelsey tr., Indianapolis 1925) 606. He also
referred to Siyar in the same manner in this book on page 714 to give another
example of how familiar he was with Siyar.
96
Ibid 687.
97
Grotius’s knowledge of international regulations in this part of the world
is anything but scant. His writings demonstrate the depth of his knowledge that
covered even the ancient rules known in the region. For example, he cited rules
that were known to the Nabatean Arabs in ibid 204. This is evidence of his
knowledge of Al-Shaybani, who was the main figure of Islamic international law
for those who had any knowledge of that subject.

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Reading historical sources 67

once again demonstrated deep knowledge of the Qura’an, Islamic law

and religion. He dedicated a whole chapter (vi) to comparing and
contrasting Islam to Christianity and Mohammad to Jesus.98 Although his
book was full of misconceptions, misrepresentations and misinformation
about both Islam and Muslims, it still demonstrates his familiarity with
Islamic law.99
Finally, Kelsey (1964) drew our attention to some very important
conjecture when he concluded that:

[i]nternational law existed before the publication of the first systematic

treatise which Grotius has had the great honour of transmitting to posterity.
Thomas Aquinas specialized in natural law. Vitoria the Spaniard distinguished
jus naturale and jus inter gentes, which Suarez had treated in a masterly
passage and with final authority. Ayala, to whom Grotius referred in the
Prolegomena, is also a Spaniard, and we may say that the work of this great
Spanish trinity, not to mention many other Spanish notables of that epoch,
would perhaps have enabled another than Grotius to combine their work
systematically and to make of it the basis of his treatise.100

First, the fact that Grotius was the first to compose a complete thesis on
European international law means that we can now seek to decipher
where Al-Shaybani fits in. Second, the passage dictates that Grotius had
gained much from scholars who were immersed in Spanish scholarship,
indicating a link between his achievements and the Islamic civilizational
torch, which existed in Spain. The speculation, therefore, that Grotius
learned about Al-Shaybani’s before he produced his own teachings is
plausible. Furthermore, Grotius, who was passionate about reading classi-
cal works related to the law of nations, knew Arabic as well as Hebrew.101
What is more, he had lived with and been greatly influenced by the Leiden
Professor of Theology, Franciscus Junius.102 It is very unlikely that the
latter was unaware of Al-Shaybani’s thought. It is therefore unlikely that
Grotius was not influenced by Al-Shaybani, in one way or another.

98
Peace Be Upon Him. On every occasion that this book mentions Jesus or
Christ, reference to the terminology (Peace Be upon Him) shall be assumed.
99
For further reading see Hugo Grotius, The Truth of the Christian Religion.
In Six Books. Corrected, and Illustrated with Notes, By Le Clerc. (John Clarke
tr., William Baynes 1829) <http://www.ccel.org/ccel/grotius/truth.pdf> (accessed
12 December 2017).
100
Hugo Grotius, De Jure Belli Ac Pacis, Libri Tres. Introduction by James
Brown Scott (Francis W Kelsey and others trs, Oceana 1964) xiv.
101
R. W. Lee, Hugo Grotius (H. Milford 1930) 4.
102
Ibid.

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68 Islamic international law

Some Western scholars have investigated the issue in more depth. The
result is that ‘many modern non-Muslim Scholars, such as Khadduri,
Krousa and Boregitshal, admit on the roots of modern international law
that many elements of the latter system were derived from the works of
Muslim jurists, in particular, the Siyar of Shaybani’.103

2.1.2 Sources of Islamic International Law

In order to examine further whether there are any links between

Al-Shaybani’s works on international law and others from previous
civilizations, two aspects should be taken into consideration. Firstly, what
are the sources of Siyar as well as the schools of jurisprudence that
Al-Shaybani was familiar with and could they have had any link with the
works of pre-Islamic writers from other civilizations? Secondly, how can
we define Al-Shaybani’s style of writing in order to enable us to see his
work within a historical perspective while ascertaining whether he had
borrowed for it or lent it and from whom or to whom, respectively?
Law and theology (which always go hand in hand in Islam) were
initially studied under the term fiqh. This discipline, however, was later
known as Shari’ah (literally ‘the way’).104 Shari’ah is derived from
primary sources (the Qura’an and Sunnah) and secondary sources
(mainly comprising of Ijma’a (consensus) and Ijtihad (reasoning)).105
Before discussing the sources of Shari’ah, which are the sources of Siyar,
it is important to underline the characteristics of these sources. It is also
important to distinguish these sources from the sources of other man-
made legal systems. As Abū al-Wafā asserts, the most important charac-
teristics of Siyar sourcing principles are:106

1. Flexibility: these sources are designed to cater for all times and
places. The jurists will always find it doable to tailor a rule for a
certain period in a certain space within these sources and without
violating the main principles of law;
2. Structural hierarchy: this helps jurists to arrive at the best rule when
there is a conflict between sources. For example, if there is any

103
Labeeb Ahmed Bsoul, International Treaties (Mu‘āhadāt) in Islam:
Theory and Practice in the Light of Islamic International Law (Siyar) according
to Orthodox Schools (University Press of America 2008) 173.
104
Weeramantry (n 28) 30.
105
Ibid.
106
Abū al-Wafā (n 50) 58–62.

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conflict between a rule stated in the Qura’an and another in any

other source, the former will be adopted;
3. Universalism: sources of Siyar are universal in their character;107
4. Jurisdiction: sources of Siyar apply and are obligatory on states as
well as individuals;
5. Diversity: in fact, ‘the state could take different actions relying on
the same source’.108 This fits perfectly as it is a general principle in
Islamic law that the change of circumstances could require a
change of the rule but still retaining the same source; and
6. The ability to correspond to reality: thus when extracting legal rules
from the sources, reality should be taken into account.

Nevertheless, the sources of Islamic law are often explained by reference

to the following famous hadieth109 which sets out a clear hierarchy:

[w]hen the Apostle of Allah (peace_be_upon_him) intended to send Mu’adh

ibn Jabal to the Yemen, he asked: How will you judge when the occasion of
deciding a case arises? He replied: I shall judge in accordance with Allah’s
Book. He asked: (What will you do) if you do not find any guidance in
Allah’s Book? He replied: (I shall act) in accordance with the Sunnah of the
Apostle of Allah (peace_be_upon_him). He asked: (What will you do) if you
do not find any guidance in the Sunnah of the Apostle of Allah (peace_be_
upon_him) and in Allah’s Book? He replied: I shall do my best to form an
opinion and I shall spare no effort. The Apostle of Allah (peace_be_upon_
him) then patted him on the breast and said: Praise be to Allah Who has
helped the messenger of the Apostle of Allah to find something which pleases
the Apostle of Allah.110

This hadieth111 is quite self-explanatory as to the sources of Islamic law.

Unlike the sources of contemporary international law, divine law and
morality are at the heart of Siyar’s sources. In the latter:

The Qur’an represents the authoritative source of law; traditions are equiva-
lent to custom; rules and principles expressed in treaties with non-Muslims

107
This is clearly stated in chapter 7, verse 158 of the Qura’an.
108
Abū al-Wafā (n 50) 58.
109
A hadieth is a record of a certain Prophetic tradition; it could be a saying
or a practice of the Messenger of Islam, Muhammad.
110
Dawud, The Office of the Judge (Kitab Al-Aqdiyah). Book 24: Hadith
3585.
111
A statement attributed to the Prophet Mohammad.

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70 Islamic international law

fall in the category of agreement; and the opinions of the caliphs and jurists,
based on legal deduction and analogy, may be regarded as reason.112

The main point here is that the only legislator is Allah and thereafter his
last Messenger, Prophet Muhammad, who was authorized to legislate by
an explicit verse in the Qura’an. The role of Islamic jurists is only to
extract detailed rules (where they are not available) from either the major
rules of the Qura’an and Sunnah or by analogy between a current case to
an authentic one in the Qura’an or Sunnah. Jurists have explained the
rules of extracting such judgements and even the conditions jurists must
fulfil before they can carry out this job. The sources of Siyar may be
listed as follows.

The Holy Qura’an

This is the main source of law and any other legal opinion contradicting
it is null and void. ‘The two most important sources for Islamic law
known as shari‘ah are first, the sacred text, the Quran (the Muslim book
of divine revelation) and second, the prophetic tradition.’113 The Qura’an
is a book that was revealed during the lifetime of the Messenger
(Mohammad) who had ensured that it was memorized, written and saved.
Thus, ‘[t]he Qur’an is admitted by the Muslims as the Word of God and
therefore the basis of all their law.’114 Today it is still the same book, with
no amendments found, across the world. It comprises both general and
specific rules. For example, most of succession law and some parts of
criminal law are explicitly covered in the Qura’an. Meanwhile, generally,
and especially in the area of international law, the majority of its legal
rules are general principles. In fact, sometimes ‘[t]he principle contained
in a single sentence could be the foundation on which a whole structure
of constitutional law might be built’.115 Yet ‘[i]t is not strictly a
constitutional code, but more specifically described by God as a book of
Guidance.’116,117
Furthermore, the Qura’an is ‘not always linear in format nor explicit, it
requires interpretation, not least because it is read as a living text, for its

112
Khadduri (n 39) 358.
113
Aboul-Enein and Zuhur (n 71) vii.
114
Hamidullah (n 1) 19.
115
Weeramantry (n 28) 32.
116
Baderin here refers to the Holy Qura’an 2:2: ‘This is the Book; In it is
guidance sure, without doubt, to those who fear God.’
117
Mashood A. Baderin, International Human Rights and Islamic Law
(Oxford University Press 2003) 34–5.

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contemporary, as well as historic significance’.118 Consequently, ‘Mus-

lims, who have no central authority like the Roman Catholic Pope, seek
the guidance of religious scholars, or clerics.’119
As it was revealed to the Prophet over a period of time and on different
occasions to regulate different occurrences, the Qura’an should be read in
a way that takes into account these facts. Furthermore, ‘the various
injunctions and exhortations contained in the Qur’an are not to be read as
individual provisions but as parts of one integral whole.’120 As for
interpreting the Qura’an, due to this fact and that it is revealed in its best
form in the Arabic language it, as the main and the most important source
of Islamic law, must be interpreted only by the highest authorities in
language as well as in fiqih. Furthermore, due to its unique structure,
‘[t]he more devout and learned the interpreter, the more the meaning of
each Qur’anic passage expands – a concept one does not find in other
legal systems where the interpreter plays an elevated role, such as the
Roman, the Hindu or the Jewish’.121
In contrast, not only had Augustine but also Gratian, Aquinas, Grotius
and Vitoria consulted the Bible, both the Old and New Testaments. They
all cited and relied upon verses from both. The clearest example of this is
when Augustine, consulting the Old Testament, departed from the
Christian notion of pacifism to allow war under the pretext of religion.122
The others also utilized this method of Augustine. Thus, the difference
between them and Al-Shaybani is the fact that the latter had to come up
with the nearest interpretation of the same text (within the Qura’an) in
order to situate his own understanding of what the rule should be. The
others, on the other hand, travelled from the New Testament to the Old
when they were looking for a divine verse to support their views. Yet the
need for suiting interpretations for the same verse sometimes arises in
their cases too.

The Sunnah
Sunnah (or ‘prophetic tradition’) refers to the sayings and practices of the
Prophet Muhammad. ‘This tradition consists of short anecdotal accounts
of the Prophet Muhammad’s actions or opinions preceded by a list of
transmitters, termed the hadith.’123 ‘They are the inspired precepts of the

118
Aboul-Enein and Zuhur (n 71) 2–3.
119
Ibid.
120
Weeramantry (n 28) 33.
121
Ibid 34.
122
This is addressed in more detail below.
123
Aboul-Enein and Zuhur (n 71) vii.

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72 Islamic international law

Prophet, which resulted either directly from his dicta or sayings, or

indirectly from his deeds, or his tacit approval of current customary
practices.’124 These traditions were collected by early Islamic scholars
and recorded with a neat methodological order and referencing.125 Some
of the main collections of hadieth are the seven ‘identified by the names
of their authors: al-Bukhari, al-Tirmidhi, Muslim, Abu Dawud, al-Nisa’i,
al-Nawawi, and Ibn Majah’.126
It could have been the wish of Prophet Muhammad to obliterate all
pre-Islamic legal practices and customs; however, pragmatic as he was,
as Hallaq puts it, Mohammad ‘could not have done away with all the
social practices and institutions that prevailed in his time’.127 The Prophet
was often described as a living Qura’an, as all his practices and sayings
were in accordance with it. It is necessary to note that the Prophet
Mohammad ‘functioned as a spiritual guide as well as a temporal leader
of the Faithful’.128 As we have seen above, normally the Qura’an would
contain general principles and the Sunnah would expound the practical
meaning of these general principles. Even where the Qura’an explicitly
regulates a matter, the practice or the utterance of the Prophet will then
serve as a practical guideline on how to execute Allah’s rule on a certain
issue. The Qura’an (59/7) explicitly orders believers to follow the
‘Messenger’.129 Therefore, his sayings and actions are law-making as he
is authorized by the divine.
The Qura’an and Sunnah therefore are complementary, and should
never be contradictory. That is why if a Sunnah collides with the

124
Sobhi Mahmassani, ‘The Principles of International Law in the Light of
Islamic Doctrine’ (1966) 117 Recueil Des Cours 230 <http://www.ppl.nl/plinklet/
?sid=bib:recueil&ppn=163403627&genre=a&issn=&isbn=&title=The principles
of international law in the light of Islamic doctrine / Sobhi Mahmassani&aulast=
Mahmassani&aufirst=Sobhi&au2last=&au2first=&au3last=&au3first=&edlast=&
edfirst=&ed2last=&ed2first=&ed3last=ed3last&ed3first=&source=Recueildes cours
&year=1966&volume=&issue=I&spage=&bibliography=recueil&id=465&url=&
keyword1=&keyword1ppn=&brillid=19956> (accessed 16 November 2011).
125
It should be noted that none of these collections were compiled during the
lifetime of Prophet Muhammad.
126
Aboul-Enein and Zuhur (n 71) vii.
127
Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to
Sunnī ‘uṣ ūl Al-Fiqh’ (Cambridge University Press 1999) 3.
128
Hamidullah (n 1) 48.
129
The Holy Qura’an 59:7.

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Reading historical sources 73

Qura’an, the latter prevails and the Sunnah would be considered un-
authentic.130 Both sources have been described by some as a book and a
candle where ‘[t]he life and work of the Prophet provided the candle by
the light of which the book is to be read’.131 There is logic behind this:
who would have been in a better position to provide such light than
the one that God trusted to convey his message? In addition, during
the Prophet’s lifetime, revelations continued to come from God, so if the
Prophet as an authorized legislator made any error of judgement he
would have been corrected immediately. It is important that ‘[t]hese
traditions were not only of judgments but also of what the Prophet did
and what the Prophet said, all of which gave a background as to how
Islamic life should be lived’.132 Consequently, ‘we find these traditions
and the rules deduced from them becoming the most important source of
Islamic Law, after the Qur’an.’133
Augustine, Gratian, Aquinas, Vitoria and Grotius also relied upon this
method. All of them referred to the practices of prophets and messengers
in support of their arguments. This signifies another similarity in
approach between them, on the one hand, and Al-Shaybani, on the other.
As shown by the hadieth above, jurists can extract legal terms and
judgements from the Qura’an, and also the Sunnah if need be. This is
provided that any new legal rule is rendered null and void as soon as it is
shown to be contradictory to the Qura’an or to the Sunnah. This is why
some scholars call Ijma’a (consensus of opinion) and Qiyas (individual
opinions) ‘dependant sources’134 of Islamic law as they cannot be utilized
to enact new different laws, rather they can only be used to extract
specific rules from The Qura’an and Sunnah.

130
When Qura’an and Hadieth as sources of Islamic law are considered,
there are two main questions. First, the authenticity of the source. Second, the
interpretation of the text. The Qura’an is considered to be an authentic text, with
many passages open to interpretations. Meanwhile, when scholars are dealing
with the Prophetic tradition (Hadieth) they must attend to both questions; the
question of authenticity and the question of interpretation. Bin-Bayyah Abdullah,
‘Sina’at Al-fatwa’ (Youtube/binbayyah, 6 July 2014) <https://www.youtube.com/
watch?v=dDE4dcMS9-s> (accessed 8 April 2016).
131
Weeramantry (n 28) 35.
132
Ibid 37.
133
Ibid.
134
Abū al-Wafā (n 50) 56.

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74 Islamic international law

Ijma’a (consensus of opinion)

When a matter arising requires a judgement that is not explicitly
governed by the Qura’an or Sunnah, then ijma’a can provide the rule. It
is ‘the general consensus among Islamic scholars of a particular age in
relation to the legal rule correctly applicable to the situation’.135 Ijma’a is
the third strongest source of law because it bears the collective opinion of
the most learned scholars in the subject. The well-known saying of the
Prophet Mohammad ‘my nation will never unanimously agree on error’,
as well as the ‘assurance of freedom from error in the communal
mind’,136 has made ijma’a the most trusted (secondary/dependant) source
of law after the Qura’an and Sunnah.137

Qiyas (analogy)
Qiyas generally means that when there is an analogous precedent similar
to the situation being considered, the rule of such precedent can be
extended to and redesigned to govern the new situation by analogy. When
none of the above three sources provide the answer to a specific legal
question, a learned jurist must strive to arrive at a rule. When the Prophet
sent Mu’adh as a judge to Yemen, as I referred to earlier, Mu’adh was to
extract rules from the Qura’an and Sunnah if the matter before him was
not governed in detail in one or both of them. As this could be done by
individual jurists, if there is a rule governing this matter issued by ijma’a,
then the latter rule will be considered. Where there is no consensus on
the issue, then qiyas should take place. In order to be able to conduct
qiyas, a scholar must fulfil a set of strict criteria138 to become a mujtahid
and be able to carry out ijtihad (conduct qiyas).139
If these are the general sources of Islamic law, some scholars have
asserted that Siyar has further sources. However, none of these may be
independent from the Qura’an and Sunnah, nor can any of them produce
a rule that is contrary to them. According to Hamidullah, these sources
are:

135
Weeramantry (n 28) 39.
136
Ibid.
137
There is a discussion about what should consititute Ijma’a.
138
Islamic jurisprudence contains a set of certain criteria one must meet in
full before scholars can accept one’s opinion. In short: this scholar must be well
versed in the all branches of Qura’anic sciences, Sunnah, Arabic and opinions of
major (especially) early scholars.
139
Weeramantry (n 28) 41.

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1. Orthodox practice:
‘Just as the practice of the Prophet, so also that of his successors has
attracted a variety of authors. It is to be found in books of Hadith,
of history, of biography, of case-law, of anthologies and other
publications.’140
2. Practice of other Muslim rulers (not repudiated by the juriscon-
sults).

Al-Shaybani relied on the above sources in writing his books on

international law. In fact, as far as the sources of law are concerned, he
did not go beyond those noted above. Thus, it would be illogical to think
that he had borrowed from the writings of other writers in civilizations
prior or even contemporary to the Islamic one. In fact, here, it is worth
repeating the statement of the great jurist who lived in the time of
Al-Shaybani, Al-awzai, who commented on the former’s book, saying:
‘[h]ad it not been evidenced by ahādīth, I would have said that he has
taken the knowledge out of himself, and that Allah has destined the
correct answer in his legal opinion (rahy).’141 It is unlikely that a great
scholar such as Al-awzai would have condoned borrowing without
acknowledgement in Al-Shaybani’s book.
However, there could be a link between the Islamic civilization and
previous ones. Yet this could only have affected Al-Shaybani through
being influenced by customs that were still practised. For example, this
may apply to the ancient Iraqi civilizations in particular, as he was
writing in Baghdad. Nevertheless, Islamic legislators treated custom in
one of the following ways: endorsement, prohibition and regulation of an
existing practice while, in some cases, neither endorsing nor prohibiting
it. This is a possible adoption of local customs by Islamic law. However,
even if some rules were known prior to Islam, they could have only
become rules of Siyar after adoption by the legislator. For example, Islam
came to endorse the fact that Christianity and Judaism were sources of
law for a certain era. In fact:

Islam, Christianity, and Judaism share far more concepts and traditions than
most people realize. Most importantly, each is based on Prophetic tradition;
that is, the Prophets of the Old Testament, particularly Moses, as well as
Jesus, the Son of Mary, are recognized and honored in Islam. All three faiths

140
Hamidullah (n 1) 23.
141
Anke Iman Bouzenita, ‘The Siyar – An Islamic Law of Nations?’ (2007)
35 Asian Journal of Social Science 19, 25.

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76 Islamic international law

possess divine Revelation through their Prophets and share a belief in an

afterlife and a Day of Judgment.142

Yet only some of these laws were adopted in Islam by the legislator and
came to be considered law. Furthermore, even if a legal norm or a rule
was known before Islam, it could lose its status as a result of a new law
under Islam.
However, the reader of Al-Shaybani’s book would find it possible to
trace his reliance on the principle of reciprocity in international relations.
This seems to have been the case so long as there was no clear
intervention by the legislator (through Qura’an or Sunnah).
Unlike Al-Shaybani, both Augustine and Gratian had to work with
three different main sources. They had to consult the Old Testament and
the New Testament while at the same time being aware of Roman law.
For example, when they addressed the issue of military service and
whether or not a Christian should join the army, they were confronted by
two famous principles of Christianity; ‘Turn the other cheek’ (Matthew
5:29) and ‘Give place to wrath’ (Romans 12:19).143 Thus, they both
resorted to the Old Testament in which they had to find support for their
justification of war.144
Grotius too was both a religious scholar and a writer who held the role
of divine law up high in his work. Thus Bellamy (2006) stresses that
‘Grotius has often been misinterpreted as offering an entirely secular
theory of natural law’.145 In reality, Grotius ‘defined natural law in
traditional terms as a reason applied to understanding the will of God’.146
Vitoria also consults divine law, shown by his reliance on the Bible and
the Torah. He consults religious teachings when he refers to the teachings
of great theologians147 such as Augustine and Aquinas. He also utilizes
philosophy where he consults the ideas of those such as Aristotle. In
addition, he employs logic in support of his arguments.148 The reader of
Vitoria will find his work very similar to that of Al-Shaybani in terms of
applying reason and ‘contrastive analysis’ whenever a case is not clearly

142
Aboul-Enein and Zuhur (n 71) 20–21.
143
Frederick H. Russell, The Just War in the Middle Ages (Cambridge
University Press 1979) 57.
144
Ibid.
145
Alex J. Bellamy, Just Wars: From Cicero to Iraq (Polity Press 2006) 71.
146
Ibid (footnotes omitted).
147
He consults both theologians as well as jurists.
148
Francisco de Vitoria, De Indis De Ivre Belli Relectiones, Text of 1696
(Ernest Nys ed., John Pawley Bate tr., The Carnegie Institution of Washington
1917) 143–4.

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Reading historical sources 77

judged in divine law. For both have resorted to comparing two similar
issues, one governed by law and one not, in order to import the rule of
the former to apply to the latter. This is what is in Islamic jurisprudence
called qiyas, as set out above, and it is also clearly and heavily employed
by Vitoria. In addition, he supports his arguments by mentioning what he
thinks the law is, ‘justifying its reason by examples from the various
forms of law and from history, ancient and modern’.149
Nevertheless, divine law seems to have been the defining point for
Vitoria too. For him, if anything is lawful or unlawful according to divine
and natural law it cannot be rendered otherwise by human law. In one
example, he concludes that ‘if there were any human law which without
any cause took away rights conferred by natural and divine law, it would be
inhumane and unreasonable and consequently would not have the force of
law’.150 In fact, law in general can only be so in the thoughts of many such as
Vitoria when it is deemed as such in conformity with divine rules. Thus,
divine law is above all laws to the point that, as Vitoria asserts, even
‘what is evil of itself ceases to be evil if it is done on the authority of
God’.151 This also could be said to be the case for Augustine, Gratian and
Aquinas. Moreover, Grotius too, as set out above, thought that if any
statement in his book was against divine law, it must be ignored.152

2.2 AL-SHAYBANI’S METHODOLOGY AND STYLE

OF REASONING
In order to fully understand Al-Shaybani’s methodological order and his
style of reasoning, both the sources153 of his legal writings and the
Islamic legal schools must be examined. I have discussed the first point
above and therefore, before I analyse his style of reasoning and method
of writing, I shall briefly introduce the sources of Islamic methodology
(Islamic schools of thought). Following that, I shall examine his writings
in Al-Siyar Al-Kabīr to ascertain whether he has relied on Islamic sources
and adopted Islamic schools’ methods. This should help us to understand
if there is any connection between his approach and pre-Islamic civiliza-
tions. Further, another purpose of this section is to evaluate his writings

149
James Brown Scott, The Spanish Origin of International Law. Francisco
de Vitoria and His Law of Nations (Clarendon Press 1934) 240.
150
Vitoria (n 148) 152.
151
Casassa and Vitoria (n 10) 134.
152
Grotius, The Law of War and Peace (n 95) 30.
153
I.e. sources of Islamic law.

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78 Islamic international law

as a pioneering contribution in the field of international law. Understand-

ing his methodology will, no doubt, help us to understand his approach to
international law and relations.

2.2.1 Schools of Jurisprudence

Like their Roman counterparts, ‘Islamic jurists’ activities included both

legal consultation and the teaching of students. They were thus in contact
with both the practical requirements of clients and demands of practical
teaching.’154 As there were no councils such as these in the time of the
early Christian Church (e.g. meetings of councils of churchmen), jurists
in the Islamic system became very important. Thus, the development of
law was ‘naturally steered in the direction of juristic activity rather than
towards authoritative religious pronouncements’.155 This in fact ‘high-
lighted the juristic role in a manner not paralleled in Rome, where the
law was not a sacred law and hence no religious authority added sanctity
to the juristic interpretation’.156
Islamic jurisprudence was no different to other major legal systems in
having more than one school of thought. Mainly, there is the Sunni
branch, which is followed by the vast majority of Muslims, and the Shi’ie
branch. Originally, both were political divisions and developed into
separate schools. Further schools and divisions also exist. However, in
this work I will focus only on the schools that were directly related to
Al-Shaybani, which were two of the four major Sunni schools.
As we have seen in the introductory chapter, Al-Shaybani had attended
the circles of the heads of two major Islamic schools of thought. If there
is a possibility that he was influenced by someone, it would be by one or
both of these schools. Although he did attend the circles of Al-awzai and
other great scholars, most of his learning occurred in the Hanafi School
and then subsequently the Maliki School. There are two other major
schools of thought; however, neither of them would have played a role in
shaping his approach. In fact, the opposite could be true for both and is at
least true for the Shafi’i School (the head of this school was a disciple of
Al-Shaybani himself).
With Al-Shaybani being a cornerstone of the Hanafi School himself, one
would expect that it is the main source of inspiration for him. However,
before I can conclude this, these two major schools will be briefly set out.

154
Weeramantry (n 28) 46.
155
Ibid.
156
Ibid.

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Reading historical sources 79

Hanafi School
Established in Baghdad, the Hanafi School borrowed this name from its
founder’s nickname Abu-Hanifa157 and it is the largest and the oldest
Sunni school.158 Imam Abu-Hanifa (d. 767) used to make a living by
manufacturing and selling silk.159 He was ‘known as the Great Imam,
possessed remarkable powers of reasoning and deduction. He relied on
analogy and equity (istihsân) so frequently that this school was called the
School of the People of Opinion.’160,161
The Hanafi School was not merely a circle for learning or teaching
jurisprudence. Rather it was a place where Abu-Hanifa would raise legal
issues to be discussed and deeply analysed by him and his students. Once
the analysing and discussion was complete, he would then order his
students to write down the final legal opinions in suitable chapters of the
great book of Islamic jurisprudence.162
Unlike Socrates, Abu-Hanifa did not leave written records of his
thoughts; rather they were memorized by his devout disciples who wrote
them down and preserved them. His most outstanding disciples were
Malik (head of the Maliki School), Abu-Yusuf and Al-Shaybani. While
the first two produced compendiums of law as taught by Abu-Hanifa, the
credit must go to Al-Shaybani for writing and preserving most of his
master’s teachings. The fact that Abu-Yusuf and Al-Shaybani were drawn
very close by the Caliph, who had appointed them both as judges of the
State in Baghdad one after another respectively, highlights the import-
ance of this school. It is not only knowledge that they possessed, but also
piety and justice. Al-Shaybani, for example, fearing unknowingly deliv-
ering unjust decrees, refused the position of chief judge of the Muslim
State. He was finally convinced by the Caliph, who had to imprison him
for 50 days in order to force him to accept the post.163 Furthermore, the
teachings of this school were officially adopted by subsequent dynasties

157
Nu’mān ibn Thābit ibn Zutā ibn Marzubān (yet he was and still is best
known as Abu-Hanifa).
158
Mahmassani (n 124) 224.
159
Weeramantry (n 28) 49.
160
Madrassat Ahl ar-Ra’y.
161
Mahmassani (n 124) 224.
162
Authman Juma’a Dmeriyah, ‘The Imam Mohammad Ibn Al-Hasan
Al-Shaybani and His Book Al-Siyar Al-Kabir (2-2) [Al-Imam Muhammad Ibn
Al-Hasan Al-Shaybani Wa Kitabuhu Al-Siyar Al-Kabir 2-2]’ (Midad, 29 December
2007) <http://www.midad.me/arts/view/aut/10691> (accessed 27 November 2011).
163
Muḥammad Munīb ibn Abd Allāh Aynatābī al-Istanbūlī, The Book of
Facilitating the Understanding of the Commentary on Al-Siyar Al-Kabīr. Tayseer

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80 Islamic international law

as well. Both the Moghul Empire in India and the Ottoman Empire
adopted them.164
One of the most distinguishing features of this school is that its ‘jurists
acted with much authority. They developed the doctrine of ra’y under
which learned doctrine was an independent source of law – a doctrine
heavily contested by other schools such as the Shafi.’165 They worked in
a unique fashion as they used to create hypothetical questions and answer
them. Although some other schools might have shared this method with
the Hanafi School, the latter has invested uniquely heavily in it.166
Moreover, this school gave preference to public interest and emphasized
that it should be greatly considered in legal questions.167

Maliki School
Malik Ibn Anas (d. 795), who as mentioned above was a student of
Abu-Hanifa, established this school in Medina, and his most well-known
work was Al-Muwatta. This book is one of the main collections of the
Prophet’s practice (hadieth). Some described it as ‘a comprehensive
exposition of the current practice observed in Medina’.168 The practice of
the people of Medina (the Prophet’s city) was to him reliable evidence on
law. This is because they lived with the prophet and practised the law
under his supervision. Therefore, he reasoned, they would practise it in
the same way just as the Prophet did. In this, Malik is unique as he was
the only master (among the four imams of the main schools) who
attributed such value to the practice of the inhabitants of Medina.169
‘Although Malik accepted an equitable source of law based on public
interest (al-masâlih al-mursalah), he insisted more strongly on Holy
enactments and Traditions than on analogy and juristic opinion. Being
thus more conservative than the Hanafi School.’ Thus, as Mahmassani
pointed out, ‘the Maliki School was called the School of the People of
Tradition.170,171

Al-Maseer Fi Sharih Al-Siyar Al-Kabīr Istaktabahu Mualifahu Al-Sayed Mohamad

Muneeb Ibn Al-Haj Al-Intabi Alistanbuli (handwritten in 1215 Hijri, 1800).
164
Weeramantry (n 28) 50.
165
Ibid.
166
Interview with Hamzah Abu-Fars (March 2010).
167
Weeramantry (n 28) 46.
168
Ibid.
169
Interview with Abu-Fars (n 166).
170
Madrassat Ahl il-Hadîth.
171
Mahmassani (n 124) 224.

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Reading historical sources 81

His teachings were practical and not only speculative, as most of the
Hanafi School’s were. This is because in the latter school, ‘a group of
pupils gathered themselves around the teachings of the master and
gradually grew into a “school”. In the case of the Maliki School, most of
its followers were practical lawyers.’172 Although he used to cite the
hadieth without mentioning the chain of narrators, ‘Malik is regarded as
one of the greatest authorities on hadith’.173
In all schools, the Islamic jurist was never a lawmaker; rather his
‘function was to discover the law and expound it, but all law was made
by God’.174 Nevertheless, although Roman jurists were able to go further
and participate in law-making, the fact that their rules could be over-
written by other functional bodies such as the Roman Senate represents a
great restriction on their efforts. In contrast, Muslim jurists’ opinion faces
no threat from any outsider, as there is no parliament or legislative body
to alter their conclusions on what the law should be. Thus, only jurists
could expound the law in Islam.175

2.2.2 Al-Shaybani’s Methodology and Style of Reasoning in

Al-Siyar Al-Kabīr

There are many important aspects of Al-Shaybani’s methodology to

address. Of primary importance is the perception of the world according
to Al-Shaybani’s understanding of international relations, namely, the
classical division of the world into a dichotomy: dar-al-Islam and
dar-al-harb.

The classical division between dar-al-harb and dar-al-Islam

In the classic writings of Al-Siyar, the term dar-al-harb should be
translated as foreign lands, not the abode of war, and dar-al-Islam should
be translated as Islam’s state, not the abode of Muslims. These are often
used as legal terms to distinguish the Muslim State from the rest of the
world. Many scholars suggest that (according to their literal meaning)
these terms are clear signals of the hostile nature of the Muslim State
towards others (non-Muslims). In particular, many scholars explain the
term dar-al-harb as an announcement of war against the rest of the world

172
Weeramantry (n 28) 51.
173
Ibid.
174
Ibid 55.
175
Ibid 56.

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82 Islamic international law

by Islam’s states. This way of perceiving these two terms has led many to
think that a Muslim state recognizes no other state other than itself.176
Scholars have advanced two different arguments in the face of this
unfounded claim. One says that the aforementioned view reveals a
misunderstanding of the actual meaning of these terms. The other
argument is that the terms were used in a different time to regulate a
different set of international relations. As these two terms are very import-
ant for the process of understanding the nature of international relations
according to Siyar and therefore understanding Al-Shaybani’s intentions
in using them, I shall briefly discuss some of the main views on them.
Weeramantry suggests that ‘[t]he pax Romana and the pax Britannica
were terms expressive of the prevalence of a certain legal system and its
protection over vast areas of the globe, in the same way as the pax
Islamica prevailed over the territories falling within the Dar-al-Islam’.177
Furthermore, with regard to Al-Shaybani’s book on international law,
El-Kosheri stresses that ‘[i]n fact, dar al-harb is nothing else than the
ager hosticus of the Romans, in contrast to the ager rom anus, and the
pax islamica is a transposition in a new context of the pax romana’.178
Meanwhile, many scholars today think that the ‘the proselytising spirit
of the early days of Islam led to an attitude of war towards the
dar-al-harb, for the ultimate objective was an Islamic world order’.179
This assumption has convinced many to speculate that Muslims’ ultimate
goal was to take over the whole world in order to establish the law of
God everywhere.180 Some argue that this is not unique to Islam;
Christianity is also often cited. In principle, St Augustine offered a
similar sort of division of the world: the civitas terrenae and the civitas
dei. The second (which is the City of God) should strive to extend its
goodness to the former in a perpetual struggle against evil.181 Neverthe-
less, Johnson (1997) draws the conclusion that despite the similarity there
are some important differences between the Islamic and the Christian
divisions. He thinks that the Islamic notion is different from the Augus-
tinian one, for:

176
For example, see Khadduri (n 39) 358.
177
Weeramantry (n 28) 130.
178
S. Ahmed El-Kosheri, ‘Islam’ in R. Bernhardt (ed.), Max Planck Encyclo-
pedia of Public International Law (1981) 224.
179
Weeramantry (n 28) 145.
180
Khadduri (n 39) 358.
181
James Turner Johnson, The Holy War Idea in Western and Islamic
Traditions (Pennsylvania State University Press 1997) 48–50.

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Reading historical sources 83

not only was it juristic rather than theological, aiming at insuring behavior
rather than right motivation, but it defined the world in terms of control of
territory rather than the invisible progress of divine grace, and it defined
membership in the two spheres by behavior (submission to God’s will, islam,
whether or not this was accompanied by faith, iman) and not the invisible
presence of divine grace. Its political meaning was built into the concept of
distinction between the two spheres, not developed out of it as was the case
with medieval political theory based on Augustine’s thought, and the juristic
concept of two worlds directly addressed the political character of the Muslim
state.182

Nevertheless, those who would normally translate these two terms

literally may not be taking into account certain key issues. These could
be summarized as follows:183

+ Siyar requires the respect of non-Muslims even in times of war.

+ Siyar allows the recognition of other states especially during
periods of peace or truce.
+ When subjects of the Muslim state are domiciled in non-Muslim
states, they are required to respect the law of those non-Muslim states.
+ The theoretical state of war did not always exist in the sense of
physical fighting.
+ Jihad, when intended to spread Islam, did not always mean
fighting; it could be an intellectual war or ‘war of words’.
+ A very strong argument among scholars suggests that Muhammad,
the Prophet of Islam, led only two offensive wars, which he was
forced into. Other than that, all of his wars were defensive.
+ Some scholars hold that along with dar-al-Islam and dar-al-harb
there also existed dar-al-a’ahid (abode of covenant) and dar-a-sulih
(abode of peaceful agreement).
+ If ‘the spirit of proselytising’, as some critics hold, is the reason for
this classification, their whole theory fails, as Siyar does not allow
forceful conversion of others. In fact, even in practice, many of the
populations conquered by Muslims still have many non-Muslims
who were never forced to convert to their faith.
+ In addition, if Al-Shaybani intended dar-al-harb to be the abode of
war literally, he would not, as will be seen later, have required that
leaders in this abode must not be fought even when war is
permitted until they are offered the choices of becoming a Muslim,
paying tribute or finally fighting.

182
Ibid.
183
Weeramantry (n 28) 145.

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84 Islamic international law

+ Finally, as we shall see, Al-Shaybani appears to have treated

persons from what is called by some the ‘abode of war’ as if they
were from a friendly country. For example, acquisition of property
collected from enemy lands as booty would be legally effective for
warriors once they crossed the border. This is the exact rule he
applied to the enemy crossing borders carrying booty collected
from Al-Shaybani’s country.184

Probably due to recognizing some of these facts, some scholars tried to

water down their harsh view of the term dar-al-harb. They falsely claim
that the state of war under this term ‘should not be construed as actual
hostilities; it was rather equivalent, in Western legal terminology, to
non-recognition’.185
Al-Shaybani wrote his book on the assumption that all territories under
the rule of Muslims are part of dar-al-Islam and all external territories
that do not fall under the rule of Muslims are dar-al-harb. Linguistically,
a software – unaware of the background – would translate dar-al-Islam
as ‘the house of Islam’ and dar-al-harb as ‘the house of war’. Yet,
through reading Al-Siyar Al-Kabīr, it can be gleaned that the usage of
these terms was merely a temporal matter. For example, in Al-Shaybani’s
time, foreign states were simply referred to in this way. This is because
the nature of international relations was at that time very hostile, with
war as the norm and peace as the exception.
In fact, even before Islam, the Arabs were never assured of peace. They
were constantly vigilant and they only enjoyed peace when they were
either powerful or protected by a powerful entity in the area. Even when
some of them were protected by other strong powers adjacent to them,
this came at a price. For example, as mentioned above, the Eastern
Roman Empire (Byzantium) and the Persian Empire had Arab ‘colonies
and protectorates and even buffer States of purely Arab people in
different parts of Arabia’.186 This seems to have been the norm of that

184
This was the case throughout his writings. For example, see the chapter on what
is considered to become owned by enemies once they crossed the borders in Muham-
mad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of Muḥ ammad Ibn
Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-Muhammad Ibn Al-Hasan
Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi], vol 4 (Salah Al-Deen
Al-Munajjid ed, Ma’had Al-Makhtu’tat 1971) 1246.
185
Khadduri (n 39) 359–60.
186
Hamidullah (n 1) 52. See also Irfan Kawar, ‘The Arabs in The Peace
Treaty of A.D. 561’ (1956) 3 (2) 181–213 Arabica <http://www.jstor.org/stable/
4054912> (accessed 23 November 2011).

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Reading historical sources 85

time. Independence was only possible for a state if it was powerful

enough to defend itself against the surrounding greedy powers.187 Even
years after Al-Shaybani, the Eastern Roman Empire itself, when its
military situation was adverse, was forced to pay tribute to the Varangian
princes.188 In addition, the latter were given valuable commercial conces-
sions. Moreover, hundreds of years after Al-Shaybani’s era, in late
mediaeval Europe, both Christians and Romanists continued to instinc-
tively regard ‘all non-Christians as ipso facto enemies’.189 This should
explain that this way of dividing the world was simply a matter of
labelling rather than judgement.
As explained above, ‘this division, under the Abbasids, corresponded
to the factual relations between the Islamic state and non-Muslim states.’
Thus, Johnson (1997) stresses that this division was a juristic and not a
theological product. He further stresses that ‘[r]ather than seeking to
divide the world, it sought to describe a division that was already a fact
and set up parameters for how Muslims should act to make the best of
it’.190 Thus, calling the rest of the world ‘the house of war’ could have
been due to the fact that non-Muslim states were likely to use war against
dar-al-Islam rather than the other way round.
On the other hand, Al-Shaybani’s writings show that he used the term
dar-al-Islam to mean all land and entities under the rule of Muslims and
those who had signed special treaties whereby Muslims would not fear
them. Thus, the literal meaning cannot have been the intention of
Al-Shaybani or any of his colleagues writing on this topic. How could it
be understood literally as the ‘house of Islam’ when some of the entities
included were not Muslim entities? In fact, the term dar-al-Islam was
used to describe Muslim countries as well as non-Muslim territories that
were under Islamic protection. This is easily identifiable from
Al-Shaybani’s writings. For example, as explored further below, even a
Christian or a Jewish land where no Muslims reside can become part of
dar-al-Islam without the need for its people to change their religion.191
Therefore, dar-al-Islam cannot be translated literally as ‘the house of
Islam’ or ‘the abode of Muslims’.

187
Gaber (n 13) 7.
188
Nussbaum (n 49) 49.
189
Russell (n 143) 66.
190
Johnson (n 181) 66.
191
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-
Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi],
vol 3 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 1039.

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86 Islamic international law

Nevertheless, it cannot be proven that all or even most of the parts of

dar-al-harb (literally: the house of war) were at war with the Muslims’
state. Those criticizing Al-Shaybani’s use of the term would need to
prove two impossible scenarios of that time:

1. They would need to prove that in his time there was no need to
refer to all entities that did not fall within dar-al-Islam as dar-al-
harb. In other words, they would need to prove that the norm in
international relations was not warlike. In fact, war was ‘simply a
constant feature of the political landscape, as routine as the coming
and going of the seasons of the year’.192
2. They would also need to prove that the Muslims’ state was at war
with the rest of the world. However, this was not the case; in fact,
‘the hostile relations of two or more states do not always amount to
war. More often than not they only fall short of war; and fighting
and bloodshed, or, at least, the mobilisation of the whole of the
public forces of a state does not take place’.193
Thus, I can conclude that even in the case of Al-Shaybani and according
to his hypotheses:
perpetuity of jihad is relative as the jihad comes into being only when
circumstances are favourable to the Muslim state and is likely to be suspended
if the interests of the Muslim state require it. Hence, the doctrine of jihad does
not necessarily envisage constant fighting, but merely implies the existence of
a state of war between the Muslim state and its neighbours.194
In this respect, Abou el Fadl argues that:

[i]t is simply not true that Muslim jurists continued to accept the idea of the
inevitability of a state of mutual hostility between Muslims and non-Muslims.
A substantial number of jurists from different Sunni schools, not just the
Shafi’i school, accepted the category of the abode of treaty or peace as a
permanent realm enjoying full treaty rights, not as an aberration or un-
welcome concession to reality.195

192
Neff (n 5) 30.
193
Hamidullah (n 1) 160.
194
Al-Ghunaimi (n 19) 142.
195
Khaled Abou El fadl, ‘The Use and Abuse of “Holy War”: Review of The
Holy War Idea in Western and Islamic Traditions, James Turner Johnson
(University Park, Pa.: Pennsylvania State University Press, 1997)’ (Carnegie
Council for Ethics in International Affairs, 20 December 2000) <http://
www.carnegiecouncil.org/publications/journal/14/review_essays/216.html> (ac-
cessed 11 August 2016).

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Reading historical sources 87

Moreover, Abū al-Wafā (2007) rightly stresses that Al-Shaybani’s divi-

sion of the world into two sections is not unrelated to the jurisdictions of
law. This is apparent when we see that he described the two abodes as
follow:

1. Dar-al-Islam: is the abode where Islamic rules are practised. The

meaning of this is that the Islamic rules are not applicable in dar-al-
harb.196 Dar-al-Islam is also the abode where Muslims are safe and
the abode is under their control. Thus, the deciding factor is not the
territory but the application of law and the control over it.197
2. Dar-al-harb: as Al-Shaybani defines it, it is the abode that does not
fulfil the conditions of dar-al-Islam. In other words, it is the abode
that cannot be described as dar-al-Islam.198 On top of that,
Al-Shaybani was always clear that subjects visiting them should
respect the laws of foreign lands.199

Abū al-Wafā went on to say that Al-Shaybani discussed issues such as

belonging to one abode or another, the period that is allowed for visitors,
and the personal laws and rules applied to foreigners in dar-al-Islam.200
All of this highlights the fact that Al-Shaybani did not divide the world
into ‘us’ and ‘them’ (enemies); rather he divided it according to juris-
dictions of law, regardless of the literal translation of the terminology he
and other jurists used. Thus, the dichotomy, especially in the context of
that time, is merely a delineation of legal jurisdictions. Therefore, any
attempt to use these two terms in their literal meaning will be misleading.
The main issue is that although some Islamic scholars (including
Al-Shaybani) supported the view that war with dar-al-harb should
always be an option if their rulers were not open to peace agreement; the
distinction between dar-al-harb and dar al-Islam cannot be used to
indicate this view. This, to summarize the above, can be explained by two
factors: first, it was not originally intended for this purpose; and second,
scholars who opposed the idea of perpetual strife to either subdue
dar-al-harb under the flag of dar-al-Islam or establish peace agreements

196
Aḥmad Abū al-Wafā, Kitāb Al-I‘lām Bi-Qawā‘id Al-Qānūn Al-Dawlī
Wa-Al-‘alāqāt Al-Dawlīyah Fī Sharī‘at Al-Islām [A Book of International
Law and Relations in Islamic Shari’a], vol 14 (al-Ṭab‘ah 2, Dār al-Nahḍah
al-‘Arabīyah 2007) 10.
197
Ibid 11.
198
Ibid 12.
199
Ibid 13.
200
Ibid 14–17.

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88 Islamic international law

used the same distinction. In the West, the idea of this dichotomy is best
explained as a juristic and non-theological distinction, which distin-
guishes it from that of St Augustine.
For the reasons set out above, dar-al-Islam and dar-al-harb should be
used in their Arabic form, as their translation requires so much explanation.
However, it is still sometimes simpler to call other states ‘foreign states’
rather than ‘dar-al-harb’ in order to avoid confusion for those studying
international law today and to avoid the need to explain the above as well as
the fact that there are other categories of states. Based on Al-Shaybani’s
definitions, these states include entities that have signed agreements with
the Muslim State and can thus be described as neither dar-al-Islam nor
dar-al-harb. This is a failure on the part of Al-Shaybani, who did not clarify
the status of the ‘covenanting states’ as some would call them.201
Similar distinctions to those used by Al-Shaybani were used in other
ancient systems; however, they are not identical. For example, given the
above, his usage of the word harbi (extracted from dar-al-harb) does not
mean ‘warrior’. This is apparent as he used it when he talked about
traders, merchants and visitors, and all of the subjects of dar-al-harb.
Somewhat similar to this term is the term hostis, as ‘in Latium the word
hostis means only a stranger’.202 Moreover, to the Greeks, if a people is
known to them neither in peace nor in war the taking of plunder from
them was allowed, as when Aristotle commended the taking of plunder
from barbarians.203 Thus to them, war only meant actual hostilities. This
is also apparent in the case of Roman law, in which:

if it is considered that neither friendship nor hospitality nor any treaty for the
sake of friendship has been made with any people these are not indeed public
enemies; yet whatever has come to them from the Romans should belong to
them, and a free Roman captured by them would be a slave. The same thing,
again, would happen if any one came from them to the Romans; and in this
case also postliminy should be granted.204

Similar to the Greeks, ancient Rome considered itself ‘permanently at

war with any state with which it did not have a treaty of friendship or
alliance (foedus)’.205 However, this never meant that actual hostilities
were conducted. This is probably the closest system to that of

201
Many scholars would call them so, including Imam Al-Shafi’i. Abou El
fadl (n 195).
202
Grotius, Hugo Grotius. The Law of War and Peace (n 95) 394.
203
Ibid.
204
Ibid.
205
Neff (n 5) 31.

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Reading historical sources 89

Al-Shaybani, which raises the question of whether he could have

borrowed this from the Romans.
In the West, well over eight centuries after Al-Shaybani, we see a
similar dichotomy in scholarly approaches. The world, it seems, was seen
as between ‘them and us’. Even in one of the most open-minded
approaches, that of Vitoria, one witnesses the apparent traces of such a
division. This division in Vitoria’s work is also founded on the differen-
tiation between fellow religious people and all others. The term ‘com-
monwealth’ or ‘common weal’ as used by Gratian, as we shall see later,
was no more than an umbrella sheltering fellow religious men and
excluding all others. This was true even in the case of the most moderate
scholars such as Vitoria. For, in one case, he speaks of the prohibition of
carrying out a war, even if it was justified, if in doing so more harm
would be caused for the commonwealth than the good it may bring.
Vitoria explains what he means by ‘commonwealth’ as follows:

if Spain declares war on France for reasons which are otherwise just, and
even if the war is useful to the kingdom of Spain, if the waging of the war
causes greater harm and loss to Christendom – for example, if the Turks are
enabled in the meantime to occupy Christian countries – then hostilities
should be suspended.206

Thus, the commonwealth is the Christian world (or Christendom, as he

called it). All the rest of the world is considered as separate. One other
similar approach to that of Al-Shaybani held by Vitoria is the legal
distinction between his dichotomies on the one hand and the rest of the
world on the other. Both held that divine law is only applicable to their
states and not to others. Thus, according to Al-Shaybani, Islamic law
binds dar-al-Islam only, and Christian law, according to Vitoria, binds
Christendom. Thus, they both accept that other legal entities exist.
However, they both believe that all are bound by the law of nations: ius
gentium in the case of Vitoria and the acceptable international rules in the
case of Al-Shaybani. Vitoria thus (unconventionally for Europe) accepts
that other legal systems are laws outside Christendom. Non-European
‘barbarian’ societies, he concluded, ‘might be subject to the ius gentium,
whereas they could clearly be subject to no other simple human law other
than their own’.207 This is probably what most distinguishes Vitoria from
other European scholars who preceded him. He first accepts that others

206
Anthony Pagden and Jeremy Lawrance, Francisco de Vitoria; Political
Writings (Cambridge University Press 1991) 22.
207
Ibid xvi.

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90 Islamic international law

might be rendered subjects of ius gentium (European international law)

and he also accepts that others have proper laws and legal systems. In
this, he agrees with Al-Shaybani.
Al-Shaybani, exceptionally in that time, and Vitoria, exceptionally
during his era in Europe, both strongly affirmed the concept that others
have their own legal systems and thus cannot be attacked militarily on the
pretext of being ‘unworthy’. As we shall see in this study, this is clear in
almost all of the rules put forward by Al-Shaybani with regard to war and
peace. Vitoria also made this clear when he said that others ‘could not be
robbed of their property, either as private citizens or as princes, on the
ground that they were not true masters (ueri domini)’.208

Other important characteristics of Al-Shaybani’s methodology

Al-Shaybani followed his master Abu-Hanifa in many ways. First, he
adopted a system whereby he created possible hypothetical cases on a
certain topic and then delivered rulings for each case, differentiating the
outcomes where relevant. He discussed almost every imaginable case
with regard to matters of the international law of his time: peace and war
and private and public international law issues that could arise were often
covered by him. While it is true that this style is not entirely unknown to
Roman209 and medieval thinkers, Al-Shaybani could not have gained this
approach from them. Meanwhile, it is easy to notice that this style was
revived in Europe only after contact with the Islamic civilization. This is
because in Europe, ‘the casuistic treatment of just-war doctrine was
undertaken on a large scale only in the post-medieval era’.210
Meanwhile, traces of Malik’s methods and style are evident in
Al-Shaybani’s work. For example, Al-Shaybani narrates the hadieth but
sometimes he does so without mentioning the whole chain of its narrators
just as Imam Malik did.
Along with these observations about Al-Shaybani’s writings, I shall
further identify the different approaches and characteristics he demon-
strated in his writings as follows:

A. Broad knowledge in all legal fields It is clear to the reader that

Al-Shaybani was very well acquainted with the detailed rules of Shari’ah
as well as the rules concerning Islamic international relations. Rules such
as the regulation of testimonies and witnesses, succession law, property

208
Ibid 51.
209
Lesaffer (n 56) 113.
210
Nussbaum (n 49) 37.

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Reading historical sources 91

law and many more were central to his book. For example, Al-Shaybani
discussed cases such as when a Muslim in dar-al-harb hired, borrowed
or lent an object to others. The legal implications and consequences of
the different legal claims that could occur in such cases were carefully
and fully detailed.211 In doing so, it was likely that he was aided by his
knowledge of other branches of Islamic law and not only Siyar. Indeed,
Imam Al-Shafi’i, as mentioned above, once confessed ‘that he never saw
a person more knowledgeable about what is lawful and what is unlawful
and the niceties of law than Muhammad ibn al-Hasan al-Shaybânî’.212

B. Coherent and open approach Al-Shaybani demonstrates a high

level of coherence in his articulated and consequential approach in
Al-Siyar Al-Kabīr. Throughout his work, it is difficult to discover any
incoherence or inconsistency between different legal rules on different
legal matters. This is probably due to his broad knowledge of all fields of
Islamic law from which Siyar is sourced, and the coherence, perpetuality
and strength of the main principles (and sources) of Siyar.
Imam Al-Shafi’i used to say: ‘I believe my opinion is right with the
possibility that it is wrong and I believe the opinion of those who
disagree with me is wrong with the possibility that it is right.’213
Everywhere in the book, Al-Shaybani and Al-Sarakhsi show a similar
attitude. Al-Shaybani, when delivering his opinion on a subject that is
open to scholarly interpretation, rules that his opinion is the right one;
yet, if a different opinion of other jurists is utilized by others, their
actions shall thus be considered valid.214 Therefore, it is clear that the
two scholars approve the use of other scholars’ opinions on matters of
disagreement even if such opinions go against their own. This is required
to avoid human errors when the opinion of the scholars becomes a source
of law. In addition, it is self-evident that in Siyar there is scope for
scholars to introduce their opinion into the law-making process. This
allows them to take into account the time and place and their effect on
legal norms. Another example of this open-minded approach is to be

211
See, for example, As-Sarakhsī, Explanation of As-Siyar Al-Kabīr
(n 191) 973.
212
Muḥammad ibn al-Ḥasan aš-Šhaybānī, The Shorter Book on Muslim
International Law (Mahmood Ghazi tr., ed. 2007, Adam 2007) 23.
213
Abdulhakim Jackson, ‘The Etiquette of Disagreement’ (Islamic Research
Foundation International, Inc., 2006) <http://www.irfi.org/articles4/articles_5001
_6000/the%20etiquette%20of%20disagreementhtml.htm> (accessed 14 Decem-
ber 2017).
214
See, for example, the discussion in As-Sarakhsī, Explanation of As-Siyar
Al-Kabīr (n 191) 1002–1003.

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92 Islamic international law

found with Al-Shaybani,215 who used Al-Basri’s opinion to support his

argument when appropriate, although he often disagreed with him.
Moreover, noticeably Al-Shaybani did not always agree with the
opinion of other scholars affiliated to his school. In fact, wherever he
found stronger evidence and a better explanation of an opinion, he would
support it even if it were opposite to his own or that of his head of
school.216 In addition, human reasoning and rationale are employed by
Al-Shaybani whenever possible. As we shall see later, he did this in cases
where he decided to support one of two or more authentic opinions held
by scholars in matters that are subject to human reasoning. From
Al-Shaybani’s book, it is clear that even when a certain scholar becomes
part of a school that uses a different methodology, he would still agree
with other schools when he thought that their judgement was more
correct. To him, an opinion supported by two groups of scholars is more
worthy of support than that supported by only one group, even if he
belonged to the latter.217
This attitude of Al-Shaybani can be seen in the writings of Grotius.
Unlike Vitoria, Grotius ‘presented what he writes as his own theory; and
though he uses his predecessors (including both Thomas and Victoria)
copiously, he does not intend to argue from their position to his’.218
Probably the slight difference between these two would be Grotius’s
constant references to ancient sources, whereas Al-Shaybani confined
himself to the sources of law mentioned above. However, Grotius used
these sources as support for his own arguments. Thus, Johnson notes that
Grotius considered that ‘[t]ypically figures from the past serve him as
examples only, whether they represent ancient Greece or Rome, medieval
Christians, or the New World’.219

C. New approach to the study of international law As we have seen,

by producing Al-Siyar Al-Kabīr, Al-Shaybani separated the study of
international law and considered it a separate field of study for the first

215
For example, we can see that Al-Shaybani had a completely different
view from that held by Al-Basri regarding the right of the imam to kill those
captured.
216
See, for example, the discussion in As-Sarakhsī, Explanation of As-Siyar
Al-Kabīr (n 191) 886.
217
Dmeriyah (n 162).
218
James Turner Johnson, Ideology, Reason, and the Limitation of War:
Religious and Secular Concepts 1200–1740 (Princeton University Press 1975)
210.
219
Ibid.

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Reading historical sources 93

time. Yet he did not separate the study into private international law and
public international law.
Nonetheless, his book was the first ever treatise on a single topic of
law, as it was only meant to consider the Islamic perspective of
international law topics. Historically, international law topics had never
been dealt with, to our knowledge, in such a way. A book existed on the
art of war: the famous ancient Chinese book The Art of War written in the
fourth century BC by Sun Tzu.220 Others chose to write about classifica-
tions of war, such as the book written by Kamandaka in ancient India.221
However, it has never been claimed by historians that all topics of
international law, including peace, had been dealt with in one book, prior
to Al-Shaybani and Grotius.
In comparison, ‘[a]lthough Vitoria does not use the term “international
law”, his ius gentium includes both public and private international
law.’222 It is also true to say that although Al-Shaybani does not use the
term ‘international law’, his Arabic term ‘Siyar’ includes both public and
private international law. However, the difference between these is that
the former did not consider all the subjects of international law of his
time and certainly did not cover all the subjects covered by Al-Shaybani.
Meanwhile, the latter has offered a genuine and thorough treatment of all
of the subjects of international law as far as his era is concerned. In
addition, Vitoria did not produce any writings comparable to those of
Al-Shaybani, for his main legacy was lecture notes from his students and
not comprehensive books like those of Al-Shaybani.
It is quite hard to imagine a book that did both comprehensively and
exclusively consider the subjects of international law in the eighth
century. However, all subjects that Al-Shaybani treated in Al-Siyar
Al-Kabīr were related to that. His book can only be compared to what
comes centuries later – that is, the work of Grotius.
Al-Shaybani’s approach was innovative in many ways, for example in
considering individuals as subjects of international law, which was only
hesitantly introduced in the modern age in Europe. It was only at the time
of Vitoria that this idea gained ground: ‘Vitoria’s ius gentium certainly
concerns the relations of individuals, and it concerns individuals not only
as members of different countries but also simply as individuals.’223 An
example of this is Vitoria’s detailed rules regarding the rights of

220
Leon Friedman (ed.), The Law of War: A Documentary History, vol 1
(Greenwood 1972) 3.
221
Neff (n 5) 14.
222
Casassa and Vitoria (n 10) 213.
223
Ibid 147.

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94 Islamic international law

individuals to travel anywhere they wish. The only scholar we know of

who preceded Vitoria in directly considering individuals as subjects of
international law is Al-Shaybani.

D. Comprehensive, detailed and unequivocal legal approach Probably

one of the most notable characteristics of Al-Shaybani’s work is his
comprehensiveness. When addressing a set of facts, he also treats
analogous cases. After explicitly explaining all the rules that govern a
certain set of facts, he alters one or more of the given facts of the
hypothetically envisaged case and explains the rules relevant to those
circumstances.
In this respect, even compared to just war, authors writing hundreds of
years later, his work was still more comprehensive. For example, unlike
Al-Shaybani, ‘[t]here are certainly inadequacies and omissions in Aqui-
nas’s thinking on war’.224 In addition, the latter only addressed some of
the regulations of war, whereas Al-Shaybani addressed both war and
peace in a comprehensive manner. Another example is Gratian who,
despite being one of the most important figures of the late Middle Ages,
only treated war by way of sporadic references made to military service
in various parts of his Decretum.225 Gratian was not as systematic,
comprehensive or detailed as Al-Shaybani was centuries before him.
Augustine was cited by Gratian, Aquinas and Grotius and by a large
number of Western legal historians working on international law. Yet he
neither wrote in detail on subjects related to international law nor wrote
with an explicitly legal approach. Those who cited him, it seems, have
interpreted legal arguments from his hybrid theological texts. For
example, ‘St Augustine’s City of God is not an easy work to read.’226 The
translation by the Loeb Classical Library may have done much to
mitigate this. However, the issue is that Augustinian thoughts are difficult
to interpret from a legal point of view, which is why there is a heated
debate between those who claim that Augustine offered some legal
teachings on international relations and those who reject such a claim
completely.227 The best place to look for his legal opinion on issues of
international law would probably be in the works of others such as
Gratian, Aquinas and Grotius. Meanwhile, the book of Al-Shaybani

224
Tooke (n 77) 27.
225
Russell (n 143) 56.
226
Saint Augustine, The City of God Against the Pagans, vol iv (Philip
Levine tr., William Heinemann 1966) viii.
227
Dino Bigongiari, The Political Writings of St. Augustine (Henry Paolucci
tr., Regnery Gateway 1962) vii–viii.

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Reading historical sources 95

focused mainly on matters of international law from a legal perspective

so that even non-Muslims and non-religious people can draw on his legal
thoughts.
This said, Grotius, referring to both ancient and medieval writers
related to international law, concluded that:

no one has dealt with the subject-matter as a whole, and those who have
treated portions of it have done so in a way to leave much to the labours of
others. Of the ancient philosophers nothing in this field remains; either of the
Greeks, among whom Aristotle had composed a book with the title Rights of
War, or-what was especially to be desired-of those who gave their allegiance
to the young Christianity. Even the books of the ancient Romans on fetial law
have transmitted to us nothing of themselves except the title. Those who have
made collections of the cases which are called ‘cases of conscience’ have
merely written chapters on war, promises, oaths and reprisals, just as on other
subjects.228

Nevertheless, had Grotius taken Al-Shaybani’s work into consideration,

his statement above might have been different. It should be emphasized
that as far as Europe is concerned, Grotius made a significant contribu-
tion to the study of international law. Accordingly, Muldoon, comparing
Grotius to other European figures in the field, underlines that he ‘set the
issue of international law and relations in a broader perspective than had
Innocent IV or the other canonists’.229 Thus, it seems that Grotius is the
most appropriate Western international law scholar to compare to
Al-Shaybani.
Unlike Al-Shaybani, Grotius and Vitoria did not limit the options of
rulers with regard to interpreting international law. This is what led
Casassa to express his concern that ‘[w]ithout calling into question
Vitoria’s intentions, the fact is that his plan would function only if the
consciences of kings were sufficiently sensitive’.230 This is because he
relies on the good intentions of rulers as much as (if not more than)
he relies on complicated legal rules. An example is apparent in appoint-
ing the prince prosecuting a just war to be both the judge and jury who
has the right to estimate what sort of compensation and punishment
should be imposed on the other party in war. Vitoria frequently repeated
that his rules should not to be misused; however, this minimizes the
impact of his work. Grotius had a similar approach to Vitoria, although
we do not see as many warnings such as those of Vitoria in his writings.

228
Grotius, The Law of War and Peace (n 95) 22.
229
Muldoon (n 15) 158.
230
Casassa and Vitoria (n 10) 211.

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96 Islamic international law

While some take the view that Al-Shaybani gave less attention in his
book to peace than war, this makes sense in historical context.231
Peaceful relations between nations today are far more developed than
they were in the time of Al-Shaybani. As a result, we now have
international commercial law, international trade law, international avia-
tion law and many more.

E. Realistic approach Al-Shaybani’s work takes a realistic approach,

showing a deep understanding of politics as well as international law in
his time. As explained above, the Qura’an and Sunnah and other sources
of Siyar are not always explicit, and in many cases the legislator did not
provide clarification. In such cases, Al-Shaybani took a realistic approach
while maintaining the moral and ethical principles required by principles
of Siyar. For example, his approach to war is rightly described by Kelsay
as ‘military realism’.232 As Al-Shaybani ‘issued a number of opinions in
response to questions about military options and the immunity of
noncombatants from direct and intentional killing […] he tried233 […] to
balance considerations of military necessity with the restrictions charac-
teristic of early Muslim practice’.234 Furthermore, if compared to just-
war theorists even towards the late medieval period, Al-Shaybani’s work
is still the most realist, the most humane and the most comprehensive at
the same time. The doctrine of Aquinas, for example, ‘in no way reflects
or is adapted to contemporary politics, ecclesiastical, and social con-
ditions or ideas, such as feudalism and imperialism’.235

F. Al-Shaybani and contemporary international law Al-Shaybani’s

work is not modern international law. The relationship between Augus-
tine, Gratian, Aquinas, Vitoria, Grotius and Al-Shaybani is that they all
have commented – with different types of contribution – on subjects
related to the area of international law. The contribution of the first three
was limited and is mainly confined to discussion of issues relating to jus
ad bellum. As for Vitoria, who contributed more, Antony Pagden rightly
said, ‘although it is clearly false to speak of Vitoria as the father of
anything so generalised and modern as “International Law”, it is the case
that his writings became an integral part of later attempts to introduce

231
Abū al-Wafā (n 50) 45.
232
John Kelsay, ‘Al-Shaybani and the Islamic Law of War’ (2003) 2 Journal
of Military Ethics 63, 71.
233
Sentence added.
234
Kelsay (n 232) 71.
235
Tooke (n 77) 26.

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Reading historical sources 97

some regulative principle into international relations.’236 In contrast,

Grotius too, according to Vollenhoven, did not write sketches of inter-
national law as it is perceived today. ‘The subject matter of Grotius’s
book is not international law in its modern meaning.’237 Rather, the
purpose of his book was ‘to explain the law which reigns on earth, so far
as this law is not the law of separate states (nations) and of their political
subdivisions’.238 Thus, he was not writing solely about national law,
which he calls ius civil in his book, and was not writing a ‘modern
international law’ textbook. He collected rules from different stages of
history and from different philosophies and religions in order to support
what he thought was the law applicable to humankind.
This also, in part, applies to Al-Shaybani with greater emphasis on the
fact that his book on international law can only be compared to that of
Grotius. This is because, in general, it was both as detailed as that of
Grotius is and was sketched with great legal technicality and sophisti-
cation. In addition, the scope of Al-Shaybani’s international law book
goes beyond Grotius to cover inter-state, inter-religious and transnational
relations.
Nevertheless, none of the above-named scholars defined international
law, including Grotius in his book Iure Belli Ac Pacis. ‘For international
law the book does not even attempt to invent a name, as it does not
regard it a separate matter. The book points out what is the law which in
the author’s view is binding on general principles; it refrains from adding
what is merely customary239 … or statutory240,241
Grotius’s book in fact is ‘neither a book on international law in the
sense that it is confined to rules between states (nations), nor in the sense
that it separates a law of mankind for individuals from one for
nations’.242 In the first sense, Al-Shaybani’s book was different as
explained above, but in the second sense the two books are the same, for
in Al-Shaybani’s the law of nations is applicable to both individuals and
nations, yet it is an integral part of Islamic law.

236
Pagden and Lawrance (n 206) xxviii.
237
C. van Vollenhoven, The Framework of Grotius’ Book De Iure Belli Ac
Pacis (1625) (Noord-Hollansche 1932) 1.
238
Ibid.
239
Vollenhoven notes that there are only some limited exemptions to this.
240
Again, Vollenhoven notes that there are only some limited exemptions to
this.
241
Vollenhoven (n 237) 1.
242
Ibid 17.

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3. The law of war

The Roman philosopher Seneca protested that:
[w]e try to restrain murders and the killing of individuals. Why are wars and
the crime of slaughtering nations full of glory? Avarice and cruelty know no
bounds. In accordance with decrees of the Senate and orders of the people
atrocities are committed, and actions forbidden to private citizens are com-
manded in the name of the state.1

Unfortunately, the world of Seneca was no more warlike than ours is

today. This is why every attempt to regulate war and lessen its atrocities
must be taken seriously as long as war cannot be eliminated as a practice.
Al-Shaybani, nevertheless, wrote about declarations of war, justifica-
tion and limitations of use of force, prisoners of war, spoils of war,
ceasefire, surrender, truce, international trade, travel regulations and
conflict laws during war. He covered civil or internal wars, alliances, the
issue of allowing foreign troops passage to attack others, neutrality, the
principle of non-intervention and issues related to the participation of
foreign fighters in civil wars. He went on to write about the rules and
regulations of many topics related to these in detail. For example, he
discussed rules related to international commercial affairs during war in
an unprecedented way. In this study, I will only focus on some aspects of
war in the international sphere.
War in itself was for states to decide on. When a state decided to go to
war, it was merely exercising a legal right granted by ‘international law’.
‘War was in law a natural function of the State and a prerogative of its
uncontrolled sovereignty.’2 This was the perception, in most cases, until
the middle of the twentieth century.3 However, it should be examined
whether this was also the position of Al-Shaybani.
In this chapter, I will examine Al-Shaybani’s writings in Al-Siyar
Al-Kabīr on the topic of the regulation of war. I will only discuss some of

1
Hugo Grotius, Hugo Grotius. The Law of War and Peace: De Jure Belli
Ac Pacis Libri Tres (Francis W. Kelsey tr., Indianapolis 1925) 170.
2
L. Oppenheim, International Law: A Treatise, vol 2 Disputes, War and
Neutrality (Hersch Lauterpacht ed., 7th ed., Longmans 1952) 178.
3
Ibid.

98

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The law of war 99

the most important issues he addressed and have selected topics that he
focused on in most detail in his book and that are central to war affairs.
This chapter is divided into two key parts: jus ad bellum and jus in
bello.4 Prior to this, I will give a brief historical account of the customs
and laws regulating war before and around the time of Al-Shaybani.

3.1 BRIEF HISTORICAL ACCOUNT OF LAW ON WAR

AFFAIRS
3.1.1 General History

Legal historians have indicated that humanity has long known some forms
of rules and customs related to war. Some argue that this was as early as
3100 BC.5 Friedman asserts that ‘[v]irtually every civilization of which we
have record placed some limitations on the conduct of warfare. As early as
the Egyptian and Sumerian wars of the second millennium B.C., there were
rules defining the circumstances under which war might be initiated.’6
Moreover, some argue that contrary to the way ancient civilizations are
often perceived, in Ancient Greece war was not always the normal state
of affairs. Greeks, then, believed that if they did not meet certain
conditions and still went to war they would be punished by God.7
Meanwhile, there was a custom called ‘reprisals’ whereby an individual
is permitted ‘to use force for the protection of rights not only against an
alleged foreign wrongdoer but against his country and fellow citizens as
well’.8 Although these were rules to be followed in war, some think that
these ‘private reprisals are preeminently symptomatic of lawlessness and
barbarism. This is very true of ancient Greece.’9 Furthermore, although

4
I have chosen these two terms as they best cover the most important
topics in the area of the law of war and they will allow us to historically assess
Al-Shaybani’s contribution.
5
Arthur Nussbaum, A Concise History of the Law of Nations, Revised Edn
(Macmillan 1954) 1.
6
Leon Friedman (ed.), The Law of War: A Documentary History, vol 1
(Greenwood 1972) 3.
7
Coleman Phillipson, The International Law and Custom of Ancient
Greece and Rome, vol 2 (Macmillan and Co, Ltd 1911) 176.
8
Nussbaum (n 5) 8.
9
Ibid.

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100 Islamic international law

war with Greek cities was not preferred, war with others was the norm,
as held by Aristotle and even Plato.10
The oldest identified traces of more solid rules concerning war were
religious, such as Jewish law. For example, ‘Deuteronomy contains what
are probably the oldest written canons on warfare prohibiting the killing
of women and children, among others.’11 Moreover, in Deuteronomy,
Nussbaum claims that, there is ‘an indication of the notion of holy war,
which came to be resumed by Islam and, in the Crusades, by Christian-
ity’.12 Historians stress that even in the seventh century BC, there are
some traces of humanization in war. They cite the example of 690 BC
when the Sennacherib led a successful campaign against Jerusalem and
dealt with their captured enemy according to a prescribed law. They
‘handled most of the conquered Jews with legally prescribed mercy’.13
On the other hand, ancient India and China knew many customs
according to which war was humanized. The ancient Chinese prohibited
waging wars ‘during the planting and harvesting seasons’.14 Furthermore,
in the fourth century BC, in his famous book The Art of War, Sun Tzu
said that attacking the injured and the elderly among the enemy is
forbidden.15 It was in ancient China when ‘[f]or the first time in history,
a conception of war was integrated into a cohesive general structure of
social, political and moral theory’.16 Furthermore, unlike the Greek
concept of a latent state of war with others, Confucianism offered a great
deal of peacefulness in its conceptualization of the world. In fact, ‘[t]he
concept that peace was the natural condition of the world would seem to
have been first articulated in China.’17 Yet some scholars insist that none
of these were international laws in the actual sense.18 For some this was
due to the limited scope of applicability or to their discriminatory nature.
For others, some of these rules were only customs that had not yet
reached the stage where they could be called laws.
By contrast, the Hindus who followed the code of Manu had some
customs but these were only with regard to treatment of the enemy in

10
Stephen C. Neff, War and the Law of Nations: A General History
(Cambridge University Press 2005) 30–31.
11
Nussbaum (n 5) 3.
12
Ibid.
13
Friedman (n 6) 3.
14
Ibid.
15
Ibid.
16
Neff (n 10) 10.
17
Ibid 31.
18
Nussbaum (n 5) 3.

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The law of war 101

warfare. For example, they prohibited killing a sleeping enemy, a naked

enemy or an enemy who has lost his coat of arms.19 Nevertheless, they
did not regulate or limit resort to war and in any case the few rules they
had were not applicable when the enemy was not from kindred races.20
Indians seemed to have been very interested in the classificatory side of
writing about war. In the fourth century AD, Kamandaka wrote treatises in
which he described as many as 16 types of war.21 However, in general, both
the ancient Chinese as well as the ancient Indians were no less warlike
nations and no less brutal and savage than many other ancient civilizations.22
In fact, some think that in the ancient Orient, without much difference
from primitives, warfare did not know limits to killing and cruelty.23
Ancient Rome had also known some forms of customs and rules as far
as wars were concerned.24 For example, in around 500 years BC they
established the institution of fetials, which consisted of a group of priests.
This religious institution was ‘entrusted with the administration of the
religious ceremonials pertaining to treaties and to war and other inter-
national matters (legation, extradition)’.25 The fetials were to decide
whether a foreign entity was in violation of its ‘duties towards
Romans’.26 If this institution recommended war to the Senate and its
recommendation was accepted then the war was considered to be just.
However, only the Roman party decided whether a war was legal, despite
being both the judge and a party at the same time.27 This is another
example of how the Romans, especially in that era,28 considered all
others as unworthy of being subjects of the law. Furthermore, the fact
that there are no clear regulations makes this system very subjective.
Similar to the Greeks, Ancient Rome considered itself ‘permanently at
war with any state with which it did not have a treaty of friendship or
alliance (foedus)’.29 In any case, ‘it cannot be said that the Romans
produced any very elaborate thought on the subject.’30

19
Ibid.
20
Phillipson (n 7) 204–205.
21
Neff (n 10) 14.
22
Phillipson (n 7) 204.
23
Nussbaum (n 5) 5.
24
Phillipson (n 7) 167.
25
Nussbaum (n 5) 10.
26
Ibid.
27
Frederick H. Russell, The Just War in the Middle Ages (Cambridge
University Press 1979) 5.
28
Nussbaum (n 5) 166–200.
29
Neff (n 10) 31.
30
Ibid 37.

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102 Islamic international law

Thus, both ancient Greece and Rome knew some very useful rules31
whereby the use of force was, to a very small extent, regulated. However,
these rules were only applicable to the entities they marked as worthy of
the law in their times.32 In fact, this evokes the views of the founders of
the post-medieval European international law, who claimed that this law
applied only to the ‘civilized’ world (European states). Thus, generally,
although some think that the ‘Roman international law of peace was a
great advance on the Greek system … the Roman law of war remained
very much the same, recognised no right for the belligerent, and using
nothing but discretion regarding the non-Roman enemy’.33
During the Middle Ages, the spread of Christianity in the West played
a great role in changing the general theoretical perception of affairs of
war, especially in Rome. Walker (1899) points out that Christianity was
one of the most effective cures to the diseases of international law
regarding war in Rome.34 In the beginning, the notion of pacifism and
non-resistance prevailed.35 However, this attitude was later balanced by
the development of the old Greco-Roman36 doctrine of ‘just war’.37 Some
constraints on war affairs were also known. For example, around the
eleventh century, the Truce of God system was introduced by the Church,
which prohibited warriors from the use of force on certain days of the
week.38 Nevertheless, the Truce of God was directed against violence and
not against war; it was meant to prevent violence occurring in a certain
geo-religious space39 and there is no evidence that it was intended to be
applicable to others, especially to non-Christians.40 Furthermore, during
the Middle Ages, in the West private reprisals were also practised widely

31
For example, declaration of war rules and the concept of ‘just war’ when
war is required to be authorized and waged for a ‘justifiable reason’.
32
Phillipson (n 7) 167.
33
Muhammad Hamidullah, The Muslim Conduct of State (5th edn, SH
Muhammad Ashraf 1968) 64.
34
Thomas Alfred Walker, A History of the Law of Nations: From the
Earliest Times to the Peace of Westphalia, 1648, vol 1 (Cambridge University
Press 1899) 67.
35
Joan Doreen Tooke, The Just War in Aquinas and Grotius (SPCK 1965)
1–5.
36
The idea was originally Greek and was adopted and enhanced by the Romans.
37
Friedman (n 6) 6.
38
Ibid 11. It is interesting to note that prohibiting fighting in certain periods
of time was known to the Arabs centuries before and was endorsed by Islam in
the seventh century.
39
Russell (n 27) 34.
40
Neff (n 10) 70.

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The law of war 103

and almost freely against foreign individuals and their entities, with only
a few procedural exceptions. It was only towards the end of this era when
most but not all Western nations brought this practice to halt.41 Moreover,
while it is true that some medieval Western practices were chivalrous, the
chivalrous practices were not legally binding. ‘[T]hus the formal declar-
ation of war which was practised up to the seventeenth century is
presumably related to chivalry.’42
During the Middle Ages, the West’s most significant input was
probably the revival of the Roman doctrine of just war. The resuscitation
and altering of this doctrine was carried out by St Augustine (d. 430) in
a Christian spirit. He did this ‘in connection with the objections on the
basis of the scriptures which Tertullian (160–230) and other early Church
Fathers had raised against Christian participation in war and military
service’.43 Cited by Aquinas, who seems to be in agreement, Augustine
thinks that according to the Gospel Christians are free to take arms; he
thinks that the Gospel did not forbid Christians from being soldiers.44
Indeed, later, Aquinas went as far as to conclude that it is lawful for
clerics and bishops to fight.45 St Augustine permitted this participation
only when a ‘war is just’.46 In his view, war was just if it was ‘for the
avenging of injury suffered – when one must vanquish by armed force a
city or a nation which is unwilling to punish a bad action of its citizens,
or which refuses to restore what it has unjustly taken’.47 To him as long
as the motive for war was to punish sinners and therefore achieve peace,
then the war is licit.48 ‘[U]nfairness of the opposing side,’ says Augustine,
‘occasions just war.’49 He was against wars for power or even revenge.
However, although he had always reiterated that the objective of war is
peace, to him conquering others is one of the ways to establish it.50
Further, if the authority’s final aim is to establish peace then the war is
godly. According to Augustine, all that is needed for a war to be just, so

41
Nussbaum (n 5) 25–6.
42
Ibid 27 (footnotes omitted).
43
Ibid 35.
44
R. W. Dyson, Aquinas: Political Writings (Cambridge University Press
2002) 240.
45
Ibid 243.
46
The term just used to describe wars in Western theory has to be used with
care, for in most cases it meant justified or lawful rather than just.
47
Nussbaum (n 5) 35.
48
Russell (n 27) 18.
49
Grotius, The Law of War and Peace (n 1) 170.
50
Russell (n 27) 16.

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104 Islamic international law

to speak, is authorization by the monarch.51 Furthermore, he considered

the authority to be the guardian of peace and therefore to have the
ultimate discretion on deciding on what a just war is for the sake of
‘peace’. Thus, Augustine said that ‘the natural order which seeks the
peace of mankind, ordains that a monarch should have the power of
undertaking war if he thinks it advisable’.52
St Augustine, following the footsteps of some other Church fathers,
had to mitigate this strong biblical pacifism in response to necessity. This
might be due to the need to compromise with emperors to defend church
interests worldwide. Thus Russell explains that Constantine’s ‘benefac-
tions to the Church and the peace he achieved exerted a subtle but
powerful pressure on Christian theologians to accommodate Christian
citizenship to Roman wars’.53 The new approach is to free the hands of
the emperor to use force as a necessary ‘chore of punishing wrongdoers’.54
What is vital here is the definition of sin and wrongdoing. To the Romans,
this was the violation of their law. However, St Augustine made it encom-
pass all acts that are not congruent to God’s law. Therefore, ‘any
violation of Christian doctrine could be seen as an injustice warranting
unlimited violent punishment.’55 In addition, this approach dictates that
‘the gospels forbade only the use of force for egoistical ends’.56 Gratian,
who was behind the institution of canon law during the twelfth century,
followed St Augustine and went even further. These teachings repre-
sented the beginning of a new era in Church history in which it started to
participate quite heavily in war affairs (e.g. the Crusades).57 This is
because Gratian was of the opinion that a ‘soldier can please God with
warlike arms’,58 and ‘[i]t is not a sin to serve as a soldier’.59
As St Augustine did before him, Isidore of Seville (d. 636) played a
significant role in transmitting the knowledge of ancient Rome to the
Christian world. Retracing Cicero, he proposed that war must only be
waged for repelling and punishing enemies and the recovery of lost

51
Friedman (n 6) 7.
52
Dino Bigongiari, The Political Writings of St. Augustine (Henry Paolucci
tr., Regnery Gateway 1962) 163.
53
Russell (n 27) 12.
54
Neff (n 10) 47.
55
Russell (n 27) 19 (footnote and punctuations omitted).
56
Neff (n 10) 47.
57
Ibid 47–8.
58
John Eppstein, The Catholic Tradition of the Law of Nations (Burns Oates
& Washbourne Ltd 1935) 81.
59
Ibid.

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The law of war 105

goods after a formal declaration.60 In the West, his input was only
overshadowed by Aquinas in the thirteenth century.61
Nevertheless, generally, war was considered to be just against others
just for being different and it was also considered to be a tool to punish
those who have committed the sin of being an ‘infidel’. It is true that
fighting others just because they are different in faith was not explicit in
Augustine’s teachings.62 However, in the teachings of Gratian it was less
implicit63 and in later teachings such as those of the Decretists they are as
explicit as they could possibly be.64 Gratian clearly addressed rewarding
those who fight against pagans and non-Christians, implying his support
for war on the ground of religious differences. For example, he goes on
to say: ‘[w]hoever dies in battle against the infidels is worthy to enter
into the heavenly kingdom.’65 Aquinas too ‘justified fighting enemies to
restrain them from further sinning’.66 Furthermore, in the West, it was
only in the late medieval period that some theologians such as Innocent
IV67 and Hostiensis clearly prohibited the war of conversion.68 Neverthe-
less, probably one of the clearest examples of strong opinion against wars
on the basis of the ‘mere’69 difference of religion was that of Vitoria, who
had clearly and rigorously prohibited wars on such pretext. ‘Difference of
religion,’ he argued, ‘is not a cause of just war.’70
The development of St Augustine’s just war theory could be attributed,
firstly, to Aquinas. He required three conditions in order for a war to be
called just: authority of the sovereign, just cause (attacking those who

60
Russell (n 27) 27.
61
Nussbaum (n 5) 35.
62
Russell (n 27) 73.
63
Ibid 74–6.
64
Ibid 112–15.
65
Eppstein (n 58) 82.
66
Russell (n 27) 260.
67
It is always interesting and important to note that most of the scholars
supporting such changes towards the other in Europe had come from either
Italian or Spanish educational backgrounds. It should be investigated to what
extent Al-Shaybani and his colleagues writing on Al-Siyar had influenced these
thinkers and therefore Europe at large.
68
Russell (n 27) 293–4.
69
I have highlighted this word to demonstrate that I am aware that while
some people had rejected such justifications of war, in most cases this rejection
was not without qualifications and exceptions.
70
Francisco de Vitoria, De Indis De Ivre Belli Relectiones, Text of 1696
(Ernest Nys ed., John Pawley Bate tr., The Carnegie Institution of Washington
1917) 170.

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106 Islamic international law

attacked) and rightful intention.71 Yet it seems that he was still not able to
completely abandon the old notion of considering war as a charity, as
expounded by St Augustine,72 Gratian73 and others. Thus, ‘Aquinas’s
only discussion of war occurs in a treatise on charity.’74
According to Augustine, Gratian and Aquinas, war was permitted in
this part of the world against wrongdoing (including being different in
faith). War was just if it was for punishing wrongdoers or if it was for the
recovery of what was lost to wrongdoers. Conversion was a natural
consequence of a just war. Gratian, quoting St Augustine, stated that
‘enemies of the Church are to be coerced even by war’.75 In reality,
Augustine changed his position from opposing forceful conversions, such
as was practised in Rome, to supporting compulsion into religion.76
The Church in Medieval Europe, it can be said, only knew some forms
of limitations on how to conduct just war. These are the Peace of God in
975, the Truce of God in 1027 and banning the use of certain weapons in
1139. Nevertheless, the issue is that it did not promote any of these
before these dates, nor did it promote these limitations to be applicable to
non-Christians even after these dates.77
Nonetheless, especially in and after the fifteenth century, scholars later
developed the Thomistic teachings taking into consideration classical
views such as the Greek, Roman and Christian perspectives. Probably
one of the most important, among these scholars, was ‘Francisco de Vitoria
(1485–1546), a Spanish Professor who lectured on Thomistic philosophy
in Paris and Salamanca’.78,79 Indeed, some attribute to him the establish-
ment of ‘a body of writing about war which, for the first time, dealt squarely
with harsh practical questions rather than with abstract generalisation’.80

71
Friedman (n 6) 9–10.
72
Russell (n 27) 16.
73
Ibid 60.
74
Tooke (n 35) 26.
75
James Turner Johnson, The Holy War Idea in Western and Islamic
Traditions (Pennsylvania State University Press 1997) 52–4.
76
Bigongiari (n 52) 355.
77
Johnson, The Holy War Idea in Western and Islamic Traditions (n 75)
103–104.
78
Friedman (n 6) 11.
79
Although most Western scholars are reluctant to establish any link
between this scholar (indeed most of this period’s scholars linked with Spain)
and the fact that the Spanish universities were teaching the Islamic perspective
on the ‘just war’ (Siyar), as well as other perspectives, this is not necessarily
proof of a disconnect between their teachings and Al-Shaybani’s.
80
Neff (n 10) 70–71.

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The law of war 107

This in fact highlights two facts that are important to this enquiry. First,
since Neff stresses that all of the writings on war before Vitoria were mere
generalizations and that his writings represent the first practical and wide-
ranging work in the area, chances are that Al-Shaybani was the one who first
achieved this. Secondly, the fact that Neff considers Vitoria, hundreds of
years later than Al-Shaybani, the first to write in such a way on this topic
is but another example to show that, especially in the West, there is a lack
of knowledge with regard to the contribution of Al-Shaybani.
In the Eastern Roman Empire, the head of the state (the emperor) was
conceived as God’s vicegerent and therefore free to wage wars whenever
he deemed fit. The ‘combination of the two powers – spiritual and
temporal – in the emperor had its repercussions on the legal conception
of war. Byzantium held that war is just, meritorious and even holy so
long as it serves the interests of the state.’81 In addition, Christians
outside of his empire were considered subject to the emperor’s protec-
tion. This often led him to aggression even if a peace treaty was in place.
For example, after the 562 peace treaty was signed with the Persians, the
Emperor Justin presumed the right to assist the Christians who were
rebelling against the Persian ruler.82 These practices, accompanied by the
notion of being the lawmaker and (the only) ruler, had left no room for
legal norms to dictate any terms. Even the doctrine of just war had no
role to play in this part of the world. This led to savagery and cruelty in
the practice of this empire where others were concerned. Blinding prisoners
of war was just one of the brutal practices.83 In general, ‘Byzantium saw
unprecedented slaughter, including the massacre of defenceless civilians
and captured prisoners, particularly of enemy nationalities such as the
Slavs, Magyars, and Turks.’84 It is important to note that if there was any
possible contact between Al-Shaybani and other civilizations that he could
have learned from, it would naturally be this empire. Yet I have above
refuted speculation that he borrowed from other nations. Nevertheless,
the following chapters will further evidence that the rule of law he intro-
duced could not have been borrowed from the Eastern Roman Empire.
However, one common shortcoming is the practices of many scholars
who describe just war in the Middle Ages as if it was complete and as if
all just war theorists were in agreement. It must be remembered that this
concept only completely matured after the end of the Middle Ages.

81
Muhammad Tal’at Al-Ghunaimi, The Muslim Conception of International
Law and the Western Approach (Nijhoff 1968) 77.
82
Nussbaum (n 5) 39.
83
Ibid 49.
84
Friedman (n 6) 11.

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108 Islamic international law

Moreover, it would be wrong to assume, as many have done, that just war
is solely Christian or solely secular in origin and development.85
Finally, generally one could say that the world was not as unhostile as
one would have wished for it to be. For up until the late medieval period:
[h]ostility towards the foreigner was a persistent theme running through the
sources. Hellenic Greeks considered all wars against non-Hellenes to be justi-
fied; internal conflicts did not qualify as wars. The Romans similarly exhibited
an instinctive animosity toward barbarian tribes that was reinforced by patristic
persecution of pagans and heretics. The Carolingian ecclesiastics developed the
notion of a holy war for conquest and conversion of infidel peoples.86

Besides, Oppenheim also importantly stressed that:

[d]uring antiquity, and the greater part of the Middle Ages, war was a
contention between the whole populations of the belligerent states. In time of
war every subject of one belligerent, whether an armed and fighting individual
or not, whether man or woman, adult or infant, could be killed or enslaved by
the other belligerent at will.87

However, if this were true in Europe, which historians seem to have taken
as a main field of research, would this statement also apply to
Al-Shaybani’s world, drawing limitations and rules to restrain war? This
is what we shall consider next.

3.1.2 Pre-Islamic Arabia

As explained earlier, Islamic law either endorsed, amended or untouched
practices known to the Arabs before its dawning. For example, the
pre-Islamic Arabic system of having sacred places and sacred months
where and when war was prohibited88 was later endorsed by Islamic law.
This was also the case as far as many areas of the law of war are
concerned. Thus, the pre-Islamic Arabic laws of war are important. As
indicated in Chapter 2, Arabs in this era developed rules on:
declaration of war, treatment of enemy persons and property, prisoners of war,
distribution of booty, special privileges of the commander of the expedition,
spies, hostages, truce and armistice and parley and a host of other matters,
even distinctive uniforms … even neutrality was not unknown.89

85
James Turner Johnson, Ideology, Reason, and the Limitation of War:
Religious and Secular Concepts 1200–1740 (Princeton University Press 1975) 26.
86
Russell (n 27) 293.
87
Oppenheim (n 2) 204.
88
Al-Ghunaimi (n 81) 17.
89
Hamidullah (n 33) 61–2 (emphases added and footnotes omitted).

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The law of war 109

Arabs by this time knew rules that ‘forbade fighting during certain
periods of the year90 and condemned excessive destruction, reflecting
both a code of honour that protected the weak – women, children, the
aged, and prisoners – and the view that fighting is instrumental to an
end’.91 Later, ‘these rules are reinforced by the morality of the Qur’an
and the sunna.’92 In addition, one of the most interesting aspects of the
Arabic version of international law is that it initiated a system whereby
collective force will be used against all aggression, especially against
weak and vulnerable entities. Arabs called this the League of the Virtuous
(Hilf Al-fedal) in which, as mentioned earlier, the parties to this treaty/
alliance vowed to defend the oppressed against enemies until justice is
done.93 This is a very interesting point in the history of international law.
Indeed, it represents a pioneering attempt to create something similar to the
League of Nations or even to the United Nations. Above all, it represents the
seed of the idea of using collective force in defence of the oppressed.
The collective use of force against an oppressor after failing all peaceful
attempts to settle the situation was indeed detailed in the Holy Qura’an
around 1400 years before the UN charter came into existence.94
What is more, some of the Arabic practices of alliance and protection
served both as a prevention of war or attack at times and as a start of it at
others. This is clearly seen in two practices of the Arab tribes who had
some political structure and independence somewhat similar to that of the
city-states existing at that time in other parts of the world. The examples
of these practices are dhakhiel and jiwar, discussed earlier.
Nevertheless, in general, although they recognized some procedural
and prerequisite conditions to be respected when and while going to war,
Arabs sometimes led atrocious wars for the slightest reasons. They hardly
knew limits to using war, which they understood as a tool to restore
justice, for revenge, and even for economic gains. This is so to the extent
that ‘[t]he clan strategy cherished patriotism within itself as an ultimate
end and regarded other clans as its justifiable victims. The Arab who is
not attached to a tribe is considered an outlaw.’95 In the absence of a
peace treaty, war was indeed the rule in this part of the world too and

90
The four sacred months.
91
Terry Nardin (ed.), The Ethics of War and Peace: Religious and Secular
Perspectives (Princeton University Press 1996) 259.
92
Ibid.
93
Hamidullah (n 33) 61.
94
For more readings refer to Mashood A. Baderin (ed.), International Law
and Islamic Law (Ashgate 2008) xxxiii.
95
Al-Ghunaimi (n 81) 15.

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110 Islamic international law

gazu (attacking others for the sake of despoiling) was indeed the norm in
Arabia.96 Worse still is that the treatment of enemy personnel knew
hardly any limits. Even after the enemy was killed, typically in that age
the body might still be treated badly. For example, enemies’ heads were
sometimes cut off and displayed as trophies.97
Even so, Arabs also knew many peace-promoting practices, which
were later adopted by Islam. These include the ama’an.98 Later ‘[a]ny
Moslim originally had the power to grant foreigners protection by a
one-sided act (ama’n) which was binding upon the whole community.
The foreigner became thereby a mustami’n.’99 This was practised both in
times of war and peace.100 Only such humanistic practices mitigated the
horrors and scourges of wars.

3.1.3 Islamic World

In general, ‘Islam, as well as Christianity, regards war as an evil and

peace as the normal state of things.’101 However, Islam played a more
proactive role in regulating and monitoring both the conduct and end of
war from the start. ‘Islamic jurisprudence offers relatively rich discus-
sions on many issues relating to war, its limitations, and its justifica-
tions.’102 This substantial part of the civilizational contributions to the
field is still ‘poorly known’. Even the known parts are not enough to
represent a massive heritage that is both deep in history and wide in
scope. In addition, ‘[t]oo many works of Islamic jurisprudence from all
periods remain unpublished, and the lines of affiliation among even those
works published to date are not yet always understood.’103

96
Ibid 142.
97
Youssef H. Aboul-Enein and Sherifa Zuhur, Islamic Rulings on Warfare
(Strategic Studies Institute, US Army War College 2004) 17.
98
Nussbaum (n 5) 53.
99
Ibid (footnotes omitted).
100
Al-Shaybani had invested heavily in this topic, which could in itself be
subject to a separate investigation that would not realistically or practically fit here.
101
Al-Ghunaimi (n 81) 78.
102
Fred M. Donner, ‘The Sources of Islamic Conceptions of War’ in John
Kelsay and James Turner Johnson (eds), Just War and Jihad: Historical and
Theoretical Perspectives on War and Peace in Western and Islamic Traditions
(Greenwood Press 1991).
103
Fred M. Donner, ‘The Sources of Islamic Conceptions of War’ in ibid.

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The law of war 111

The reason for producing such a mass of literature in the area is

probably that Islam, unlike some other religions,104 does not differentiate
between state affairs and individual affairs as far as law is concerned.
Hence, ‘[a] remarkable feature of Islam is that it is not only a religion,
but also a moral code and a legal system.’105
Moreover, from the very beginning, all neighbouring entities and empires
were hostile to Islam apart from Abyssinia. The other two major entities
represented in the Persian and Byzantine empires were ‘claiming universal
domination and proclaiming war as the effective way to achieve their
ambition’.106 All of this must be borne in mind when this topic is studied.
As I have pointed out above, the Qura’an (where jihad is regulated) is
a book that should be read in its entirety. Lawyers who are not aware of
this important fact often fall into misinterpretations and misjudgements.
Thus, Aboul-Enein asserts that:
[s]ome Western readers will probably find the Islamic rulings on war to be
contradictory. It may not be clear whether they promote war or peace.
Muslims believe the Quran to be divinely revealed, and Quran experts hold
that the text must be understood in the spirit of its entirety, and not simply
reduced to selected verses or phrases. Surah 3, al-Imran, verse 7 reads: And
those who are firmly grounded in knowledge say: ‘We believe in the Book;
the whole of it is from our Lord:’ and none will grasp the Message except
men of understanding.107

Some scholars went as far as to exclude the Islamic world from their
historical overview of the subject.108 Neff (2005), for example, while
acknowledging the Islamic contribution in this field internally, suggests
that internationally there is nothing to be considered from this part of the
world. He claims that Islamic society ‘held relations within the Islamic

104
Such as Christianity and the Greek religions, who both think that state
affairs are one thing and godly teachings are another; see ‘Othman, Interview
with Yusuf Al-Qaradawi, Head of the “World Organisation of Islamic Scholars”’,
Aldeen Wa-adunia; A-Shariah Wa-alhayah (20 June 2010).
105
Sobhi Mahmassani, ‘The Principles of International Law in the Light of
Islamic Doctrine’ (1966) 117 Recueil Des Cours 230 <http://www.ppl.nl/plinklet/
?sid=bib:recueil&ppn=163403627&genre=a&issn=&isbn=&title=The principles of
international law in the light of Islamic doctrine / Sobhi Mahmassani&aulast=
Mahmassani&aufirst=Sobhi&au2last=&au2first=&au3last=&au3first=&edlast=&ed
first=&ed2last=&ed2first=&ed3last=ed3last&ed3first=&source=Recueil des cours
&year=1966&volume=&issue=I&spage=&bibliography=recueil&id=465&url=&
keyword1=&keyword1ppn=&brillid=19956> (accessed 16 November 2011) 210.
106
Al-Ghunaimi (n 81) 70.
107
Aboul-Enein and Zuhur (n 97) 2–3.
108
For example, Friedman (n 6).

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112 Islamic international law

fold to be peaceful, without regard to race, language or cultural heritage,

while positing ceaseless hostility against the infidel world outside’.109
Nevertheless, while Neff rejects the existence of any Islamic legal
contribution to the topic of international wars, he goes on to explain the
Islamic rules on wars with non-Muslims just one page on from that
statement.110 Yet he once again claims that ‘Islamic writers did not
develop any very deep or extensive body of ideas about foreign war’.111
This statement (which is unique but not uncommon in Western thought)
is important, as it further highlights the need for conducting this study.
It is true that ‘Islamic rules of warfare are complex, appear to be
contradictory and require careful analysis’.112 However, some of the
peaceful rules and regulations introduced by Siyar on war affairs hardly
have a parallel in the history of most of the Western states in the Middle
Ages.113 For example, it is in ‘Muslim law we come across, for the first
time, the full-fledged notion of recognising rights for the enemy in all
times, in peace as much as in war, rights endorsed by the Qur’an and by
the practice of the Prophet and his successors’.114
In Siyar ‘[a] key and continuous theme was that war was to be waged
in accordance with religious principles – bellum pium (literally, pious
war, or war in accordance with God’s will)115 as well as bellum justum
(just war)’.116 Thus, Siyar advocated, unlike the then existing laws and
practices, that war should be limited to three cases only, other than which
it would be considered illegal. War was made permissible only in
self-defence, defence of the oppressed (under some conditions), and
defence of freedom of religion. However, many scholars demand that war
is only obligatory when it is imposed on Muslims. For example,
Al-Zuhili, one of the most authoritative contemporary Islamic scholars, in
his Islam and International Law explains as follows:

109
Neff (n 10) 10.
110
Ibid 39–41.
111
Ibid 42.
112
Aboul-Enein and Zuhur (n 97) 1.
113
Christopher G. Weeramantry, Islamic Jurisprudence: An International
Perspective (Macmillan 1988) 136–8, 144. See also Hamidullah (n 33) 69.
114
Hamidullah (n 33) 69.
115
I reject using the term God’s will, what Aboul-Enein and Zuhur should
have used here is God’s law instead. Islamic traditions contain many references
where people should not make oaths or promises on behalf of God for they might
be wrong. Thus Muslims should follow God’s orders and not claim that he willed
something unknowingly.
116
Aboul-Enein and Zuhur (n 97) 4.

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The law of war 113

[t]here are three kinds of circumstances that legitimize warfare in Islam, namely:
a) aggression against Muslims, either individually or collectively, as
preachers for Islam, or attempts to make Muslims apostates or the
launching of war against Muslims. God the Almighty says: ‘To those
against whom war is made, permission is given (to fight), because they
were wronged …’ and ‘And slay them wherever ye catch them, and turn
them out from where they have turned you out, for tumult and oppression
are worse than slaughter …’
b) assistance for the victims of injustice, whether individuals or groups. God
the Almighty says: ‘And why should ye not fight in the cause of God and
those who, being weak, are ill-treated (and oppressed)? Men, women and
children, whose cry is: ‘Our Lord! Rescue us from this town, whose
people are oppressors …’
c) self-defence and to ward off attacks on one’s homeland. God the
Almighty says: ‘Fight in the cause of God those who fight you, but do
not transgress limits, for God loveth not transgressors.’117

Any other use of force in international relations is prohibited. It is

important to note that all Islamic scholars agree that in no case should
anyone be compelled into religion or out of it. However, some scholars
interpreted wars for freedom of religion to be continuous war against the
infidels until ‘the word of God becomes superior on earth’. Nonetheless,
even this view, which was also held by some Islamic jurists, was not an
exception from its contemporary world affairs. In fact, some other
systems’ justifications for war were much broader.118 For example, as
seen above, the Byzantium Empire had no legal restrictions, which meant
that the emperor could go to war almost for any reason he liked. One of
the most important features of Siyar is the fact that it did not consider
being an ‘infidel’ (non-believer) as wrongdoing and so was not a
justification for Muslims to wage war on others. Non-believing entities,
in all cases, had to act first in order for them to be a legitimate target of
war. For example, if preaching, accepting or practising Islam is hindered,
Muslims can then respond. Yet this should only be done as a last resort.
In contrast, wars of conversion adumbrated by earlier just-war theorists
(such as Pope Gregory I (d. 604)) were only explicitly prohibited in the
late medieval periods. Thus, during as well as after the time of
Al-Shaybani, in the Western teachings being different was enough to

117
Wahbeh Al-Zuhili, ‘Islam and International Law’ (2005) 78 International
Review of the Red Cross 281.
118
If we compare this opinion to that of Greeks and Romans, both eastern and
western, where war was just in multiple cases, we find that the limiting of the
practice of war to only three defined causes by Islamic scholars is unprecedented.

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114 Islamic international law

justify a war against another party.119 Even the Romanists such as Azo
‘assimilated together all those who deviated from orthodoxy, such as
heretics, Jews, pagans, and infidels, and held them liable to punishment
on account of their beliefs rather than for any acts of rapine’.120 It was
only in the thirteenth century that Pope Innocent IV stressed that
‘non-adherence to Christian faith was not wrongful in and of itself’.121
Meanwhile, ‘Islamic scholars were very concerned with niyah
(intent).’122 Not only did war have to fit into one of the above-mentioned
three defined categories, it also had to be carried out for no intention
other than for the sake of serving God. This is a prerequisite for it to be
both legal and acceptable to God. Therefore, only those who have
perfectly adhered to the criteria will be considered martyrs if they die in
war. This is what one clearly see in the prophetic saying: ‘[h]e who has
been killed to uphold the word of God has been martyred for his sake’
(al-Bukhari, Vol. 1, hadith number 223).123 A person who wages war with
any other intention is doing anything but the permitted jihad. Therefore,
war in Siyar is governed by criteria into which it must fit in order to be
legal and also intent, which is internal but serves as an extra guard
against utilizing war for egotistical purposes. Thus the Messenger of
Islam says, ‘a person whose intent is glory, booty (spoils), or females has
no ties to God, and only God knows who strives for his sake’ [‘strives’
refers here to the process of jihad] (al-Bukhari, Vol. 6, No. 430).124
Furthermore, in the Critical Exposition of the Popular ‘Jihad’, the
author stresses that:

Mohammad never professed to have followed the footsteps of Moses and

Joshua in waging wars of extermination and proselytism. He only appealed to
the sword in his and his followers’ defence. Never he seems to have been
anxious to copy the practice of the surrounding nations, Christians, Jews, and
Egyptians. His wars of defence, as they certainly all were, were very mild,
specially with regard to the treatment of children, women, and old men who
were never to be attacked; and above all, in the mildness shown towards the
captives of war who were either to be set free or ransomed,—but were never
to be enslaved,—contrary to the practice of all the surrounding nations.125

119
Russell (n 27) 293–4.
120
Ibid 51.
121
Neff (n 10) 42.
122
Aboul-Enein and Zuhur (n 97) 14.
123
Ibid.
124
Ibid.
125
Moulavi Cherágh Ali, ‘Critical Exposition of the Popular “Jihad,” Show-
ing That All the Wars of Mohammad Were Defensive; and That Aggressive War,

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The law of war 115

On the other hand, Siyar contained detailed rules governing affairs of war,
developed by early Islamic jurists and constantly reviewed by their succes-
sors.126 As mentioned earlier, Muslim jurists have written comprehensive
treatises on the legal justifications of war, treatment of enemy persons,
giving quarter, treatment of prisoners of war, ransom, civil wars and
rebellions, international highwaymen and pirates, declaration of war, end of
war, position of non-combatants, spies, uniforms, flags of truce, enemy
property, women in the Muslim army, treatment of the dead, non-hostile
intercourse with belligerents, apostasy and many other subjects in the
field.127 In fact, there was no equivalent Western contribution before the
post-medieval European scholars had emerged.128 In addition, whether in
the early age or later, both the law and practice of war were less cruel than
any other contemporary nation.129 Even when the Muslim State was under
attack, its practice showed both a gentle law of war and utter obedience to it.
This is what Walker (1899), probably, meant when he indicated that ‘[t]he
Crusaders might even learn, and doubtless did learn, from the Saracens130
lessons in civilisation’.131 Moreover, Heer (1962) asserts in this regard that:

Oliverus Scholasticus relates how the Muslim Sultan al-Malik-al-Kamil

supplied a defeated Frankish army with food: ‘Who could doubt that such
goodness, friendship and charity came from God? Men whose parents, sons
and daughters, brothers and sisters had died in agony at our hands, whose
lands we took, whom we drove naked from their homes, revived us with their
own food when we were in their power.’132

Another example is Tarik Ibn Zyad, the first Muslim conqueror of Spain.
As he was commanding his army to enter the latter, following the
footsteps of the Caliph Abu Baker, he ordered that ‘no offence should be
offered to the peaceable and unarmed inhabitants, that those only should

or Compulsory Conversion, Is Not Allowed in The Koran. With Appendices

Proving That the Word “Jihad” Does Not Exegetically Mean “Warfare,” and That
Slavery Is Not Sanctioned by the Prophet of Islam’ (1885) 141.
126
Ahmed Mohsen Al-Dawoody, War in Islamic Law: Justifications and
Regulations (University of Birmingham 2009) 366.
127
For more details, see Hamidullah (n 33).
128
Weeramantry (n 113) 150.
129
Walker (n 34) 75–7.
130
Used in the West to describe Muslims.
131
Walker (n 34) 75–7.
132
Friedrich Heer, The Medieval World: Europe 1100–1350 (Janet Sond-
heimer tr, New American Library 1962) 144.

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116 Islamic international law

be attacked who bore or assisted bearing arms, and that plunder should
be confined to the field of battle and to towns carried by assault’.133
A further interesting comparison between Siyar and medieval European
thought is that self-defence was almost totally rejected as a notion in the
latter for fear that it might be used for egotistical goals contrary to the aim of
just war which serves the common weal.134 Although, conversely, natural
law accepted the notion of self-defence, natural law scholars had never
dealt with the notion in depth. Neff claims that as individuals did, ‘states
had a natural-law right of self-defence too, against aggressors; but this
was little developed in mediaeval writings’.135 Furthermore, although
Romanists discussed self-defence, they did not discuss it in relation to
war. They rather discussed self-defence as a means of response to private
attacks on persons such as those by robbers and murderers.136 While this
might be true in the Western medieval writings, this is not the case in
Siyar. Siyar writers have dealt with this topic in an exhaustive manner.
Overall, it seems that prior to Al-Shaybani, other civilizations only knew
very little or no effective rules to limit the use of force against others. Even
the most popular contributions such as those of St Augustine were no more
than abstract theological doctrines with much moral importance but less
legal significance, and they probably played a more significant role as a
background to post-medieval studies than they did in their own time.137
Furthermore, ‘Medieval legists eagerly employed both Roman law and
Augustine’s doctrine of religious persecutions as hammer and anvil to
forge their justifications of wars and crusades.’138 This is what pushed
legal historian Walker (1899) to say, both wrongly and rightly, that ‘[i]t is
a relief to turn from the rude warfare of the Christian West to the
belligerent doings of the Arabs. Not only did the Koran furnish a new
Code of Laws of War, but the war-practice of the conquering Saracen
supplied an object-lesson for the whole civilised world.’139 Walker was
wrong in saying both ‘Christian West’ rather than ‘the West’ and
‘belligerent Arabs’ rather than ‘Muslims’. He was, however, right in the
rest of his statement.140 This is because the motive of Western actors was

133
Walker (n 34) 76.
134
Neff (n 10) 60.
135
Ibid.
136
Russell (n 27) 44.
137
Nussbaum (n 5) 17–51.
138
Russell (n 27) 25.
139
Walker (n 34) 125.
140
Just because of an error of judgement made by the likes of Augustine and
Gratian, who turned the Christian perspective into a warlike one, this does not

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The law of war 117

not solely Christian but rather egotistical, whereas what he called

‘belligerent Arabs’ were not always Arabs nor was it Arabic chivalry
behind their actions; they were rather Muslims from all parts of the world
and their conduct was tamed by Siyar.141
With respect to jus in bello, Siyar offered many humanitarian rules that
were only recently introduced into other systems. For example, indis-
criminate killing was clearly prohibited by the Qura’an (Al-ma’ida, verse
32). The Messenger reiterated this when he showed disapproval after he
found a dead woman lying on the battlefield. He then explicitly prohibited
the killing of women and children.142 In truth, violence and punishment of
the enemy was never an Islamic agenda, rather completely the opposite.
This is because, unlike in just war theory, wars are not fought to punish or
kill but they are fought for one of the reasons named above. Thus Prophet
Muhammad said that ‘[y]ou are neither hard-hearted nor of fierce character,
nor one who shouts in the markets. You do not return evil for evil, but
excuse and forgive’ (al-Bukhari, Vol. 6, Book 60, hadith No. 362).143
Some of the cruel practices of that time were completely rejected by
Siyar. For example, the displaying of heads of the enemy as trophies
practised in pre-Islamic Arabia was completely rejected by Siyar. ‘Two
schools of Islamic opinion contest this issue, but the practice generally
was frowned upon … due to a [Qura’anic] … verse about transgressing
beyond the limits of war, and because burial of the dead was instead
recommended by the Prophet, according to Abu Ya‘la.’144
Non-combatants were both identified and protected by Siyar, these
were mainly women, children, elders, the infirm and worshippers in
places of worship. Prophet Mohammad clearly forbade their killing. It
was from his statement and practices that ‘jurists have drawn the
principle that those who are noncombatants should not be killed during
or after the war’.145

justify the expression ‘Christian West’. It is true for the West in that time not
because they were Christians but because of the prominent teaching of the
churchmen of that time. In the same time, Walker’s description, the ‘belligerent
Arabs’, ironic as it was, would have been better if it was just the ‘Muslims’.
141
This is but another common misconception in Western writings, attrib-
uting positive developments to Arabs as if only Arabs existed and attributing
negative developments to Muslims as if their action was nothing but a translation
of Islamic law into reality.
142
Aboul-Enein and Zuhur (n 97) 22.
143
Ibid.
144
Ibid 17 (footnote omitted).
145
Ibid 23.

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118 Islamic international law

That aside, some thinkers around the world have hugely contributed to
the study of laws governing war. Yet the only system that was intended to
be applied to all regardless of faith, nationality or race from the seventh
century was that body developed by Al-Shaybani and his colleagues,
namely Siyar or Islamic international law. Even the bearers of the
harshest views among them, never advocated war without lengthy legal
prescriptions of how to avoid, how to conduct and how to end it. In this
respect, Aboul-Enein reaffirms that:

[w]ar verses in the Quran, al-Anfal, verses 60–2, have prompted Islamic
commentaries on warfare, its preparedness, and the concept of deterrence:
‘Against them make ready your strength to the utmost of your power,
including steeds of war, to strike terror into the hearts of the enemies of God
and your enemies.’ (Verse 60, al-Anfal) It is easy to simply quote verse 60 and
not the next verse: ‘But if the enemy incline towards peace, do thou (also)
incline towards peace, and trust in God: for He is the one that heareth and
knoweth.’ (al-Anfal, Verse 61)146

Nevertheless, the wealth of literature on the topic of Siyar pays a lot of

attention to the topic of war in general. Islamic jurists from the very
beginning comprehensively covered this. Among many other topics,
‘Islamic texts on warfare actually focus on the concepts of just war,
typologies of conflicts, treatment of the vanquished, division of spoils,
and the upholding of Islamic law, given the travel and exchange between
Muslim and non-Muslim territories.’147 As many of its neighbours
targeted Islam, it was not surprising that ‘Islamic rulings on the topic in
the early period dealt mostly with the law of war’.148 Some sources have
counted more than ‘40 classical Arabic texts on warfare written between
the 8th and 15th century’.149 The book of Al-Shaybani written in the
eighth century must also be mentioned here. Indeed, some have described
it as ‘a precursor to international law that provides many details on the
legality, typology, and rules of military engagement, truces, and relations
between Muslims and the enemy groups or states that surrounded them in
the earliest period of Muslim expansion’.150
In addition:

146
Ibid.
147
Ibid 2.
148
Labeeb Ahmed Bsoul, ‘Historical Evolution of Islamic Law of Nations/
Siyar: Between Memory and Desire’ (2008) 17 Digest of Middle East Studies 48
50–51.
149
Aboul-Enein and Zuhur (n 97) 2 (footnotes omitted).
150
Ibid (footnotes omitted).

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The law of war 119

[e]ven books written by modern Islamic militant ideologues contain a code of

conduct for warfare. In the fourth chapter of Human Rights in Islam, Abu
al-’A’la Mawdudi, one of Pakistan’s founding fathers and chief ideologists,
states: Islam has first drawn a clear line of distinction between the combatants
and the noncombatants of the enemy country.151

This background is very useful to aid an understanding the writings of

Al-Shaybani. Next, I will focus on the conceptualization of the topic in his
writings, after which his jus ad bellum and jus in bello will be discussed.

3.2 AL-SHAYBANI’S TREATMENT OF THE SUBJECT

Many scholars would argue that up to the beginning of the twentieth
century, war was not seen as an unlawful means of dealing with others.
Some limitations on the use of force were only introduced internationally
in this century through the UN Charter and arguably through the
Kellogg–Briand Pact.
Nevertheless, outside Europe, Al-Shaybani had already neatly struc-
tured a system in the eighth century whereby the use of force was
restricted to only a few permissible situations. He even detailed the
regulation of the use of force in domestic affairs.
In his book, Al-Shaybani addressed the technical rules of war. The
book went into such detail that the colours of flags used in wars were
classified.152 Moreover, Al-Shaybani recalls the Prophet’s advice on
various matters such as the type of horses that should be used in fighting,
not to overload horses with work, not to raise voices during fighting and
preferring to wear a turban. In addition, a whole chapter was dedicated to
the question of when a soldier requires permission to act from his
commander.153 In fact, the author went so far as to discuss the require-
ment of parental permission for a Muslim to join the army.154
Nevertheless, although Al-Shaybani’s treatment of the subject is very
comprehensive, I will discuss only selected parts of his contribution in
this book. First, I will analyse the general theoretical aspects character-
izing Al-Shaybani’s treatment of the topic as follows.

151
Ibid 23.
152
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-
Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi],
vol 1 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 60–75.
153
Ibid 174.
154
Ibid 183.

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120 Islamic international law

3.2.1 Definition of War

Al-Shaybani, in general, used the term jihad to refer to the use of force in
the few cases he described as legally valid and justified wars. As this
involved adhering to Islamic law, he preferred (as other Islamic scholars
did) to call it jihad. It is clear that this term does not apply to all types of
wars that the Arabs knew before Islam. For example, it appears that a war
of revenge or a war for the sake of collecting booty or conquering more
land would not be considered as jihad.
Jihad in general can be carried out ‘by waging war a) with the heart,
b) with the tongue, c) with the hands, and d) with the sword. Jihad also
means a personal struggle to live as a true Muslim.’155 The term today is
largely confused; especially the way it is perceived in the West, thus
Kelsay asserts that:
some may be surprised to learn that the term does not mean ‘holy war’. It is
better translated as ‘effort’, ‘struggle’, or ‘striving’. In its typical presentation,
jihad is further joined with the phrase ‘in the path of God’. Muslims who
speak of the duty of jihad are thus referring, in the first place, to a moral duty.
Given this general formulation, jihad admits of numerous applications.
Prayer, worldly work, faithfulness in keeping promises – all these can be, and
have been associated with the symbol of jihad.156

However, neither Al-Shaybani nor Al-Sarakhsi offered a definition of

jihad. Meanwhile, acts, which were considered part of jihad or types of
it, were in general defined if not by the former then by the latter. For
example, ribat157 was clearly defined. Although Al-Shaybani sets aside a
separate chapter for this topic, it is difficult to conclude that he intended
it to be anything other than part of the subject of jihad. The legal
evidence he offered in support of it being an obligation, the rules applied
to it, and the requirements of those who should conduct it are of no
significant difference from that used by him in the context of jihad. On
the other hand, it is striking that Al-Shaybani dedicates a separate chapter
to jihad and titles it so. In line with this, some scholars prefer to
speculate that ribat is different from jihad at least as far as its legal status
is concerned. Some would claim that jihad is a public duty if carried by

155
Aboul-Enein and Zuhur (n 97) 4.
156
John Kelsay, ‘Al-Shaybani and the Islamic Law of War’ (2003) 2 Journal
of Military Ethics 63, 63.
157
Khadduri rightly defined it as ‘the safeguarding of frontiers of the dar
al-Islam by stationing forces in the harbours and frontier-towns (thughur) for
defence purposes’. Majid Khadduri, War and Peace in the Law of Islam (1st
AMS ed., AMS Press 1979) 81.

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The law of war 121

some not required by the rest, whereas ribat is an individual duty

required from all. For example, Aboul-Enein suggests, that ‘[s]ome
jurists considered defense of the frontiers (ribat) to be a requirement of
Muslims comparable to jihad’.158
Nevertheless, the word ribat is originally borrowed from its physical
meaning, where it meant tying the horses in the bordering areas and
persisting with doing so in order to be prepared for any attack, to make
the area safe for travellers and to serve as a deterrent to those who might
plan to attack the state.159
Nonetheless, although Al-Shaybani comprehensively discussed jihad,
how to conduct it, when and why, he did not, as mentioned above, offer
a definition. Therefore, I will follow his approach and examine
Al-Shaybani’s work without first giving a definition. However, he gener-
ally dealt with this topic on the basis that it is equivalent to the term ‘use
of force’. One exception to this is the fact that jihad is a war that must
be carried out in accordance with the law of God, for the sake of God
and carried out by people who accept the authority of God and follow his
last Messenger Mohammad. That is why he ruled that a non-Muslim who
takes part in fighting cannot be allocated a share of the spoils of war, but
he should be remunerated. This is the case even if the remuneration might
even earn him more than what his normal share would otherwise be.160
Notwithstanding the above, the term that I will use in contrast to jihad
is ‘just war’ in the Western traditions. Thus, I will briefly examine this term.
‘Just war’ is normally used in the writings of legal historians as a static term,
as if no change has occurred in this very old notion throughout the centuries.
Thus, as argued above, it is a common error to describe just war in the
Middle Ages as if it was born complete and as if all just war theorists
were in agreement.161 It should also be noted here that this error must
also be avoided in dealing with the concept of jihad. This is because, to
some extent, the two concepts differ from time to time and from one
scholar to another just as they differ from one another throughout history.

158
Aboul-Enein and Zuhur (n 97) 5. See also ibid 81.
159
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 6–7.
160
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-
Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi],
vol 3 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 896.
161
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 26.

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122 Islamic international law

Furthermore, Ramsey argued that the best translation of justum bellum

is ‘justified war’ rather than ‘just war’.162 This appears to be more
accurate, especially with regard to Augustine who rolls out the possibility
of having true justice in this world.
As noted above, just war is not a mere religious or a mere secular
doctrine.163 This is because both the idea of just war and the backdrop
known as natural law originate from ancient philosophy and ancient
teachings. Christian thinkers, who imported these two intertwined insti-
tutions from ancient civilizations, had only been able to use Christian
teachings as a third element.164 The roles of the different elements might
have differed in strength over time but all three were always dealt with at
the same time. St Augustine, who had to work within the framework of
an empire, was no exception but in his theory the Christian dogmas were
no more central than the other two other factors. Even Grotius, in our
view, needed to develop the existing system of just war theory in order to
make it accommodating to all Christian nations. This is, I assume, what
forced him to resort to the natural law framework in order to deliver a
theory acceptable to all Christian nations. Nevertheless, religion can
neither be ignored nor given less importance than other factors as a main
factor in reshaping this concept. This is because even the Greeks and
Romans who originally developed this concept also brought religion and
gods into consideration when calculating the elements of their just war
concepts. Thus, although Al-Shaybani’s ‘justified war’ is mainly sourced
in religion, the just war concept at all points of its history will not be
hard to compare to the concept of jihad from some particular angles.

3.2.2 Al-Shaybani’s Perception of War

Historically, it could be said that almost all advocates of war held that it
was a tool for peace. In this respect, both recent and ancient commen-
tators seem to see it from the same angle. In this, Al-Shaybani, St
Augustine,165 Gratian,166 Aquinas,167 Grotius,168 Vitoria169 and many

162
Paul Ramsey, War and the Christian Conscience: How Shall Modern War
Be Conducted Justly? (Duke University Press 1961) 15.
163
Neff (n 10) 68–9.
164
For more reading, see, for example, ibid 56–7.
165
Russell (n 27) 16.
166
Ibid 60.
167
Ibid 262.
168
Grotius, The Law of War and Peace (n 1) 33.
169
Vitoria (n 70) 172.

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before and after them agree. For Augustine, war is ‘waged only that God
may by it deliver men from the necessity and preserve them in peace. For
peace is not sought in order to the kindling of war, but war is waged in
order that peace may be obtained.’170 In effect, he went as far as to claim
that ‘[p]unishment of evil-doers that prevented them from doing further
wrong when administrated without being moved by revenge or taking
pleasure in suffering was an act of love’.171 Furthermore, to Augustine,
soldiers must not think about the suffering that war might cause, rather
they should anticipate the peace it would create. ‘What is evil in war?’ he
questioned. ‘Is it the death of some who will soon die in any case, that
others may live in peaceful subjection?’172
Both Aquinas and Augustine thought that the intention of peace was a
requirement for a ‘just war’.173 For Gratian, not only was peace the
ultimate goal, but he described war as peace as well. He claimed that
‘[t]hose wars are peaceful which are waged in order that the wicked may
be constrained and the good relieved’.174 Aquinas in the thirteenth
century displays the same rhetoric: to him ‘war can be transformed into
true peace by the sprit in which it is fought’.175
However, most legal historians have not examined this issue in any
detail,176 and the question of whose peace is to be the goal of a justified
war is not addressed. In this book, I will try to fill this gap and shed some
light on this dilemma.
First, the statement that ‘during the entire period of administration of
war the soul cannot be kept serene and trusting in God unless it is always
looking forward to peace’177 is attributed to Grotius. Thus, there is no
doubt that peace is the ultimate achievement of war (at least just war).
This is the case for Grotius, who went further to cite Augustine as saying:
‘[p]eace is not sought that war may be followed, but war is waged that
peace may be secured.’178 In addition, Grotius went as far as to consider
war as a tool of peace. In this regard, he says: ‘[w]ar, however, is

170
Bigongiari (n 52) 182.
171
Russell (n 27) 17.
172
Bigongiari (n 52) 164.
173
Dyson (n 44) 241–2.
174
Eppstein (n 58) 81.
175
Tooke (n 35) 23.
176
Most of the legal historians whose works are consulted in this work
distance themselves from being deeply involved in such questions. It is in some
cases possible to see that the ultimate goal of one scholar or another is peace, but
in-depth analysis of such a topic is rare.
177
Grotius, The Law of War and Peace (n 1) 861.
178
Ibid.

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124 Islamic international law

undertaken in order to secure peace, and there is no controversy which

may not give rise to war.’179 ‘War itself will finally conduct us to peace
as its ultimate goal,’180 he added. In addition, he also said that ‘peace
should also be accepted even at a loss, especially by Christians’.181 Once
again, peace was not only perceived as the outcome of war but was also
seen as a valuable outcome, more valuable than other outcomes such as
wealth. However, peace to Augustine, Gratian and Aquinas might be
different from what it meant to Grotius. The reason for this is that the
first three looked at war as a means to achieve peace; which can only be
achieved, it seems, by punishing sinners. Thus, peace is to win the war
against sinners and suppress them. That conversion is considered to be
peace achievable by war is very possible for these three scholars.
However, it is this last point that might distinguish Grotius who appears
to be not explicitly in favour of wars of conversion. Vitoria too must be
mentioned here, as he did not agree with forceful conversion.
It is also difficult to define what these writers meant by ‘peace’. It is
especially confusing if we consider the above statement that ‘peace is not
sought that war may be followed, but war is waged that peace may be
secured’. Probably the easiest way to explain this is that since the world
is warlike, in order to make others come to terms with peace, war is
required. However, why should peace not be sought first and without
war? This is perhaps because sinners must be punished. Thus, even the
simplest deconstruction of this notion is confusing, and will remain so
unless peace has a different meaning in their glossaries.
Although Vitoria belonged to the same school as the above-mentioned
scholars in seeing that war could be the tool of justice by punishing
wrongdoers, his understanding of the details of this theory differs. As we
shall see later, he put more constraints on the justifications given to the
‘injured’ to punish ‘those caused the injury’ by war than any of the other
thinkers mentioned above. Nevertheless, he still thinks that the end of war
should be peace and that peace should be sought through war. He thus says:
‘the end and aim of war is peace and security.’182 Nevertheless, he
distinguishes himself even from Grotius by seeing war as the exception
and not the rule. For he asserted that ‘[t]here is a single and only just
cause for commencing a war, namely, a wrong received’.183 Nevertheless,
the meaning of this statement is limited, as we shall see later.

179
Ibid 33.
180
Ibid 394.
181
Ibid 861.
182
Vitoria (n 70) 172.
183
Ibid 170.

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Notwithstanding the above, Al-Shaybani, by stating the immense

reward a believer could gain, opens his book by encouraging individuals
to serve their state by joining the army and guarding the frontiers of their
country. The reward of al-riba’at184 is said to be equivalent to that of
fasting for one month for the sake of God. Furthermore, in this regard,
Al-Shaybani narrated that the Prophet has uttered that staying one night
in the path of Allah is better than praying for 60 years.185
For Al-Shaybani to start his book with this topic is an indication that
he was promoting a defensive approach which could be an indication of
his support for this state of international affairs. On the other hand,
opening his book on international law with this topic could be a sign of
how important war was in it. This latter speculation is confirmed by the
fact that war, spoils of war and army organization occupied a large part
of this work.
Nevertheless, as clarified in Chapter 1, Al-Sarakhsi tried to distinguish
Al-Shaybani’s arguments by using the phrases: Mohamed186 said; and he
stated; and he narrated (referring to Al-Shaybani) so as to keep it as it
was in the original book Al-Siyar Al-Kabīr. Yet Al-Sarakhsi has also
added his own explanations. For example, the passage: ‘And then he
stated187 that Ma’abad188 said: if this nation resorted to farming, victory
will be snatched from them and in their hearts there will be fear.’189 This
Arabic passage (stated by Al-Shaybani) is very succinct and while
Al-Shaybani in his Siyar stated it with no commentary, Al-Sarakhsi
commented on it in a very explicit way. Al-Sarakhsi interpreted it as
follows: if this nation worked in farming and abandoned jihad;190 victory
will be seized from them and they will live with fear in their hearts. He
added that this does not mean that everybody should join the army and
nobody should work in agriculture. Instead, it denotes that the nation
should have warriors as well as farmers and they should never abandon
serving in the army.191 Otherwise, they will be an easy target for any

184
The definite form of the word rebat.
185
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 7.
186
The first name of Al-Shaybani.
187
Referring to Al-Shaybani.
188
It is not clear who Ma’abad is; however, based on the methods of
Al-Shaybani he must be one of the very early trustworthy Muslims. As for the
passage, most probably it was the saying of the Prophet.
189
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 19.
190
It meant joining the army for all purposes; however, here he speaks about
guarding the frontiers.
191
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 19–20.

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126 Islamic international law

enemy whether motivated by worldly gains or by religious or ethnic

differences.192
However, from this we can also see that while Al-Shaybani promoted
taking up arms, he still hints that this should be done to defend the state
and not to commit aggression. In other words, from the previous
passages we can sense how Al-Shaybani, like St Augustine and many
other scholars before and after him, highlights that peace is the ultimate
goal. This is apparent when he selected the above Prophetic saying to
point out that in order to be safe from being invaded by others, you
must not lay down arms. Scholars of Siyar usually hold that there
should always be an army ready to defend the nation and act as a
deterrent should others think of attacking. Thus, Al-Shaybani sought
peace in a nation that is prepared to defend itself and that shows no
signs of weakness that could induce others into starting wars against it.
In comparison, Gratian in his Decretum includes a pseudo-Augustinian
passage that states the following:

wars served peace when they coerced evil-doers and sustained the righteous;
they punished the wicked and raised up good and pious men. Men who
obeyed divine commandments in killing evil-doers were avenging hands of
God and instruments of his wrath. Those who were contemptuous of divine
mandates should be coerced by severe vengeance lest the evil spread.193

One way the peace sought by these scholars could be explained is found
in the following statement of Augustine: ‘even in waging war, cherish the
spirit of a peace-maker, that, by conquering those whom you attack, you
may lead them back to the advantage of peace.’194 Thus, peace could
mean conquest and conversion. However, Augustine went on to explain
that the peace he meant is not the peace a dictionary would define: ‘[i]f,
however, peace among men be sweet as procuring temporal safety,’
Augustine says, ‘how much sweeter is that peace with God which
procures for men the eternal felicity of angels!’195 Thus, the peace
intended by Augustine and therefore by the scholars who followed his
approach is peace in religious terms and not its legal connotation. There
can be no third choice as either conquering or converting is what peace
meant here. In any case, however, it seems that conquering others is the
peace sought, as Augustine clearly supports expansionist views. For he

192
Ibid.
193
Russell (n 27) 73 (footnotes omitted).
194
Bigongiari (n 52) 182.
195
Ibid 182–3.

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The law of war 127

held the view that ‘to carry on war and extend a kingdom over
wholly subdued nations seems to bad men to be felicity, to good men
necessity’.196
While both Al-Shaybani and just war advocates claim that peace is the
ultimate goal of taking up arms, their philosophical approaches differ as
to how to implement this. Just war theorists such as St Augustine and
Gratian think that by inflicting punishments on those who are sinful, we
will help them become better and therefore the world will be a more
peaceful place.197 Aquinas also agrees with Augustine’s statement on
what he thinks of as a just cause when he says that:
[m]any things must be done which are against wishes of those whom we have
to punish with, as it were, a kindly severity. When we take away from
someone the freedom to do wrong, it is beneficial for him that he should be
vanquished, for nothing is more unfortunate than the happiness of sinners,
when impunity nourishes guilt and evil will arises [sic] like an enemy
within.198

By contrast, Al-Shaybani probably thought that by being strong and

ready to go to war it is possible to stop others from attacking you and
therefore war will mainly be avoided. This might sound like the balance
of power theory. It is true, as we shall see later, that he is in support of
fighting unbelievers if they do not accept either Islam or a peace deal
until they come under the rule of the Muslim State. Yet, as we shall see in
the jus ad bellum section, even this to him is a method of making the
world safer. In this, he is not much different from just war theorists of the
Middle Ages. However, in any case it must be emphasized that the idea
of being prepared for war as a method to achieve peace is originally a
Qura’anic principle. Thus, verse 60 in chapter 8 of the Qura’an reads:
[m]ake ready for them all thou canst of (armed) force and of horses tethered,
that thereby ye may dismay the enemy of Allah and your enemy, and others
beside them whom ye know not. Allah knoweth them. Whatsoever ye spend in
the way of Allah it will be repaid to you in full, and ye will not be
wronged.199

Furthermore, in this chapter Al-Shaybani cites many supportive state-

ments that were made by the Prophet or his successors (Caliphs). The

196
Ibid 183.
197
Neff (n 10) 47.
198
Dyson (n 44) 241–2.
199
Marmaduke William Pickthall (tr), The Glorious Qur’an: Translation
(Tahrike Tarsile Qur’an 2009) 8/60.

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128 Islamic international law

common ground between all of the cited statements and opinions is that
being prepared for war is inevitable for Muslims to live in peace. In order
for their enemies to refrain from carrying out their (announced and
hidden) intentions of destroying them, they must have an army ready to
fight at all times. Clearly, this was why most of the citations mention an
uncertain and unpleasant future for Muslims if they lay down arms and
work in farming, settling without having an army ready to fight and being
vigilant at the frontiers.200
Al-Shaybani was not alone in using the term jihad when discussing the
use of force. After he had demonstrated the importance of jihad as a
public duty, a safeguard and a tool for peace, he focused on the
individual duties and requirements. As for the many duties of the warrior,
the most important of them is to have the right intention: the warriors are
warned that they should never take up arms if worldly gains are their
motive in doing so.201 To those familiar with the history of the law of
war, this also sounds familiar. As indicated above, St Augustine and
many other Christian just war theorists have held similar views. However,
the interpretation of what is godly and what is worldly remains obscure
at some stages of history when rulers bent the truth and blackmailed
ordinary people in order to serve their worldly desires. Individuals too,
could possibly join a war that is legal and pious but their motive is to
fulfil desires; however, this is clearly prohibited by Al-Shaybani. This is
where and (presumably) why Al-Shaybani narrated a Prophetic saying
warning people that if their intention was to fulfil certain whims, they
will have no reward whatsoever for this work.202 This approach is very
important both to discourage people from fighting for unjust causes and
to remind people that even when others cannot have access to their
hidden agenda, the one they believe has such access (God) will not be
pleased if they fight for egotistical causes. This is helpful because even
when people are able to convince others of their just cause, they are
warned that this will not be a reason for their war to be just. Therefore,
there is a self-deterrent system in place to achieve the ultimate goal of
stopping people from waging wars for non-just reasons. This brings us to
another form of peace that is sought as an ultimate goal of war: the peace
of hearts, peace with God.
The first chapter of Al-Sarakhsi’s book (Sharih Kitab Al-Siyar
Al-Kabīr) was on ribat and is concluded with the following statement

200
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 6–20.
201
Ibid 17–26.
202
Ibid 25–6.

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by Al-Sarakhsi: ‘Mohammad may Allah have mercy on him closed this

chapter with the prophetic saying narrated by Abu Hurairah that
the Prophet peace be upon him said: whoever dies while carrying out
ribat he dies as a martyr.’203 This statement is very important for two
reasons. Firstly, it reaffirms our point, in chapter 1, that the writings
of Al-Shaybani can easily be distinguished from the comments of
Al-Sarakhsi. Secondly, it is important as it reinforces the fact that this
whole chapter, in which Al-Shaybani discusses the importance and
requirements of joining the army, is about ribat and not offensive war.
As mentioned above this is very significant as far as reading the
intentions of Al-Shaybani and his perception of war.
In general, to Al-Shaybani war is fought to establish the rule of law
(the law of God) and to uphold its rules, and so he pays an incredible
amount of attention to every detail in order to achieve a war that is
conducted according to the law it defends. Therefore, as we shall see
later, war is limited to this end and it must be carried out only in
permitted circumstances and using the permitted methods and means.
Thus, to Al-Shaybani war is an exception and not the accepted norm.
The nearest approaches to this, in the previous respect, were probably
those of Vitoria and Grotius. The latter considered war ‘as type of
law-enforcement procedure akin to judicial remedies’.204 Meanwhile,
Grotius sees no reason why war should be considered as an exception or
even abhorred so long as the law of nature is taken into account. Thus, he
claims that:

[i]n the first principles of nature there is nothing which is opposed to war;
rather, all points are in its favour, the end and aim of war being the
preservation of life and limb, and the keeping or acquiring of things useful to
life, war is in perfect accord with those first principles of nature.205

In defence of this view, he explained that nature has given all animals the
right and the strength to defend themselves as well as to attack whenever
they want to feed.206
However, exceptions to the general rule are very rare. For it was
mostly held that war must be the norm and the pretexts given to war were
very wide indeed, even in the writings of Grotius. The exception to this is

203
Ibid 37.
204
Edward Dumbauld, The Life and Legal Writings of Hugo Grotius (1st ed.,
University of Oklahoma Press 1969) 60.
205
Grotius, The Law of War and Peace (n 1) 52.
206
Ibid 51–3.

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130 Islamic international law

probably Vitoria, who rejects wars to punish others for sins that did not
directly cause harm to ‘us’, as he puts it. Nevertheless, for Grotius:
[t]he new international law, however, was not completely distinct from the
old. Grotius and his immediate predecessors had read many of the same
writers that had shaped the canonistic theory of relations between states. He
had also read the works of Vitoria and Joannes de Legnano, among others.
Furthermore, in discussing the right of Europeans to punish those who
violated the laws of nature, he admitted his debt to the work of Innocent IV.207

Thus, war was still perceived, largely, similarly by Grotius and Augus-
tine. This led Muldoon (1979) to conclude that:
[c]ontrary to some modern opinions, Grotius also retained some of the
moralizing flavour of the canonists’ work on infidels, as the statement about
the right to punish the violators of the natural law demonstrates. As was the
case in so many aspects of sixteenth- and seventeenth-century life, the
medieval substructure was just beneath the surface, not always perceptible
from the vantage point of twentieth century, but obvious when looked at from
the medieval perspective.208

Nevertheless, matters related to jus ad bellum are discussed by

Al-Shaybani in a very detailed way. Only Grotius comes close in terms
of the level of detail. Augustine, Gratian and Aquinas did not examine
this in any depth or length; Vitoria did more, but he did not write as
comprehensively as Al-Shaybani and Grotius did.
Al-Shaybani, while prohibiting all other wars, allowed only three
limited and clearly defined types of war. Grotius also limited just war to
a number of situations, although he did not define and limit their scope.
Thus, just wars, although limited by Grotius in number, as seen above,
were not limited in interpretation, which could allow rulers to tailor their
greediest wars around them so that they can be called just or at least
lawful. In this regard, Vitoria was much more effective than Grotius as
his just war causes are more tightly governed.

3.3 AL-SHAYBANI AND JUS AD BELLUM

As mentioned earlier, for the Arabs (and those around them) in that age,
a state of war was the norm and there were various types of wars,
whereas Siyar had only permitted a few types of war. Thus, one might

207
James Muldoon, Popes, Lawyers, and Infidels: The Church and the
Non-Christian World, 1250–1550 (University of Pennsylvania Press 1979) 158.
208
Ibid.

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think that it would have been far easier for Al-Shaybani to address the
permissible wars only. To Al-Shaybani the very few and limited types of
permissible wars are defined and not open to a wide interpretation.
Therefore, as was always his approach, politicians and decision makers
had no room for self-centred agendas to wage wars with the state’s army.
Generally, war is limited by Al-Shaybani to certain cases within
limited circumstances. Yet even permissible wars can only take place
after all other peaceful remedies are exhausted. These limited cases are as
follows.

3.3.1 Self-defence

When an enemy attacks, it is not only permissible to respond to the

attack but it is also obligatory to do so. This includes following the
enemy army to free captured goods and persons. In fact, if the army is
not sufficient to respond to such an attack, it becomes an obligation for
all to fight the attacker.209 Moreover, if an enemy attacked and collected
spoils and captured persons, it should be followed until it reaches the
borders in pursuit of the captured and the goods. However, if the enemy
has crossed the borders then it is only obligatory to chase them abroad if
the army is capable of doing so. Otherwise, it is optional to do so.
Whether the subjects captured are Muslims or not Muslims should make
no difference in these cases. This is because non-Muslim subjects are
also protected by the Muslim State.210
In this approach, as it seems, Al-Shaybani’s approach was novel. In
fact some just war theorists in the Middle Ages, as shown above, were
reluctant to accept self-defence as a just cause in principle.211 Indeed,
‘Aquinas like many other theologians did not devote a thoroughgoing
analysis to the concepts of self-defense and ultio or punishment in
relation to the just war, nor did he explicitly relate the crusades to the just
war, although these concepts seem necessarily related.’212
Nevertheless, while both Augustine and Aquinas were very reluctant to
justify self-defence under any circumstances,213 Grotius both discussed
and agreed with self-defence as a just cause. In this, he is closer to

209
This is clearly explained by As-Sarakhsi when explaining Al-Shaybani’s
rules on the required parental permissions to join the army. See As-Sarakhsī,
Explanation of As-Siyar Al-Kabīr (n 152) 199.
210
Ibid 208–209.
211
Neff (n 10) 60.
212
Russell (n 27) 290.
213
Ramsey (n 162) 34–5.

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132 Islamic international law

Al-Shaybani’s approach than the other writers are, even though he called
it self-preservation214 on a state level (rather than self-defence).215 To
Grotius, self-defence is a natural right that could go on to the point of the
death of the opponent.216 Hence, he says, ‘public powers have not only
the right of self-defence but also the right to exact punishment.’217
However, to him while self-defence can be pre-emptive, it must be built
on the real intention of the other party, not just a guess.218 However,
Grotius did not always directly discuss self-defence as a notion of state
right. As we have just seen in the previous statement, what he was talking
about is the right of public officers to self-defence. Thus, this appears to
be unrelated to a right of a state in its international relations.
Vitoria also preceded Grotius on this point. ‘Any one,’ to him, ‘even a
private person, can accept and wage a defensive war.’219 Thus, he stresses
that ‘a State is within its rights not only in defending itself, but also in
avenging itself and its subjects and redressing wrong’.220 However, he
here conventionally differentiates between self-defence and wars of
redress, which indicates that he firstly sees self-defence as an unobjec-
tionable cause for war, which distinguishes him from Augustine, Gratian
and Aquinas, and secondly, he allows offensive war but only in specific
circumstances.
The weakness of Vitoria’s defensive approach is that it can go so far as
to reach a point of uncertainty, for he allows some actions that could
support pre-emptive wars and even extraordinary defensive tools. For
example, ‘[i]t is lawful to seize, and hold an enemy fortress or city by
way of obtaining security and avoiding a danger or as a means of defence
and in order to take away from the enemy an opportunity to do harm,
etc.’221

214
Grotius’ notion of self-defence was far broader than that of Al-Shaybani.
He sees all acts to secure prolongation of the state’s life and the state’s interest as
self-defence.
215
Alex J. Bellamy, Just Wars: From Cicero to Iraq (Polity Press 2006)
72–3.
216
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 214–15.
217
Grotius, The Law of War and Peace (n 1) 184.
218
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 214–15.
219
Vitoria (n 70) 167.
220
Ibid 168.
221
Ibid 165.

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3.3.2 Humanitarian Missions

It can be said that in Siyar the concept of ‘istinqaad’ is similar222 to the

concept of humanitarian intervention.223 Ahmed Abū al-Wafā sums up
the thoughts of Al-Shaybani on this as follows: Al-Shaybani approves of
istinqaad in two cases. First, rescuing Muslims is a duty upon every
Muslim. This overrides any condition or terms of treaty. This is because
no term or condition can go against the general principles of law. It is
like what we today call the jus cogens, which, arguably, cannot be
circumvented by treaties. Secondly, there is a duty to protect others. Here
even non-Muslim subjects of the Muslim State must also be protected
and rescued when need be. In addition, non-Muslims who have the right
to be protected by Muslims must be rescued when need be. This is such
as the case when a treaty requires Muslims to do so.224
Vitoria had a similar approach to this. However, the identity of his
notion can be distinguished from that of the latter in this case. This is
because to Vitoria when Christians reside in another state and the
‘tyranny’ of its lords or the ‘tyrannical laws’ injure innocent persons, the
Christians have a right, if not a duty, to go to war with those lords and
remove such operations and rules in that state.225

3.3.3 Defence of Freedom of Religion

This is a subject of disagreement between Al-Shaybani and his master

Abu-Hanifa and other scholars as well. First, war to Al-Shaybani is only
allowed where there is no valid peace treaty or accord. Besides, war is
not allowed against those who hold valid ama’an.226 Bearing that in
mind, he and Al-Sarakhsi think that war should be waged against the rest
if they refuse either to accept Islam freely, or to accept a peace deal in
which they pay tribute to and fall under the protection of the Muslim
State. This is so, in their opinion, so long as the army is realistically
capable of doing so. However, as explained above, this is only in the
absence of a peace deal and the absence of ama’an. Moreover, as we

222
Although it might not be identical.
223
Aḥmad Abū al-Wafā, Kitāb Al-I‘lām Bi-Qawā‘id Al-Qānūn Al-Dawlī
Wa-Al-‘alāqāt Al-Dawlīyah Fī Sharī‘at Al-Islām [A Book of International Law
and Relations in Islamic Shari’a], vol 14 (al-Ṭab‘ah 2, Dār al-Nahḍah
al-‘Arabīyah 2007) 31.
224
Ibid 44.
225
Vitoria (n 70) 159.
226
Pledge of safety.

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134 Islamic international law

shall see later, even in the absence of treaty and ama’an, the Muslim
State should seek peace by paying tribute to others to avoid war with a
powerful state.
Apparently, Al-Shaybani seems to have reflected the contemporary
international legal norm of his time. For that, as we saw above, during his
time, there was no peace. War was the norm. States had the right to
conquer others when able to do so – otherwise others might conquer it if
they can do so. The only way to be secure from attacks and from being
conquered was to pay tribute to others in return for peace. However, if
this was the norm, then why did Al-Shaybani abstain from forfeiting this
norm, in favour of Islamic law as he did on many occasions?
This question is relatively important since, as we saw above, Islamic
law (generally) is against attacking others except in self-defence or
humanitarian situations.
Nevertheless, the head of Al-Shaybani’s School and Al-thawri disagree
with his stance and take the view that war is only permissible when it is
dictated on the state by a hostile action taken by another. In this regard,
Al-thawri asserts that war is only required when started by the enemy.227
Since there is a disagreement on this particular category, it will be
discussed below in more detail.
From what can be read in Al-Shaybani’s teachings in this regard, this type
of war or jihad is permitted for the sake of conveying the message of God to
all human beings. However, forceful conversion is out of the question. This
type of war is intended to ensure that all humans learn about the last
message of God (Islam) and that they have the free choice to become
Muslims if/when they freely choose to do so. It is limited to these two aims
and cannot be used without exhausting all other remedies that could reach
these targets without resorting to arms. Thus, negotiation in order to secure
a passage to convey the message to the people of an entity must always
be undertaken first. If they do not accept this option, then they must be
offered the choice of concluding a peace treaty with the Muslim State.
Under such an accord, they will become a protectorate of the Muslim
State and the Muslim ruler will then have the duty to defend them from
all harm in exchange for a certain tax figure agreed upon. It is only when
all of these options are rejected that war becomes permissible.
Thus, Al-Shaybani stated that when the Muslims meet the disbelievers,
if Islam has not reached them, they should not be fought until they are
called to Islam. In supporting this view, Al-Sarakhsi recalls God’s

227
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 160) 187–90.

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utterance: ‘We never punish until we have sent a messenger.’228 More-

over, he further recalls the prophet’s advice to one of his army chiefs:
‘call people to Islam first.’ Al-Sarakhsi explains that ‘as they might think
that we are fighting them for their wealth or to capture their children, and
if they know that we are fighting for religion, they may possibly accept
Islam without need for fight.’229
Furthermore, Al-Shaybani stresses that war should always be the last
resort. Thus, he ruled that if Islam has reached them but they are not
aware that they may be left alone if they pay jiziyah (poll tax), then they
should not be fought until they are informed as such.
Six hundred years later, Vitoria expressed views similar to
Al-Shaybani’s. For example, he concluded that if the preaching of the
Gospel is hindered, war will then be just as such hindering constitutes a
just case for war. To Vitoria, ‘[t]he Indians are not to be warred into
subjection or despoiled of their property if they give the Spaniards
unhindered freedom to preach the Gospel. And this whether they accept
the faith or not.’230 He further asserted that ‘ambassadors are by the law
of nations inviolable and the Spaniards are the ambassadors of Christian
peoples. Therefore, the native Indians are bound to give them, at least, a
friendly hearing and not to repel them.’231 Moreover, he added that
‘Christians have a right to preach and publish the Gospel in the lands of
Barbarians’.232 In addition, if this was hindered in any way and that
hindering could not be dealt with by peaceful means, then war in order to
propagate Christianity is lawful.233
The differences between him and Al-Shaybani are evident in the details
of their rules. For example, Vitoria thought that for the sake of furthering
the cause of Christianity and spreading its message, the Pope could entrust
the role of preaching to whomsoever he likes and he could also prohibit
others from preaching or even trading in a region where Christianity is
being preached whenever such prohibition would help the cause of the
latter. Thus in the case of the Indians, Vitoria took the view that the Pope
could entrust to the Spaniards alone the task of converting the Indian
aborigines and could also forbid all others not only from preaching, but

228
Pickthall (n 199) 17/15.
229
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 76.
230
Vitoria (n 70) 150.
231
Ibid 156.
232
Ibid 150.
233
Ibid.

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136 Islamic international law

also from trade too in that region if the propagation of Christianity would
thus be furthered.234 This goes beyond Al-Shaybani’s approach.
However, they agree when Vitoria says that the right of Christians
stops, as noted above, at preaching and the recipient is left to choose
whether to believe in the Gospel or not. However, if preaching is
hindered, then the people of that land can ‘be warred into subjection or
despoiled of their property’.235 The same also applies when the ruler or
the public do not hinder the preaching but kill, threaten or by any means
prevent others from converting. For in this case an apparent just cause for
war is present against those people, says Vitoria.236 This also applies if a
prince or a ruler was trying to force Christian convertors to revert.237
In support of his argument, Vitoria cites Deuteronomy, ch.20:

When thou comest nigh unto a place to fight against it, then proclaim peace
unto it. And it shall be if it make thee answer of peace, and open unto thee,
that all the people that is found therein shall be saved and shall be tributaries
unto thee and shall serve thee. But if it will make no peace with thee, but will
make war against thee, then thou shalt besiege it. And when the lord thy God
hath delivered it into thine hands, thou shalt smite every male thereof with the
edge of the sword, but not the women and the little ones.238

Nevertheless, Vitoria again distinguished himself from Al-Shaybani by

taking the view that if in any state a large proportion of the population
has converted to Christianity, ‘the Pope, either with or without a request
on their part, might on reasonable ground have given them a Christian
prince, such as the King of Spain, and driven out their infidel lords’.239

3.3.4 War and Religion

After affirming that the head of Hanafi School sees war as obligatory but
only so if necessary,240 Al-Shaybani concludes that jihad is an obligation
upon Muslims, who should not discontinue it, when able, until the
non-believers either accept Islam or sign a peace treaty. This of course is
only in the absence of a peace deal or pledge of security. Al-Sarakhsi
added that jihad was regulated differently at different stages of the life of

234
Ibid.
235
Ibid 150, 157.
236
Ibid 157–8.
237
Ibid 157.
238
Ibid 182.
239
Ibid 150.
240
Such as in the case of self-defence or defending the oppressed.

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the Prophet and in the last stage it was to fight permanently to raise up
the believers and daunt the non-believers.241
According to Al-Shaybani, Al-thawri242 took the view that fighting
non-believers is not an obligation upon Muslims unless the enemy have
started a fight. His evidence is Allah’s sayings:

And kill them wherever you find them, and drive them out from whence they
drove you out, and persecution is severer than slaughter, and do not fight with
them at the Sacred Mosque until they fight with you in it, but if they do fight
you, then slay them; such is the recompense of the unbelievers.243

In addition, he quotes the verse that says: ‘And wage war on all of the
idolaters as they are waging war on all of you. And know that Allah is
with those who keep their duty (unto Him).’244
Contrary to this view, Al-Shaybani, also challenging the head of his
school, thinks that fighting non-believers is an obligation upon all
Muslims (collective duty), which if carried out by some is not required
by the rest. If no one carries out jihad, every Muslim becomes sinful.245
Al-Shaybani argues that, God, in the Qura’an, said:

+ ‘O ye who believe! Fight those of the disbelievers who are near to

you, and let them find harshness in you, and know that Allah is
with those who keep their duty (unto Him).’246
+ ‘Fight in the way of Allah …’247
+ ‘Fight against such of those who have been given the Scripture as
believe not in Allah …’248
+ ‘And strive for Allah with the endeavour which is His right.’249

Al-Sarakhsi supports this argument of Al-Shaybani while reiterating that

the last stage of the revelation was to fight all non-believers until they
give jiziyah (tribute) or become Muslims. Generally, it is a duty placed
upon all Muslims but which only needs to be fulfilled by some who fight

241
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 187–8.
242
A very well-regarded Muslim jurist at that time and still to the present day.
243
M. H. Shakir (tr), Holy Qur’an =: Al-Qur’ān Al-Ḥakīm (1st US ed,
Tahrike Tarsile Quran 1982) 2/191.
244
Pickthall (n 199) 9/36.
245
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 187–8.
246
Pickthall (n 199) 9/123.
247
Ibid 2/190.
248
Ibid 9/29.
249
Ibid 22/78.

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138 Islamic international law

to convey the message of God to all humanity. When the message is

communicated to others, they will then have to choose to either enter
Islam or pay jiziyah and be under the rule and protection of the Muslim
State.250
In the religious context, this method preceded Al-Shaybani and even
Islam. Indeed, Al-Shaybani’s approach thus far was the most lenient one
among the supporters of this method. For example, in one of his exegesis
works on the Old Testament, Aquinas recalls that the ‘Israelites’ knew
two types of hostile cities: the neighbouring one promised by God and
the remote one not promised by God. When the ‘Israelites’ conquered the
second type, they killed all men and spared women and children. As
when they conquered neighbouring cities promised by God, as executors
of his will, they killed everybody in it for the sins committed by their
ancestors. In all cases, fruitful trees had to be spared for they would
benefit the Israelites later.251 Aquinas then explained that in Deuteronomy
20: ‘peace should first be offered to the enemy, then, lacking a favourable
response, the Israelites should wage wars vigorously with full confidence
in God. When war is imminent the priests should comfort the people with
the promise of divine aid.’252 He also added that when victory is
achieved, women, children and fruit trees should be spared.253 Although
there was no explicit mention by Aquinas that Christians are the
inheritors of Jewish law in this regard, it is clear that he is in support of
such religious wars.254 Although Aquinas stressed that there must be a
wrong on the side of the enemy to justify war, this wrong does not have
to be physical nor existential, for it can be an ‘injury to justice’
committed by the other.255 What is new, however, is that according to
Al-Shaybani, war is only needed if the other party did not allow his
people the free will to accept Islam or pay tribute. Al-Shaybani is totally
against war if other options like becoming a protectorate are available.
Furthermore, in Al-Shaybani’s writings there is no punishment for the
sins of others or even for one’s own sins. Lastly, wars of conversion
approved by Augustine, Gratian and other Western scholars do not

250
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 160) 188.
251
Russell (n 27) 184.
252
Ibid.
253
Ibid.
254
Ibid.
255
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 40.

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feature in Al-Shaybani’s approach.256 The only Western scholar whose

ideas were similar to Al-Shaybani’s in this regard is Vitoria, as explained
earlier.
It is striking, however, to see that even Grotius was in favour of
punishing the children of Adam for the sins they may commit. What is
more is that he still followed other canonists in their approach towards
this concept. Most notably was his reference to Innocent IV, when
Muldoon (1979) quoted him saying that ‘we follow the opinion of
Innocent and others who say that war may be waged upon those whose
sin is against nature’.257 Muldoon added that ‘[c]ontrary to some modern
opinions, Grotius also retained some of the moralizing flavour of the
canonists’ work on infidels, as the statement about the right to punish the
violators of the natural law demonstrates’.258
Aquinas, unconventionally in the medieval West, prohibited forceful
conversion of infidels as faith is to be accepted and not imposed.259
Nevertheless, Aquinas differentiates between two types of people: the
first are ‘those who have never received the faith, such as the heathens
and the Jews’.260 He considers belief as ‘an act of will’, thus these people
cannot be compelled into the religion. ‘However, they should be coerced
by the faithful,’ he said, ‘less they hinder the faith by blasphemies or evil
persuasions, or indeed, by open persecution.’261 Thus, he thinks that their
forceful conversion is not possible as belief is a matter of the heart, but
others still must be fought and subdued. The only time he explicitly
accepts conversion as a just aim of war is in the case of apostates and
heretics, those who accepted the faith and then deserted it.262 This is not
dissimilar from some Islamic juristic views. Aquinas, however, allowed
wars against infidels when they ‘harmed faithful Christians by blas-
phemous, evil persuasions and outright persecutions’.263 Christians living
under the rule of infidels is another reason for war discussed by Aquinas.
This situation for him requires a war to eliminate the dominance of the
‘infidel’ over the ‘faithful’, as he termed it. To him, ‘infidels by the very
fact of their infidelity deserved to lose their power over the faithful.’264

256
With the exception of apostasy in some exceptional circumstances.
257
Muldoon (n 207) 158.
258
Ibid.
259
Russell (n 27) 284–5.
260
Dyson (n 44) 268.
261
Ibid.
262
Ibid.
263
Russell (n 27) 284–5.
264
Ibid 285–6.

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140 Islamic international law

Aquinas clearly states this as follows: ‘because unbelievers, by reason of

their unbelief, deserve to lose their power over the faithful, who are made
children of God.’265 This view, as we have seen earlier, was later also
held by Vitoria.
Nevertheless, Al-Shaybani’s position is weak if the same Qura’anic
verses that he used to support his argument are considered. He stated that
God said: ‘Fight in the way of Allah’.266 When looking at this verse in
the Qura’an, it is clear that reading it as a whole could go against
Al-Shaybani’s argument. This verse reads:

Fight in the way of Allah against those who fight against you, but begin not
hostilities. Lo! Allah loveth not aggressors.267

The above supports the argument of Al-thawri, who confirms that

fighting the non-believers is not an obligation upon Muslims unless
others have started a fight. This view is more worthy of support
especially today because calling people to Islam is not restricted and can
be carried out almost anywhere in the world. Furthermore, all Muslim
States are parties to the UN Charter, which does not permit the use of
force for this purpose. Therefore, and since treaties have a sacred status
in Siyar, peace, debatably, has become the norm in the latter. Even
Al-Shaybani himself in the same book avers that treaties are not to be
breached unless the other party has done so.268
Prophet Mohammad himself would not, it seems, have approved the
opinion of Al-Shaybani. This is because his practice was to start wars
only if hostilities were committed by the other party first. ‘He never
envisaged a war of aggression. Consequently, the precedents during the
life-time of the Prophet do not back the theory of aggressive jihad.’269
Moreover, the great scholar Moulavi Cheragh Ali concluded that ‘neither
the wars of Mohammad were offensive, nor did he in any way use force
or compulsion in the matter of belief’.270 In reality, ‘[a]ll the wars of
Mohammad were defensive. He and those who took interest in his cause
were severely oppressed at intervals, and were in a sort of general
persecution at Mecca at the hands of the ungodly and fierce Koreish.’271

265
Dyson (n 44) 271 (footnotes omitted).
266
Pickthall (n 199) 2/190.
267
Ibid (italic and underlining added).
268
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 187.
269
Al-Ghunaimi (n 81) 183.
270
Ali (n 125) i.
271
Ibid ii.

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The law of war 141

However, why did Al-Shaybani then take the view he did? In order to
answer this we first have to examine his justifications for his view, while
bearing in mind that we are discussing an age where war was the norm
and peace was the exception. As we have seen above, going to war purely
for economic reasons was not an unknown practice around the world
both in the time of Al-Shaybani and subsequently. However, this is not
sufficient to fully understand the reasons behind his approach, Islam
prohibits such wars. Here, it is also vital to understand that Al-Shaybani
as well as many other scholars who share his view, seem to see Islam as:

a reformative revolution to be counted among the great revolutions in the

history of humanity. Islam, like both the French and Russian revolutions, is a
revolution based on particular dogmas and theories addressed to humanity as
a whole and claiming universality. Such revolutions tend to prevail by their
very nature and have a predestined role to enforce their philosophy upon
opponents of the new ideas, otherwise they betray their aim and ‘raison
d’etre’.272

In addition, for a better understanding of the approach of Al-Shaybani –

that if the preaching of Islam is hindered war could be used to deliver the
message of Islam – it should be noted that Islam was deemed both a
message to all humanity and that it was different from all existing harsh
practices on different levels. For ‘Islam should be viewed in the light of
its moral and spiritual precepts and how they have contributed to the
dignity and the welfare of the mass of mankind’.273 The great historian
H. G. Wells, in the Outline of History, pointed out that Islam:

was the best social and political order the times could offer. It prevailed
because everywhere it found politically apathetic peoples robbed, oppressed
… and it found selfish and unsound governments out of touch with any
people at all. It was the broadest, freshest, and cleanest political idea that has
yet come into actual activity in the world, and it offered better terms than any
other to the mass of mankind.274

Hence, the aim of Al-Shaybani and supporters of his view could have
been to enlighten humanity and to improve the well-being of all peoples
in the world by upholding justice through establishing the rule of law.
That is why in his argument he is against wars for worldly ends or wars

272
Al-Ghunaimi (n 81) 20.
273
Ibrahim Alwazir, ‘The Relationship between the Ruler and the Ruled’
(Alhewar) <http://www.alhewar.com/Wazir.html> (accessed 21 January 2018).
274
H. G. Wells and Raymond Postgate, The Outline of History: Being a
Plain History of Life and Mankind, vol 2 (Doubleday & Co 1961) 493.

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142 Islamic international law

against others because of their colour, race or sex; rather war should be
waged against disbelievers in order to convey the message to all
humanity as an ultimate goal. Those who accept the new way of life
(Islam) become citizens of the Muslim State with their full rights and
duties. Others, he thinks, should be brought under the rule of the Muslim
State and pay poll tax where possible. Even if they offered a peace treaty,
Al-Shaybani thinks that it should only be accepted when the army is
unable to fight them.275 To him, it seems, this is the only way the
message of God could be conveyed around the world and this is the only
method to secure an environment for freedom of religion. This freedom
seems to have been the driver of this passion to offer such rules. This
passion led even the followers of faiths that prohibited violence to find a
way to justify an endless war against disbelievers. For example, Ambrose
of Milan (c.339–397) combined teachings of the Old Testament with
some hostile Roman teachings to conclude that a perpetual Christian holy
war should be permitted in the face of the non-Romans or non-
Christians.276 However, Al-Shaybani’s open examination of this notion is
not found in the writings even of later mediaeval thinkers in the West,
except a few such as Vitoria. For example, the canonist Gratian was
writing about war as if the Crusades were not happening before his eyes.
In fact, he ‘nowhere discussed ex Professo the juristic problems of the
crusades’.277
It is important to note that other universal social, cultural, political and
legal revolutions have been spread by all means, including war. The quest
for peace, enlightenment, broader freedoms and justice in an affluent
society are among the common characteristics of such revolutions.
Indeed, ‘… the cry for fraternity, liberty, and equality echoed in the
different corners of Arabia more than twelve centuries before the French
Revolution and Islam launched the principles of an affluent society in a
way far more acceptable than contemporary economic doctrines.’278
In addition, from a philosophical perspective, Al-Shaybani believed in
Islam as the last message from God to enlighten all humanity. Therefore,
this message must reach all human beings as they have the right to learn
about it. It is conceivable that in his time it was almost impossible to
achieve such a task without going to war. Similarly, St Augustine, for
instance, backing up his theory with references from the Old Testament,
treated war as a tool ‘of furthering divine purposes’.279 To him, ‘the

275
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 187–91.
276
Russell (n 27) 13–15.
277
Ibid 83.
278
Al-Ghunaimi (n 81) 20–21.
279
Russell (n 27) 74.

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Church in its efforts to compel the wicked to the good was imitating none
less than God Himself.’280 Thus, Augustine and others such as Gratian
who came centuries after Al-Shaybani promoted war for the sake of
religion.281
Even Grotius took the extreme view that violation of divine law was a
sin that deserved punishment by war, and considered that as a just cause
even if the war was carried by those who were not ‘directly’ affected by
the sin.282 In fact, to him rejecting the common features of religion, as he
called them, can be a just case for war against the denier. These features
are the Oneness of God; ‘God is none of the things which are seen, but
something more exalted than these’; God is the cherisher of all human
affairs; God judges people with the most fair system; and that the creator
of all things is God. In particular, the idea ‘that there is a divinity and
that he has a care for the affairs of men’283 must always be a cause for
punishment to those who reject these two notions. Nevertheless, by doing
this, Grotius (moderately) limits the usage of religion as a pretext for war
whereas Augustine, Gratian and Aquinas had done little to limit or lessen
such utilization, as their endorsement of such usage was broad and
undefined.
Nevertheless, in part, Vitoria, as noted above, demonstrates the change
of tone in Europe with regard to allowing wars on the grounds of merely
being different in religion. He did openly reject this notion. Yet this was
not without qualifications. He argued that even the Pope is not the lord of
the whole world. Thus, ‘The Pope has no power over Indian aborigines or
over other unbelievers.’284 ‘The corollary follows,’ he said, ‘that even if
the barbarians refuse to recognise any lordship of the Pope, that furnishes
no ground for making war on them and seizing their property.’285
Furthermore, he ruled that ‘[d]ifference of religion is not a cause of just
war’.286 He thus concluded that, if religion is presented to a certain
population and they do not accept it, this could not be taken as an excuse
to fight them. Thus, he says, in one example: ‘if the faith be presented to
the Indians in the way named only and they do not receive it, the
Spaniards can not make this a reason for waging war on them or for

280
Ibid 16.
281
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 36.
282
Grotius, The Law of War and Peace (n 1) 508–10.
283
Ibid 513.
284
Vitoria (n 70) 137.
285
Ibid.
286
Ibid 170.

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144 Islamic international law

proceeding against them under the law of war.’287 In fact, Vitoria was
against war even if others refused to listen to Christian preaching. For
these people will only be committing a moral sin, which does not give
rise to punishment by war.288 From the above, we can see that his
position certainly distanced him from Augustine, Gratian and Aquinas,
but brings him closer to Al-Shaybani.
Unconventionally, in Europe at least, Vitoria rejects the notion that sins
against nature are to be punished by war; he also alerts us to the danger
such a concept would have.289 For example, he stressed that a ‘Christian
prince can not, even by the authorisation of the Pope, restrain the Indians
from sins against the law of nature or punish them because of these
sins’.290 This was in fact another natural outcome of his assertion that
neither the Emperor nor the Pope could be held as the lord of the world.
This is what distinguished him from Grotius and draws him closer to the
propositions of Al-Shaybani. This is because to Al-Shaybani the worst sin
is to disbelieve in God291, and this sin does not justify wars on its
committers. Thus, it follows that no other sin could.
As did Al-Shaybani, Vitoria correspondingly insists that war must be
the last resort.292 In addition, Vitoria, who permits wars as punishment
for wrongdoers, strongly stresses that ‘[n]ot every kind and degree of
wrong can suffice for commencing a war’.293 Moreover, ‘in order that a
war be just, it is not always enough that the prince believes he has a just
cause.’294 ‘The justice of the war must be most thoroughly and carefully
examined.’295 In case of doubt about a just cause war should not be
fought.296 Impressively, he further argued that ‘the proofs and tokens of
the injustice of war may be such that ignorance would be no excuse even
to subjects of this sort who serve in it. ‘This is clear,’ says Vitoria,
‘because such ignorance might be deliberate and adopted with evil intent

287
Ibid 143.
288
Ibid 144–6.
289
Ibid 145–7.
290
Ibid 146.
291
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-
Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi],
vol 4 (Salah Al-Deen Al-Munajjid ed, Ma’had Al-Makhtu’tat 1971) 1415.
292
Vitoria (n 70) 154.
293
Ibid 170.
294
Ibid 163.
295
Ibid.
296
Ibid 175.

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towards the enemy.’297 He thus asserts that ‘Senators, Petty rulers and in
general all who are admitted on summons or voluntarily to the public
council or the prince’s council ought, and are bound, to examine into the
cause of an unjust war’.298 This is so that ‘war ought not to be made on
the sole judgment of the king, nor, indeed, on the judgment of a few, but
on that of many, and they be wise and upright men’.299
Thus, Vitoria is credited, in Europe, with the statement: ‘[t]he Emperor
is not the lord of the whole earth.’300 He also stressed that ‘[e]xtension of
empire is not a just cause of war’.301 ‘Neither the personal glory of the
prince nor any other advantage to him is a just cause of war.’302 To him,
‘[t]here is a single and only just cause for commencing a war, namely, a
wrong received.’303 Of course, this has to be understood with regard to
offensive and not defensive wars, as set out above.
To oppose the Spaniards’ claims used to legitimize the invasion,
conquest and despoiling of the Indians as well as to oppose the claim that
the Emperor or the Pope is a lord of the whole world required
exceptional courage, knowledge and bravery of Vitoria. ‘Vitoria took a
vigorous stand against the misdeeds of conquistadores and showed
humanness and intelligent understanding towards the Indians, in respect
to whom he felt keenly the missionary obligations of his order.’304
Nevertheless, although his work rates highly when compared to his
contemporaneous Europeans in terms of humanity and justice, a deep
analysis of his lectures reveals some weaknesses. For example, ‘Vitoria’s
system … did not indicate, as it sometimes has been asserted, “equality”
of Christian and pagan princes – much less equality of “states,” which
was not considered by Vitoria in this connection.’305 In fact, Nussbaum
points out that:
as a Spaniard proud of his country – and this pride appears everywhere in his
writings – he could not possibly bring himself to advise his compatriots to
renounce their tremendous new acquisitions for scruples of moral theology. In
his day the Spanish conquest was no longer a subject of controversy. The only

297
Ibid 174.
298
Ibid.
299
Ibid.
300
Ibid 129.
301
Ibid 170.
302
Ibid.
303
Ibid.
304
Nussbaum (n 5) 80.
305
Ibid 381 (footnote omitted).

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146 Islamic international law

and very necessary thing for a theologian to do was to warn the conquistadores
against misuse of their power. This Vitoria did vigorously and authoritatively.306

Vitoria’s approach to war is not only similar to but is in fact almost

indistinguishable from Al-Shaybani’s approach in most cases. The differ-
ences between the two are limited and easily summarized, as set out
above. Otherwise, Al-Shaybani’s hypothesis on this subject was as if
copied word by word by Vitoria. Since most of the latter’s radical views
were almost entirely new in the West, one might question how much of a
link there was between the two thinkers.
However, in the West, hundreds of years after Al-Shaybani, some were
still thinking that war could be just on many secular and religious
grounds.307 These many permissible wars in the West at this time were
already limited by Al-Shaybani to the three categories named above.
However, some more recent scholars in the West have largely withdrawn
their support for wars for religion. Vitoria and Grotius are the best
examples of this. Nevertheless, the reason why Vitoria rejected wars for
religion is, ‘among other reasons, to admit war for religion would lead to
just wars on both sides’.308 This is probably what made Grotius also
reject wars for religion.309 Just like some of his predecessors, Grotius
‘rejected the legitimacy of both “divinely commanded” war and war to
enforce religious orthodoxy’.310 However, in some respects it is difficult
to submit that Grotius agrees with Vitoria in this regard. This is because
he sometimes asserts that ‘all Christians are under the obligation to enter
a league against the enemies of Christianity’.311
In addition, a further point to be borne in mind is the fact that this
opinion held by Al-Shaybani was possibly a natural outcome of the state
of international relations in his time. For not only were other states very
reluctant to accept peace and allow Muslims to convey the message to
their peoples, but they were also taking the initiative of attacking the
Muslim State with the intent of eliminating Islam itself. In the same vein,
Ghunaimi points out that:
[w]e could not say then that by using force to spread these dogmas beyond
the political boundaries of Arabia, Islam proved to be a warlike creed;

306
Ibid 83.
307
See, for example, Johnson, Ideology, Reason, and the Limitation of War:
Religious and Secular Concepts 1200–1740 (n 85) 50–51.
308
Ibid 221.
309
Ibid.
310
Bellamy (n 215) 73.
311
Grotius, The Law of War and Peace (n 1) 403.

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The law of war 147

otherwise we overlook the hostile attitude which the exponents of past

political and religious ideas outside Arabia took towards Islam and ignore as
well the universal claims of Islam.312

It is important to note the reality that Islam, which came to mitigate the
power of the tyrants for the sake of the masses, was inevitably to face
latent wars by the powerful. Not surprisingly, therefore, ‘Muslims faced
major threats from the beginning and were surrounded by many
enemies.’313 This was indeed the case until recently. For example, both
Gentili and Grotius held views whereby the Islamic world should be a
permanent target of European wars until Muslims are converted.314 Some
people might argue that it is understandable that they would hold such
views as they saw the Muslim State as a conqueror and not as a
revolutionist. However, they both considered Muslims the enemy of
God.315 Moreover, when Islam first prevailed and many people answered
its call in Arabia and the surrounding kingdoms, it was expected that
these powers would face Islam with enmity. This is presumably, for
rulers, because some of their subjects would be devoted to someone else
(God) – when they join Islam – rather than their powers. These issues
must have all been at play in the holding of all of these different views.
All this should be read in the context of the time: the values propagated by
Al-Shaybani were faced with horrendous hostilities from the Arabs, the
Persians and the Byzantines, and later from the Crusaders. In fact even
Romanists, influenced by just war theorists, maintained the ancient point
of view of Roman hostility towards others, whom they considered as a
subject to penalties and even ‘mentioned the Saracens as a contemporary
example of infidelity and idolatry’.316 Despite the clear arguments against
propagating revolutionary dogmas by force, it may have been seen by
Al-Shaybani as the only way to carry out such a mission for the
furtherance of the human civilization at that time. Even today, some 13
centuries after Al-Shaybani, some scholars and influential politicians still
advocate the use of force to spread ideas; the living example is the claim
that it is permissible to spread democracy by using force.317

312
Al-Ghunaimi (n 81) 21.
313
Bsoul (n 148) 50–51.
314
Al-Ghunaimi (n 81) 76.
315
Ibid.
316
Russell (n 27) 50–51.
317
Kenneth D Heath, ‘Could We Have Armed The Kosovo Liberation Army?
The New Norms Governing Intervention In Civil War’ (1999) 4 UCLA J. Int’l L.
& For. Aff.

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148 Islamic international law

Broadly, in theory, Al-Shaybani’s approach meets with ‘the early

just-war doctrine of ancient and medieval periods, when war was seen as
the servant of justice rather than as an instrument of policy, vanity or
oppression’.318 Nonetheless, we can see that Al-Shaybani’s approach was
a response to the realism of his time. Yet his approach was a departure
from the then widely practised waging of wars for the sake of gaining
territory, slaves or for revenge. As we have seen above, this legal
limitation on war was not suggested before the legal system to which
Al-Shaybani belongs came into existence, neither in Arabia nor else-
where.319 Although just war theory brought about some limitations, rules
of just war were not applicable except to Romans and to Roman allies or
friends. Although figures like St Augustine,320 Gratian321 and many other
just war theorists held that war for worldly gains is prohibited, it was
widely held that it is necessary to have war against non-Romans,
despoiling and forcefully converting them as a punishment for their sins,
which could simply consist of having a different faith.322
Furthermore, Al-Shaybani held the view that war is only permissible in
a defined number of specific cases. In the harshest of these cases, the
enemy will still be given the choice of converting or paying poll tax and
joining the Muslim State to avoid war. Meanwhile, according to the
medieval just war theory, the enemy would have no option but the sword
as a punishment for their wickedness. The sin of improper belief is also
included in the definition of wickedness here.323 Nevertheless, Vitoria
and Grotius offered alternatives to war, as did Al-Shaybani. They both
considered going to war without exhausting these remedies unlawful.
Certainly, Grotius has offered more options than Al-Shaybani. Indeed,
Grotius seems to be in favour of trying arbitration, conference and more
to settle disputes before champions could go to war.324 Just like
Al-Shaybani, Grotius was also determined that in case of doubt about the
just cause, people must refrain from war.325 What is confusing about
Grotius, however, is that while he stressed such pre-war arrangements, he

318
Neff (n 10) 395.
319
This statement must not undermine any future discoveries that might
attribute such limitations to previous civilizations.
320
Russell (n 27) 23.
321
Ibid 61.
322
Ibid 16, 52, 53, 56, 57.
323
Ibid 23.
324
William Stanley Macbean Knight, The Life and Works of Hugo Grotius
(Oceana Pub, Inc 1962) 198. See also Grotius, The Law of War and Peace (n 1) 563.
325
Grotius, The Law of War and Peace (n 1) 560.

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The law of war 149

also says that ‘a sovereign must be sure that he could satisfy his rights
through force of arms’.326

3.3.5 Al-Shaybani’s Legal Complexity and Others

In the thirteenth century, some Western scholars such as Aquinas

considered war sinful and required three conditions in order for war to be
called just. These, generally, are (1) authority of the sovereign, (2) just
cause and (3) rightful intention.327 Aquinas never explained how these
conditions fit into realities and practices, nor did he offer a clear
theoretical definition of them.328 There is therefore some confusion in
determining what fits within these criteria and what does not. For
example, to Aquinas sedition is a special kind of sin and it is a moral
sin.329 Thus, according to his criteria this befits a just cause. In fact his
treatment of some of these conditions was even simpler than the
treatment they received by Augustine.330 Neither St Augustine nor
Aquinas elaborated much on the justa causa (just cause), although it was
the core element of deciding whether a war was just or not. It is therefore
surprising that ‘relatively little attention was given to it by medieval
writers, who typically confined themselves to the most general comments
on the topic’.331
Furthermore, having the right intention is required by Al-Shaybani.
This intention is limited to carrying out one of the permissible wars in
accordance to the law for no other cause but serving God and not for
other worldly gains. In the last notion, his argument is in line with St
Augustine, Gratian and Aquinas. Meanwhile, to Grotius, Bellamy asserts,
‘wars fought for just causes might be waged without right intention and
would therefore be unjust (though not necessarily unlawful)’.332
As mentioned above, even among those who required the right
intention for a war to be just, some still thought that war is just so long as
it has the approval of authority. Yet even Gratian, who talked about the
authority in more detail than the others did, lacked precision in identify-
ing the institutions that could authorize war.333 He also failed to produce,

326
Bellamy (n 215) 73.
327
Friedman (n 6) 9–10.
328
Tooke (n 35) 26–8.
329
Dyson (n 44) 250.
330
Russell (n 27) 269.
331
Neff (n 10) 50–51.
332
Bellamy (n 215) 73.
333
Russell (n 27) 71.

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150 Islamic international law

unlike Al-Shaybani, any manual guide for the authorities to follow when
deciding whether to go to war.334 Meanwhile, Grotius seems to pay much
attention to the issue of authority and the right to wage wars. To him, it
is only the sovereign authority or those authorized by it that should be
able to start formal wars according to the law of nations.335 Furthermore,
he explained, sovereigns are those ‘whose actions are not subject to the
legal control of another, so that they cannot be rendered void by the
operation of another human will’.336 Grotius in this is likely to have
drawn quite heavily on Vitoria who had preceded him with deep analysis
of the issue of authority. Vitoria had already pointed out that ‘where there
are already lawful princes in a state, all authority is in their hands and
without them nothing of a public nature can be done either in war or in
peace’.337 Authority, to him, refers only to those who head perfect
communities and have the right to war.338 He further explained that it is
a ‘perfect community’ … ‘which is not a part of another community, but
has its own laws and its own council and its own magistrates’.339 What
Grotius and Vitoria offered on this subject did not seem to have an
equivalent in Al-Shaybani’s writings. Meanwhile, Grotius explains sover-
eignty and sovereign rights in the form of a very long political text in his
book.340
Dangerous as it was, St Augustine promoted the idea that it was not
only God who could order a just war but also ‘God’s officials on earth
could authorise a just-war in defence not only of moral order but in
defence of the rights of the Church hierarchy’.341 Moreover, St Augus-
tine considered a war of revenge as a just war.342 To him, all that is
required for a war to be just, so to speak, is the authorization by the
monarch.343 Gratian too thinks that ‘[t]he soldier who kills a man in
obedience to authority is not guilty of murder’.344 In contrast to this
approach, Grotius wrote his book De Jure Belli et Pacis in reaction to
‘the disturbing trend towards the realist view that sovereigns could wage

334
Ibid.
335
Grotius, The Law of War and Peace (n 1) 97–101.
336
Ibid 102.
337
Vitoria (n 70) 169.
338
Ibid.
339
Ibid.
340
Grotius, The Law of War and Peace (n 1) 97–137.
341
Russell (n 27) 126.
342
Nussbaum (n 5) 35.
343
Friedman (n 6) 7.
344
Eppstein (n 58) 82.

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The law of war 151

war for any reason and fight in an unconstrained fashion. Grotius

believed that war itself was neither inherently right nor wrong.’345
‘International law, Grotius believed, provided a framework for evalu-
ating when and how war could be legitimately used.’346 Thus, the latter’s
approach meets with Al-Shaybani’s whereas that of Augustine, Gratian
and Aquinas was different.
To St Augustine, monarchs wage wars and these will be considered
lawful or just regardless of what the law is (if it ever existed). In line
with St Augustine’s347 thoughts, Gratian went as far as to consider
‘[o]bedience to evil commands, or even in a war motivated by greed,
rendered the warrior innocent of any blame, while the prince’s iniquity
was upon his head’.348 Thus, in just war theory, refusing to take part in an
unlawful war is prohibited,349 and indeed St Augustine saw it as
treason.350 In addition, ‘[s]ubjects fighting in self-defence, according to
Grotius, are always in the right, regardless of whether the cause motivat-
ing their sovereign is just or not.’351 This is because he took the view that
subjects have the right to defend themselves, their property or others or
their property against an attack by the opposing force even if the
opposing forces’ war was a just one and they were on the unjust side.352
This idea of having to fight with the unjust side in ‘self-defence’ adds
nothing to the issue that warriors must always fight even in an unjust war
when authorities decide to wage one. In contrast, however, if the ruler
goes to war and it does not fall within the criteria set up by the jurists, it
would be considered unlawful according to Al-Shaybani. This is vitally
important for many reasons. For example, the individual following the
teachings of Al-Shaybani will not support, even if forced to participate in,
a war that is led by his ruler if it is said by jurists to be unlawful. On the
contrary, warriors will consider any war lawful so long as it is led by the
monarch when they follow the general just war theory. This alone could
open the door for rulers to wage wars whenever they deemed it right. On
the contrary, rulers in Al-Shaybani’s system cannot render an unlawful
war lawful even if they had the power to make it happen.

345
Bellamy (n 215) 73 (footnote omitted).
346
Ibid 71.
347
Neff (n 10) 23.
348
Ibid 69.
349
Ibid 70.
350
Russell (n 27) 22.
351
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 221.
352
Ibid.

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152 Islamic international law

However, Vitoria, in his lectures, said that ‘[i]f a subject is convinced

of the injustice of a war, he ought not to serve in it, even on the
command of his princes’.353 However, for the sake of unity and for the
benefit of the state, he ruled that ‘[i]n a doubtful case, subjects may
follow their prince to battle not only in a defensive, but also in offensive
war’.354 This, to some extent, is also found in Grotius’ writings. For he
asserted that ‘[i]f those under the rule of another [such as individual
citizens considered in relation to the body politic of their state] are
ordered to take the field … they should altogether refrain from so doing
if it is clear to them that the case of the war is unjust’.355 This was
because to Grotius, ‘God must be obeyed, rather than men’.356
Furthermore, unlike Al-Shaybani, in the West even Aquinas centuries
later did not conceive of just war as part of jurisprudence; rather he
conceived it ‘as part of moral theology’.357 Thus some scholars believe
that he was not ‘writing a treatise on natural law or politics, but is
touching on individual moral problems in the context of dogmatic
theology’.358 Most importantly, however, is the fact that St Augustine,
Gratian and even Aquinas differentiated between Christian and non-
Christian entities. In general, their rules had to be respected with regard
to Christians, but in the face of others, law was the monarch’s will.359
Compared to these views, Al-Shaybani was clearly concerned with legal
procedures and he advocated law beneficial to all.
On the other hand, ‘[j]ust-war theory did not explicitly require the
issuing of a formal demand for redress prior to resorting to war.’360 On
the contrary, Al-Shaybani not only required a formal declaration of war,
he also required offering alternatives to the other party. To him, a
declaration of war is a requirement and the administration of war must be
in the hands of the government. Thus, he went so far as to consider
hostile activities launched by others against a state incapable of being
considered a declaration of war unless the government, to which the
launchers of these activities belonged, permitted them.361 Nevertheless,

353
Vitoria (n 70) 173.
354
Ibid 164.
355
C. van Vollenhoven, The Framework of Grotius’ Book De Iure Belli Ac
Pacis (1625) (Noord-Hollansche 1932) 47.
356
Ibid.
357
Nussbaum (n 5) 35.
358
Tooke (n 35) 26.
359
Hamidullah (n 33) 64.
360
Neff (n 10) 71.
361
Hamidullah (n 33) 163.

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Grotius once again is in agreement with Al-Shaybani, because in contrast

to other just war theorists, he asserts that war must only ‘be waged by
sovereigns and only when they have properly declared their intentions
and causes, offering the enemy an opportunity to provide restitution’.362
From another perspective, ‘[t]he logic of the just-war outlook clearly
had no room for neutrality.’363 Third parties were always supposed to side
with the just party in this theory – the problem is who is to decide which
party was just.364 Although Grotius and Vitoria might be exceptions to
this case, the former’s treatment of neutrality is still inadequate and
clumsy. If, Grotius argued, ‘two allies are waging war against others, and
each for a just cause, aid in men and money will have to be sent to
both’.365 The question then is how wide the use of war could be in
support of allies and what the rules of neutrality are. What is more is that
according to Grotius, ‘although the enemy may be “prosecuted” every-
where, under no circumstances may neutral countries or their populations
be despoiled’.366 This could mean that although people in neutral
countries might be safe, neutral countries could be turned into battlefields
in pursuit of the enemy. As for Vitoria, he prohibited targeting foreigners
in the land being attacked, thus it is more likely that he would not allow
attacking neutrals either.
Generally, in just war theory, some very practical issues always went
‘beneath the notice of the theologians and philosophers, which cried out
for solution’.367 For example, it is difficult to define the position of a
neutral body contracting with a warring party to supply them with
military equipment, according to their writings. Unlike just war theorists,
Al-Shaybani dealt with all practical questions of the time relating to war
affairs including details about this issue. ‘Another very practical problem
facing medieval rulers was what to do about small-scale injuries which
did not justify the drastic step of war.’368 For example, what would be the
solution if a highwayman or a robber from another state attacked a
subject? It is true that Aquinas did contribute in this regard by excluding
some types of violence from being considered war.369 However, he was

362
Bellamy (n 215) 73.
363
Neff (n 10) 75.
364
Ibid.
365
Grotius, The Law of War and Peace (n 1) 404.
366
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 223.
367
Neff (n 10) 75.
368
Ibid 76.
369
Russell (n 27) 271.

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154 Islamic international law

not even close to being comprehensive. While just war theorists fail to
deliver in this area too, Al-Shaybani discussed the solution to this as well.
As for the last hypothetical example, Al-Shaybani offered a detailed and
proportionate means of redress.
It is true, as pointed out above, that ancient Greece knew a custom
called ‘reprisals’ whereby an individual is permitted ‘to use force for the
protection of rights not only against an alleged foreign wrongdoer but
against his country and fellow citizens as well’.370 However, this was
nothing but a prescription for more bloodshed and disproportionality. The
Greek system offers no limit to the kind of retaliation involved. Mean-
while, while it is also true that both Aquinas and Augustine were
naturally against private wars,371 this is because they required authority;
they were not against reprisals once there existed approval of the
authority. While they prohibited wars without the consent of the author-
ity, they did not prevent the latter from carrying out reprisals on behalf of
the individuals. Al-Shaybani, on the other hand, offered some alternative
solutions to such problems, expressing that not every hostile action
should be responded to with war. In fact, Al-Sarakhsi, commenting on
Al-Shaybani, goes even so far as to maintain that ‘if a foreign armed
force without permission of its government takes belligerent action
against a Muslim State, that does not amount to a declaration or existence
of war between the two States.’372,373 Thus, while ‘war was a decidedly
more complex phenomenon than the expositors of natural-law and
just-war theory were able to take account of’, Al-Shaybani discussed war
with both comprehension and comprehensiveness.374
Furthermore, in the medieval West not only Augustine, Gratian and
Aquinas but ‘almost all theologians did not adequately cover the prob-
lems of truce, mercenaries, and crusading orders. Explanation of these
inadequacies lies in the received texts the theologians commented
upon.’375 While Augustine’s ideas were generic and open to interpret-
ation, ‘Gratian’s Decretals can fairly be said not to have stated briefly the

370
Nussbaum (n 5) 8.
371
Dyson (n 44) 242.
372
Hamidullah (n 33) 163.
373
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-
Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi],
vol 5 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 1695–8.
374
Neff (n 10) 82.
375
Russell (n 27) 290.

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The law of war 155

essence of the idea of just war, owing to the method he used of laying
excerpts from diverse sources side by side out of context.’376
Notwithstanding the above, just war theory may have been superior to
many other conceptualizations of war around Europe. This may well be
true even until much later ages. In this regard, Neff went as far as to
argue that:

[i]t is not easy to say whether fundamental ideas about war are today signifi-
cantly more advanced than they were in the age of Cicero. It may even be
contended that the post-1945 version of just-war doctrine is greatly inferior to
that of the ancient stoics and the medieval Christians, in that it has no deep
grounding in a rich body of ideas about the conduct of human social and political
relations in general, in the manner of ancient and medieval natural law.377

This, however, cannot be said to be true with regard to Al-Shaybani’s

thesis, especially as it is very well grounded in the rich and sophisticated
body of human social sciences of Islamic law and Islamic philosophy.

3.3.6 Grotius

From the above, comparisons between Al-Shaybani and Grotius often

seem to yield different results. Thus, more light will be shed on Grotius.
Firstly, Grotius dealt with war according to the law of Christianity
compared to that of what he called ‘nature’. Indeed, ‘[o]ne of the most
notable features of Grotius’s treatment of the subject of war is the
distinction he attempts to maintain between what is allowed by nature
and what is permitted to Christians.’378 The benefit of this method
employed by Grotius is that, at least in theory, the rules produced will be
useful for all human beings. However, there are some difficulties with
this method: for example, having two different laws in force in the same
world. Grotius did not attempt to answer the pressing questions this
prompts. Therefore, Johnson asserts that:

his natural-law doctrine on war applies to all men since it is knowable by

reason. Christians, by faith, possess some additional knowledge, which in part
supplements and in part replaces that which natural reason provides. If
warring nations are Christian, then, they are bound by limits that are known to

376
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 38.
377
Neff (n 10) 395.
378
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 210.

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156 Islamic international law

other nations and therefore do not bind them. In wars between non-Christian
nations natural law alone provides the rules by which war should be fought.
Grotius never adequately resolves the question of war between two nations,
one Christian and one not. To what extent are Christians bound by their own
moral knowledge in such circumstances?379

Thus, although he has the privilege of offering a choice of law – one for
Christians and one for others – the problems of this system are complex.
Al-Shaybani did not offer two legal systems; however, he offered the
options whereby non-Muslim nations could employ his law and/or apply
the reciprocity principle advanced by him, under which people can create
mutually respected rules. For instance, as we shall see later, he ruled that
nations could agree a prohibition on the killing of captured men.
Another problem in Grotius’s dual system of law for one world is that:

[s]ince European nations were by definition ‘Christian,’ and since the customs
and mutual agreements in the jus gentium were also products of interactions
among European nations, it was difficult during the early modern period to
distinguish between standards drawn from Christianity and those drawn from
the jus gentium.380

Nevertheless, if Grotius is compared to Augustine, Gratian and Aquinas,

his is the most articulated approach and he is the most methodical and
comprehensive in his treatment of the area. However, his often-broad
definition of just causes allows others to interpret it broadly. Thus,
commentators can explain these causes differently. One example is
Bellamy, who defines these just causes as:381

1. self-defence including pre-emptive wars (natural law);

2. the right to punish wrongdoers (natural law). The wrong here must
be ‘unambiguously destructive’ of society;
3. the enforcement of legal rights (grounded in human law); and
4. the reparation of injuries where no other avenue was available.

As we have seen above, Al-Shaybani and Grotius both approve of wars in

self-defence. However, while self-defence is somewhat similar to the
UN-based notion for Al-Shaybani, Grotius went further to approve of
pre-emptive wars opening many doors to endless wars. That aside, the
rest of his just causes would be unlikely to be accepted by Al-Shaybani,

379
Ibid 211.
380
Ibid 219.
381
Bellamy (n 215) 74.

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The law of war 157

as wars for him must never be allowed for aims such as punishment or
revenge.382 Licit war to him was limited to three cases, as shown above.
Nevertheless, Grotius also discussed the issue of decision-making
while going to war in more depth than that of most of his predecessors.
To him war is solemn (just) if:

1. made by the sovereign authority in the city on both sides; or

2. waged according to the ‘rites and formalities’ required by the law of
nations.

Any war without compliance with all of these conditions is less solemn
or unjust.383 The three classical criteria of just war were still upheld by
Grotius, who did also add to them. However, Grotius, as mentioned
above, seems to find the requirement of right intention problematic.384 To
him, ‘sovereignty replaces the criterion of right authority; just cases …
are limited to those that can be discerned by an objective observer; and
right intention, the most clearly subjective of the classic criteria, is
treated only scantly and in connection with other topics.’385
What is more is that all just wars to Grotius are defensive.386 However,
if his concepts are brought together, for scrutiny, even his notion of
self-defence (which he called self-preservation), as shown above, was
dangerous enough to permit rulers to wage offensive wars, colonize lands
and slaughter men. This is particularly true for his notion of a state’s
self-preservation, as it can do anything in order to prosper, continue to
exist and flourish under the pretence of preserving itself. His ideas were
so wide that they led Tuck (1999) to say that:

Grotius had always tried to distance himself from Oldenbarnevelt’s peace

policy, and De Iure Belli ac Pacis reminded his audience that he was still an
enthusiast for war around the globe. He was indeed a most improbable figure
to be the tutelary deity of the Peace Palace at The Hague.387

382
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 115) 199, 1415.
383
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 212.
384
Bellamy (n 215) 73.
385
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 213–14.
386
Ibid 214–15.
387
Richard Tuck, The Rights of War and Peace: Political Thought and the
International Order from Grotius to Kant (Oxford University Press 1999) 95.

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158 Islamic international law

Contrary to popular belief, Grotius was not an heir of Vitoria. Rather,

says Tuck, ‘Grotius endorsed for a state the most far-reaching set of
rights to make war which were available in the contemporary reper-
toire.’388 Probably the clearest example of such risky endorsements is the
fact that ‘he accepted a strong version of an international right to punish,
and to appropriate territory which was not being used properly by
indigenous peoples’.389 Grotius was never hesitant to support explicitly
such a colonial pretext. For example, he bluntly said:

if within the territory of a people there is any deserted and unproductive soil,
this also ought to be granted to foreigners if they ask for it. Or it is right for
foreigners even to take possession of such ground, for the reason that
uncultivated land ought not to be considered as occupied except in respect to
sovereignty, which remains unimpaired in favour of the original people.390

In comparison, although Vitoria prohibits war for religion or for the

appropriation of properties, he had immense support for polished ideas
that could allow powerful rulers and states to appropriate the lands and
properties of others without fighting. This was done by granting foreign-
ers bountiful rights and privileges that fell well short of a coldblooded
occupation and colonization without resistance. For they were granted the
right to travel to, reside in and exploit all communal lands around the
globe, as we shall see later when discussing the rights of foreigners.391
These are somewhat similar to the notion of Grotius, when he said that
all unutilized lands can be taken by foreigners and that preventing,
expelling or even resisting those foreigners will be a legitimate cause for
war against aborigines or the natives of that state/land.
Furthermore, Grotius, most likely in order to support the East/West
Indies Company in its colonization activities, asserted that any land or
goods that are not being used or utilized by someone are permissible for
others to take or colonize.392 There is no doubt that these ideas were
firmly grounded in Vitoria’s thoughts. These and even further such
dangerous concepts found in Grotius’ writings played a significant part in
promoting colonization and accompanying activities. Accordingly, Tuck
stresses the fact that:

388
Ibid 108.
389
Ibid.
390
Grotius, The Law of War and Peace (n 1) 202.
391
Vitoria (n 70) 151–3.
392
Tuck (n 387) 102–105.

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The law of war 159

[t]he idea that foreign rulers can punish tyrants, cannibals, pirates, those who
kill settlers, and those who are inhuman to their parents neatly legitimised a
great deal of European action against native peoples around the world, and
was disconcertingly close to the extreme pre-Victorian arguments used by the
Spaniards in America.393

The notion of punishment was abused to the point that it could be

exploited by powers to be used as pretext for their unlawful wars. This is
because even Grotius widened the scope for this ‘just cause’ to make it as
such. For example, in one passage he says that:

kings, and those who possess the right equal to those kings have the right of
demanding punishment not only on account of injuries committed against
themselves or their subjects, but also on account of injuries which do not
directly affect them but excessively violate the law of nature in regard to any
person whatsoever.394

Moreover, Grotius, as did Augustine, went so far as to endorse that war

may be waged upon those who ‘sin against nature’.395 There is no doubt
that ‘sin against nature’ can easily be used by the powerful to wage wars
at their own convenience whenever they wish and against whom they
wish. Nevertheless, Vitoria was different among those ‘whom in justifi-
cation of war seem to demand that he who undertakes it should have
suffered injuries either in his person or his state, or that he should have
jurisdiction over him who is attacked’.396
In sum, matters related to jus ad bellum were discussed in detail by
Al-Shaybani. In terms of the depth in which he addressed the topic, only
the work of Grotius is comparable. This is because Augustine, Gratian
and Aquinas wrote neither as much nor in such a sophisticated way as the
others on the topic did. With regard to Vitoria, on the whole, he certainly
did offer more than Aquinas, Gratian and Augustine, yet he did not offer
as much as Al-Shaybani or Grotius on the subject, as he only addressed
some of the issues of jus ad bellum.

393
Ibid 103.
394
Grotius, The Law of War and Peace (n 1) 504.
395
Ibid 506.
396
Ibid.

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160 Islamic international law

3.4 AL-SHAYBANI AND JUS IN BELLO

Where Al-Shaybani was writing, rules were already well established
whereby non-combatants, women and children were not to be killed and
prisoners of war had to be treated humanely. Thus, it has been affirmed
that:

[d]espite their divergences, the authors of the siyar developed a complex

Islamic law of war that lays down rules governing, for example, the treatment
of enemy persons and property. By affirming the principle of humanity in the
midst of war, al-Shaybani and al-Awza’i helped pioneer the modern law of
armed conflict.397

Just as Kelsay asserts, Al-Shaybani’s ‘text is a mine of information

regarding the conduct of war. However, any reader opening the text will
immediately be struck by the predominance of administration issues in
the questions addressed.’398 Yet the last point, in my view, should be seen
as an advantage. When war dictates its terms, the only way one can
guarantee adherence to any law is by having a system in place whereby
everything is organized, monitored and neatly administered. While
armies even today are taught to obey commanders and follow the rules in
order to achieve victory, Al-Shaybani seems to have been more con-
cerned about all the commanders and those taking orders following the
law. In general, to Al-Shaybani war is fought to establish the law (the law
of God) and to uphold its rules; therefore, paying attention to every detail
in order to achieve a war that is conducted according to the law it
defends is logical.
Al-Shaybani did not treat rules governing the permissibility of war and
rules on the conduct of war separately. Thus, he narrated the following
hadith both in his Al-Siyar Al-Saghir and in Al-Siyar Al-Kabīr with no
difference except that in the latter we can see the comments of
Al-Sarakhsi, in his Sharih, added. This hadith in Al-Siyar Al-Saghir
reads:

[w]henever the Messenger of Allah, peace be on him, sent an army or a group

of troops he used to admonish its leader to fear Allah in his personal
behaviour and to be pleasant to the Muslims who accompanied him. Then he

397
International Committee of the Red Cross, ‘Debate on Humanitarian Law,
Policy and Action: Protection of Victims of Armed Conflict under Islamic Law
and International Humanitarian Law’ (29 June 2006) </eng/resources/documents/
feature/2006/islamic-law-ihl-feature-010606.htm> (accessed 22 January 2018).
398
Kelsay (n 156) 67.

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would say: “Fight in the name of Allah and in the way of Allah; fight only
those who disbelieve in Allah. Do not misappropriate; do not commit
treachery; do not mutilate [the dead]; and do not kill a child. When you meet
the polytheists who are your enemy invite them to Islam. If they accept Islam,
accept it from them and hold yourselves back from them. Then, invite them to
move over from their territory to the territory of Muhajirin.399 If they do that,
accept it from them and hold yourselves back from them. In case they do not,
tell them that they are like other non-resident Muslims: they shall be subject
to the injunctions of Allah applicable to other Muslims; however, they shall
have no share in fay’400 of the state or in the spoils of war. If they refuse [to
accept Islam], invite them to pay jizyah. If they do that, accept it from them,
and hold yourselves back from them. When you lay siege to the people of a
fort or a city and they ask you to allow them to surrender, subject to the
commandment of Allah, do not [commit yourselves to] do that, because you
might not know what is the commandment of Allah regarding them. Rather,
bring them to the acceptance of your own decision, and then decide about
them according to your own opinion. When you lay siege to the people of a
fort or a city and they ask you to grant them the guarantee of Allah and the
guarantee of His Messenger, do not give them the guarantee of Allah or
the guarantee of His Messenger; rather grant them your own guarantee
and the guarantee of your forefathers for it is less grave if you were to fail to
fulfil your guarantee and your forefathers’ guarantee.”401

This passage is very important and should be examined from different

perspectives while bearing in mind firstly that prophetic traditions can
only be fully understood if they are traced back to when and where and
with what regard they occurred. Afterwards, scholars would infer rules
from therein, some of which would be general in nature and character
and therefore applicable to all cases. Others might be of a specific nature
and character that should only be related to that incident where and when
it happened. That is why the explanation of Al-Shaybani and the comments
of Al-Sarakhsi should be consulted before we can fully understand the
intention of Al-Shaybani behind narrating this tradition. However, prior
to doing that, it must be noted that scholars would start by evaluating the
authenticity of the narrated tradition to ensure that it is not one of the
many made up traditions that had never belonged to the Prophet.

399
This term was used for the migrants who fled Makah in order to save
their faith. It is an indication of when this hadith was authored by the Messenger
and for what purpose. This is extremely important here, as we have to see the
history of every clause in order for us to decipher the intended message.
400
Fay’ means proceeds of the state from the enemy property other than war
booty.
401
Muḥammad ibn al-Ḥasan aš-Šhaybānī, The Shorter Book on Muslim
International Law (Mahmood Ghazi tr., ed. 2007, Adam 2007) 43–4.

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162 Islamic international law

Thus, I shall now turn to the treatment of this tradition and the subject
of jus in bello as it is found in Al-Siyar Al-Kabīr. Before I do that, it is
important to note that Al-Sarakhsi asserts that it was with this hadith that
Al-Shaybani opened his Al-Siyar As-Saghir 402 and this is indeed the case
in Gazi’s translation. This is further evidence of the reliability of the texts
I am working with and their relation to Al-Shaybani. In Sharih Al-Siyar
Al-Kabīr, the only difference is the comments of Al-Sarakhsi added in
this narration to explain its different provisions in detail.
In Al-Siyar Al-Kabīr Al-Shaybani narrates that ‘whenever the prophet
peace be upon him ‘sent forth an army or detachment he charged its
commander personally to fear God, the Most High, and he enjoined the
Muslims who were with him to do good’.403,404 The Prophet further
ordered them not to give the enemy the vow of God. Because, it is better
that Muslims give their own oath for that they do not know what the
judgment of God could be and if they break it for any reason they do not
break the oath of God.405 This point is quite important if compared to the
method of many just war writers who seem to have granted the monarch
the right to decide what the will of God is. For example, we saw earlier
how St Augustine considered the monarch as an authority to decide what
is lawful and what is not as far as war is concerned. To him, rulers
waging wars according to his just war notion were acting according to
divine authorization, however indirect it was.406 For Augustine, ‘[e]ither
God or the ruler, be he king or prince, had the unequivocal responsibility
to decide whether recourse to war was necessary.’407

3.4.1 Non-combatant Immunities

In conformity with the previous narration and for better understanding of

this hadith, Al-Shaybani revealed some of the commands that were given
by the companions (when they became caliphs) of the prophet to the
heads of armies whenever they were sent forth by them. By this
Al-Shaybani had reconfirmed his method for law-making processes as he
used the practice of the fore-caliphs when extracting legal norms from

402
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 38.
403
Majid Khadduri, ‘Islam and the Modern Law of Nations’ (1956) 50 The
American Journal of International Law 358, 75–6.
404
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 38.
405
Ibid 38–9.
406
Russell (n 27) 20–21.
407
Ibid 21–2.

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the Islamic principles. He explicitly described the incident when the first
Caliph Abu-Bakr charged his army chief with precise rules to be
followed throughout the mission. It was to teach both leaders to advise
their commanders and soldiers to abide by the stated rules. These
narrations played a supportive role to Al-Shaybani’s opinions on these
legal matters. For example, he narrates that the Caliph Abu-Bakr ordered
his army chief not to:

+ distract worshippers ‘pretending to be’ worshipping in their chapels

(with the exception, explained by Al-Sarakhsi, that if those wor-
shippers had played a part in the war against the Muslim army, they
should not benefit from this exclusion);408
+ kill children, women or the elderly (unless they were participating
in the fighting, Al-Sarakhsi adds);
+ destroy fruit-bearing trees;
+ kill animals except for food;
+ steal anything from the spoils of war; or
+ become too proud when victorious.

Al-Shaybani then further identifies the categories of people whose killing

is abhorred in war.409 They generally highlight the detestation of the
killing of any:

+ women;
+ children;
+ insane people;
+ elders; or
+ non-combatant individuals and groups.410

To arrive at this conclusion, Al-Shaybani also referred to the Qura’anic

verse: ‘Fight in the way of Allah against those who fight against you, but
begin not hostilities. Lo! Allah loveth not aggressors.’411

408
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 38.
409
As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr (n 291) 1415.
410
In that age, all able bodied-men who reached the age of puberty were
considered combatants. This fits in well with their style of life where all men
under this category were expected to carry arms and participate in wars.
411
Pickthall (n 199) 2/190.

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164 Islamic international law

In addition, he recalled the Messenger Mohammad addressing a

reprimand to Khalid,412 pointing out that ‘the woman killed was not
fighting and therefore she should have never been killed’. He had also
sent word to Khalid admonishing him that he should not kill any children
or elderly people.413
By this, Al-Shaybani pioneeringly discussed the main legal rules
included in the hadieth. He identified non-combatants, and explained the
limitations commanders and soldiers must adhere to in wars.

3.4.2 Unnecessary Suffering and Punishment

Al-Shaybani explained that the aim of war is not to persecute the enemy
or despoil it. Rather, war is a last resort and should always be seen as
such by warriors. Thus, warriors must abstain from all unnecessary
killing or injuries. This is what we can clearly see in his following
statement when he emphasized that:

… although also associating partners to Allah is the utmost offence, it is in the

jurisdiction of God alone and God postponed the trial for such crime to the
Day of Judgement. As for the offences that he prescribed punishments for in
this life, it is in the interest of his subjects to prevent fighting. This prevention
cannot be achieved by killing those who do not fight. Therefore, only those
who fight Muslims should be the subject of fighting.414

According to this statement, none of the non-combatant categories

mentioned above by him can be fought unless they started fighting; it is
only then that it would be permissible for the soldiers to fight them. In
addition, this statement is clearly an indication of the principle of
proportionality cherished by Al-Shaybani in many places in his book.
The use of force against non-combatants is prohibited unless it is
necessary to achieve the goal of the war. Elsewhere, as we shall see later,
he also discussed the prohibition on using unnecessary methods of war
such as the prohibition of using fire unless it is essential, as it is clear in
his statement.
Nevertheless, Al-Shaybani appears to be against war on the ground of
being different in faith. However, this statement of his should be viewed
as follows: first, this is a clear statement from which we can infer that
Al-Shaybani is against war unless it is necessary. Second, this leaves us

412
Referring to Khaled Ibn Al-walied, who is known to have led the Muslim
army on many occasions.
413
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 291) 1415.
414
Ibid.

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in no doubt that he is totally against war for punishing sinners. This is

because no sin could be worse than disbelief. Finally, Al-Shaybani made
his opinion unmistakably clear that all unnecessary suffering must be
avoided in war.
Thus, it is clear that Al-Shaybani’s opinion is very different from St
Augustine, Gratian and other just war theorists who justified wars carried
out to punish sinners. While Al-Shaybani clearly prohibited the killing of
non-combatants and prohibited using force to punish those who commit
the greatest sin ever (disbelief), St Augustine advocated that the sins
‘merited punishment of the enemy population without regard to the
distinction between soldiers and civilians’.415 To Augustine, ‘[m]otivated
by a righteous wrath, the just war warrior could kill with impunity even
those who were morally innocent.’416 In Europe, exceptionally, Vincent
of Beavais had called for the prohibition of killing those who did not aid
the ruler of the enemy in his war.417 Apart from this, in the Middle Ages,
it seems that the attempt of medieval just war theorists to distinguish
non-combatants was limited to the institution of Peace of God. Yet even
this was only applicable to those who were not allowed by the Church to
take up arms.418 Thus, everyone else had no protection. Moreover, even
this limited scope was never clearly defined.419 For example, ‘[n]owhere
did Augustine discuss the principle of non-combatant immunity, leading
one commentator to conclude that Augustine was “unconcerned with
the fate of the innocent so far as the necessities of the just war is
concerned”.’420
In comparison, to Vitoria, not only redress but also punishment of the
enemy is a right of war. He explained this by saying that:

princes have authority not only over their subjects, but also over foreigners, so
far as to prevent them from committing wrongs, and this is by the law of
nations and by the authority of the whole world.421 Nay, it seems to be by
natural law also, seeing that otherwise society could not hold together unless

415
Russell (n 27) 19.
416
Ibid 19–20.
417
Ibid 275.
418
Ibid 34.
419
Ibid 173.
420
Bellamy (n 215) 29 (footnotes omitted).
421
I have underlined this phrase to emphasize that while Vitoria refused the
notion that the Emperor or even the Pope is the lord of the whole world, he still
held such ideas as that underlined here.

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166 Islamic international law

there was somewhere a power and authority to deter wrongdoers and prevent
them from injuring the good and innocent.422

Of course, this could be deemed as part of the rules governing the duties
to administrate occupied lands. In such a case, Vitoria takes the credit for
initiating such discussion. However, there is nothing, it seems, that could
prevent commanders from utilizing this statement to do as they wish.
Nevertheless, as the aim of war is not only to recover damages but also
to exact punishment, the just cause bearer can deprive the enemy of parts
of their territory, impose a tribute on them and sometimes even depose
their princes. The prince in possession of just cause determines the
amount of redress and the scale of punishment.423 It is true that Vitoria
urges princes, who will be both the victim’s advocate and the judge at the
same time, to be moderate in exacting punishment and in the recovery of
loss. However, this on its own is a sword in the hands of the one with the
authority to punish his enemy in the way he deems fit.
Nevertheless, when compared to Augustine, Gratian and Aquinas or
even to Grotius, the record of Vitoria on jus in bello is undoubtedly
stronger in terms of how much attention he paid to this topic and in terms
of how much protection he believed should be given to non-combatants.
When local people try to evict foreign settlers by force due to ‘fear’ –
because foreigners are more powerful and more intelligent than them –
Vitoria allowed the use of only sufficient force by the settlers to resist
and to reclaim safety and security in that land. However, if the local
people persist in such action, they can then be faced down with all
methods of war including killing, despoiling and all that is needed in
order to gain full control of that state, and not only to resist eviction.424
In the case of the Indians, trying to evict the Spaniards, Vitoria thus
suggests that if this happens, the latter should resist with the minimum
force and destruction to the Indians needed given that they are ‘innocent’.
Nevertheless, he says:

[if] after the Spaniards have used all diligence, both in deed and in words, to
show that nothing will come from them to interfere with the peace and
well-being of the aborigines, the latter nevertheless persists in their hostility
and do their best to destroy the Spaniards, then they can make war on the
Indians, no longer as on innocent folk, but as against forsworn enemies, and
may enforce against them all the rights of war, despoiling them of their goods,
rendering them to captivity, deposing their former lords and setting up new

422
Vitoria (n 70) 172.
423
Ibid 185–6.
424
Ibid 154–5.

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The law of war 167

ones, yet withal with observance of proportion as regards the nature of

circumstances and the wrongs done to them.425

However, Vitoria’s record is certainly stronger than that of Augustine,

Gratian and Aquinas because they did not pay much attention to this
topic. When compared to Grotius, to begin with, the latter did not even
allow such humanitarianism for the first strike or resistance by the
original people against settlers.
The distance between Vitoria on one hand and Augustine, Gratian,
Aquinas and Grotius on the other, as well as the closeness between him
and Al-Shaybani, is also seen in his imposition of other limitations on the
conduct of war such as prohibiting the killing of women, children and
elders and so on. For example, Vitoria thinks that ‘even in a war with the
Turks, it is not allowable to kill children … and … the same holds with
regard to the women of unbelievers’.426 This is because they are
presumed innocent unless it is known otherwise. Also among Christians,
harmless agricultural folks and other peaceable citizens are also pre-
sumed innocent and thus are not to be killed unless their action shows
that they are not as such.427 What is more, he ruled that ‘it is never right
to slay the guiltless, even as an indirect and unintended result, except
when there is no other means of carrying on the operation of a just
war’.428 In addition, ‘foreigners or guests who are sojourning among the
enemy’429 are presumed innocent and not to be killed while so. The same
also ‘applies to clerics and members of a religious order’.430
In some cases Vitoria goes further than Al-Shaybani, for example,
when he stated that ‘[w]hether victory has already been won or the war
still in progress, if the innocence of any soldier is evident and the
soldier can let him go free, they are bound to do so’.431 As for
despoiling enemies, he suggested some limitations even in cases when
he allowed the practice. Thus he ordered that ‘[s]oldiers may not loot or
burn without authority; otherwise they are bound to compensate for
damages’.432

425
Ibid 155.
426
Ibid 179.
427
Ibid.
428
Ibid.
429
Ibid.
430
Ibid.
431
Ibid 180.
432
Ibid 165.

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168 Islamic international law

3.4.3 When Could Non-combatants Be Targeted?

Al-Shaybani also addressed this question. For example, if a woman, a

child, insane person or an elder is captured after killing a human being,
only women and elders could be tried for this act. This is because,
Al-Sarakhsi explains, children and insane persons can only be killed to
prevent them from killing soldiers while they are fighting. Women and
elders, on the other hand, are subject to criminal law and therefore
punishable if they commit murder even if the fighting has ceased.433 In
contrast, the insane and the child are not punishable under the criminal
law if they committed the same offence; therefore, their killing should
only be while they are fighting but once they are captured this exception
is invalid.434 It is interesting to see how Al-Shaybani as well as
Al-Sarakhsi dealt with the topic of child soldier. It raises the question: to
what extent was there a concept of child soldier and protection for
children in their writings in particular and in the writings of other Siyar
scholars in general? Nevertheless, unlike Al-Shaybani’s above rules, to
others, not only was the killing of non-combatants permissible, it was
even advisable and sometimes even considered to be part of the love for
the persecuted. Gratian went even further to suggest that ‘those who
punish the wicked men were not guilty of cruelty but were rather
ministers of God and avengers of His wrath’.435 As for Grotius, he
thought that ‘killing everyone found in the enemy’s territory was not
illegal because it was not expressly forbidden by volitional law’.436 ‘This
does not mean that such actions are just. Indeed, Grotius believed that
killing the innocent was manifestly unjust because it violated principles
of Christian charity.’437 However, Grotius still deemed it lawful.
Nevertheless, given the above, Vitoria sometimes comes back with
some exceptions to the rights of non-combatants. This is clear in his
statement: ‘[i]n war everything is lawful which the defence of the
“common weal”438 requires.’439 Also, while he stated that ‘[s]laughter of
the innocent is never lawful in itself and intentionally’,440 he went on to

433
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 291) 1416.
434
Ibid.
435
Russell (n 27) 59 (footnotes omitted).
436
Bellamy (n 215) 75.
437
Ibid.
438
I have already explained that the common weal to him meant the interest
of the Christian world.
439
Vitoria (n 70) 171.
440
Ibid 164.

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The law of war 169

say that ‘if a war of the present day be just, it will be lawful to kill the
innocent’.441 He added: ‘[n]ot only are the things just and allowable but a
prince may go even further in a just war and do whatever is necessary in
order to obtain peace and security from the enemy.’442
Meanwhile, Vitoria asks, is it lawful to kill the children and youths of
the enemy (such as those of the Saracens) because of the fear that they
might grow up and fight Christians? His answer was that ‘it is no wise
right, seeing that evil is not to be done even in order to avoid greater evil
still, and it is intolerable that any one should be killed for a future
fault’.443 Nevertheless, he thought that where war is expected to be
‘endless’, rules change.444 ‘As war with pagans is indefinite,’ he said,
‘seeing that it is perpetual and that they can never make amends for the
wrongs and damages they have wrought, it is indubitably lawful to carry
off both the children and the women of the Saracens into captivity and
slavery.’445
Nonetheless, Al-Shaybani stressed that worshippers, who are discon-
nected from hostilities and do not participate in fighting in any way, are
also not to be killed. However, it is clear that to Al-Shaybani, if they
participate in the war even by incitement they will be considered as
fighters.446 In contrast, St Augustine did not offer such immunity to this
category of non-combatant worshippers.447 Some synods and councils in
Europe, long after Al-Shaybani, promulgated the Peace of God. However,
this only prohibited violence against certain occupational clerics.448
Meanwhile, Gratian, in an attempt to propose some limitation on
‘violence’, exempted ‘pilgrims, clerics, monks, women and the unarmed
poor from violence, on pain of excommunication and anathema’.449
However, these were specific limitations applicable to protect some
Christians only.450 In comparison, just as St Augustine and Gratian did,
Aquinas thought that you could kill even an innocent man with impunity,
if directed by the ‘ultimate authority of a divine mandate’.451

441
Ibid 178.
442
Ibid 171.
443
Ibid 180.
444
We may ask: what does that mean? Moreover, who is the judge to deliver
the verdict that a certain war is endless and another is not?
445
Vitoria (n 70) 181.
446
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 291) 1429–48.
447
Russell (n 27) 24–5.
448
Ibid 34.
449
Ibid 70.
450
Johnson, The Holy War Idea in Western and Islamic Traditions (n 75) 105.
451
Russell (n 27) 283.

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170 Islamic international law

Meanwhile, Grotius, trying to distinguish between combatants and

non-combatants in his just wars, called for harsher punishment for some
categories than that for others. To Grotius, the prosecution of decision
makers should be harsher than that of priests, women, children, students
and merchants. Thus, the punishment of the innocent should always be
less than that of the ‘nocent’ or ‘guilty’.452
However, Johnson (1975) asserts that ‘Grotius seems to find in nature
very few restraints on the prosecution of war against non-combatants’. In
support of this claim, he quotes Grotius as saying:

[t]he right of licence or impunity in [prosecuting] war extends itself very far,
for it reacheth not only to such as are actually in arms, nor unto such only as
are subjects to these princes against whom the War is made; but unto all such
as side within their territories or dominions …453

Generally, up until the seventeenth century in Europe writers were still

considering war between states as war between their subjects too.454 For
example, Grotius maintains that war is not only between princes but their
people are considered parties to it too in all cases.455 However,
Al-Shaybani not only differentiated between war between states and their
inhabitants but also further allowed travelling, trade and many other
dealings between the subjects of two warring states even during war. In
contrast, even foreigners should be given some time to leave the attacked
abode, Grotius thinks, but if they do not after the war is declared, they
can be a legitimate target.456
Nonetheless, here too we find Vitoria to be the closest in opinion to
Al-Shaybani, for he too prohibits targeting foreigners and distinguishes
(to some extent) between a war against the state and that between
populations. However, Vitoria in some cases allowed an all-out war
against all subjects and not only their princes, as in the case when a
certain war is deemed endless, as shown above.
Of course, neither Al-Shaybani nor any of the just war scholars
mentioned in this book understand the principle of non-combatants as we

452
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 227.
453
Ibid 223.
454
Oppenheim (n 2) 205.
455
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 224.
456
Ibid 223.

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The law of war 171

do today. For example, the requirement of direct participation in hostil-

ities, as we know it now,457 was only applicable to certain categories of
the population by Al-Shaybani. However, his achievement in his time was
incomparable, for he considered many as non-combatants while they
were still considered to be combatants elsewhere centuries after him.

3.4.4 Military Tactics and Limitations on the Conduct of War

Al-Shaybani also addressed other questions such as whether it is permis-

sible to cut or spoil the water supply, use fire or throw missiles at enemy
forts. If the answer is yes, which is the case, is that not against the
prohibition of killing women and children, for example? The decree
seems to adhere to the practical needs of fighting when using these
techniques is the only way to break through and to make the enemy
forfeit its fortification. Nevertheless, under no circumstances should the
army use such exceptional methods in a normal situation. For instance, if
the fort is breached and fire is no longer a necessity in the war, no one is
allowed to burn any living soul, be it a human or not.458
Although St Augustine required fidelity in dealing with the enemy, he
allowed ambushes, ruses and stratagems. Since God allowed it in the Old
Testament for Joshua, St Augustine allowed any act of this kind.459
‘[W]hen one undertakes a righteous war,’ he says, ‘it makes no differ-
ence, in respect of justness, whether he fights openly or by ambus-
cades.’460 Aquinas too followed the same route as Augustine on this
issue,461 as he was also not against the use of ambush in war.462 In
contrast, however, Bellamy claims that ‘Grotius expressly forbade the use
of poison, deception, terrorism and the destruction of artistic and sacred
artefacts’.463 However, Johnson argues that Grotius thinks that the ends
justify the means in war, thus there is nothing that a just war fighter
cannot do in a war.464

457
Mohamad Gazi Janaby, The Legal Regime Applicable to Private Military
and Security Company Personnel in Armed Conflicts (Springer, Berlin Heidel-
berg 2016) 62–6.
458
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 291) 1467–85.
459
Russell (n 27) 23.
460
Grotius, The Law of War and Peace (n 1) 606.
461
Russell (n 27) 271.
462
Dyson (n 44) 243.
463
Bellamy (n 215) 76. See also Sydney D. Bailey, Prohibition and
Restrictions in War (OUP 1972) 32.
464
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 230–31.

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172 Islamic international law

Nevertheless, like Augustine, Gratian, who opposed the application of

even the Truce of God, thinks that once war was necessary and just, ‘then
all possible means to victory must be employed including the use of
more effective weapons’.465 Even Aquinas appears to hold the view that
if war is ‘just’ then it must have been necessary; therefore, ‘it should be
fought by any means and at all times’.466 Moreover, Augustine had
already gone so far as to take the view that the destruction of the bodies
of sinners could benefit their souls.467
Nevertheless, Vitoria shares the idea that war is a tool of redress and
justice, as we know. To him everything that is needed to achieve the goal
of war, which is to obtain compensation and to punish the enemy, is
justifiable.468 Al-Shaybani would oppose this, for war in his view cannot
be carried out for revenge or punishment. However, as we saw earlier,
Al-Shaybani agrees with Vitoria when the latter says:

[s]ometimes it is right, in virtue of collateral circumstances, to slay the

innocent even knowingly, as when a fortress or city is stormed in a just war,
although it is known that there are a number of innocent people in it and
although cannon and other engines of war can not be discharged or fire
applied to buildings without destroying innocent together with guilty.469

3.4.5 Prohibition of Lying

Although in limited cases he allowed certain tactics against the enemy,

Al-Shaybani also prohibited many. For example, he prohibited lying to
the enemy, citing the story of Imam Ali when he was fighting Amer
Ibn-Wed. Imam Ali tricked Amar by saying, ‘Have you not promised me
that you will seek no help against me?’ while they were duelling. This
made Amar turn to see those he thought were coming behind him, and
Imam Ali used this trick to defeat Amer. Tricks like this were permissible
in Al-Shaybani’s view, but lying is never permissible.470 A somewhat
similar approach to this was later found in Aquinas’s writings. He
thought that ‘[t]o lie or break a promise was always illicit according to
the law of war, hence faith once promised must be maintained even with
enemies, yet in another sense word and deed could legitimately be

465
Russell (n 27) 70–71.
466
Ibid 272.
467
Roland Herbert Bainton, Christian Attitudes toward War and Peace: A
Historical Survey and Critical Re-Evaluation (Hodder and Stoughton 1961) 92.
468
Vitoria (n 70) 171.
469
Ibid 179.
470
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 120.

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The law of war 173

employed to deceive an enemy’.471 In just war theory, both Augustine

and Gratian took the view that ‘fidelity or good faith must be maintained
when it had been promised to an enemy’.472 Thus, Augustine clearly
stated that ‘when faith is pledged, it is to be kept even the enemy with
whom the war is waged’.473 Meanwhile, Augustine, interpreting a verse
from Psalm 5, takes the view that one should ‘conceal the truth wisely,
by the use of dissimulation in some degree’.474 Gratian seems to agree
with both the opinion and the interpretation.475 Aquinas in this regard
agrees with Augustine too: he thinks that the Gospel allows no verbal
lies, but the military, he says, should conceal the truth from the enemy.476
Hence, no difference in opinion is found between Al-Shaybani and the
latter on this issue.

3.4.6 Treatment of Enemy Personnel

As was typical of that age, pre-Islamic Arabia knew countless brutal and
humiliating acts towards enemies in war. In contrast, all unnecessary
brutality was prohibited according to Al-Shaybani. For example, some of
the Arabs used to mutilate the corpses of their enemies and display them
in public for a certain period. They had also known the practice whereby
the enemy leader’s head is sent back to the leader of the victorious party
as a sign of victory. Al-Shaybani, aided by traditions of the Messenger
Mohammad and the first Caliph Abu-Bakr, plainly outlawed such
practices.477

3.4.7 War Crimes

Unlike the just war theorists considered in this book, some crimes that
might be committed in wars were also addressed by Al-Shaybani. For
example, he addressed the issue where two armies, belonging to the same
state, have fought each other during the night by mistake and whether
this should be considered a crime and whether any party should face
justice as a result. Will there be any blood money paid? He differentiated
between this case and when a soldier kills another soldier from the same

471
Russell (n 27) 271.
472
Ibid 70.
473
Bigongiari (n 52) 182.
474
Grotius, The Law of War and Peace (n 1) 607.
475
Ibid.
476
Dyson (n 44) 246.
477
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 152) 110.

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174 Islamic international law

army by mistake. In the first case, there should be no liability on either

side. In the second, Al-Shaybani ruled, the soldier should pay blood
money to the family of his comrade-in-arms he killed by mistake.
Al-Sarakhsi explained that in the second case it is manslaughter, as the
intended action of the soldier resulted in the killing of his colleague
without intending the result. Therefore, blood money should be paid in
such cases. In the first case, however, both parties were fighting a lawful
war with the lawful intention and each party aimed to kill the other while
thinking that they were fighting the enemy and defending themselves.
This self-defence is an obligation upon both of them. Therefore, their
acts were lawful and they should not be held liable for any crime.478
Also interesting is the case where the hired non-Muslim guide did not
guide the army to the agreed destination but rather misled them and took
them to the enemy army instead. Al-Shaybani ruled that he should
receive no payment, as he did not conduct his job as hired. Strikingly, the
imam still does not have the right to kill this guide even if his act was a
deliberate plot.479 The guide in this case should not be killed, because if
this action ‘was conducted by a Muslim he shall not be considered an
abandoner of Islam, accordingly when this act is carried out by a
covenanting person he should not be considered as abandoner of his
ama’an contract’.480 In this parable, it is clear that the clemency that a
Muslim would enjoy is accessible to non-Muslim subjects of a Muslim
State and even beyond. Moreover, in the previous case it is decreed that
the imam still has the right to punish the guide who caused harm to
Muslims with the intention of doing so. The punishment should be short
of death and the same as that deserved if the offender was a Muslim.481
Unlike Al-Shaybani, even the treatment by Gratian centuries later was
still ‘sketchy at best’.482 In fact, the provisions offered by Al-Shaybani on
such issues can only be found in post-medieval writing in the West, as
demonstrated in this study. Yet Al-Shaybani applied all of these human-
itarian rules to all regardless of belief, race or gender. To add to this, not
did only Augustine, Gratian and Aquinas fail to achieve this, it seems that
Western scholars in general in the Middle Ages ‘knew very little of
restraint on how to conduct war’.483 The most pertinent question for them
all was, it appears, when can one go to war rather than how to conduct it.

478
Ibid 104–105.
479
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 160) 999.
480
Ibid.
481
Ibid 1000.
482
Russell (n 27) 70.
483
Nussbaum (n 5) 26.

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The law of war 175

Even Gratian, who combined knowledge of law and theology, still did
not consider the importance of humanitarian issues and how to conduct
war. Thus, Johnson asserts that ‘from the very first Gratian’s just war
doctrine is a doctrine of jus ad bellum’.484 In fact, from Augustine
through Gratian and Aquinas and until the sixteenth century, the focus in
the West was on jus ad bellum.485 This makes it difficult for us to
compare the sophistication of Al-Shaybani’s jus in bello to their general
comments in the context of jus ad bellum. For example, it is claimed that
Augustine said that ‘soldiers should be showing mercy to defeated
enemies once war was over and the wrong righted’.486 However, Dino
Bigongiari argues that ‘[o]f all the people that I know of, the man who,
I’m sure, would have been most horrified by the trials of Nuremberg is
St. Augustine’.487
Additionally, many attempts have been made to relate modern notions
such as proportionality and other humanitarian notions to Aquinas.
However, these were no more than misquotations. For example, some cite
Aquinas’ prohibition of intentional killing in self-defence as support for
the claim that he prohibits intentional killing. This, as Stout writing in
Johnson and Kelsay (1990) puts it, is an out of context citation.488 He
stresses that ‘Aquinas does not mention proportionality in his brief
discussion of war, but he does in his discussion of sedition’.489 Lammers
(1990) adds that Aquinas paid very little support to the notions of Peace
of God and Truce of God: ‘Limitations on the times of war or the targets
of war do not appear to have been among his primary concerns.’490 As
long as war was just according to his criteria, Aquinas thinks that war
should be tireless until the need to fight ceases, whereupon fighting must
stop.491
Furthermore, the same applies to Grotius. For example, no restrictions
on the conduct of war that Grotius mentioned were unconditional. Thus,
if there are any limits in his writings they are ‘absolute limits’ as

484
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 36.
485
Ibid.
486
Bellamy (n 215) 29.
487
Bigongiari (n 52) 355.
488
Johnson and Kelsay (n 102) 23.
489
Ibid 25 (underline added).
490
Lammers, S.E. ‘Approaches to Limits on War in Western Just War
Discourse’ in: Johnson and Kelsay (n 102) 64.
491
Dyson (n 44) 247.

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176 Islamic international law

described by Johnson. For example, if he talks about limitations in jus in

bello, this does not mean that it abrogates the ‘ends justify the means’ to
him.492
Meanwhile, Johnson explains that:

just war doctrine, that doctrine which has specifically to do with war, is until
the end of the Middle Ages focused foremost on the question of whether
Christians may ever in the first place take up arms, not on the related question
of what they may legitimately do after war is begun.493

To this, Lammers (1990) adds that ‘[o]ne of the striking things about
discussion of the jus in bello in the history of Western religious reflection
upon war is how little attention is paid to limitations within war,
especially by the specifically religious writers, before the modern
period’.494 Additionally, when it comes to jus in bello, Bellamy (2006)
asserts that, even Grotius ‘did not add much to traditional just war
thinking about the conduct of war’.495
Although Vitoria was indeed an exception when compared to Augus-
tine, Gratian, Aquinas and indeed even to Grotius, he did not go as far as
Al-Shaybani, for he permitted certain brutalities that were not acceptable
to the latter. The best example of this is his permission to kill, despoil
and destroy almost with no limits when war is believed to be ‘eternal’.
That aside, he is the only one in this study whose work is comparable to
Al-Shaybani as far as the conduct of war and humanitarianism is
concerned.

3.5 CONCLUSION
Al-Shaybani’s achievement in convincing the then very powerful king-
dom (the Abbasid) to abstain from using force except in self-defence or
for the cause of freedom of religion (broadly defined) is in itself
significant. This should always be seen in the light of the state of law and
international relations at the time. The use of force, even until the
twentieth century, in any other part of the world did not see such
limitations. It was only after the establishment of the United Nations that

492
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 231.
493
Ibid 41–2.
494
Lammers, S.E. ‘Approaches to Limits on War in Western Just War
Discourse’ in: Johnson and Kelsay (n 102) 64.
495
Bellamy (n 215) 75.

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The law of war 177

the world largely came to the realization that the use of force should be
limited to self-defence and collective purposes. Yet even today, a deep
reflection on contemporary international law, and the opinion of many of
its advocates, would admit that it has not produced a less warlike world
than that advocated by Al-Shaybani. Today, we still use force to change
regimes, to impose ideas (such as democracy), to pre-empt attacks and to
(allegedly) defend people’s human rights (humanitarian intervention).
Even if we count the number of legitimate causes for the use of force
many international lawyers are calling for today and compare them to
Al-Shaybani’s, the latter would set more limitations on war than we do
‘in practice’ today. In fact, eliminating the use of war seems to be
unattainable in our day and age.496
It is notable that Al-Shaybani focused on war rules more than the laws
of peace. This is likely to be because first, the world in his time was
warlike and to establish peace in that era the expansion of the law of war
and limitations on war were needed, and second, peaceful relations on
the ground had not been widespread enough to attract further attention in
his days. What Al-Shaybani offered on peace cannot be compared to even
that of Grotius, centuries later, in terms of both quantity and quality, as
we shall see later. Furthermore, James Brown Scott stresses that Grotius:

[i]n any event evidently considered as we do that war formed the nucleus of
such a work, and that Grotius intended to make of it a treatise on the law of
nations, adding what was necessary to the part concerning the law of war. …
It may be admitted that the part concerning peace is, so to speak, interpolated
in the text, and that it has more the air of an intruder than of an integral part
of a project completely conceived in advance. It appears reasonable to believe
that Grotius perfected the part which concerns war, which was before his
eyes, and which was, according to him, the raison d’etre of the treatise.497

In contrast, however, the law of peace, as we shall see later, was neither
merely ‘interpolated in the text’ nor was it an intruder; rather an integral
part of Al-Shaybani’s book.
All that aside, confusion has been caused by historians writing on just
war whereby they often hesitate to clarify the different stages that it had
passed through in the Middle Ages. However, throughout the history of
just war theory, one could say, just cause, authority and the right
intention are the requirements upon which a war could be deemed just. In

496
Christine D Gray, International Law and the Use of Force (2nd ed.,
Oxford University Press 2004) v.
497
Grotius, De Jure Belli Ac Pacis, Libri Tres. Introduction by James Brown
Scott (n 335) xxvi.

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178 Islamic international law

this, Al-Shaybani is in agreement with just war theory. To him, war must
be in the right cause and must be led by the authority and all warriors
must have the right intention. Nevertheless, the main problem was and
still is: who defines what these requirements mean? Is it according to
Al-Shaybani or according to any other just war theorist, and why? An
even more important question is whether we are going to apply religious
or secular standards to answer that enquiry. And even more complex,
which religion and which secular standards shall we adopt, and should
we choose one single method?
Western medieval scholars, especially Augustine, Gratian and Aquinas,
were never as comprehensive nor as legally sophisticated as Al-Shaybani.
Even Gratian, who is by far one of the most important canon writers and
is said to have combined the knowledge of both theology and law, is not
comparable to Al-Shaybani. This is because in addition to failing to
clarify issues regarding authority and war, he did not assist his readers by
defining issues relating to ecclesiastical involvement in war. Further, ‘he
neither discussed these wars separately from the wars and police actions
of secular rules nor satisfactorily analysed the various elements of
Church-related just war.’498 Unlike Al-Shaybani, Augustine, Gratian and
Aquinas did not pay much attention to the question of how to conduct
war. All that Gratian and even Aquinas, who are much closer to the
modern age than Al-Shaybani, had to say about jus in bello is that some
church men are not allowed to take up arms and no one is allowed to
fight against them.499
The focus of early Western thinkers was mainly on some elements of
jus ad bellum whereas contemporary thinkers focus on jus in bello.
Al-Shaybani by contrast did offer a sophisticated treatment of the details
of both subjects and beyond as he discussed peace, trade, quarter and
many other topics related to international relations in great depth.
Exceptionally, however, Grotius has to be singled out in two respects.
First, his treatment of the subject of war was almost as comprehensive as
that of Al-Shaybani. Second, although cherished by many legal historians
as the father of international law, whereas there is no mention of
Al-Shaybani, Grotius offered very little when it comes to jus in bello in
comparison to Al-Shaybani. Compared to Grotius, the latter imposed
unprecedented limitations on the conduct of war. Although Vitoria did not
write enough to be comparable to Grotius and Al-Shaybani, he held

498
Russell (n 27) 72.
499
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 85) 41.

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The law of war 179

enough humanistic notions on restricting war to make him worthy of

comparison to both. Yet Al-Shaybani’s humanitarianism and his limita-
tions concerning the starting of wars were not surpassed by any of them.

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4. Rules on the consequences of war

Before the time of Al-Shaybani, all captured men, properties or land were
considered to be the right of the possessor. This was true, for example, in
both Rome1 and Arabia.2 Al-Shaybani’s input to international law in this
regard will be examined in this chapter. Although Al-Shaybani treated
prisoners of war in a separate chapter, I have deliberately not separated
the topic from this chapter because in the Middle Ages prisoners of war
were treated, at best, as war booty.3
Al-Shaybani addressed topics such as legality, eligibility, place of
acquisition, proration (relative to the degree of participation), authorities
and their roles and shares, types of spoils of war and many more.
Moreover, as mentioned above, he devoted a separate chapter to prisoners
of war. He not only discussed spoils of war in regard to the consequences
of war, but he further discussed all related legal issues such as those
concerning newly occupied lands and their legal consequences. He also
discussed the possibility of losing land to the enemy and the legal
consequences: whether they had to do with public authorities or indi-
vidual rights and duties. Nevertheless, for the purpose of this book, I
have selected some of the main topics he treated, which are prisoners of
war and ghanimah (spoils of war). However, I shall first give a historical
overview of the law on spoils of war and discuss the philosophical
approaches to this subject of Al-Shaybani compared to the other named
scholars.

1
Stephen C. Neff, War and the Law of Nations: A General History
(Cambridge University Press 2005) 31.
2
As will be seen later.
3
Many times, they were treated with revenge and anger unlike the rest of
the spoils of war, which were considered as a gain and treated with caution. The
prisoner of war was looked at, naturally, as a threat; therefore, he would be the
only part of the war booty that is, sometimes, unwanted and thus maybe
destroyed.

180

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Rules on the consequences of war 181

4.1 HISTORICAL OVERVIEW

4.1.1 General History

Historical legal thoughts on spoils and prisoners of war are no less cruel
than those on war. Even the most well-respected thinkers and phil-
osophers were unyielding in this respect. For example, Aristotle, who
first used the term just war to describe wars against non-Hellenes, saw
attacks to capture the property of others and enslave them as just wars.4
Additionally, not only was despoiling and capturing others allowed in
law, it was also considered as a proper occupation by some. For example,
‘[i]n the ancient law of Solon there are companies “of those who go out
for booty”’.5 Another example is also found in Rome where, according to
Justin, ‘up to the times of Tarquin piracy was considered an honour’.6
Both Aristotle and Plato expressed the opinion that it is the law to
become the owner of what you have possessed from war.7 Comparably,
in Roman law, ‘commanders may turn booty over to the public treasury’.8
This was the Roman rule for both goods and the captives. However, ‘the
booty, or part of it, was given at times to the gods, at times to the
soldiers, and at times to others.’9
In Rome, although Cicero called for restraint while dealing with
enemies, any enemy rights were abrogated by the declaration of war.10 In
fact, to him is attributed the saying that ‘Mitylene had come into the
possession of the Roman people “by the law of war and the right of
victory”’.11 ‘As total war, the Roman just war countenanced capture of
civilians, devastation of land and plundering of cities. Booty and territory
became the property of the government, although booty was sometimes
sold for the common profit of the soldiers.’12 Furthermore:

[o]ccupation of immoveable property always led to its acquisition by Roman

people, not the individual solider. Similarly, praeda (praedae in plural), booty

4
Frederick H. Russell, The Just War in the Middle Ages (Cambridge
University Press 1979) 3–4.
5
Hugo Grotius, Hugo Grotius. The Law of War and Peace: De Jure Belli
Ac Pacis Libri Tres (Francis W. Kelsey tr., Indianapolis 1925) (n 74) 394.
6
Ibid.
7
Ibid 664–5.
8
Ibid 676.
9
Ibid.
10
Russell (n 4) 6–7.
11
Grotius, The Law of War and Peace (n 5) 665.
12
Russell (n 4) 7.

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182 Islamic international law

or movable property, became the property of Rome when it was seized by

common military action, but when it was seized by the actions of an
individual soldier it became his property.13

Although Roman law had known some rules on the consequences of war,
as usual most of these norms were developed through comparing and
modifying private legal rules, and applying them to international issues.
According to the Justinian law, one of the consequences of war with a
legally declared enemy was:

[t]he captive became the slave of his captor, his legal rights such as the right
to make a will were suspended, and his marriage was dissolved. However, in
the event that a Roman citizen returned from captivity, he regained his full
legal rights. The captive who returned had to take possession of his things
anew. Upon their recovery goods captured in war again became the property
of their former possessor.14

Crossing the border seems to have been the dividing line as to when the
legal consequences of an action will occur. In this regard, Pomponius
says: ‘he who has begun to be within our fortified lines has returned by
postliminy’.15 In contrast, for Odofredus, who believed that all non-
Christians are ipso facto enemies even without a war declared, if a
Christian crossed the borders into a non-Christian land he will be eligible
for postliminium once he crosses the borders back into Christendom.16
These rules seem to be older than that of Rome; for Joshua is quoted
as saying, ‘Divide the spoil of your enemies with your brethren.’17 In
addition, David,18 addressing Jewish elders to whom he had sent some
war booty won in a war against Amalekites, said: ‘Behold, a present for
you of the spoil of the enemies of Jehovah.’19
The West in the Middle Ages continued to consider all captured
property as legally belonging to the captor. Nussbaum (1954) points out
that during the Middle Ages in the West, ‘[p]risoners and booty were
considered as the personal property of the captor, though there were

13
Ibid 53.
14
Ibid 52.
15
Grotius, The Law of War and Peace (n 5) 702.
16
Russell (n 4) 52.
17
Grotius, The Law of War and Peace (n 5) 664.
18
Peace be Upon Him. On every occasion that the study mentions Prophet
David, reference to the terminology (Peace be Upon Him) shall be assumed.
19
Grotius, The Law of War and Peace (n 5) 664.

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Rules on the consequences of war 183

indications of modern conception which leaves the disposition of prison-

ers and booty to military authorities’.20 Thus, this is a sign that neither
Augustine nor Gratian nor Aquinas had changed any of the Roman rules
in this area. Even Grotius in the seventeenth century took the view that it
is the norm in the law of nations that when someone is captured, they
become slaves to their capturer and so do their descendants after this.21
Furthermore, Askin stated that during the ‘Middle Ages,22 the rape and
slavery of women were inducements to war, such that anticipation of
unrestricted sexual access to vanquished women was used as an incentive
to capture a town’.23
Not only did the victor have the right to despoil the losing party and
capture its people, some European rules went so far as to impose
compensation for the victor’s loss during war. ‘According to the inter-
national legal principles of the Middle Ages, it [was] just that the victor
should recover the expenses of the war and compensation for the losses
which he has suffered.’24 For example, ‘Montjoy, the French herald,
alludes to a calculation of the measure of war reparations the French
would demand if they were to win in his negotiations with King Harry
over a potential ransom.’25
On the other hand, St Augustine and Gratian condemned participating
in wars for worldly gains or booty. Meanwhile, the latter advised that
once victory is achieved, captives must be dealt with mercifully.26
Besides, it is said that both Saint Maximus of Turin as well as St
Augustine opposed joining the army for the sake of acquiring booty and
suggested payment of wages to prevent fighting for greed.27 Neverthe-
less, along with peace and prosperity, plunder was also promised to

20
Arthur Nussbaum, A Concise History of the Law of Nations, Revised Edn
(Macmillan 1954) 26.
21
Grotius, The Law of War and Peace (n 5) 691.
22
As we shall see later, Askin is either unaware of the restriction Siyar
scholars introduced on such practices or she was limiting herself to the Western
Middle Ages.
23
Kelly Askin, ‘Prosecuting Wartime Rape and Other Gender-Related
Crimes under International Law: Extraordinary Advances, Enduring Obstacles’
(2003) 21 Berkeley Journal of International Law 288.
24
Laurie R. Blank, ‘The Laws of War in Shakespeare: International Vs.
Internal Armed Conflict’ (Social Science Research Network 1998) SSRN
Scholarly Paper ID 1502850 266 <https://papers.ssrn.com/abstract=1502850>
(accessed 22 January 2018).
25
Ibid.
26
Russell (n 4) 61.
27
Ibid 26–7.

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184 Islamic international law

warriors if they had joined Urban II’s call to fight the infidels and free
the Holy Land.28
As to rules on division of booty in this era, Iisdore of Seville suggested
that booty should be divided ‘according to the merits of the partici-
pants’.29 He discusses ‘[t]he disposition of the booty, the just division in
proportion to the rank and services of individuals, and the portion of the
prince.’30 In these areas, the opinion of Al-Shaybani was similar to his.
Thus, it is possible to conclude that there were some common practices
of this kind at these times.

Treatment of prisoners of war

The treatment of the captured after they were enslaved was one of the
worst imaginable features of war everywhere. In Rome, for example, as
stated above, ‘every thing that has been captured is acquired, along with
persons, for the master’.31 In addition, ‘[t]he slave who is himself under
the power of another, says Justinian, can have nothing of his own.’32
What is more is the fact that brutality was condoned and was even
considered lawful by some. For example, Seneca noted that:

there is nothing which a master is not permitted to do to his slave. There is no

suffering which may not be inflicted with impunity upon such slaves, no
action which they may not be ordered, or forced by torture, to do, in any way
whatsoever; even brutality on the part of masters towards persons of servile
status is unpunishable except in so far as municipal law sets a limit and a
penalty for brutality.33

Gaius too further affirmed that ‘[a]mong all nations alike, we may see
that masters have had the power of life and death over slaves’.34
Thus, both before as well as in the days of Al-Shaybani, prisoners of
war faced the harshest means of punishment and humiliation. In Byzan-
tine, blinding prisoners of war was just one example.35 Moreover,
different sorts of brutal practices were witnessed, such as ‘massacre of
defenceless civilians and captured prisoners, particularly of enemy

28
Ibid 35–6.
29
Ibid 27.
30
Grotius, The Law of War and Peace (n 5) 679.
31
Ibid 691.
32
Ibid.
33
Ibid.
34
Ibid.
35
Nussbaum (n 20) 49.

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Rules on the consequences of war 185

nationalities such as the Slavs, Magyars, and Turks’.36 Generally, in the

West during the Middle Ages the apparent fate of a captured person was
either killing or enslavement. Actually, the earliest and only exception to
this came in the twelfth century in ‘the pronouncement of the Third
Lateran Council against the enslavement of Christian prisoners of war’.37
This is what historians normally use as an example of the earliest legal
limitations on the practice of enslavement.38 Yet, in Europe, non-
Christians were still subjected to enslavement many centuries later.39

Research hurdle
Grotius (1645) viewed Augustine as prohibiting the killing of captives by
reference to his statement: ‘[l]et necessity, not inclination cut off the
enemy who is fighting. Just as violence is done to him who fights and
resists, so pity is now due to the vanquished or captive, especially in the
case of him from whom no disturbance of peace is feared.’40 Neverthe-
less, the task of comparing Augustine, Gratian and Aquinas in this regard
is challenging, mainly because they did not write much on this topic. All
they offered were some general statements, which have been utilized to
support arguments about the contribution of these scholars to the making
of international law. For example, Gratian only mentioned a quotation
from Ambrose that says when a war is won then the spoils belong to the
victor and should be attributed to the king or prince, who should then
distribute some of it to the soldiers ‘according to the efforts they had
expended’.41 As Russell states, ‘[t]his is perhaps an oblique statement
that to the victor go the spoils. In an age of widespread pillaging and
conquest this is all Gratian had to say on these issues, and he did not link
them to the just war.’42 Aquinas also did not cover these issues in any
depth.43 All he had to say about these topics are passing references in
relation to other matters. For example, he speaks about enslavement and
plunder indirectly and on rare occasions, as in the following example:
‘since the Jews themselves are slaves of the church, she can dispose of

36
Leon Friedman (ed.), The Law of War: A Documentary History, vol 1
(Greenwood 1972) 11.
37
Nussbaum (n 20) 18.
38
Ibid.
39
Ibid 26–7.
40
Grotius, The Law of War and Peace (n 5) 737–8.
41
Russell (n 4) 71.
42
Ibid 20–21.
43
Ibid 280.

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186 Islamic international law

their property, just as secular princes also have enacted many laws in
relation to their own subjects in favour of liberty.’44
Notwithstanding the above, what was the position of the later great
scholars such as Vitoria and Grotius? The contribution of the latter was
not significant; this is because Grotius, nearly a millennium after
Al-Shaybani, was still reluctant to challenge the old rules he cited. In his
view, the abovementioned rules were international law recognized by
all.45 Moreover, according to Naoya (1993), Grotius still took the view
that ‘since slaves are regarded as property under the law of nations, there
is no difference between the right to enslave prisoners and the right to
acquire property taken in war’.46 One cannot blame him for holding such
a view, for the whole world was dealing with the matter in virtually the
same way until the twentieth century. The only differences related to the
humane treatment of the captured and slaves, was the view of
Al-Shaybani, as we shall see later. However, the fate of the captured has
always been a decision of the captor. Nevertheless, to Grotius it is lawful
to kill those who have surrendered47 and all those captured, including
women and children.48
Vitoria did discuss some issues regarding the consequences of war and
probably in more detail than Grotius did. This is examined in more detail
in the following pages.
Western scholars in both the Middle Ages as well as ancient civiliz-
ations, on which Western scholars would have typically relied to build
their legal tradition, did not offer as much literature in this area as on
private law matters. ‘The only body of literature that deals with such
topics in legal and detailed manner was the Islamic and not the ancient
civilizations.’49 Thus, I shall next, after discussing the pre-Islamic Arabia,
embark upon the Islamic contribution to this area of law.

44
R. W. Dyson, Aquinas’ Political Writings (Cambridge University Press
2002) 271 (footnotes omitted).
45
Grotius, The Law of War and Peace (n 5) 663–6.
46
Kasai Naoya, ‘The Laws of War’ in Yasuaki Onuma (ed.), A Normative
Approach to War: Peace, War, and Justice in Hugo Grotius (Clarendon Press;
Oxford University Press 1993) 266.
47
Grotius, The Law of War and Peace (n 5) 826.
48
James Turner Johnson, Ideology, Reason, and the Limitation of War:
Religious and Secular Concepts 1200–1740 (Princeton University Press 1975)
223.
49
Christopher G. Weeramantry, Islamic Jurisprudence: An International
Perspective (Macmillan 1988) 150.

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Rules on the consequences of war 187

4.1.2 Pre-Islamic Arabia

Arabs in the pre-Islamic age developed rules on the treatment of

prisoners of war, spies and hostages.50 Nevertheless, their treatment of
prisoners of war was still nearer to lawlessness. Even most of these rules,
one could say, were a question more of chivalrous conduct than of legally
binding rules. Some Arabs, typical for their time, enslaved free people
not only through capture in war but also through kidnapping and through
many other unpleasant methods.51 The era is vitally important for
scholars to examine if there were any changes brought about by Siyar,
whether through Al-Shaybani or others.
Arabs were quite ruthless in their attitude towards the taking of
property, the treatment of enemy personnel and the capture and treatment
of people. ‘In 7th century combat, a prisoner of war could expect the
worst fate.’52 However, Arabs by this time knew some rules that
‘condemned excessive destruction, reflecting both a code of honour that
protected the weak – women, children, the aged, and prisoners’.53 Later,
‘these rules are reinforced by the morality of the Qur’an and the sunna.’54
The issue with this era is the fact that there is barely any reliable
writings from that age regulating war affairs. Nevertheless, customs and
rules, when they existed, were mostly followed by respected entities. In
general, the Arabic practice was not so distinguishable from the practices
aforementioned in other parts of the world.

4.1.3 Islamic International Law

Islamic international law contributed greatly to the regulation of post-war

affairs, including the treatment of prisoners, the treatment of inhabitants
of newly occupied lands, and the position of subjects in lost-to-enemy

50
Muhammad Hamidullah, The Muslim Conduct of State (5th edn, SH
Muhammad Ashraf 1968) 61–2.
51
Muhammad Mutwali Al-Sharawi, ‘Contemplations of Sheikh Muhammad
Mutwali Al-Sharawi [Khawater Al-Shiekh Muhammad Mowali Al-Sharawi]’ 5
<http://www.elsharawy.com/books.aspx?mstart=1033049&mend=1033050> (ac-
cessed 1 March 2018).
52
Youssef H. Aboul-Enein and Sherifa Zuhur, Islamic Rulings on Warfare
(Strategic Studies Institute, US Army War College 2004) 18.
53
Terry Nardin (ed.), The Ethics of War and Peace: Religious and Secular
Perspectives (Princeton University Press 1996) 259.
54
Ibid.

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188 Islamic international law

lands. Spoils of war were also strictly regulated to mitigate the un-
restricted Arab (and world) practice in that age.
As for prisoners of war, Siyar offers a wide range of rules governing
both Muslim prisoners in enemy hands and enemy prisoners in Muslim
hands. Hamidullah extensively discussed Islamic international law rules
on prisoners of war, which can be summarized as follows:55

1. Muslims in enemy hands: when a Muslim is captured by the enemy,

he should faithfully observe his parole and liberty, if a parole was not
available though, he will then be allowed, if he can, to escape or cause
destruction to his capturer. Meanwhile, his state must do its best to
free him and if need be payment of ransom should be taken from
the Muslim State treasury. Siyar also regulates the practice of
exchanging prisoners. Furthermore, the wills and testaments of a
Muslim prisoner are valid if received in Muslim territories.
2. Enemy prisoners in Muslim hands: in this case the prisoners could be
ransomed or exchanged under specified conditions. They cannot be
killed for merely being a prisoner of war; this of course ‘does not
preclude the trial and punishment of prisoners for crimes beyond
rights of belligerency’.56 Prisoners must be fed, clothed and treated
well until a decision is made in their case. The decision is left to the
commander who should decide whether prisoners are to be executed
(under very limited and strict circumstances), enslaved, ransomed,
exchanged with Muslim prisoners or benevolently released.

It should be noted, however, that ‘Muslim jurists asserted that women,

children, the elderly, the blind or crippled, the insane, hermits, and,
according to some jurists, peasants and serfs may not be executed unless
they take an active part in the fighting’.57
The idea of enslaving the captured rather than killing them is quite old
and is known to have been practised by the Romans.58 Peculiarly,
however, Islamic international law prohibited killing with brutality,59
prohibited mistreating prisoners in any circumstances even if they
become slaves and introduced ransom as a third way of dealing with

55
Hamidullah (n 50) 212–21.
56
Ibid 214.
57
Khaled Abou El Fadl, ‘The Rules of Killing at War: An Inquiry into
Classical Sources’ (1999) 89 The Muslim World 144, 144, 155.
58
Russell (n 4) 7.
59
As we shall see later, many scholars think that the killing of prisoners of
war is prohibited according to Siyar.

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Rules on the consequences of war 189

prisoners of war; freeing gratuitously (i.e. freeing war prisoners, for the
sake of God, without asking for ransom) was also enacted as another
option for rulers.
Siyar scholars agree that Islamic law placed unprecedented limitations
on slavery. However, they disagree on the extent of these limitations.
Some would think that Islamic law introduced a system whereby slavery
should be eliminated by time. Others would think that Islam closed all
the gates to slavery and opened many gates of emancipation.
Nevertheless, jurists agree that Islamic law limited the many gateways
to enslavement to only one: war. From then on, all other practices by
which a human being became a slave were abolished. The reason why
this gateway was left open, Imam El-Sharawi explains, is that in wars,
enemies would capture Muslims and they should have the captured
enemy at hand in case the enemy would exchange prisoners.60 Although
the captured could be enslaved, ‘[t]his was not an obligatory or recom-
mended condition but was permitted and was far from being a condition
of rightlessness’.61 Moreover, Hamidullah stresses that we should always
remember that ‘one must distinguish between an obligatory rule and an
optional rule. Slavery, for instance, is optional, and if Muslims give up
that practice, they commit no violation of their religious commands.’62
Nevertheless, as Imam El-sharwi puts it, enslavement of the captured
should be compared to other options available then and not to freedom.
Nevertheless, the Islamic international law position on slavery was
altogether revolutionary for it shut all gateways to slavery and opened
many gateways to emancipation. Thus, Ali (1885) concluded that:

Slaves are mentioned in the Koran defacto, but not dejure. The Koran took
several measures to abolish future slavery. Its steps for its abolition were
taken in every moral, legal, religious, and political departments. The liberation
of slaves was morally declared to be a work of piety and righteousness—
(Sura XG, 13 ; II, 172). Legally the slaves were to be emancipated on their
agreeing to pay a ransom—(Sura XXIV, 33). They were to be set at liberty as
a penalty for culpable homicide—(Sura IV, 94); or in expiation for using an
objectionable form of divorce—(Sura LVIII, 4) and also they were to be
manumitted from the Public Funds out of the poor-taxes—(Sura IX, 60). They
were religiously to be freed in expiation of a false oath taken in mistake—

60
Muhammad Mutwali Al-Sharawi, ‘Contemplations of Sheikh Muhammad
Mutwali Al-Sharawi [Khawater Al-Shiekh Muhammad Mowali Al-Sharawi]’
17–18 <http://www.elsharawy.com/books.aspx?mstart=1004036&mend=10040
40> (accessed 1 March 2018).
61
Weeramantry (n 49) 139.
62
Hamidullah (n 50) viii.

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190 Islamic international law

(Sura V, 91). These were the measures for the abolition of existing slavery.
The future slavery was abolished by the Koran by putting [a] hammer deep
unto its root and by annihilating its real source. The captives of war were,
according to the clear injunctions of the Koran contained in the 5th verse of
the 47th Sura, to be dismissed either by a free grant or by exacting a ransom.
They were neither to be enslaved nor killed.63

In all cases, the limitations introduced on slavery by Islamic international

law had no equivalent in other parts of the world until recently. In this
regard, Weeramantry points out that:

[w]e read of slavery in the Islamic books; and narrations of the abuse of
human dignity under certain regimes in the Islamic counties have created a
picture of total rightlessness among slaves. It is to be noted, however, that
slavery as practiced in Greece, Rome or modern America was a condition of
rightlessness which had no parallel in Islamic law.64

Islam originates many rules limiting the practice of slavery in many

ways. For example, slaves must have as high a standard of living as their
masters, must not be ordered to carry out extreme tasks and if they were,
it was ordained upon the master to help them in any hard job.65 In
addition, ‘[t]he master’s authority was not unlimited or free of the control
of the state as it was under the Greeks, the Romans or indeed in
America.’66 In fact in his last ceremony, the Messenger Mohammad paid
a great deal of attention to this topic and ordered people to respect the
dignity of their ‘slaves’. Furthermore, according to his teachings, a
Muslim should never even call his servant ‘a slave’ and should rather use
the term ‘fata’ (like ‘guy’ or ‘boy’ in English) instead.67
As for the spoils of war, Islamic international law set out large
volumes of rules on the definition of spoils of war, differentiating them
from other forms of plunder, and detailed the rules pertaining to
acquisition, usage, distribution, transfer and so on. This comprehensive-
ness was a general trait of Siyar scholars.

63
Moulavi Cherágh Ali, ‘Critical Exposition of the Popular “Jihad,” Show-
ing That All the Wars of Mohammad Were Defensive; and That Aggressive War,
or Compulsory Conversion, Is Not Allowed in The Koran. With Appendices
Proving That the Word “Jihad” Does Not Exegetically Mean “Warfare,” and That
Slavery Is Not Sanctioned by the Prophet of Islam’ (1885) 194–5 (footnotes
omitted).
64
Weeramantry (n 49) 138–9.
65
El-sharawy (n 60) 17–18.
66
Weeramantry (n 49) 139.
67
El-sharawy (n 60) 17–18.

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Rules on the consequences of war 191

4.1.4 Contemporary International Law

Plunder was, until recently, an accepted element of war history every-

where in the world,68 and was even a competition for some. For example,
in China, ‘England and France, came to compete over the “spoils of war.”
By 1858, British and French forces had occupied Canton, and trading
concessions were forced on the emperor.’69
International law recognized the taking of booty as a right as late as
the beginning of the twentieth century. This was true even in the Hague
Convention of 1907. It was only then that the world started to impose
some legal limitations on booty.70 Nevertheless, in practice looting
continued to exist even after that.71 In fact, as late as 2011, France and
the UK along with other participants in the Libyan campaign were
promised a large share of Libyan assets when the war was over.72
However, neo-booty type deals are hard to trace and illegalize, as they
can be as legal as franchises and contractual privileges. Even without the
need to resort to war, contemporary Western international law is unable
to restrict the practice of economic coercion, as some powerful states still
use it to persue their interests.73 This I describe as neo-booty.
As for the treatment of the captured, it is known to all that prior to the
Geneva Conventions it was not much different from that of the Middle
Ages. Nevertheless, it is not important to probe this any further in this
study.

4.2 PERCEPTION OF SPOILS OF WAR

From the above, it appears that to Al-Shaybani spoils of war must have
been a tangible reality of a practice that was inevitably wide and

68
Elizabeth Simpson (ed.), The Spoils of War: World War II and Its
Aftermath: The Loss, Reappearance, and Recovery of Cultural Property (Harry
N. Abrams in association with the Bard Graduate Center for Studies in the
Decorative Arts 1997) 34–36.
69
Ibid 36.
70
Ibid 38.
71
Ibid.
72
Julian Borger and Terry Macalister, ‘The Race Is on for Libya’s Oil, with
Britain and France Both Staking a Claim’ (the Guardian, 1 September 2011)
<http://www.theguardian.com/world/2011/sep/01/libya-oil> (accessed 22 January
2018).
73
Omer Yousif Elagab, The Legality of Non-Forcible Counter-Measures in
International Law (Clarendon Press; Oxford University Press 1988) 207–208.

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192 Islamic international law

unavoidable. Yet, he did, as we shall see, attempt to limit, delimit and

organize this practice and humanize it.
Most rules adopted by Al-Shaybani were applicable to both his
compatriots as well as others. For example, throughout his writings on
spoils of war, Al-Shaybani maintained that when an enemy acquires
booty from dar-al-Islam and flees to his abode, then the owners of that
property will lose title to it and it will be owned by the enemy once they
have crossed the borders. This is to say that he did not endorse the
practice while prohibiting acts which were not in favour of his compatri-
ots; he rather endorsed the system as it was or not. When he tried to
introduce changes to some of these systems, it is evident that people from
his country as well as foreign and even enemy parties would benefit from
the changes. In fact, in many cases the only party benefiting from these
changes was the other party. For example, he addresses prohibiting the
mistreatment of prisoners of war.74 This inevitably is something for
the enemy to benefit from and it is unlikely that his people captured by
enemy would benefit from it in that age.
A common ground between Augustine, Al-Shaybani, Gratian, Aquinas,
Vitoria and Grotius is found in this area. None of them attempted to
prohibit the taking of booty. However, they all seem to abhor wars for no
reason other than the taking of booty. For example, Augustine stresses:
‘[t]o make war upon our neighbours, and hence to advance against
others, and from the mere lust of ruling to crush people who have not
troubled us, what must we call this but wholesale robbery?’75 On the
other hand, Vitoria added that ‘others could not be robbed of their
property, either as private citizens or as princes, on the ground that they
were not true masters (ueri domini)’.76 This opinion, as it seems, washed
away an old and commonly held notion in Europe that allows the
plundering of others who were perceived as ‘barbarians’ or unworthy of
ruling themselves.
Nevertheless, all of them share another belief, which is that if war was
justified (in their eyes) then so was despoiling the enemy. However, the
distinction between them comes in two parts; first, it appears, as we have
seen earlier, in their description of justified wars, for they differ from one
another on this. They also differ on the allowable extent of despoiling and
how to distribute the spoils of war. For example, to Aquinas, as long as war

74
See the section on prisoners of war next.
75
Grotius, The Law of War and Peace (n 5) 548.
76
Dyson (n 44) 251.

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Rules on the consequences of war 193

is waged according to his criteria of ‘just war’ (authority, just cause and
intention), then all acts of plunder will be lawful. Therefore, to him:
a prince who rightfully used coercion and violence against his enemies was
allowed to retain his plunder, which was not considered rapine, but when a
public official unjustly confiscated property, the confiscation was illicit and
the official was bound to restore it. This view confirmed the logical valid
position that the prime element in determining the status of expropriated
property was the justice of the underlying cause for the act of expropriation
rather than the act itself.77

Thus, war for booty is unacceptable to all of them but booty of war was
a natural legal consequence of war. The real test then is to find out who,
if any, did try to limit, restrain, restrict or humanize the practice of booty
taking in a ‘legally’ waged war.
While the treatment of Augustine, Gratian and Aquinas was more a
matter of brief references rather than discussing rules, Al-Shaybani,
Grotius and Vitoria have, in contrast, focused quite heavily on property
and appropriation, and when it is legal to acquire the properties and
assets of others in war and when it is not. They have also focused on the
distribution of such properties once acquired. This is a vital and
important subject, for property in all of their times and indeed in ours
was and remains a main driver of the greed which led to many horrific
wars. They all took the view that once something is captured, it becomes
the property of the captor. In fact, it seems that Vitoria was then right in
saying that, ‘it is a universal rule of the law of nations that whatever is
captured in war becomes the property of the conqueror’.78
If this is so, when does despoiling become licit? In this, they vary. To
begin with, those who subscribed to just war theory have justified such
practice only when war is justified according to their theory. Al-Shaybani
also prohibits the despoiling of others in an unlawful war and would
support ordering compensation for such acts. The main difference
between Al-Shaybani and others is the perception of war (justified wars).
Except for Al-Shaybani, they all see war as a tool for justice and as a
punishment for wrongdoing. Thus, they went so far as to allow system-
atic despoiling whereby the total loss caused by the wrong justifying the
war and the cost of war are redeemed. The sole judge on how extensively
and in what manner to carry out such an act is the prince carrying out the

77
Russell (n 4) 277–8.
78
Francisco de Vitoria, De Indis De Ivre Belli Relectiones, Text of 1696
(Ernest Nys ed., John Pawley Bate tr., The Carnegie Institution of Washington
1917) 155 (emphasis added).

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194 Islamic international law

just war. This is what we find even in the opinion of the most lenient of
them, Vitoria. ‘There is no doubt,’ he said, ‘that everything captured in a just
war vests in the seizor up to the amount which provides satisfaction for
the things that have been wrongfully seized and which covers expenses
also.’79 Moreover, ‘[a]ll movables vest in the seizor by the law of nations,
even if in amount they exceed what will compensate for damages
sustained.’80 In fact, this attitude led Vitoria to go so far as to state that:
[i]t is certainly lawful to despoil the innocent of goods and things which the
enemy would use against us, such as arms, ships, and engines of war. This is
clear, because otherwise we would not gain the victory, which is the aim of
war. Nay it is also lawful to take the money of the innocent and to burn and
destroy their grain and kill their horses, if this is requisite in order to sap the
enemy’s strength. Hence follows the corollary that if the war goes on for an
indefinitely long time it is lawful utterly to despoil all enemy-subjects, guilty
and guiltless alike, for it is from their resources that the enemy is feeding an
unjust war, and, on the other hand, his strength is sapped by this spoliation of
his citizens.81

However, an indirect link between these thoughts and Al-Shaybani is

found in Deuteronomy 20, where it says: ‘[a]ll the spoil thereof thou
shalt divide with the army and thou shalt eat of the spoil of thine
enemies.’82 Al-Shaybani’s treatment was in line with this passage and
also was not against despoiling the enemy in a licit war. Meanwhile, this
Deuteronomy verse is commonly cited by the Western scholars consid-
ered in this study. Al-Shaybani differs by the fact that nowhere in his
hypotheses do we find any traces of allowing war as a punishment or
even punishment by war. Moreover, he did not support the view that war
expenses must be compensated by despoiling, for he supports war only
for the sake of fulfilling a legal duty and the expenses are covered by
both the fighters voluntarily and the state.
Consequently, the treatment of the captured in a war that is considered
to be a punishment would not naturally result in good treatment of a
prisoner of war. Meanwhile, as Al-Shaybani is completely against
considering war as a punishment, he was not in favour of mistreating the
captured in any case. In fact, Al-Shaybani, as did Abu-Hanifa and other
Siyar scholars before him, supported the humane treatment of prisoners
and quoted the Messenger of Islam ordering such treatment repeatedly.

79
Ibid 184.
80
Ibid.
81
Ibid 186.
82
Ibid 184.

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Rules on the consequences of war 195

All things said, what we find in Al-Shaybani’s work is an unheard of

attempt to abolish the practice of not only killing but also even enslaving
the captured. This is because, as we shall see later, he introduced a
scheme whereby states could agree to suspend one practice or another.
Thus, his intention was to mitigate the horrors of wars and their
consequences permanently. Al-Shaybani was dealing with spoils of war
as an inevitable practice, rather than a matter of preference.

4.3 AL-SHAYBANI AND PRISONERS OF WAR

Al-Shaybani dealt comprehensively with topics such as testimony, inher-
itance and criminal regulations applicable to captured people in wars. For
example, in some cases the testimony of a captured person will not be
accepted in court, as he does not have the required free will to testify or
be a witness in court.83 This is because it would be unfair to accept
testimony from someone who is not free and whose opinion might easily
be influenced and affected by others. Nevertheless, here I shall focus
only on the major issues relating to the fate of prisoners of war in
Al-Shaybani’s work. Thus, I shall discuss the possible ways that the
authority84 is authorized by law to deal with captured persons. These are
mainly: execution (subject to limitations), benevolent freeing, distribution
or ransom. The other case is when they become ahil-dimah (non-Muslim
subjects of the state). I shall explain the main elements of these cases
next. However, before I do that, I shall examine Al-Shaybani’s idea of
abolishing many of the cruelties of the time.

4.3.1 Abolition of Capturing and Killing

One would struggle to find elsewhere Al-Shaybani’s suggestion on

prohibiting killing as well as enslaving captured people. This is when the
warring states have concluded a deal that requires the parties to abstain
from capture during wars. Al-Shaybani inventively suggested that ‘if they
put forward the condition that we do not capture any amongst them, then

83
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-
Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi],
vol 3 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 1149.
84
According to Al-Shaybani, the authority will decide on their fate.

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196 Islamic international law

we must neither capture nor kill them’.85 However, why did he require
that they must not be killed while the agreement was only to prevent their
capturing? Al-Sarakhsi explains that ‘this is because killing is harsher
then capturing’.86 He added that the intention behind this condition must
have covered both capturing and killing. Al-Shaybani proceeded to say
that one could never kill or capture except if the other had violated the
agreement by killing or capturing his people after they had promised
abstention from such actions.87
This sort of agreement endorsed by Al-Shaybani to be both allowed
and interpreted in favour of the other party and in favour of good faith
and humanity is a sign that he was willing to mitigate the horrors of
war and its consequences. For he not only established this idea, but also
encouraged interpretation of such treaties in favour of humanitarianism
and better treatment of enemy personnel.
His reliance on al’aqid shari’at almuta’aqedyan or its sister idea pacta
sunt servanda, as it is known in Western legal systems, is apparent in his
approach. For he proposed that such a condition in a treaty is both
possible and must be taken with good faith. The fact that Al-Shaybani
had such an idea in the eighth century is astounding, given that the
abolition of slavery by an international treaty was only achieved more
than 1,000 years after his death.88

4.3.2 Execution

In this regard, I will discuss three main points: first, the right to execute
captured persons, second, limitations on the right and third, exceptions.

The right to execute captured enemy personnel

Al-Shaybani took the view that the authority ‘has the choice with regard
to captured men’.89 Women and children seem to have no place in this.

85
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-
Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi],
vol 1 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 303.
86
Ibid.
87
Ibid.
88
For example, it was only in 1956 that the world came to implement what
Al-Shaybani had suggested in the eighth century AD. The United Nations 1956
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery was the first internationally recog-
nized treaty on this issue.
89
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1024.

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Rules on the consequences of war 197

This is natural as it fits with the general rule prohibiting the killing of
women and children even during war. In fact, as we have seen in the
previous chapter, if war ends and victory has been declared, women,
children and elders cannot be killed even if they had taken part in the fight.
Al-Shaybani showed that whether the imam has a right to execute
captured men or not is subject to disagreement among Siyar scholars. Yet
Al-Shaybani thinks that the imam has the choice and can either execute
or distribute (as spoils of war) the captured.90 According to him, both
Al-Hassan91 and Hammed Ibn Abi-Suliman used to detest the killing of
the captured if war is over. They relied on the Qura’anic verse: ‘And fight
in the way of Allah with those who fight with you.’92 This need to fight,
stated in the verse, does not exist when the war has ended and men are
captured. They also relied on the practice of Omar, the Caliph who
refused to kill a chained captured man who was sent to him.93 Moreover,
God, in the Qura’an, says: ‘[s]o when you meet in battle those who
disbelieve, then smite the necks until when you have overcome them,
then make [them] prisoners, and afterwards either set them free as a
favour or let them ransom [themselves] until the war terminates.’94
Nevertheless, Al-Shaybani argues that there is another Qura’anic verse
that had abrogated (repealed) this verse. That verse says: ‘slay the
idolaters wherever you find them’95 and he further argues that the action
of rejecting execution of the captured man by the Caliph Omar was due
to the fact that the man was chained and not because he was captured
after the war was over.96 Thus, in Al-Shaybani’s view, unless unchaining
the captured was dangerous or it might cause him to escape, he should
not be executed with chains on his hands.97 In addition, he supports his
argument by recalling the story of Banu-Quraidah when ‘the Prophet
ordered the execution of the captured men after the war has ended’.98

90
Ibid.
91
Probably referring to Al-Hassan Al-Basri, a very renowned scholar of Iraq.
92
Shakir, M. H. (tr.), Holy Qur’an = Al-Qur’ān Al-Ḥakīm (1st US ed.,
Tahrike Tarsile Qur’an 1982) 2/191.
93
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1024.
94
Shakir (n 92) 47/4.
95
Ibid 9/5.
96
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1026.
97
Ibid.
98
Banu-Kuraidah, breaching the constitution of Al-Madenah and violating
their covenant sided with the attackers from Mecca. Immediately after the war
ended, the prophet sieged the treasonous tribe until they came to terms. They
accepted an independent judge, who then decreed that there was a treason
therefore the men of combatant age should be executed and their women and

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198 Islamic international law

However, this claim is weak. Banu-Quraidah, in breach of the Pact of

Al-Madenah, sided with the attackers from Mecca. Immediately after the
war ended, the Prophet besieged the treasonous tribe until they came to
terms and agreed to open their fort under the condition that an independ-
ent judge was assigned to judge between them. They accepted a certain
independent judge who then decreed that they had committed treason;
therefore, their men were to be executed.99 It is hard to see the link
between killing captured men and the execution of those guilty of treason
according to an independent court’s decree. Therefore, Al-Shaybani’s
reliance on this case to support his argument is misplaced.
In comparison, Vitoria took a view close to Al-Shaybani’s on this
issue. For he stated that:
speaking absolutely, there is nothing to prevent the killing of those who have
surrendered or been captured in a just war so long as abstract equity is
observed. Many of the rules of war have, however, been fashioned by the law
of nations, and it seems to be received in the use and custom of war that
captives, after victory has been won (unless perchance they have been routed)
and all danger is over, are not to be killed, and the law of nations must be
respected, as is the wont among good people.100

Nevertheless, Vitoria then follows this by stating that sometimes a

surrender comes after a granting of promises or guarantees for the safety
of its people, but he says that ‘it does not seem unjust that, if a city
capitulates without taking any such precautions, the more notorious
offenders should be put to death on the order of the prince or a judge’.101
Vitoria’s opinion on the matter regarding executing the captured or the
surrendered is very close to that of Al-Shaybani, for he too took the view
that whenever a guarantee of life is given, it must be respected.
Nevertheless, the qualifications Vitoria makes must be read carefully, for,
contrary to how it would at first seem, he permits the execution of all but
with some exceptions. For example, he asserts that:

[i]f the hostages are in other respects among the guilty, as, for instance,
because they have borne arms, they may rightfully be killed in that case; if,

children taken captives. Zakaria Bashier, War and Peace in the Life of the
Prophet Muhammad (Peace Be Upon Him) (Islamic Foundation 2006) 158–65.
99
Abd-al-Aẓīm al-Ǧanzūrī and Abd-al-Aẓīm Ǧanzūrī, Mabādiʾ al-qānūn
ad-duwalī al-islāmī wa-’l-qānūn ad-duwalī al-āmm [The Principles of Islamic
International Relations and Contemporary International Relations] (Ṭaba 1,
Maktabat al-slāt al-Ḥadīṯa 1992) 679.
100
Vitoria (n 78) 183.
101
Ibid 183–4.

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Rules on the consequences of war 199

however, they are innocent, as, for instance, if they be children or women or
other innocent folk, it is obvious from what has been said about that they
cannot be killed.102

This opinion echoes that of Al-Shaybani, who as we have seen prohibits

the killing of women, children and other categories of persons. However,
this qualification (guilty and guiltless) deserves closer examination with
regard to the specific rules Vitoria set out. For he says: ‘[a]ll guilty could
be killed even after victory is secured.’ ‘Even when victory has been won
and no danger remains, it is lawful to kill the guilty.’103 This is
presumably because, to Vitoria, war is not only to recover loss but also to
avenge wrongs and inflict punishment on the enemy. Thus, he leaves it to
the prince to decide the fate of prisoners based on the damage being
avenged.104 The only difference between this and Al-Shaybani’s view is
the language. One begins with the exception and then discusses the rule
whereas the other delivered his opinion by employing the opposite
method. However, interestingly, leaving the fate of prisoners in the hands
of the prince is an idea that we struggle to see in Europe before Vitoria.
Nevertheless, Vitoria makes remarks such as: ‘[a]t times it is both lawful
and expedient to kill all the guilty, especially in a war against unbeliev-
ers.’105 This, however, is not allowed against Christians. The reason why it
should be the case with unbelievers, says Vitoria, is that ‘it is useless ever to
hope for a just peace on any terms’. Thus, and since peace and security are
the aim of the war, ‘the only remedy is to destroy all of them who can bear
arms against us, provided106 they have already been at fault’.107 Thus, Vito-
ria went so far as to allow the killing of all, including women children,
and the destruction of everything, including that owned by innocent
parties. This is something with which Al-Shaybani would disagree.
Grotius took a similar view to Vitoria on this – in fact, more similar than to
Al-Shaybani. For to Grotius, even non-combatants ‘may all be taken prison-
ers, and any prisoner, including women and children, may be killed’.108
Even the exception I found in the work of both Al-Shaybani and Vitoria, who
were against the killing of the surrendered if they did so after a promise of

102
Ibid 181–2.
103
Ibid 182.
104
Ibid 182–3.
105
Ibid 164.
106
Spelling mistake corrected.
107
Vitoria (n 78) 183.
108
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 48) 223 (footnotes omitted).

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200 Islamic international law

safety, is not found in Grotius. All he had to say about this was that ‘the
putting to death of those who had surrendered was sometimes lawful’.109
Nevertheless, Al-Shaybani did make it clear that no prisoner shall be
killed if killing prisoners is in violation of an existing treaty.110 In
addition, execution is only one of the options available to leaders who
may well have been given such power to prevent other states from killing
their prisoners by threatening that theirs would be killed. Where other
states do kill one’s war prisoners, then the leader of the state can use his
right to execute the subjects of that state captured in the same war in
retaliation. Nevertheless, the first assumption that this right in the hands
of leaders is a tool for preventing others from executing Muslim
prisoners is likely to underlie it. This is because in Islamic law, no person
should be killed due to the crime of another.
On the other hand, the captured are an exception in the ghanimah,
possibly for the first time in history,111 in that only the authority could
decide on their fate.112 If the imam decides to execute them using the
controversial right, which he has according to Al-Shaybani, then so be it.
However, although the imam has the choice to execute captured men,
many scholars asserted that executing prisoners of war is a repugnant
act.113 Moreover, even the scholars who think that the imam has this right
do not say that it is a rule that the imam must follow, but they all say it
is merely a choice that he has.

Limitation on the right to execute captured men

Execution is a right given only to the authority; individuals must hand
over all men they capture to it first. Nevertheless, Al-Shaybani further
ruled that if a captured man who has not accepted Islam, and was not
sold or distributed between fighters is killed by the capturer, the latter
should bear no criminal responsibility. This is because he has killed a
man whose killing does not constitute a punishable crime in itself. This
act is makrooh, which is detested by religion but not punishable. It is

109
Grotius, The Law of War and Peace (n 5) 826.
110
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 85) 203–303 and 1024.
111
It is difficult to see such separation between war booty and captured
persons in any of the Western writings throughout the Middle Ages. Al-Shaybani
did separate between them in his writing by dedicating separate chapters to them,
as we can perceive from Al-Sarakhsi’s book, and he did separate between them
by giving them different rules from those of general spoils of war.
112
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1026–1027.
113
Ibid 1024.

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Rules on the consequences of war 201

likened to the case when somebody bears no responsibility for killing a

man who was ordered to be executed by a court.114
Gratian did not discuss these matters in as much detail as Al-Shaybani.
Yet he explained that if a soldier killed a man in war or killed a culprit of a
crime, then he is not guilty of murder. However, Gratian would no doubt
approve of Al-Shaybani’s opinion on this matter. This is because in his
writings there are ‘several passages that could be interpreted as justifying
killing without any express command of superior authority. Thus men did
act as avengers of divine wrath and ministers of God when they killed
evil-doers, and slayers of excommunicated persons were not guilty of
murder.’115 As we have noticed in Augustine’s writings, to Gratian too it
seems that misdeeds and transgressions of moral laws or Church doctrine
are attributors of guilt. Moreover, as mentioned in the preceding chapter, for
Augustine, ‘[m]otivated by a righteous wrath, the just war warrior could kill
with impunity even those who were morally innocent’.116 To St Aquinas
too, it was acceptable to kill with impunity even an innocent man if directed
by the ‘ultimate authority of a divine mandate’.117 Thus, killing a prisoner
who was caught while fighting against oneself is apparently justifiable in
Aquinas’s view. Meanwhile, I have already shown that to Al-Shaybani,
individuals are not permitted to kill their captives unless they try to rebel or
escape. Somewhat similar to this is the statement of Augustine that ‘vio-
lence is used towards him who resist, so mercy is due to the vanquished or
the captive, especially in the case in which further troubling of the peace is
not to be feared’.118 In contrast, the only limitation Grotius mentioned
regarding the execution of prisoners (and only according to jus gentium) is
that ‘prisoners may not be put to death by poison’.119
Furthermore, in any case, according to Al-Shaybani, if the authority
decided to execute captives it is not permitted to torture or treat them
inhumanely.120 Even the execution, if decided upon, must be done with
no cruelty or mistreatment.

114
Ibid 1027.
115
Russell (n 4) 69 (footnotes omitted).
116
Ibid 19–20.
117
Ibid 283.
118
Dino Bigongiari, The Political Writings of St. Augustine (Henry Paolucci
tr., Regnery Gateway 1962) 183.
119
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 48) 224 (footnotes omitted).
120
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1024, 1029.

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202 Islamic international law

Exceptions to the right to execute

There are many exceptions to the right of the authority to execute
prisoners, even if they deem it beneficial for the state. In many cases, this
right is withdrawn from the authority. For example, this might be the case
if there is an agreement according to which no party has the right to
execute prisoners, or when the whole town is conquered and becomes
part of the conquering state. In addition, there are some other obvious
exceptions such as the prohibition on the killing of women and children
and other cases where execution is not permitted. For example, when the
captive is a musta’aman121 who was lost during the war in dar-al-harb
and then captured by dar-al-Islam’s army. These cases and others will be
discussed in the following:

1. The existence of an agreement between the capturing state and the

prisoners’ state prohibiting the act. I have already discussed this
agreement above.122 What might have led Al-Shaybani to grant this
right to the authority is likely to be both precaution and reciprocity.
Precaution because it would prevent the prisoners from rejoining
their army, and reciprocity because no one in the Middle Ages
could see his enemy abstaining from killing prisoners, thus it was
reciprocity that could have dictated that the authority should be
given the choice to execute.
2. When a part of the enemy land is conquered, the imam has the
choice to distribute the assets and its people between the fighters
after removing one fifth. Alternatively, he can let its people live
peacefully under the rule of the Muslim State and pay kharaj (tax).
In this case, they would not be asked to perform any worshipping
acts of Islam and they will keep their own faith under the rules of
an Islamic ruler. If the people of this town accept Islam, they shall
all be set free.123 This and the fact that when the whole town
becomes part of the state after the war, execution is not an option,
signify the following assumption: the authority has the choice of
executing prisoners as they might deem that keeping them alive
would be a danger, either by revolting if they are distributed among
the fighters or by fleeing and returning to their homes to fight again.
This possibility is not available if their whole town is conquered.
3. We have already seen that women, children, insane people and elders

121
Person[s] granted ama’an.
122
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 85) 303.
123
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1039–40.

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Rules on the consequences of war 203

are not to be killed even in times of war;124 therefore, understandably

they should not be executed once captured after the war has ended.
4. Another exception is if any captured man embraces Islam, then the
imam will not have the choice of executing him. Nevertheless,
although by accepting Islam the captured cannot be executed, he
will still be considered part of the ghanimah.125
5. If a musta’aman was accompanying Muslims in dar-al-harb and he
was lost to be found among the captured by a Muslim army, he
should not then be executed. The reason is that his ama’an is still
valid and he was only lost during war and he has not committed
any act to invalidate his ama’an contract. Thus, as musta’aman he
cannot be killed without a deserving crime.126
6. Furthermore, in all cases when captives are sold or distributed, their
killing becomes prohibited and even the imam loses the right to
execute them. Hence, if one of them is killed afterwards, the killer
would have to offer expiation to God127 and pay blood money.128

Such exceptions are not present in the writings of Augustine, Gratian or

even Aquinas. Even Grotius offered no clemency in such cases, nor did
he address the matter in any depth. Vitoria did, however, address the issue
in some detail, as shown above.

4.3.3 Distribution

To execute the captured is one of many options the authority has, and
there is no single preferred option. However, execution is prohibited in
some cases as we have seen above and it is considered to be ‘detested’ by
many scholars in all cases. The authority thus has many other options,
one of which is to distribute them.129
By distribution (a term used by Al-Shaybani), I mean distributing the
spoils of war between the fighters on one hand and the public depository
on the other. With regard to captives, this is no different a term from the
term enslavement as far as the legal meaning is concerned. However, the
usage of this term is very important due to two facts. First, Al-Shaybani

124
Ibid 1415.
125
Ibid 1026–1027.
126
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 85) 457–8.
127
An act commanded by God as a precondition for asking for forgiveness
by a sin committer.
128
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1028.
129
Ibid 1024–1041.

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204 Islamic international law

used it. Thus, we must be conscious of the original meaning in his

thought. Second, I use this term to indicate that the enslavement widely
practised then was very different from that advocated in Al-Shaybani’s
book. When a person was enslaved elsewhere, the standard practice then,
it could mean that the methods of enslavement are unlimited and the type
of enslavement is normally inhumane and entails brutal treatment of
slaves, as we have seen above. However, when a person is distributed in
accordance with the rules set out by Al-Shaybani, they could only be
captives and their status, ‘rights’130 and treatment were very different
from those of the then conventional slavery.
It should be noted, however, that where an agreement existed between
the warring parties that no captives should be taken, this will cease to be
an option and they must be released. If the authority decides to distribute
the captives, then the general rules of ghanimah apply to the distribu-
tion.131 However, there are some exceptions to these rules. For example,
in the above cases, there shall be no separation of a mother and her child.
This is to say that when captured enemy women and children are
distributed, children should always be kept with their mothers.132 More-
over, Al-Shaybani went into detail on rules for dealing with them.133
Furthermore, according to Al-Shaybani, if a town or a city is con-
quered, the authority (as mentioned above) has the choice to:

1. distribute its people among the fighters after removing one fifth for
the public treasury; and
2. let its people pay kharaj and live peacefully under the rule of Islam.
In this event, they will have their own faith under the rule of an
Islamic ruler. If the people of this city freely accept Islam, they
shall be set free.

Vitoria also held a similar view. While he points out the obvious danger
in leaving a city in the hands of troops which may result in looting,
torture and the slaughter of innocent people, rape and many other types

130
Under Siyar, a slave has obtained more rights than elsewhere. Slaves had
the right to be treated as human beings with dignity, the right to food and shelter
as good as their masters have for themselves, and many other rights that they
never had before.
131
Normally one-fifth will be the lot of the public treasury and the rest shall
be divided between the fighters. In this division, no child shall be separated from
his or her mother.
132
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1040.
133
These rules start with the way a person should refer to his servant and go on
to the rules and regulations one should follow to free, employ and marry them.

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Rules on the consequences of war 205

of atrocities, Vitoria thinks that if ‘necessary’, it is not unlawful to ‘leave

a city to the soldiery by way of booty, even if it be likely that the troops
will perpetrate foul and misdeeds of this kind, which their generals are
none the less bound to forbid and, as far as they can, to prevent’.134
The only exception to the general practice in the medieval West, as
explained above, was when ‘the church had prohibited the enslavement
of Christians’.135 Even later, Vitoria took the view that ‘Christians do not
become slaves in rights of war, this enslaving is not lawful in a war
between Christians’.136 This is comparable to the rule of Al-Shaybani that
Muslims will not be considered slaves even if they were captured and
transferred to enemy territory. On the other hand, unlike Al-Shaybani, St
Augustine, Gratian and Aquinas did very little to tame the treatment of
slaves and there is no mention of any attempt to limit enslavement
practices by them. For example, Gratian merely stated that once victory
is achieved, captives must be dealt with mercifully.137
Moreover, in light of Aristotle’s teachings, Aquinas discussed the issue
of enslaving the captured. First, he explained:
the notion that the enslavement of war prisoners was not abstractly just but
only just according to human convention. He then attempted to explain what
he took to be Aristotle’s position, that since it was unjust for wise men to be
ruled by fools, slavery of the vanquished to the victors was justified according
to the convenience of human life. The lure of taking captives incited warriors
to more strenuous fighting that in turn served to avoid the greater evil of
putting captives to death.138

This last part is similar to the Islamic view prevailing then, as the
comparison was not between freedom and enslavement; rather it was
between enslavement and death. Thus, Hamzah Abu-Faris adds that
enslavement in past Islamic practice encompassed better treatment than
Abu Ghraib and Guantanamo prisoner treatment in the twenty-first
century.139 If this is the case in comparison to prisoner treatment today,
enslavement was certainly better than death. Moreover, if captives are
enslaved, they could still be sold back to their country or family or could
even buy themselves out of slavery and set themselves free. However, if

134
Vitoria (n 78) 185.
135
Russell (n 4) 279.
136
Vitoria (n 78) 181.
137
Russell (n 4) 61.
138
Ibid 279.
139
Interview with Hamzah Abu-Fars (March 2010).

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206 Islamic international law

this channel in that age was not available, there would have been no other
option but death for captives in that time.
Nevertheless, in answering the question whether or not the children of
noblemen who were captured and enslaved become slaves, Aquinas
answered that enslavement of nobles was unbefitting of their rank and
concluded that only barbarians could be enslaved after capture in war.140
This is where Al-Shaybani would strongly disagree with Aquinas. The
differentiation between people on the basis of nobility or race, family or any
other class reference before the law is absent from Al-Shaybani’s work.
Aquinas did not resolve the issue of whether or not people captured in
an unjust war can be enslaved.141 However, this issue did not escape the
attention of Al-Shaybani. For example, he detailed the rules governing
what is considered spoils of war and what is not when subjects arriving
from enemy lands do make claims.142 Nevertheless, Aquinas’s treatment
here, scanty as it was, ‘must be considered as an interpretation of
Aristotle rather than his own opinion’.143 However, his discussion of the
issue of slavery is indeed far from being inconclusive.144 As for Grotius,
he only made generic references to the subject such as his statement: ‘a
conquered enemy becomes the slave of the victor, who has powers of life
and death over him.’145 In fact, the treatment of slaves in the age of
Grotius seems to have been the same as that of earlier times.

4.3.4 Benevolent Freeing of Prisoners

The authority has the right to free prisoners both in return for something
and gratis. The relevant authority, whether the army commander in some
cases or the leader of the state in all cases, could offer the captives the
option of completing a certain job in exchange for their release. In this
case, the agreement, if the prisoners accept the offer, will be law. Thus, if
the prisoner fulfils the contract, then he shall be set free.146

140
Russell (n 4) 279.
141
Ibid.
142
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-
Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi],
vol 4 (Salah Al-Deen Al-Munajjid ed, Ma’had Al-Makhtu’tat 1971) 1501.
143
Russell (n 4) 279.
144
Ibid.
145
Johnson, Ideology, Reason, and the Limitation of War: Religious and
Secular Concepts 1200–1740 (n 225) 224.
146
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir

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Rules on the consequences of war 207

Nevertheless, the authority, according to Al-Shaybani, has the right

to free prisoners of war gratis. In this case, the prisoners will not have to
offer anything in return for their freedom, nor will they have to do
anything to obtain this offer. This was clearly taken from the practice of
the Messenger Mohammad, as Al-Shaybani quotes some of his practices
in this regard.147

4.3.5 Ransom

While, the authority also has the choice to gratuitously free captured
men, it is important that it verifies the possibility of whether the freed
men are likely to rejoin the enemy’s army before taking such a
decision.148 Meanwhile, even if such a possibility exists, the authority
still can ransom prisoners.149
Interestingly, in A Concise History of the Law of Nations, Nussbaum
asserts that the first reported instance of international ransoming between
the Eastern Roman Empire and the Muslim State was reported as an Islamic
international law rule. This was a treaty between Harun Ar-Rashid (to
whom Al-Shaybani was an advisor on international legal matters) and
Emperor Nicephorus in 804. Thus Nussbaum comments: ‘[o]ne remarkable
feature, apparently of Arabic150 origin, was the large-scale exchange and
ransoming of prisoners; the treaty of 804 between the Caliph Harun
al-Rashid of Bagdad and the Emperor Nicephorus is an instance of this.’151
In addition, even at later stages of the Middle Ages, when the West
started to practise ransom, it was mainly princes or knights who could be
ransomed, and ‘the right to ransom was often reserved to the king’.152
On the other hand, Al-Shaybani did not oppose paying money in
ransom to release subjects captured by the enemy.153
There are some exceptions to the right of the authority to ransom
prisoners. For example, if the foreign party requested handing over one
of its subjects residing in dar-al-Islam under ama’an, the imam is not

Li-Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad

Al-Sarakhsi], vol 2 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat
1971) 777–80.
147
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1031–2.
148
Ibid 1024–1041.
149
Ibid.
150
It is common among Western scholars not to differentiate between what is
Arabic and what is Islamic. The author here wrote Arabic but meant Islamic.
151
Nussbaum (n 20) 47.
152
Ibid 27.
153
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 142) 1590–96.

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208 Islamic international law

allowed to hand this individual over even to his own country without his
consent. This is because, under ama’an, he has become a protectorate of
the state and he cannot be paid as ransom even to his own country unless
he has wilfully accepted so. This is even stricter if returning him to his
country will be a danger to his own life. This should also be the case
even if his country threatened to wage war against the state protecting
him because he is not handed over.154

4.3.6 Becoming Subjects of the State

War prisoners according to Al-Shaybani can become subjects of the state

and they will then enjoy full protection of the law. A prisoner of war
could become a subject of the state and enjoy such protection through
more than one avenue. They can do so either by becoming Muslims or by
becoming ahl-dimah.
As mentioned above, once the captured voluntarily accepts Islam as his
faith he then becomes a subject of the Muslim State and enjoys its full
protection, and cannot be returned to his original state without his
consent. We have also seen that in some cases, even a non-Muslim could
become subject to the state by becoming dhimmi.155 This is in the case
above when a whole town was captured and its entire population were
rendered subjects of the state.
In the last case, they will be allowed to keep their own religion, practising
their religious rites so long as these do not affect others, and they will not be
asked to discharge duties Muslims will have to carry out. Meanwhile, most
(but not all) of the rights and duties of Muslims are applicable to the dhimmi.
This is clearly demonstrated in the example that while Muslims will have
to pay zakah (obligatory charity), a dhimmi will not have to pay (except
jiziyah, which is a fixed tax rate). Meanwhile, while Muslims have the
right to be ransomed once captured by the enemy using public money,
others will not (according to Al-Shaybani). Nevertheless, they all enjoy
the full protection of both the law and the state.

154
Ibid 1612–13.
155
A member of the people of the book (e.g. Christians and Jews) living in a
Muslim state with a covenant granting him protection and obliging him to pay
poll tax and not to commit treason.

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Rules on the consequences of war 209

4.4 GHANIMAH (SPOILS OF WAR)

I shall now examine properties and possessions lost by war to the enemy
or acquired by it. This is what Al-Shaybani called ghanimah, the Arabic
word equivalent to the term ‘spoils of war’ or ‘war booty’. Yet there are
some differences, which can be inferred from the writings of Al-Shaybani
– for example, the need for it to be legal in order for it to be described as
ghanimah, along with some other conditions that I shall explain later.
Here I shall examine his writings on ghanimah in general by treating
some of the main subjects he discussed.

4.4.1 The General Rule on Spoils of War

Departing from the prevailing international practices, Al-Shaybani differen-

tiated between legal and illegal spoils of war. He went as far as to discuss the
earnings of subjects who have been abroad.156 In some cases, as will be
discussed next, their wealth might be earned by trade; and in others, they
may have accumulated it by other means, including illegal means. In each of
the mentioned or anticipated cases, there is a rule that governs the imported
money. However, it is only in some of these cases that such money might
be considered lawful spoils of war. Thus, the limitations Al-Shaybani
imposed on the practice in this area are many and I shall consider only
some of them, as his treatment of these topics was extremely detailed.
Nevertheless, although Al-Shaybani did not significantly alter the
general rule at the time, he altered its detailed rules and imposed some
conditions on its practices. One would then ask what is the position of
Al-Shaybani on acquired (occupied) lands and properties. The answer
can be summarized as follows.

Occupation of lands
Al-Shaybani discussed the rules applicable to cases when Muslims
occupied enemy lands and when enemy troops occupied Muslim lands.

1. If Muslims occupy foreign lands as a result of a justified war, then

the authority will have two choices: either to divide the new land
between the fighters and consider its people as prisoners of war,
shown above; or to confer ‘citizenship’157 where each one of them

156
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 142) 1115.
157
I am using this term here in its linguistic meaning and not connotational
meaning, as dhimmi is considered a subject of the state but has a slightly
different set of rights and duties from other subjects.

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210 Islamic international law

becomes dhimmi and they will then continue to both own and use
their land provided that they pay land tax (kharaj).158 The first
choice is still the practice today.159
2. If non-Muslims occupied Muslim lands as a result of war, in this
case, Al-Shaybani considers these lands as part of dar-al-harb,
which means that they have now become part of a foreign land and
legally owned by the enemy.

It is important to note here that such legal ownership will only take place
if the land was secured by the enemy. In other words, to Al-Shaybani,
occupation during war and occupation for short periods cannot suffice to
transfer ownership to the new possessor. Thus, Al-Sarakhsi stated that
‘mere entry of the enemy into that part should not give it the status of
dar-al-harb’.160 Therefore, Abū al-Wafā, commenting on this passage,
said that merely entering these lands does not give the enemy the right to
become the owner and does not transfer the legal status of the land from
dar-al-Islam to become part of dar-al-harb.161 Therefore, if war has not
ended and occupation was only for a short period, the land will still be
subject to the ownership of the original owner before the war started.

Acquisition of enemy movable property or chattels

1. When non-Muslims take possession of goods by force from dar-al-

Islam or from Muslims and they secure it by transferring it to
dar-al-harb, it will immediately become their legal ownership.
Thus, in order for foreigners to become the owners of goods taken
from dar-al-Islam, there are two conditions: first, that they obtained
these goods by force and not by lawful agreement, and second, that
they have secured the goods in their own country.162
2. Unlike the other case where Muslims acquire non-Muslim posses-
sions by force, there are more conditions attached in order for it to be
legally owned by the Muslim acquirer. This is the case even if he
manages to secure it in dar-al-Islam. For example, for a Muslim to be

158
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 1039–1040.
159
Aḥmad Abū al-Wafā, Kitāb Al-I‘lām Bi-Qawā‘id Al-Qānūn Al-Dawlī
Wa-Al-‘alāqāt Al-Dawlīyah Fī Sharī‘at Al-Islām [A Book of International Law
and Relations in Islamic Shari’a], vol 14 (al-Ṭab‘ah 2, Dār al-Nahḍah
al-‘Arabīyah 2007) 218.
160
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 142) 1259.
161
Abū al-Wafā (n 159) 218–19.
162
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 142) 1297.

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Rules on the consequences of war 211

able to become the owner of chattels acquired by force and secured in

dar-al-Islam, he must acquire this money while not violating any
treaties or contracts with the people from whom he acquired the money.

In this case, we can see that Al-Shaybani adopted the generally practised
rule that whatever is obtained by war is owned by the possessor once it
crosses the borders. He only restricted the practice of Muslims, as they
are required to obey Muslim law, whereas others would still practise the
customary rule of that time.

4.4.2 Spoils of War and Personal Gains

As explained above, unlike the case of foreigners acquiring chattels from

Muslims, the latter have to fulfil many more conditions in order to be
able to legally own any acquired goods. Thus I shall discuss some cases
where both officials and individuals in dar-al-harb import wealth and
when would they be considered as spoils of war and when not, as well as
when they are considered legal and when not.

International gifts
Al-Shaybani discusses communications between subjects and foreigners.
Whether it was during war or peace, the nature of the dealings is what
renders the earnings legal ‘spoils of war’. For example, he discusses the
rules that should apply when two parties from the two abodes exchange
gifts. For instance, a prince has the absolute discretion as to whether to
accept a gift from other states. This rule was inferred from the Messen-
ger’s practices in dealing with such cases. He accepted gifts when he
wished and rejected others, especially when he wanted to express his
dissatisfaction to those who were hostile to Islam and Muslims. However,
if the imam accepts such a gift, it is to be considered as fay and therefore
it should be deposited in baiet alm’al163 (the public depository). The
wisdom behind this is the fact that the gift is given to rulers out of
consideration for their position and strength as a leader of their state;
therefore, all subjects should share it with them.164
In some cases, the official or the ruler may keep the gift, either partially or
fully. If he has already sent the foreign leader a gift and received a gift from
the latter in return, he can keep it for himself so long as there is not much
difference in value between what he has given and what he has received.

163
The verbal translation of bayt al-mal is: the house of money, referring to
the department where public money was held.
164
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 142) 1237.

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212 Islamic international law

However, if the difference between the two gifts is significant and the
ruler favoured acceptance of the gift, the value of the difference has to be
paid into the public depository.165 In contrast, the ruler will have the right
to return a gift with its equivalent from the public money.166
The above case applies to all those who receive gifts because of their
positions. Nevertheless, if the gift is received by an ordinary individual
(even if he was a warrior), it should be his and he will not have to share
it with others.167

Earnings of subjects abroad

If a subject was abroad (in the dar-al-harb) as a musta’aman, he should
respect the ama’an and abstain from all evil acts in that abode. Therefore,
he will be held liable for any illegal act that he commits during his stay.
Even if he escaped dar-al-harb, in some cases, as we shall see, he would
still be held liable by the Muslim imam for what he commits in the
dar-al-harb. For example, if the Muslim musta’aman in dar-al-harb has
joined the Muslim army before returning to dar-al-Islam, his case will be
assessed while he has some wealth with him. Where he has legally
obtained this money or had it with him before entering dar-al-harb, there
is no issue.168 If when joining the Muslim army, in the above case, it was
discovered that he had extorted this money from dar-al-harb, then the
money would be considered as illegal spoils of war. Consequently, the
imam must confiscate all the extorted monies and return them. This is
because he has obtained the money through a prohibited action, which
violates the ama’an contract.

Earnings of foreigners inland

From another angle, if a musta’aman obtained the wealth from a
non-Muslim in dar-al-Islam while he was in the Muslim army, then the
imam should return all returnable objects.169 This is because when the
non-Muslim was issued with ama’an to enter dar-al-Islam, the ama’an
became effective against all Muslims and non-Muslims in dar-al-Islam.
Therefore, the imam has the right forcefully to protect the non-Muslims
under this ama’an against all ama’an breaches.170

165
Ibid 1241.
166
Ibid 1244.
167
Ibid 1240.
168
Ibid 1115.
169
Ibid 1119–20.
170
Ibid 1120.

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Rules on the consequences of war 213

The case of prisoners abroad

Al-Shaybani supposed that in the above case, the Muslim who has
brought wealth from dar-al-harb was a prisoner in the latter. In this case,
if he has entered dar-al-Islam, then all his possessions are his as he was
not a musta’aman and had no duties to abstain from his action of
collecting their wealth. As he was suppressed by them so even if he
killed or stole some of their wealth, he is not a law breaker as he was
only a captive in their hands.171 In property law, this prisoner has become
the owner of all he brought with him from the land of his imprisonment.
Therefore, if among his property was an object that had been extorted
from a Muslim in the past, the latter can only claim it back by paying for
it. This is because this object had already come under the ownership of
the extorter who possessed it in dar-al-harb before the prisoner then
extorted it; therefore, the original owner in the dar-al-Islam had lost his
title to it when it was transferred to dar-al-harb.172
It is important to note that the trend in Al-Shaybani’s legal writings has
been that the same rule applies to both Muslims and non-Muslims alike.
In the last example, we saw Al-Shaybani asserting that whatever is taken
forcefully by the non-Muslims to dar-al-harb will be owned by them at
the point of entry to the dar-al-harb. This is the same if a Muslim has
acquired booty from the dar-al-harb and crossed the borders to the abode
of Islam. This practice was in fact known before Al-Shaybani, and it
seems that it was also common in his time. This was the case even if
there was no state of war. For example, in Rome:
[t]he Roman lawyer Pomonius, in the second century AD, while conceding
that states which did not have treaties with Rome were ‘not precisely
enemies’, pointed out that certain marks of war were nonetheless present.
Specifically, if any Roman property passed into the hands of such states, then
the Roman owner would lose title to it, as in a war. Similarly, a Roman free
person who was captured by such a state became a slave.173

Yet, as I have mentioned, Al-Shaybani has introduced many rules

governing this loose practice and also many limitations and exceptions.

4.4.3 Division of Spoils of War and the Authority

The authority was given a significant role by Al-Shaybani in both storing

and transferring spoils of war and dividing them among shareholders.

171
Ibid 1122.
172
Ibid.
173
Neff (n 224) 31.

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214 Islamic international law

This was of course after paying all necessary expenses and all due
monies and payments. The public depository had the share of one-fifth of
legally obtained spoils of war.
Al-Shaybani described how to extract one fifth for the imam: the
ghanimah should first be divided into five and then the imam’s fifth
should be taken out by random selection.174 Al-Shaybani adds that it is
better to do it this way in order to avoid any hard feelings that might
occur if the imam is left to select his own fifth. He thinks that if the
imam is the one who chooses his fifth, people might think that he has
chosen the best fifth, or that he has taken more than one-fifth.175
Nevertheless, this fifth for the imam is to be divided by him among the
poor, needy and those who were prevented from receiving donations such
as those near in kin to the Prophet. It is public money and must be dealt
with as such.
It is interesting to note here that this rule of division went on to be
borrowed by and practised in the West. Thus, Nussbaum revealed that in
Islam, ‘[b]ooty had to be delivered to the authorities for distribution, the
treasury keeping one-fifth of it – a rule adopted, surprisingly enough,
by the Siete Partides of Alfonso X of Castile’.176 Elsewhere he pointed
out that in the medieval West, ‘there were indications of modern
conception which leaves the disposition of prisoners and booty to
military authorities’.177

4.5 CONCLUSION
As indicated above, writing this chapter presented two main challenges.
First, it has not been simple to select some of the main subjects that
Al-Shaybani discussed on the consequences of war. It was more difficult
to select topics within the selected main topics. In addition, I found out
that the contributions of the scholars whom I am comparing to
Al-Shaybani’s thoughts were small in comparison. Neither Augustine nor
Gratian nor even Aquinas gave us any basis for comparison with
Al-Shaybani, as they wrote little or nothing on the topics discussed in
this chapter. The only conclusion one could have here is this: in order to
see how advanced and wide-ranging Al-Shaybani’s treatment of these
topics was, it seems that we need to search elsewhere, perhaps far beyond

174
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 83) 888–9.
175
Ibid 889.
176
Nussbaum (n 20) 52 (footnotes omitted).
177
Ibid 26 (footnotes omitted).

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Rules on the consequences of war 215

the Western Middle Ages. From the writings I have examined, we can
only find a better but still inadequate comparison in the thoughts of
Vitoria and the writings of Grotius almost a millennium later than
Al-Shaybani. This chapter, thus, was bound to change, and did change,
the course of this research. This is why I had to restructure the whole
work to introduce both Vitoria and Grotius. However, while the latter two
have proven to be more concerned with topics tackled in this work than
Augustine, Gratian and Aquinas, on many occasions they remained
unable to compete with the complexity of Al-Shaybani’s legal texts and
analysis on these topics.
In Al-Shaybani’s work, I found a tremendous contribution to prevent-
ing the suffering of prisoners of war. In the context of his time,
Al-Shaybani was a pioneer in providing such a detailed and humanistic
method of dealing with prisoners of war. The closest comparison to
Al-Shaybani in this regard, it seems, was Vitoria and not Grotius. Yet, as
we have seen above, even this was not without limitations. For Vitoria,
unlike Al-Shaybani, did not set out detailed rules on all topics covered by
the latter.

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5. The law of peace

Peace, peace-making tools and conflict resolution are highly regarded
and thoroughly examined in Al-Shaybani’s writings. Although it may
seem that the largest share of Al-Siyar Al-Kabīr addresses rules govern-
ing war, the law of peace and peace-making tools have always presented
themselves clearly to the reader throughout this book. For example, the
subject of ama’an occupies a significantly large proportion of the book
and comes almost at the beginning of it after some introductory rules
about defence and war law. Al-Shaybani also dedicated a large section of
his work discussing mowada’ah, which could be translated as ‘peace
agreement’ or ‘accord of harmony’. Not only did Al-Shaybani extensively
write about peace treaties and pacts but he also dealt with treaties at
large, international trade, international taxation, rights of minorities,
cross-border marriages and divorce and many other rules governing
peaceful coexistence between different religious and international groups
and individuals.
Thus, he addressed all peace-related topics in quite a detailed manner.
For example, he ‘discusses rules relating to the interpretation of treaties,
examining among other matters rules regarding implied and express
terms’.1 Consequently, discussing such a topic in detail, I assume, will
prove to be more beneficial than discussing many main topics without
resorting to any details. For this reason, in this chapter I will discuss the
rules applicable to only some of the main peace-creating tools in his
book. Thus, I shall discuss treaty law, peace treaties, ama’an, diplomatic
law and one of the conflict resolution tools proposed by Al-Shaybani,
which is arbitration. Before that, I will, as was the case in the previous
chapters, draw attention to writings around the Middle Ages with regard
to these topics.

1
Christopher G. Weeramantry, Islamic Jurisprudence: An International
Perspective (Macmillan 1988) 140.

216

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The law of peace 217

5.1 HISTORICAL OVERVIEW

5.1.1 General History

History bears evidence of the existence of peace making attempts. Even

in the second millennium B.C. there is evidence of peace treaties, with
the most important of them being that between Rameses II of Egypt and
Hattusili II of the Hittites.2 As for the concept of peace itself, it must
have varied, as it may today, between peoples and thinkers. For instance,
peace to the Hebrews ‘meant security and for that reason the word
shalom could be a component in the name of an impregnable fortress,
Yeru’shalom, Jerusalem’.3 Meanwhile, for the Greeks peace was ‘a state
of order and coherence … [whereas] … among the Romans peace came
closer to being the absence of war’.4
In fact, sometimes we can see that peace was mainly a form of
bestowing favours by the stronger on the weaker or the loser in wars.
Thus, it is discussed by analysing good faith, promises and oaths, as
Grotius did in his famous book on The Law of War and Peace. The latter
also referred to ancient peace practices by citing quotations related to
these subjects as if peace was only either a promise or an oath that
requires the good faith of the king in order to be respected. Moreover,
Cicero, in his treatise on Duties, ‘attributed to promises such force that
he calls good faith the foundation of justice’.5 Furthermore, Grotius
stresses that the perfect promise is ‘manifested by an outward sign of
intent to confer the due right upon the other party’.6 In addition,
Eustathius the Greek, said that ‘[t]he one to whom a promise is made in
some way captures and binds the promise’.7
Even when Grotius discussed interpretation after addressing the subject
of treaties he went on to discuss the interpretation of promises as if they
were the most important aspect. Thus, he continued to stress the need for
good faith in promises (whether in treaties, contracts, or even oaths). For
example, in the part entitled Interpretations, he quoted Cicero saying: ‘In

2
Arthur Nussbaum, A Concise History of the Law of Nations, Revised Edn
(Macmillan 1954) 2.
3
Roland Herbert Bainton, Christian Attitudes toward War and Peace: A
Historical Survey and Critical Re-Evaluation (Hodder and Stoughton 1961) 17.
4
Ibid.
5
Hugo Grotius, Hugo Grotius. The Law of War and Peace: De Jure Belli
Ac Pacis Libri Tres (Francis W. Kelsey tr., Indianapolis 1925) 330.
6
Ibid 330–31.
7
Ibid 331.

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218 Islamic international law

good faith what you meant, not what you said, is to be considered’.8
Nevertheless, it is imperative to read the writings of Cicero and others in
their totality in order to obtain a full picture of their views on promises
and good faith as well as on treaties. This is because although they have
shown great support for the keeping of promises, their handling of the
details might hinder such a general statement. For example, Cicero said
that ‘promises ought not to be kept if they are of no advantage to those to
whom you have made the promise, or if they are more harmful to you
than they are advantageous to him to whom you made the promise’.9
On the other hand, it is difficult to establish the Christian perspective
of peace. This is largely because of the change of perception with the
change in time influencing different theologians who held different views
on what peace is. There is no doubt however, that the birth of Christianity
brought an unwaveringly clear pacifist approach to the world. The
teachings of Jesus as well as his early followers rejected any involvement
in war. Peace, in part, to them was the total rejection of such involve-
ment. They are likely to have thought that there is nothing in this world
worth doing violence to others for. The issue was then how to interpret
such a stance. Were Jesus and his early followers distancing themselves
from violence and war as a lesson to others on how to be more spiritual
or was it a lesson to Christian generations to come?10 Both interpretations
have succeeded in finding many supporters throughout history. For
example, we have already seen how Augustine turned the quest for peace
into a goal that can be reached by war and not by abstaining from it.11
The meaning of peace, it seems, was almost entirely different from
how it is perceived today. The absence of war is what peace meant to
many, it seems. One could infer that this was also the case up until very
recently. In addition to this, despite the existence of some (what we
would today consider as) unfriendly activities, including despoiling,
people still did not consider themselves at war with others. This would be
understandable if we could imagine the world without the United Nations
and without the contemporary international legal order. In Roman law,
for example, the principle was:
if it is considered that neither friendship nor hospitality nor any treaty for the
sake of friendship has been made with any people these are not indeed public

8
Ibid 409.
9
Ibid 328.
10
James Turner Johnson, The Quest for Peace: Three Moral Traditions in
Western Cultural History (Princeton University Press 1987) 13.
11
Grotius, The Law of War and Peace (n 5) 861.

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The law of peace 219

enemies; yet whatever has come to them from the Romans should belong to
them, and a free Roman captured by them would be a slave. The same thing,
again, would happen if any one came from them to the Romans; and in this
case also postliminy should be granted.12

Thus, we can see that in spite of activities such as despoiling and

enslaving, others were not considered enemies. At the same time, they
had no peace-making accord or agreement between them. From all of this
I can establish that the absence of war or attack made others unfit for the
title ‘enemy’, and any other activities less serious than those mentioned
in the passage above did not constitute war. Even the absence of any
peace treaty did not mean war or enemies. Thus, peace was the absence
of war in its simplest forms and this should be distinguished from peace
treaties. For being promises of peace, they do not collide with the fact
that when they do not exist, peace might still exist. Grotius recalls the
example when ‘Bocchus Sallust says: “known to us neither in peace nor in
war”. Hence the taking of plunder from barbarians was commended by
Aristotle, and in Latium the word hostis means only a stranger.’13 Thus, by
the absence of peace here, Sallust could only have meant a peace treaty.
On the other hand, speaking of the West in general, ‘there was in the
Middle Ages very little honesty in treaty matters’.14 This is probably why
different mechanisms were introduced to guarantee the fulfilment of duties.
Unlike in modern usage, ‘treaties were frequently strengthened not only by
oaths but by the pledging of places or forts or jewels or other valuable
property, and by the giving of hostages’.15 Moreover, not only hostages,
in the old ages, but ‘even life could be lawfully pledged as security’.16
As for the termination of wars, once they were started in the Middle
Ages, one could assume that it was mainly victory which would end
wars, with the victor deciding when and how to end them. Nevertheless,
Augustine seem to support surrender when in his City of God – book
eight – he stated that ‘[a]mong almost all nations this utterance of nature
has in some way been heard, that they should prefer to yield themselves
to the conquerors rather than to be exterminated with every kind of war’s
destruction’.17 However, the general feeling that one would accumulate
from readings on peace treaties of that age is that they were mainly

12
Ibid 394.
13
Ibid.
14
Nussbaum (n 2) 19.
15
Ibid 24.
16
Grotius, The Law of War and Peace (n 5) 407.
17
Ibid 262.

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220 Islamic international law

agreements of either surrender or termination of war between the stronger

and the weaker parties to war. This is what we get from Grotius’s The Law of
War and Peace, for example. This is even clearer to readers when he dis-
cusses the interpretation of peace treaties. He, thence, took the view that
as the stronger party normally dictates the terms of peace treaties, the
interpretation of words in doubt should not be in his favour.18
Elsewhere, while the Eastern Roman empire had known some sort of
limited scope of peace treaties with others such as Persia, ‘moral
insensibility and ruthlessness were conspicuous in the public life of the
Greek Empire. The unbridled power of the emperor also distorted the
concept of war.’19 However, around Arabia in that age it seems that not
only Romans but also Persians were not always true to their word when,
in some exceptional times, they signed some sorts of peace treaties.20
As with regard to refugees, the ancient Greeks knew some kind of asylum
system. However, it was neither always respected nor applied to non-
Greeks and non-allies. It was a system whereby some places were consid-
ered sacred and therefore those who sought refuge in them should be safe.21
Nevertheless, mediation and other peaceful conflict resolution tools seem
to be deeply rooted in history. Although, it was neither common practice
nor was it always successful, the Greeks, for example, knew arbitration.
However, this practice was mainly utilized between ‘peoples who looked
upon themselves as a kin’.22 Furthermore, the Romans too knew arbitration,
and in more than one form. For example, Proculus professed that:

there are two kinds of arbitrators. One is of such a sort that we ought to
render obedience, whether he is just or unjust; and this kind of arbitration, he
says, is found when the parties resort to an arbitrator under mutual promise to
abide by his decision. The other deals with matters of such a kind that they
ought to be referred to the decision of a just man.23

Arbitration was practised later among the European nations and quite
heavily in the thirteenth and fourteenth centuries.24
On another level, it seems that ambassadors and envoys appear to have
had both the attention and the support of international law authors for a
very long time. ‘Everywhere, Grotius says, we find mention of the sacred

18
Ibid 813.
19
Nussbaum (n 2) 48.
20
Ibid.
21
Ibid 7.
22
Bainton (n 3) 36.
23
Grotius, The Law of War and Peace (n 5) 823.
24
Bainton (n 3) 118.

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The law of peace 221

affairs embassies, the inviolability of ambassadors,25 the law of nations

which is to be observed with reference to ambassadors, divine and human
law, … and the sacredness of the persons of ambassadors.’26 Further-
more, Cicero stated: ‘I think that the rights of ambassadors have not only
been fortified by the protection of men, but also guarded by divine law.’27
In fact, the Romans considered ambassadors as sacred and they must not
be harmed if a war exists between them and the sender.28
Nevertheless, generally, it seems that Stephen Neff was right in describ-
ing human history around the old and Middle Ages when saying that:

[t]he idea of peace as the normal condition of human affairs was far from a
natural one. For a very long time, the prevailing view in the ancient world was
that war was simply a constant feature of the political landscape, as routine as
the coming and going of the seasons of the year.29

As we saw earlier, the Romans were the true inheritors of the Greek
conceptions of war and peace. They, at least in principle, saw others
(barbarians) as a legitimate target for warring, despoiling and enslaving.
Unfortunately, even the men most of us would regard as wise, in that age,
saw war as an accepted norm, especially against those they perceived as
barbarians or a lower class of people. This applies to Plato, Aristotle and
to many other philosophers of that age.30
Alternatively, as pointed out earlier, ‘[t]he conception that peace was
the natural condition of the world would seem to have been first
articulated in China, in the Confucian tradition.’31 This is because there
the world was seen as, ‘at least in principle, a single order society, with
the terrestrial world functioning as a sort of mirror of its heavenly
counterpart, with all of its parts in (ideally) perfect harmony’.32 For while
both the Greeks and the Romans, as I have pointed out earlier, found in
what they called barbarians a natural case for war, the Chinese saw them
differently. The Chinese paid much more attention to peace and peaceful
means when dealing with others:

25
Footnote omitted.
26
Grotius, The Law of War and Peace (n 5) 438–9.
27
Ibid 439.
28
Ibid 446.
29
Stephen C. Neff, War and the Law of Nations: A General History
(Cambridge University Press 2005) 30.
30
Ibid 30–31.
31
Ibid 31.
32
Ibid.

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222 Islamic international law

[a]ccording to the Confucian … , even barbarians were not utterly alien. They
were merely imperfectly integrated into the great global order. The best way
of dealing with them was gradually to reform them by setting a good example
of what a fully civilised society was like. This normal peaceful relation with
the neighbouring barbarian states was symbolised by the ritualistic exchange
of ‘gifts’ or ‘tribute’ between the Chinese government and envoys from the
barbarian states.33

5.1.2 Pre-Islamic Arabia

To the Arabs, in the pre-Islamic era:

war (harb, used in the senses both of an activity and of a condition) was in
one sense a normal way of life; that is, ‘a state of war’ was assumed to exist
between one’s own tribe and all others, unless a particular treaty or agreement
had been reached with another tribe establishing amicable relations.34

This is somewhat similar to the Romans who did not consider those not
known to them in war or in friendship (peace agreement) as public enemies.35
They, similarly to Arabs, practically considered themselves at war with
others in terms of legal jurisdictions so long as there was no peace deal
between them. Thus, for example, any property acquired from such a state
by force is considered as licit war booty. Thus, this was the norm of that age.
Nevertheless, despite the ruthless hostilities that they had among them,
Arabs knew many peace-promoting practices that were later adopted by
Islam. An example of this is ama’an (safe conduct).36 Later this practice
dictated, with little change of the main theme, that ‘[a]ny Moslim
originally had the power to grant foreigners protection by a one-sided act
(ama’n) which was binding upon the whole community. The foreigner
became thereby a mustami’n.’37 This was possible in times of both war and
peace. Peace treaties were also known in Arabia. ‘Arabian tribes concluded
various alliances and treaties of mutual assistance (mussanadah) or of
peace and non-aggression (muwâda’ah).’38 Arabs, as well, had a great

33
Ibid 32.
34
Fred M. Donner, ‘The Sources of Islamic Conceptions of War’ in: James
Turner Johnson and John Kelsay (eds), Cross, Crescent and Sword: The
Justification and Limitation of War in Western and Islamic Tradition (Greenwood
Press 1990) (n 272) 34.
35
Grotius, The Law of War and Peace (n 5) 394.
36
Nussbaum (n 2) 53.
37
Ibid (footnotes omitted).
38
Sobhi Mahmassani, ‘The Principles of International Law in the Light of
Islamic Doctrine’ (1966) 117 Recueil Des Cours 230 <http://www.ppl.nl/plinklet/

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The law of peace 223

impact and a great role in the conclusion of the peace treaty of 561
between Persia and Byzantium.39
The question is how advanced was their practice prior to the emergence
of Islamic international law? They, as mentioned earlier, knew the system of
ilaf (pact) under which they traded with others and sent embassies. Some of
the customs known in this regard included tearing the treaty into two pieces
with each party holding one of them so both pieces would be required
when the document was to be consulted. The Arabs also recognized
immunity and the decisions of envoys. They also resorted to certain
people regardless of their tribes, known for their impartiality, to be
arbitrators and they accepted their decisions.40 ‘The chiefs of the tribe of
Tamim’, for example, ‘were reputed for their success as arbiters among
rival tribes’.41 Before his prophethood, Muhammad himself ‘acted as an
arbitrator (hakam). The dispute among the Arab chiefs about lifting the
Black Stone was a case which was settled by arbitration (tahkim).’42
Furthermore, peace rules such as refuge, asylum and quarter, naturalized
and domiciled aliens, hospitality of foreigners, extraditions, and even laws
of shipwreck, were known to them.43 Most importantly was hilf al-fedal
or the League of the Virtuous, whereby the tribes signing this pact vowed
to defend the oppressed against any oppressor until justice was done.44

5.1.3 Islamic International Law

To start with, El-Kosheri established that:

The Our’an not only recognizes that humanity is divided into various com-
munities and nations maintaining friendly relations of mutual understanding, but

?sid=bib:recueil&ppn=163403627&genre=a&issn=&isbn=&title=The principles
of international law in the light of Islamic doctrine / Sobhi Mahmassani&aulast=
Mahmassani&aufirst=Sobhi&au2last=&au2first=&au3last=&au3first=&edlast=&
edfirst=&ed2last=&ed2first=&ed3last=ed3last&ed3first=&source=Recueil des cours
&year=1966&volume=&issue=I&spage=&bibliography=recueil&id=465&url=&
keyword1=&keyword1ppn=&brillid=19956> (accessed 16 November 2011) 267.
39
Irfan Kawar, ‘The Arabs in the Peace Treaty of A.D. 561’ (1956) 3
Arabica 181, 181–213.
40
Muhammad Hamidullah, The Muslim Conduct of State (5th edn, SH
Muhammad Ashraf 1968) 54–6.
41
Majid Khadduri, War and Peace in the Law of Islam (1st AMS ed., AMS
Press 1979) 232.
42
Ibid 232–3.
43
Hamidullah (n 40) 60–61.
44
Ibid 61.

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224 Islamic international law

declares explicitly that it is impossible to establish a single religion on earth

(VI, 118). Jihad is the only form of bellum justum permissible in Islam;
according to the Our’an it can be justified only in → self-defence against an
aggressor (XXII, 39) or to rescue an ally or brother in Islam (IV, 75).45
Thus in Siyar peace is the normal state of affairs except when others
choose to take a different stance towards the Muslim State. Thus,
‘[c]ontemporary jurists generally agreed with the need for Muslims to
maintain peaceful relations with their fellow human beings, including
non-Muslim communities.’46
Peace is not only a legal possibility or permissibility in Islamic law but
also a philosophical requirement of the entire Islamic system. Con-
sequently, Mahmassani argued that ‘Islam considers that all mankind are
equal before the law, in their rights as well as in their obligations, without
any distinction of race, nationality, colour, family or creed. Piety alone is
the measure of dignity in Islam’.47 The following Qura’anic verses
reaffirm this position:
O mankind! Lo! We have created you from male and female, and have made
you nations and tribes that ye may know one another. Lo! the noblest of you,
in the sight of Allah, is the best in conduct. Lo! Allah is Knower, Aware.48
O mankind! Be careful of your duty to your Lord Who created you from a
single soul and from it created its mate and from them twain hath spread
abroad a multitude of men and women.49
Your creation and your raising (from the dead) are only as (the creation and
the raising of) a single soul.50
Not only the Qura’an, but also the practice and teachings of the
Messenger reiterate the same position. For example, he says:
You are sons of adam, and adam came from dust. Let the people cease to
boast about their ancestors.51

45
S. Ahmed El-Kosheri, ‘Islam’ in R. Bernhardt (ed.), Max Planck Encyclo-
pedia of Public International Law (1981) 223.
46
Labeeb Ahmed Bsoul, International Treaties (Mu‘āhadāt) in Islam:
Theory and Practice in the Light of Islamic International Law (Siyar) according
to Orthodox Schools (University Press of America 2008) 171.
47
Mahmassani (n 38) 243–4.
48
Marmaduke William Pickthall (tr), The Glorious Qur’an: Translation
(Tahrike Tarsile Qur’an 2009) 49/13.
49
Ibid 4/1.
50
Ibid 31/28.
51
Sahih Muslim 41/5097.

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The law of peace 225

I am the brother of every pious man, even if he were an Abyssinian slave, and
I disclaim every wicked man, even if he were a noble Koreishite.52
No superiority has an Arab over an alien, nor a white man over a negro, save
in piety.53,54
From these divine orders we can see that Muslims are taught to see
themselves as part of the human family over which no human can be
superior. No human has the right to subdue or harm the other. Peace thus
is a concept nurtured into the hearts of the believers.
As for treaties, which are one of the most significant sources of peace and
peace keeping, they deserved unprecedented attention and were empowered
by Islamic international law to the point of sacredness. ‘The sanctity of treaty
obligations is the most fundamental rule of Islamic international law.’55
Indeed, ‘the principle of good faith has, from earliest times, been regarded
not only as a matter of common concern to the whole community of
states, but also as a matter of legal duty between the parties to the treaty.’56
Just as any other state, the Muslim State in its relations with other
states used treaties as a method of interaction. The law of treaty in Siyar
was, to begin with, regulated by the Qura’an, which provided general
principles. Indeed, the law of treaty:
forms an impressive part of Islamic doctrine. In Celebrated sura57 the Koran
obligates the believer to keep his covenants even towards pagans (polytheists)
until the end of the term, provided the pagans do not fail the Moslems in any
way and do not help anyone against them; a fortiori, the same rule obtains in
relations with Christians and Jews.58
Treaties ‘have provided the framework for peaceful relations in the
spheres of both internal and external relations between Muslims and
non-Muslims’.59 International treaties, thus:

were of particular interest to classical Muslim jurists, chief among them

Shaybani. These jurists constructed a system of drawing up such instruments

52
Cited in Mahmassani (n 38) 243–4.
53
He refers here to: cited by M. R. Rida, in Al-Wahi al-Muhammadi (Cairo,
5th ed., 1367 A. H.) 226.
54
Mahmassani (n 38) 243–4.
55
Mohammad Hosny Mohammad Gaber, ‘The Early Islamic State with
Special Reference to the Evolution of the Principles of Islamic International Law,
632–750 A.D.’ (PhD Thesis, American University of Washington 1922) 97.
56
Ibid.
57
Koran, x 9, 4.
58
Nussbaum (n 2) 53.
59
Bsoul (n 46) 107.

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226 Islamic international law

that covered all aspects of the process, such as the establishment, conclusion,
effects and termination of international treaties.60

Even during war, treaties must be respected and issued with honour and
faithfulness: deception is unacceptable. ‘Explicit Qur’anic verses enjoin
Muslims to seek accords with non-Muslims in order to eliminate conflicts.
They oblige Muslims to respect the letter and the spirit of treaties once
concluded, even when it may seem expedient not to do so.61,62 Although
there is an opinion that a sovereign Muslim state could end a treaty before
the end of its term if it were favourable to it to do so, this opinion also
highlights that a formal denunciation was still required in such cases.63
International treaties once agreed upon have the force of a legal
contract in Islamic law. ‘Strict adherence to the treaty is thus ensured,
from the Muslim side, not by vague notions of international convention
or ethical considerations but by the full force of Islamic law itself.’64
Islamic scholars agree that ‘[v]iolating any of the conditions or even the
spirit of a treaty is tantamount to violating the law as set down in the
Qur’an and Sunna’.65 The only exception to this is when the other party
‘violates a treaty’s conditions’.66
Nonetheless, ‘[o]ne of the main sheet anchors of Grotius’ formulation
of international law principles was the proposition that treaties should be
honoured.’67 What is less well known is that ‘[t]his had long been a
principal foundation of Islamic international law. The prophet himself
had set forth the principle pacta sunt servada.’68 Honouring treaties was
highlighted, stressed and practised by the Prophet Muhammad, who
ordered people to respect covenants and pacts.
Additionally, ama’an (which is described as a ‘pledge of security given to
non-Muslims upon entering to dar al-Islam for a fixed period of time’69)
was practised by the Arabs before Islam and formulized and enhanced by

60
Ibid.
61
Bsoul here quotes the following: ‘Qura’an. 16: 91–2: “fulfil the Covenant
of Allah when you have made a covenant, and do not break oaths after making
them … be not like her who unravels her yarn, disintegrating it into pieces after
she has spun it strongly.”’
62
Bsoul (n 46) ix–x.
63
Nussbaum (n 2) 53.
64
Bsoul (n 46) 136.
65
Ibid.
66
Ibid.
67
Weeramantry (n 1) 132.
68
Ibid.
69
Bsoul (n 46) 39.

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The law of peace 227

Siyar. ‘It was known also to earlier systems such as the Roman but worked
into the fabric of Islamic international law as an important principle.’70
In relation to offering peace to aliens, ama’an was not the only method
introduced by Siyar, for according to it a foreigner can become dhimmi
and have the rights and duties of non-Muslim citizens. This option is
available to individuals as well as groups and can be offered to a whole
region or a town. This type of contractual peace relationship can be
permanent, which distinguishes it from ama’an.71 Moreover, it is inter-
esting to note that ‘[b]oth the status of dhimmi and the requirement of
paying jiziyah are similar to concepts that existed in other legal systems
and which the Romans knew as deditio’.72
In ama’an as well as in dhimmi peace agreements, ‘Islamic inter-
national law sets forth strict guidelines for the agreement, assigning
rights and obligations on both sides. These guidelines are extremely fair,
however, and realistic as well.’73 The main purpose of these peace tools
was to facilitate freedom of movement, trade and peaceful coexistence
between states as well as between individuals and states. Thus, ‘to make
such relations possible, the protections offered are considerable and
legally binding – in theory at least, Muslims were obliged in some
circumstances to wage wars against other Muslims should the lives of
musta’min be endangered.’74
Moreover, in general, peaceful methods to resolve international dis-
putes were highly regarded in Islamic international law. For example,
arbitration was very well established as a part of Siyar to settle such
disputes. Thus, Shameem Akhtar, quoted by Bouzenita (2007), stated that
‘[t]he practice of arbitration is a well-established institution in Islam’.75
Yet even if war becomes inevitable, negotiations were still required
before taking final action and proceeding with war. ‘Negotiation was a
religious obligation in advance of an appeal to force.’76
However, even if hostilities take place Muslims must always follow the
example set by the Prophet. Thus, ‘they should not be the first to open
hostilities. In keeping with this principle, fighting should be considered a
last resort, especially when jiziyah can be imposed in order to avoid

70
Weeramantry (n 1) 141–2.
71
Bsoul (n 46) 39–40.
72
El-Kosheri (n 45) 223.
73
Bsoul (n 46) 81.
74
Ibid.
75
Anke Iman Bouzenita, ‘The Siyar – An Islamic Law of Nations?’ (2007)
35 Asian Journal of Social Science 19 32.
76
Gaber (n 55) x.

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228 Islamic international law

bloodshed or continued hostilities.’77 Furthermore, the commanders of

the opposing parties must always strive ‘to reach an agreement that leads
to a temporary cessation of hostilities, an armistice, a cease-fire, covenant
or pledge’.78
Additionally, Islamic international law offers a great wealth of regu-
lations and rules governing diplomacy since the inception of Islam. Thus,
Bassiouni (1980) points out that:
The Koran and the Sunna contain numerous references to the protection and
immunity of diplomats (referred to in these sources, as well as in the writings
of scholars, as emissaries, envoys, deputations, delegations, and embassies)
their staff, and accompanying persons. Throughout these sources of Islamic
law diplomats are entitled to immunity from prosecution, freedom from
arbitrary arrest and detention, and proper care and treatment.79
Finally, in general, ‘Muslim jurists active in the field of siyar realize that
evidence from both the Qur’an and Sunna of the Prophet favoured
co-existence and peaceful relations with non-Muslims were of prime
importance in their texts’.80 Hence, it is not surprising that, in his
research, Boisard uncovered a significant influence of the Islamic world
on Europe in this regard. There are various examples in all fields of
international law such as diplomacy, coexistence and tolerance.81 More-
over, he established that ‘Muslim Law offered two fundamental prin-
ciples to the West, on which were to later stand the future structure of
law: equity and good faith’.82

5.2 PERCEPTION OF PEACE

Whatever we might think peace is, in the age of Al-Shaybani and beyond
up until 1945 when the UN peace deal was concluded, peace was a
separate entity that could easily and did for a long time exist without the
need for concluding any treaty. For, to start with, most wars in that age
were between some states or nations that were normally adjacent to each

77
Bsoul (n 46) 171.
78
Ibid.
79
M Cherif Bassiouni, ‘Protection of Diplomats Under Islamic Law’ (1980)
74 American Journal of International Law 609, 609–610.
80
Bsoul (n 46) 173.
81
Marcel A. Boisard, ‘On the Probable Influence of Islam on Western
Public and International Law’ (1980) 11 International Journal of Middle East
Studies 429, 442.
82
Ibid 441.

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The law of peace 229

other. Anywhere else that had no connection to the hostilities between

such states was and should be considered to have been at peace with
them. We cannot claim that the absence of peace treaties in that age
meant anything other than peace between them for the absence of war in
that age was normally considered peace and peace alone.
In addition, even the existence of some peaceful dealings can be
separated from both peace and peace treaties. For the situation can exist
where some trade, exchange, or any other peaceful interaction agreement
exists while the two states party to it are still at war or otherwise parties
to a peace treaty. In the age of Al-Shaybani, in fact, it was possible to
have peaceful engagements such as trade treaties while states were not
parties to a peace treaty preventing them from attacking one another.83
This is because peace treaties and peaceful coexistence were separate
matters in that age. This in fact seems to have been the understanding of
Al-Shaybani and his contemporaries, as we shall see next.
It is important to note that Al-Shaybani in his book dedicated a
significant proportion of text to subjects related to peace. In contrast, in
the work of Augustine, Gratian and Aquinas, the treatment of peace
subjects is scant, especially when compared to Grotius. Moreover, when
the latter is compared to Vitoria he seems to have offered more on this.
What is then left is to compare Al-Shaybani’s writings to those of
Grotius. There, we can still see that the former offered more on the topic
of peace in terms of both details and analyses. For while the topic of
peace is treated as a secondary object in Grotius’ writings, the book
of Al-Shaybani bore the topic of peace as a main object of his study.
Al-Shaybani did not offer a definition of peace and this was also the
case with Grotius, who did not define peace (pax). However, Vollenhoven
argues that the latter’s ‘“law of peace,” is not meant as one half of a thing
called “international law,” this it has only become by the terminology of
modern authors’.84 This is because ‘Grotius’s “law of peace” is the
substantive law of duties binding on mankind, in contradistinction to the
adjective law regarding enforcement of these duties’.85 Moreover, ‘[s]everal
chapters of Grotius’s law of peace mainly relate to duties and rights of
individuals.’86 In fact, in his book Grotius ‘nowhere distinguished between
private peace (pax private) and public peace (pax publica)’.87

83
Gaber (n 55) 110.
84
C. van Vollenhoven, The Framework of Grotius’ Book De Iure Belli Ac
Pacis (1625) (Noord-Hollansche 1932) 101.
85
Ibid.
86
Ibid 102.
87
Ibid.

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230 Islamic international law

Furthermore, Al-Shaybani paid an enormous amount of attention to

treaties, whereas Grotius was more concerned with contracts and did not
pay much attention to treaties as a source of international law or as a
peace tool. Thus, Vollenhoven asserts that ‘[i]nternational legislation, by
way of treaties, also had merely incidental significance in Grotius’ book.
The law of mankind was paramount for him; treaties are either contracts,
or statutes for matters of limited and passing importance.’88 In reality,
‘treaties organising the world for peace were outside his scope (1625)’.89
I have already indicated that treaties in Grotius’ work were discussed
as if they were merely individual promises between two people whether
these people were kings or not. The issue one should raise is whether
Grotius was writing with the view that a state should have its own
independent legal entity. It does not appear that this can be answered in
the affirmative. This is because he treated international treaties as mere
promises of human beings as if states had no separate legal personality
from their rulers. Al-Shaybani was, meanwhile, dealing with states as
legal entities, which can create legal obligations and can receive legal
rights that do not end upon the end of life of the king or the sovereign.
As we have seen earlier, the text of both Grotius and Al-Shaybani on
war subjects was more extensive than that on peace topics, however,
peace was merely an ancillary topic to Grotius, or so it would seem to his
reader. For in his book De Jure Belli ac Pacis, ‘the law of peace is treated
as incidental to the law of war rather than as coordinate with the law of
war, which is the method of modern treatise on international law’.90
On the face of it, all of this signifies that Vitoria was more concerned
with peace than any of his predecessors, even including Grotius. How-
ever, Al-Shaybani (who came after Augustine and before the others) paid
much more attention to the topic.
Secondly, in his treatment of peace, Al-Shaybani seems to have
concentrated, mainly but not only, on peace treaties and truce, treaty law,
rights of foreigners and diplomacy. Both Al-Shaybani and Al-Sarakhsi
offered an exhaustive account of the rules for mowada’ah.91 To accept
mowada’ah or a peace treaty between states, in that time, however, was
not always seen as a sign of strength as the powerful states with the free
will to wage wars would always impose degrading and humiliating
conditions in order to agree a peace deal. The best example of this is
when the conditions of Al-Hudybiya were agreed between the weak party

88
Ibid 135.
89
Ibid.
90
Nussbaum (n 2) 107.
91
Peace agreement.

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The law of peace 231

(Muslims) and the strong (people of Mecca). In it the weak party was
loaded with unjust and many humiliating conditions.92 This is probably
why Al-Sarakhsi explains the condition that only when Muslims are
weak are they allowed to sign a peace agreement with others. One other
explanation to this is that if Muslims sign a peace treaty, then they would
not be able to fight the other party in case Muslims would need to do so
because preaching, practising or accepting Islam was hindered in the
other party’s land. Thus, he explains his opinion by saying that ‘this is
because mowada’ah will mean abandoning or at least postponing the fight-
ing which is “compulsory”’.93 This explanation however might not pass
such a if it is to be taken against the fact that Abu-Hanifa, as shown in
the law of war section, was against fighting except when necessary.
Al-Shaybani and Al-Sarakhsi are in agreement and they both seem to
rely on the opinion of Al-Shaybani’s master Imam Abu-Hanifa.94 He
thinks that Muslims should never contract mowada’ah with those who
associate partners with Allah (unbelievers), unless Muslims were forced
to do so by being weak and having no power against them.95 This is quite
an interesting and important point as the perception of Al-Shaybani and
his Master Abu-Hanifa on peace and war is clearly different. In Chapter
3, we saw that the perception of war is different to Abu-Hanifa, who
would have explained that the reason why mowada’ah is not allowed
except when Muslims are weak is because mowada’ah could deprive
Muslims of many rights or inflict burdens on them and not because the
option of war should not be blocked in case freedom of religion is
threatened. This is logical, as although war, to him, is the exception, the
absence of a peace treaty does not necessarily mean that it is war. In that

92
Bsoul (n 46) 110.
93
As we saw in Chapter 3, war was the normal state of affairs in that time. On
top of that, Al-Shaybani thought that everyone on earth had the right to hear about
Islam. Thus he concluded that the imam should contact leaders and preach Islam to
them and give them one of three options: (1) to accept Islam and allow preaching it
to the people and remain in power; (2) to pay tribute to the Muslim state; or (3) if
neither of the first two options is accepted, to accept the declaration of war to allow
freedom for people to choose if they wished to join Islam. By saying compulsory
here, he must have intended the case when the foreign leader did not accept any
of the other two choices. This means that his assumption is unsustainable.
94
Imam Abu-Hanifah is the head of the Hanafi School, one of the main four
Islamic schools.
95
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-
Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi],
vol 5 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 1689.

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232 Islamic international law

time, this is understandable as mowada’ah and peace agreements, in

general, were not the norm, as it is arguably today with the UN Charter.
However, mowada’ah to all of them is the same, it seems, but the
justifications or the reasoning behind it is entirely different. Hence,
the imam has no right to conduct it without a pressing need for it. The
argument is supported by the Qura’anic verse: ‘And be not infirm, and be
not grieving, and you shall have the upper hand if you are believers’.96
Thus, our explanation above is the best fit for the perception of peace
treaties. For in this verse God orders people not to be infirm and not to be
humbled while they have the faith. This can be linked to peace treaties
when it is meant that it is a treaty that is perceived as a burdensome and
a humiliating act.
Consequently, Abu-Hanifa97 stresses that, if Muslims have no strength
to fight them, then there is no harm in mowada’ah.98 The reason why this
is so is that the latter is in the interest of Muslims, which is why it should
be carried out. In addition, God, in the Qura’an, says: ‘And if they incline
to peace, then incline to it and trust in Allah.’99 In addition, mowada’ah
is permissible as it was practised by ‘the Messenger Mohammed peace
be upon him and Muslims after him’.100
Conversely, with regard to the perception of peace, the view of St.
Augustine as understood by some commentators is comparable to
Al-Shaybani’s. For example, John Eppstein (1935) explains that:
St. Augustine is the first to appraise the active principle of peacemaking in the
international sphere and thus to elucidate the true meaning of the beatitude
Beati pacifici. For that has nothing to do with the mere absence of war, nor
yet with refraining from violence, nor yet with the difficult precept of
non-resistance. It is not the peaceful that are blessed with so divine a promise;
it is the peacemakers.101
The clear difference between Augustine, as explained in this passage, and
Al-Shaybani, as demonstrated above, is the fact that peace is the priority
to the latter whereas peace-making is the priority to the former. For to

96
Shakir, M. H. (tr.), Holy Qur’an = Al-Qur’ān Al-Ḥakīm (1st US ed.,
Tahrike Tarsile Qur‘an 1982) 3/139.
97
Here, as the argument is forwarded by Abu-Hanifa, he must have intended
mowada’ah to be an accord to terminate an existing war, as war is the exception
to the norm to him.
98
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1689.
99
Shakir (n 96) 8/61.
100
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1690.
101
John Eppstein, The Catholic Tradition of the Law of Nations (Burns Oates
& Washbourne Ltd 1935) 91.

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The law of peace 233

Al-Shaybani, it seems, the ultimate goal is to bring the world under the
control of the law of God, provided that peaceful means are always
prioritized, whereas to Augustine the act of war as a punishment for the
wicked is what is required.
Finally, Al-Shaybani and his Master Abu-Hanifa seem to agree on two
principles. First, peace is one thing and peace treaties are another. For the
first can exist without the need for the latter. Peace treaties once agreed
must be fully respected throughout their term, whereas the mere exist-
ence of peace in the absence of war has no guarantee of continuity, as
compared to peace accords. Secondly, as a peace treaty at that time
meant that the weaker party was loaded with burdens and humiliated by
unjust terms, such deals must not be accepted except when the state has
no other option and it is so weak to the point that it would not be able to
exist without a treaty that prevents others from attacking it.
That aside, Al-Shaybani and Abu-Hanifa wrote extensively on how
peace should be maintained through diplomatic links and legal bonds.
They elaborated on forms of peace dealings such as international trade,
international travel, peace treaties and accords, cease fires and ama’an
(pledge of security) and many others tools of peace-making and
co-existence. Moreover, they considered many forms of peaceful conflict
resolution tools such as arbitration and meditation. The immense com-
mitment to these topics underlines their belief that peace must always be
sought and when reached must always be maintained. Peace was always
a sacred object, be it an ama’an, peace accord or mowada’ah or any
other form of peace, as we shall see later.

5.3 THE LAW OF TREATY

One of the most recent authoritative contemporary scholars in the English-
speaking world on treaty law in Siyar, Bsoul stresses that ‘[w]ith regard to
the treaties or mu‘ahadat between Muslims and non-Muslims, works on
siyar and in particular that of Shaybani devote much attention to the
problem of their conclusion, duration, validity, conditions and whatever
might render them void’.102 As treaties were to be highly respected by
Islamic law and as they were almost the only way to guarantee the peaceful
coexistence or to initiate peace between enemies, Al-Shaybani did pay
much attention to their conditions. According to him, the rules governing

102
Bsoul (n 46) 171.

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234 Islamic international law

treaty relations and treaty making and international agreements, in general,

could be summarized in the following points.

5.3.1 Fulfilment of Promises

(A legal principle) Al-Shaybani paid an enormous amount of attention to

the importance of respecting promises and treaties. Thus, once you agree
to enter into treaty relations you must show a high level of respect for the
treaty’s terms, he says. In this, his view is likened to the principle of
pacta sunt servanda.103 The principle of ‘alwafa bil’ahd’ or fulfilment of
promises promoted by Al-Shaybani dictates that once you promise you
must fulfil. It should be noted that it is clear in his writings that
fulfilment of promises is not only required towards a certain race or
religious group, if you promise you must fulfil your promise even if the
other party is from a completely different race or religion.104 For
example, Abū al-Wafā (2007) here recalled Al-Shaybani’s example when
the Prophet Mohammad ordered some people to return the goods that
they had acquired from the Jewish residents of Madinah as this happened
after signing a peace treaty with them. On top of that, he ordered that no
one had the right to obtain the goods of the Jewish people of Medina
except by their approval (by trade, gifts, endowments … etc) and that
doing so will be considered a breach of the treaty which cannot be
accepted. From reading Al-Shaybani’s explanation of this principle, Abū
al-Wafā rightly extracts the following implications:105
+ Fulfilment of promises in any treaty is a must except when the
other party has violated its terms.
+ Revoking a treaty or withdrawing from it must only be carried out
by the appropriate authority.106

103
Aḥmad Abū al-Wafā, Kitāb Al-I‘lām Bi-Qawā‘id Al-Qānūn Al-Dawlī
Wa-Al-‘alāqāt Al-Dawlīyah Fī Sharī‘at Al-Islām [A Book of International Law
and Relations in Islamic Shari’a], vol 14 (al-Ṭab‘ah 2, Dār al-Nahḍah
al-‘Arabīyah 2007) 66.
104
The reason I mentioned this is that some people might think that, as is the
case in some other religious rules, the fulfilment of promises is tied up with
religion. This is certainly not the case with Al-Shaybani, nor with Islamic law.
105
Abū al-Wafā (n 105) 68–70.
106
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-
Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi],
vol 1 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 304.

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The law of peace 235

+ The authority must prevent the breach of treaties (by any of its
subjects).
+ Even if the other party has died his successor[s] should benefit
from the promise.
Grotius also paid much attention to good faith in promises, especially
those made by kings. He agrees with Al-Shaybani in most parts in this
regard. For example, he too rejected the claim that promises should only
be kept if the promised party was from a certain religious or ethnic
group. Grotius had to explain that ‘treaties with those who are strangers
to the true religion107 are permissible by the law of nature’.108 However,
how about if the religion of certain people does not permit such treaties and
it does not permit utilizing the law of nature either? To avoid such gaps,
probably, Grotius concludes that ‘treaties with those who are strangers to
the true religion are not, generally speaking, prohibited by Hebraic law’.109
In addition, he argued that Christian law also permits such treaties.110
Just as Al-Shaybani did, Grotius went further and made it clear that a
promise, contract or an oath must be respected towards all parties.111

5.3.2 Flexibility

While mutual respect and recognition is important, compromises should

be made if need be. For example, Prophet Muhammad, while signing an
agreement, was asked not to write ‘the Messenger of God’ in the treaty.
The other party told him ‘had we accepted that you are so, we would not
have fought you from the start’.112 This made the Messenger order the
removal of the controversial sentence in order for the peace deal to go
ahead. The book suggests that one should learn from the practice of this
agreement how to conduct peace treaties.

5.3.3 Writing Treaties

If a treaty is intended to last for a number of years, it should be
conducted in writing. It is noted that Prophet Muhammad wrote down his
peace agreement with the People of Makah in two copies, one for each

107
Being a Christian himself, one could suggest that he intended Christianity
here.
108
Grotius, The Law of War and Peace (n 5) 397.
109
Ibid.
110
Ibid 401.
111
Ibid 334–80.
112
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1781.

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236 Islamic international law

party. This agreement was intended for ten years.113 Thus, writing is
required for long-term treaties only, which suggests that it is not part of
the treaty. Similar to this is Grotius’ assertion that ‘unless it has been
otherwise agreed, we ought to believe that writing has been employed as
evidence of the contract, not as a part of its content’.114

5.3.4 Clarification of Terms and Conditions

Making all of the important terms and conditions and the details of the
agreement clear was required by Al-Shaybani. For example, he required
that the dates when the agreement starts and when it ends must be very
precise and clearly written.115 All of the main terms and conditions
should be made clear and in writing. On top of that, if one party or
another has some general principles in law related to the subject of
agreement and cannot be overridden by treaties; these rules must be made
clear in the treaty116 to all parties. For example, it is the rule that treaties
cannot override some of the related general principles in Islamic law, as
they are general principles of law (jus cogens). Thus, these conditions
related to the subject of the agreement should be made clear for the
non-Muslims who might not know them.117

5.3.5 Payment for Peace

Parties could even pay money in order to secure a peace agreement.

Whether this is a monthly, yearly or one off payment, there seems to be
no restriction on that.118 Grotius too seems to agree with Al-Shaybani for
he says, ‘peace should also be accepted even at a loss, especially by
Christians.’119 Paying tribute by the weaker party in order to secure peace
deals was a norm. For example, in 689 (70 Hijri) the Caliph Abd-Almalik
ibn Marwan, in an agreement with the Byzantine emperor Justinian II,
‘agreed to pay a tribute in exchange for cessation of hostilities’.120 Later,

113
Ibid 1780.
114
Grotius, The Law of War and Peace (n 5) 428.
115
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1782.
116
Ibid 1780–87.
117
Ibid.
118
This is the general rule; however, further complex details can be traced in
ibid 1690–92.
119
Grotius, The Law of War and Peace (n 5) 861.
120
Bsoul (n 46) ix.

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The law of peace 237

however, when the powerful state became weaker the same two states
agreed a peace treaty in which Byzantine now had to pay a tribute.121

5.3.6 Ratification of Treaties

Al-Shaybani indicated that the effectiveness of treaties should depend on

the ratification of the relevant authority.122 Thus in the case of a muslim
state, he demonstrated that the final say on international treaties is in the
hands of the caliph. From this principle, if an official, for example, was
not authorized to accept certain sensitive terms his mere approval would
not be sufficient and the issue would have to be referred back to the
authority to approve or disapprove of it.123
In comparison, Grotius differentiated between sponsions124 and treaties
by requiring the former to be ratified before they can take effect against
the state. This is because, he says, ‘the point which ought to be
maintained above all others is that the one who holds the sovereign
power is under no obligation whatsoever’.125 Thus sponsions must first
be approved by the right authorities. If a sponsion was not approved there
are two cases; either that the commander who agreed the sponsion falsely
claimed that he has the authorization to do so in the name of the state (he
should not normally have such power), or not as he should not normally
have such power. In the first case, only, the commander must ‘make
restitution for the loss suffered by reason of their deceit’.126 Furthermore,
Grotius ruled that ‘in such sponsion first the property is liable up to the
amount of loss; and if that is not sufficient, then the person is subject to
slavery’.127

5.3.7 Flexibility in Implementation of Treaties

In the present day, according to the law of treaty, we could separate the
provisions of a treaty so that it would not be nullified in the absence of one of
its conditions so long as there are clauses that can be implemented without
contradicting the sole purpose of a treaty.128 This is what we now call the

121
Ibid.
122
Abū al-Wafā (n 103) 74.
123
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 2180–82.
124
Probably agreements or promises made by field commanders with enemies.
125
Grotius, The Law of War and Peace (n 5) 406.
126
Ibid.
127
Ibid.
128
Abū al-Wafā (n 103) 74–5.

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238 Islamic international law

principle of ‘separability of treaty provisions’.129 The rule provided by

Al-Shaybani was comparable to this. In one case, for example he ruled that:
if the sulih (conciliation) dictated that the Muslims must handover one
hundred captured people and in return the non-Muslims hand over a hundred
ones, then the Muslims realized that the captured in the hands of the
non-Muslims were fewer than a hundred; the Muslims must not revoke the
conciliation. Rather they should hand over as many captured as the other
party has whether they were few or many.130
From this example, we can see that treaties must be maintained so long
as that is achievable even if this requires some further conciliation.131
This kind of clinging to peace once it is being achieved is also present in
the words of Grotius. He stated that ‘peace, when made, must be kept
with the utmost scruple’.132 He further added that ‘peace, whatever the
terms on which it is made, ought to be preserved absolutely, on account
of sacredness of good faith’.133

5.3.8 Legal Capacity in Accepting Conditions

It is not allowed to accept terms to which fulfilment would be in violation of

important legal principles of the law. Once again, even if such conditions
are already accepted, they, exceptionally, should not be observed. This is
because you are not allowed to promise what you are not allowed to fulfil
according to the main principles of law.134 Abū al-Wafā stresses that this is
somewhat similar to the principle that all terms in violation of jus cogens
norms should automatically be considered void.135 Similar but not identical
to this is the opinion maintained by Grotius in which he ruled: ‘in order that
a promise may be valid, that which is promised ought to be within the power
of the promise.’136 Additionally, Grotius made it clear that ‘[n]o right
whatsoever is sufficient to warrant committing what will probably be
harmful to religion, indirectly, if not directly. For as a matter of first

129
This principle, instated in article 44 of the Vienna Convention on The
Law of Treaties, is clearly somewhat similar to what Al-Shaybani was advo-
cating. Whether it was he who first talked about this or not, we do not know, but
we also should not deny it.
130
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1814.
131
Ibid.
132
Grotius, The Law of War and Peace (n 5) 862.
133
Ibid.
134
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1788.
135
Abū al-Wafā (n 103) 83.
136
Grotius, The Law of War and Peace (n 5) 335.

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The law of peace 239

importance the kingdom of heaven is to be sought, that is, the spread of the
Gospel’.137 Thus not only has Grotius agreed with Al-Shaybani that no
treaty should be in violation of the main principles of law, he further went
on to assert that even if indirectly affecting the religious rules it must not be
concluded.

5.3.9 International Treaties and Domestic Rules

It is possible to agree to international terms inconsistent with some domes-

tic rules. Today we can sign and ratify international treaties that contradict
or at least do not agree with our domestic laws. Al-Shaybani had also
established this principle.138 This is because Al-Shaybani in many cases
approved of treaties that have even violated domestic laws. This was so even
in extreme cases and even during wars. For example, if the besieged fortress
was granted ama’an in violation of the domestic rules that allocate the right
of signing this type of treaty to the imam alone, the ama’an will be
considered valid and cannot be neglected. This is a case where not only
has the international treaty contradicted domestic rules, but its creation
has also been in violation of them. This is because the domestic rules of
jurisdiction do not allow anyone in such cases to grant ama’an without
consulting the imam. Thus, the person who grants ama’an to this fortress
without consulting the imam is in violation of the domestic rules of
jurisdiction. Yet Al-Shaybani still thinks that even if the person who
violated the domestic rules by issuing ama’an can be prosecuted for his
action, the treaty shall still be valid towards others in good faith.139
Abū al-Wafā sees in this a similarity to what the practice is today in
two points:
+ International treaties can contradict domestic rules and laws, in
which case the state must still respect the treaty even if it was
issued in violation of domestic jurisdictional rules.
+ Violating domestic rules and laws on a domestic level; in this case
the authorities have the right to inflict the related punishments on
the violators to prevent the reoccurrence.140

137
Ibid 403.
138
Abū al-Wafā (n 103) 78.
139
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥ ammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-
Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi],
vol 2 (Salah Al-Deen Al-Munajjid ed., Ma’had Al-Makhtu’tat 1971) 576–83.
140
Abū al-Wafā (n 103) 80.

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240 Islamic international law

5.3.10 Limited Application of Treaties

In the 1969 Vienna Convention, (articles 34–8), we can see that a treaty
can only bind its ratifying parties. Al-Shaybani had already endorsed this
principle as well.141 He maintained, throughout his writings, that a treaty
should create rights and duties only towards its parties. In one example,
he talked about a peace treaty between state X and state Y and at the
same time another peace treaty between state X and state Z. If state Z
attacks state Y and despoils it, state X will not have the duty to act. In
fact, state X can even buy the spoils of war from Z.142 This is because the
peace treaty creates rights and obligations only between its parties and
the third party can only be required to accept the terms of a treaty if it
was a party to it.

5.3.11 Rules of Interpretation

Al-Shaybani introduced many principles and rules that ought to be

followed in interpreting international treaties. These could be summar-
ized as follows:143
+ What is evident with bainah (evidence144) is as what is evident by
agreement.
+ What is evident by a custom is as what is evident by a clause (what is
known as a custom should be taken as if it was a clause in a treaty)
+ In case of contradictions and inability of inclination towards one
interpretation or another, we must take the most careful approach.
+ Building on what is apparent is a must until contradictory interpret-
ation is proven.
+ What is proven by evidence is like what is proven by sight.
+ The general meaning of the words is restricted by the reality of the
situation and by the aim of the treaty.

141
Ibid.
142
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1737–9.
143
In this, as well as in many parts of this work, I am indebted to Ahmed
Abū al-Wafā, the head of International Law Department at Cairo University. To
read more, see Abū al-Wafā (n 103) 76–7.
144
Ḥārith Sulaymān Fārūqī, al-Mujam al-qānūnī: Arabī-Inkilīzī: yashtamilu
alá muṣṭalaḥāt al-fiqh, al-qadīm wa-al-ḥadīth, wa-al-ṭibb al-sharī wa-al-tijārah
wa-al-bunūk wa-al-ta’mīn wa-al-diblūmāsīyah wa-qawānīn al-batrūl wa-al-
ṭayarān al-madanī [Faruqi’s Law Dictionary: Arabic–English] (Ṭabah jadīdah,
Maktabat Lubnān 2006) 80.

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+ When an explicit declaration emerges, any previous contradictory

interpretation of events falls.
+ It is not acceptable to prove in a subdivision something that goes
against what is evident in the main part (i.e. what is evident in an
original provision cannot be contradicted by what is in its sub-
divisions).
+ When addressing a group of people using a plural tense verb, the
task required by the verb should be split between all members of
that group.145

As for Grotius, he, as we have already mentioned, discussed interpret-

ation within the scope of promises, not international treaties per se.
However, the rules he applied are both quite useful, on one hand, and
quite similar to those of Al-Shaybani, on the other. To him, ‘[t]he
measure of correct interpretation is the inference of intent from the most
probable indications. These indications are two kinds, words and impli-
cations; and these are considered either separately or together.’146 In
general, it could be said that the rules of interpretation offered by
Al-Shaybani were sometimes similar to those offered by Grotius; and
sometimes they are either more in one way or less in the other than those
offered by the latter in another. The example of the first case is
Al-Shaybani’s rule that building on what is apparent is a must until a
contradictory interpretation is proven. To me this is exactly what Grotius
meant when saying: ‘[i]f other implications are lacking, words are to be
understood in their ordinary sense.’147 However, when their rules were
different, Al-Shaybani seems to offer more general rules than Grotius does,
while the latter seems to offer more specific rules than the former.148

5.3.12 End of Treaty

In the present day a treaty could, for example, end by achieving its aim, the
disappearance of its parties or objects, fulfilment of its terms, withdrawal of

145
For example, if a teacher tells students, ‘Open your books’, this should
mean that each student opens his or her book. I have only mentioned this rule
here to illustrate how deep Al-Shaybani’s input in this area is.
146
Grotius, The Law of War and Peace (n 5) 409.
147
Ibid.
148
When rules are only offered by Grotius, they tend be very specific rules,
such as his different rules of interpreting the different types of promises he offered
(favourable, odious, mixed and median); see ibid 414. Nevertheless, when
Al-Shaybani was different in what he offered regarding interpretation of treaties, it
was more general than specific rules. This is such as the rule: what is evident by a
custom is as what is evident by a clause. This is not found in Grotius’ book.

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242 Islamic international law

its parties, change of circumstances, impossibility of achieving its aim, or

start of war in some treaties. In his writings, Al-Shaybani did not fall short of
discussing many of these points. However, Al-Shaybani paid much attention
to the rule that before one can take actions in response to the ending of a
treaty, one must clarify and ensure that it has been genuinely ended.149
Thus, for example, one must not act on the news that the other party has
violated and therefore ended a peace treaty until one can verify such news.

5.3.13 Reinstating the Original Situation

If the condition[s] of the treaty is not fulfilled, things must be returned to

their original state. For Al-Shaybani, this should be case even in times of
war.150 In comparison, Grotius discussed somewhat similar rules to these,
specifically concerning peace treaties. There he ruled that if the party is
unable to fulfil a promise or to meet a condition due to external causes
the rule may differ. For example, ‘if the thing has been destroyed or lost,
or that the act rendered impossible by some chance, the treaty of peace
will not be considered as broken’.151 Instead he ruled, somewhat simi-
larly to Al-Shaybani, that ‘the other party will have the choice, whether
he prefers to wait, if there is any hope that the promise may be carried
out later, or to receive an equivalent in estimated value, or to be freed
from mutual engagement corresponding with that item of equal value’.152

5.3.14 Period of Treaty

It seems that Al-Shaybani was not opposed to indefinite treaties in terms

of time.153 In fact, he agreed with indefinite treaties154 with the exception
of two cases: (a) disappearance of its subject. (b) agreeing to end an
indefinite treaty.155 However, how can we count the time if the dates are
defined?156 Al-Shaybani offers a satisfactory answer to this question too.157

149
Abū al-Wafā (n 103) 84.
150
See, for example, the case he discussed in As-Sarakhsī, Explanation of
As-Siyar Al-Kabīr (n 95) 1799–80.
151
Grotius, The Law of War and Peace (n 5) 818.
152
Ibid.
153
Abū al-Wafā (n 103) 85.
154
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1759.
155
Abū al-Wafā (n 103) 86.
156
Ibid.
157
For example, he discussed: ‘and if they have agreed with them upon a
coming year; then if this was at the beginning of the month, it should be for
twelve months with this included. … but if this was in another time of the

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5.3.15 Breach of Treaty

Breaching a treaty gives rise to the right of the affected party to act as if
it was null and without the need to notify the other party or allowing a
period of time to prepare for actions inconsistent with it. For example, in
peace treaties, if breached by a party, the other can take hostile actions
without the need to notify or allow a period of time to the breaching
party.158 Grotius agrees with Al-Shaybani in that breaking the treaty by
one party allows the other to withdraw from it. In this, he says: [i]f one
party has violated a treaty of alliance, the other party will be able to
withdraw from it’.159 On top of that, Grotius added that this rule does not
apply if the agreement does not permit withdrawal in such cases.160
Just as Al-Shaybani did, Grotius seems to have benefited immensely
from being a jurist and a lawyer familiar with domestic laws. They both
demonstrated a great deal of sophistication when dealing with treaties in
which, I think, they were hugely aided by their immense experience in
contract law. This had enabled both to write as well as they did. In contrast,
all we know about Augustine’s input as far as treaties are concerned is what
some scholars, like Bellamy (2006), claimed that Augustine ‘argued that
agreements should always be respected (even those concluded with
enemies)’.161

5.4 PEACE TREATY (MOWADA’AH)

5.4.1 Definition and Characteristics of Peace Treaty

It may appear at first glance unclear whether mowada’ah is a peace

treaty, an accord or a pact to end an existing war. It seems that
mowada’ah is a peace treaty before war, as shown above in the example
of the Jews of Medina. It also seems to be a pact or an agreement of
terminating war. This is apparent in the example where while Muslims
were besieged in Medina during the battle of Al-Ahzab, the Prophet
negotiated a treaty with the Jews of Medina in order to pay them in

month, they should count 11 full longer months and compensate the missing
days of the current one by taking the missing days of this month from the
thirteenth month with the assumption that it is a 30 day-long month.’ See
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1714.
158
Ibid 1786.
159
Grotius, The Law of War and Peace (n 5) 405.
160
Ibid.
161
Alex J. Bellamy, Just Wars: From Cicero to Iraq (Polity Press 2006) 29.

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244 Islamic international law

exchange for their cessation of hostile activities supporting the enemy.162

Therefore, the conclusive description of mowada’ah would be a peace
treaty as it applies to both cases when there is no war and when war has
started.163 Thus, mowada’ah is a treaty of peace concluded under quite
flexible terms to prevent war or stop an ongoing war or attack.
In this regard, Bsoul makes two comments on how Al-Shaybani
defined mowada’ah. In the first, he stated that Al-Shaybani uses the
term mu‘ahada (treaty) interchangeably with mowada’ah, which he calls
truce; and ahid, which he calls pact, and many other international treaty
terminologies. The second is when he claimed that ‘for Shaybani, a
mu‘ahada is a muwada‘a between Muslims and non-Muslims for a
fixed period of time’.164 However, it is true as I explained above that
Al-Shaybani uses mowada’ah interchangeably with other terminology,
which can be translated as treaty, pact, truce and other forms of
international conventions. Meanwhile, I disagree with Bsoul on his
second point for many reasons, of which the simplest is that mowada’ah
to Al-Shaybani, as I have already noted above, can actually be
permanent.
It is important to note that the jurisdictions and beneficiaries of peace
agreements according to Al-Shaybani are unique. This is because the
peace agreement with another abode benefits all of those who enter it
with a pledge of security (ama’an), as well as all of those whose abode
has already signed a peaceful agreement with it. Therefore, any one of

162
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1693.
163
It is interesting to see Al-Shaybani using this term for almost all types of
peace-making treaties between states. Although he used the term sulih, which is
more likely to indicate a truce or an accord from the context, he has not
maintained the usage of this term in this meaning all the time. In fact, he
sometimes uses this term to talk about mowada’ah, which means that the latter
must be the peace treaty in general. The proof of this assumption is when he
discussed the timing of treaties, mentioned earlier. He said that if mowada’ah is
to be intended for a number of years, then it should be conducted in writing. This
is to say that short-term peace agreements are called mowada’ah by him as well.
Thus and throughout his text the reader will notice that mowada’ah is the
peace-making treaty which could be a truce or an accord, or more than that. Abū
al-Wafā (2007) used sulih in the writings of Al-Shaybani to show that the latter
has written about truce; while Al-Shaybani did talk about truce, sulih was only
used to describe a mutual agreement without mediators but was still used to
mean mowada’ah. Therefore, mowada’ah is the peace-making tool or treaty with
many different ranges.
164
Bsoul (n 46) 108.

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the categories above shall be safe if they enter dar-al-Islam through an

abode that has a peaceful agreement with it.165

5.4.2 Interpretations of Peace Treaty

In addition to the general rules on interpretation mentioned above,

Al-Shaybani was keen to stress the role of language. In a peace treaty, the
wording of the agreement determines, to a considerable extent, the duties
and obligations arising from it. If, for example, the people agreed to pay
an enemy seizing their city a sum of money if the latter is to ‘leave them
alone’, this agreement does not prevent them from following and
attacking the enemy if it occurred to them to do so afterwards. However,
if the wording of the agreement contains any term suggesting that the
mowada’ah guarantees to the seizing army their return to their base, then
the people of that town cannot attack them and if they do so, it would be
considered to be in breach of the agreement.166
However, if the wording of the peace agreement does not prevent one
party from fighting the other party, there should be no restriction on them
in this regard. Yet in Islamic law the implicit term could amount, it
seems, to an explicit one.167 For example, if the besieged party says: ‘we
will pay you a sum of money provided that you do not fight us until you
go away from us’,168 then it is explicitly comprehensible that fighting is
the action of more than one party; therefore, the implicit term dictates
that both parties will have to abstain from it.169 It is also the same if the
agreement implicates a binding rule of abstaining from fighting for a
certain amount of time, because it would be considered mowada’ah and
must be respected by both parties.170
Grotius also worked on some specific interpretation rules for peace
treaties. For example, here, he supports the application of the Greek
principle that:

the interpretation of ambiguous clauses ought to be directed to the end that

the party who had a just cause of war should obtain that for which he took up

165
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1698–700.
166
Ibid 1711–12.
167
Ibid 1713.
168
Ibid 1712.
169
Ibid.
170
Ibid 1712–21.

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246 Islamic international law

arms, and should likewise recover for damages and costs, but that he should
not also recover anything by way of penalty, for that would arouse more
hatred.171

It is apparent from this that Grotius’s perception of peace is different

from that of Al-Shaybani. This is because no matter what the terms of the
peace treaty are, it seems that the one to whom belongs the ‘just cause’ of
war must always benefit from interpretations. Thus, even when a peace
deal is concluded a biased method of interpretation would still be
applied. This is unlike the case of Al-Shaybani who advocated, as we can
see, equal shares in benefiting from interpretations of peace agreements.
Nevertheless, Grotius has also stated that considering the reality that
parties do not normally confess wrong when concluding peace, an
interpretation should be assumed which puts the ‘parties as far as
possible on an equality with regard to the justice of the war’.172 This
could, according to him, be achieved either by returning the properties
acquired to whom they belonged or by accepting the new reality and
‘things remain as they are’.173
One more interesting point was made by Grotius regarding interpreting
peace covenants when he stated: ‘[i]n case the meaning is doubtful, an
interpretation is preferably to be adopted contrary to the interest of him
who dictated the conditions, because ordinarily he belongs to the stronger
party.’174

5.4.3 Guarantees in a Peace Treaty

In the Middle Ages, in general, there was little assurance or any form of
guarantee for states to not be concerned about being attacked even when
a peace treaty existed. It is understandable, therefore, that some parties
might exchange hostages, for example, to guarantee that no party is going
to breach it. Al-Shaybani discussed such issues and always maintained
that deception and treachery are utterly unacceptable in international
relations.
The general rule, according to Al-Shaybani, is that exchanging hos-
tages as a guarantee is permissible, except in some circumstances. For
example, if a non-Muslim party asked a Muslim party to exchange some
of their subjects and allow them to be taken as hostages to guarantee the

171
Grotius, The Law of War and Peace (n 5) 809.
172
Ibid.
173
Ibid.
174
Ibid 813 (footnotes omitted).

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effectiveness of the agreement, Muslims are not allowed to accept such

terms except in very exceptional circumstances.175 Al-Sarakhsi com-
ments: ‘[t]his is because non-Muslims are feared to kill the Muslim
hostages due to the apparent reason of being different in faith’,176 and
because they do not have a strong belief in a faith that would prohibit
them from doing so.177 Due to these reasons if Muslims were pushed to
accept such terms they are allowed to accept them only when there is no
alternative.178
Once keeping hostages is no longer required, they must be returned.
Nonetheless, if the hostages decide to become Muslims, they should not
be returned to non-Muslims at all. This would be the case even if
non-Muslims threatened to kill Muslim hostages held by them. The
reason for this is that it is the duty of the imam to protect all Muslims,
old and new. Therefore, he should not hand over Muslims to be killed to
prevent other Muslims from being killed regardless of their origin.179
Even if they were slaves, only the equivalent of their worth can be
returned in this case.180 However, if the non-Muslims threatened to kill
the Muslims held by them unless hostages are returned and the hostages
(now Muslims) agree to be returned, they can only be sent back if killing
is not their apparent destiny.181
Nevertheless, if after the exchange in the above case non-Muslims
killed Muslim hostages held by them, Muslims should not kill non-
Muslim hostages they hold in retaliation. This is because they have
become musta’amanoon (under a safe conduct) right from the moment
they were exchanged as hostages as part of a peace agreement (or
mowada’ah). In addition, Islamic law does not allow punishing someone
for the crime committed by another.182 Meanwhile, to Grotius both
hostages and pledges were considered as accessories of treaties.183
Furthermore, in comparison to the aforementioned views held by
Al-Shaybani, it was stated by Grotius that:

according to the strict law of nations a hostage can be put to death; but that is
not also according to moral justice, unless there is a fault on the part of the

175
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1750.
176
Ibid.
177
Ibid.
178
For more details on the subject refer to ibid 1750–51.
179
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1753.
180
Ibid 1751.
181
Ibid 1754.
182
Ibid 1753.
183
Grotius, The Law of War and Peace (n 5) 828.

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248 Islamic international law

hostage meriting such punishment. Hostages, moreover, do not become

slaves. Furthermore, by the law of nations they can both hold property and
leave it to their heirs.184

Nevertheless, in relation to some issues regarding hostages, Grotius was

not clear. Sometimes he does not permit their detention for any reason
other than that for which they were taken. Meanwhile, he appeared to
agree with the opinion that if ‘good faith has already been violated in
another matter, or a debt contracted, the hostage can then be retained, not
as a hostage, but in accordance with the law of nations, according to
which subjects can be detained “by reprisal” … on account of an act of
their rulers’.185
Therefore, we can see that there Al-Shaybani agrees with Grotius on
one point and disagrees on another. First, they both prohibit the killing of
hostages except if they deserve death because of committing a crime.
However, in no way would Al-Shaybani accept that hostages could be
punished for the acts of their rulers, as shown above.

5.4.4 Cancellation or Nullification of Peace Treaties

Nullifiers of a peace treaty

To Al-Shaybani, it seems, not every small action would amount to a
nullification of a peace deal. Thus, once such a peace agreement is
reached; if an individual or a small group from the other side commit a
big offence in dar-al-Islam, this will not be considered a breach of the
agreement on their part. However, this will not be the case, if a group that
was supported by its country or was big enough to support itself in
isolation committed it. Here the case is different, as they will be
considered in breach of the agreement. However, if their breach was not
known to or approved by their king, the latter would still be considered
as abiding by the agreement. If, however, their king knew about their
breach and did not stop them or at least alert the other party about their
action, then the whole agreement would be considered null and void.186
We could compare this to the statement of Grotius: ‘[i]f subjects do
anything by armed attack without public orders, it will be necessary to
see whether the act of individuals can be said to have been publicly
approved.’187 In principle, both scholars agree on this issue. Yet he is

184
Ibid 828–9.
185
Ibid 829.
186
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1697.
187
Grotius, The Law of War and Peace (n 5) 815.

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slightly different from Al-Shaybani when he considers the knowledge of

the authority without taking measures to punish the group as an act
sufficient to break the peace. Furthermore, unlike Al-Shaybani, Grotius
does not seem to distinguish between the knowledge of the authority of
such an incident before it occurs or afterwards. Whereas, we have seen
above that to Al-Shaybani only prior knowledge of the authority or
simultaneous knowledge combined with the authority’s inaction could
amount to the revocation of the treaty. Furthermore, Al-Shaybani does
not consider the violation of a small group even with the knowledge of
the authorities as a nullifier of the peace treaty.

Cancellation
Peace treaties at that time seem to be under the absolute discretionary
power of the sovereign. Thus, states still can make the same treaty null
and void at any point in time. Thus, any party had the right to cancel the
treaty. However, if Muslims want to cancel a treaty some extra conditions
must be fulfilled as explained in the following:

Cancellation by a Muslim state The essence of mowada’ah is that no

party has the right to fight the other party without terminating that
agreement. Thus, if the imam decides to fight the other party he must
first, inform them and make sure that they are well informed before
launching any attack against them.188 Secondly, it is also the responsibil-
ity of the imam to allow the leader of the other party a reasonable amount
of time to inform his entire territory about such action. Yet if this leader
fails to do so, Muslims should take no responsibility for that.189 None-
theless, if Muslims were sure that a certain part of that entity has not
been informed yet, it is preferred that they should not attack it until they
inform its people about the expiration of the accord with their ruler.190

Cancellation by non-Islamic states Unlike the case above, Al-Shaybani

did not require a declaration from the other party nor did he require a
period of time from the other party as he did from the Muslim party. This
is not a suggestion that this is a law exclusive to Muslims but it is
recognition of the right of other sovereign entities. However, these
entities were not prevented from using his rules. Nevertheless, if the
agreement has come to an end by an act or a request from a non-Muslim

188
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1697.
189
Ibid.
190
Ibid.

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250 Islamic international law

leader and Muslims take any form of hostility against them, they will not
have to wait until that entire entity has been informed about the new state
of relations.191

5.5 AMA’AN (PLEDGE OF SECURITY)

This topic is spread throughout his book, demonstrating both its import-
ance and Al-Shaybani’s focus on peaceful means of interaction between
societies and states even during war. I will first try to define ama’an
according to his perspective and then import and analyse some of the
main points around this topic as follows:

5.5.1 Definition

Ama’an (Al-ama’an in its definite form), also written as Amān, is ‘safe

conduct’ or ‘pledge of security’ as Khadduri puts it.192 It is where an
individual or a group of foreigners are provided with the right to safely
enter and invest in a Muslim state for a named period of time.193 Any
adult Muslim woman or man can grant ama’an.194 A dhimmi or a child
normally195 has no right to grant ama’an.
In ama’an foreigners (individuals or groups) who are granted a pledge
of security over their lives and properties are assured that any subject of
the Muslim State, including the Muslim leader, shall not subject them to
any harm. Thus, the status of ama’an could be granted by any adult
Muslim and must be respected by all. Ama’an could be given to one
person as well as to a whole nation. Al-Shaybani produced detailed rules

191
Ibid 1698.
192
Muḥammad Ibn-al-Ḥasan aš-Šaibānī, The Islamic Law of Nations:
Shaybānī’s Siyar (Majid Khadduri tr., Johns Hopkins Press 1966) 298.
193
This section and the following section (Diplomatic Missions and Emis-
sary) build on my previously published article: Khaled Ramadan Bashir, ‘Al-
Shaybānī and Amān: Treatment of Foreigners in the Classical Islamic State with
Special Focus on Diplomatic Envoys’ in Marie-Luisa Frick and Andreas Th
Müller (eds), Islam and International Law: Engaging Self-Centrism from a
Plurality of Perspectives (Martinus Nijhoff Publishers 2013). Sections have been
reproduced here with kind permission of Koninklijke Brill NV.
194
To Abu Hanifah, a Muslim slave, however, can only grant an ama’an if he
or she was fighting along with the army. As-Sarakhsī, Explanation of As-Siyar
Al-Kabīr (n 106) 252–6.
195
Exceptionally, in some cases a teenager may be given the right to grant
ama’an, see ibid 257.

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to govern all aspects of this ‘contract’.196 Al-Shaybani’s writing shows

that ama’an can be granted both during war and during peace. In fact, it
is important to note that in a volume mainly dealing with warfare, more
than a third of it deals with this peace creating conduct. The importance
of ama’an can never be underestimated in an age that knew few
boundaries to war or to killing others. In that age, as we saw above, a
foreigner was always a legitimate target to kill, enslave or despoil, as
there was no international rule prohibiting this.

5.5.2 Legal Implications and Validity of Ama’an

The legal consequences of ama’an represent a very large chapter in

Siyar. Some of these are already implied in the definition above.
However according to Al-Shaybani, they can be summarized as follows:

1. The beneficiary of ama’an whether an individual (musta’aman) or a

group (musta’amanoon) will be free to safely enter, and reside and
even trade (subject to agreed terms) in a Muslim state even when it
is at war with their own state.
2. The beneficiary will be assured that his life and property are safe
throughout the period of ama’an and until returning to a place of
safety.
3. The beneficiary will be assured that all of their assets and proper-
ties will go to the heirs or according to their will when available in
the case of death.
4. If the musta’aman is robbed, killed or harmed in general the
authority will apply the relevant law and enforcement to put things
right if possible or pay compensation or blood money in the case of
murder.197
5. As for the validity of the ama’an contract, it is an obligation upon
all subjects to respect it, even if it was only made by some or even
just by one of them.198
6. As we will see later, the mere fact that someone believed that he is
a beneficiary of ama’an could be enough to oblige all subjects of
the Muslim State not to harm this person and to abstain from all
actions that could violate his ama’an.199 Al-Shaybani was always in

196
Even though it has some special characteristics, ama’an, legally speaking,
is still a type of contract or treaty.
197
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 106) 258.
198
Ibid.
199
Abū al-Wafā (n 103) 89.

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252 Islamic international law

favour of approving of the existence of ama’an whenever there was

a belief by the recipient that it existed.200
7. Even committing a crime does not nullify ama’an although punish-
ment might be imposed for the crime.201

5.5.3 Conditions Related to the Ama’an Giver

As previously mentioned, any person who meets the following conditions

can grant ama’an to any foreigner:

1. The person must be either an adult Muslim man or woman (with

the exception of fighting teenagers).202 This is very important
because in a Muslim state one would expect that a sensible adult
Muslim male or female would not give ama’an to anyone who
could be entering for illegal or unpleasant causes. It is, in our view,
a security measure. The fact that it must be given by a person who
has reached the age of puberty supports this assumption. In
addition, ama’an is a legally binding contract, which requires legal
capacity represented by being both free and adult. However, one
should wonder why a fighting teenager is excluded from the
requirement of being an adult? Could this be so that every fighter
will be able to grant security to others?203
2. An ama’an issuer must act with free will and must not be under
any coercion. This is why Muslims lacking free will are also
stripped of this right. Thus, an ama’an issued by a person in the
hands of the enemy is not valid, although it might have some valid
legal consequences.204

Grotius, who does not seem to recognize an equivalent peace tool to that
of ama’an,205 discussed promises in general and to him too ‘what is done
without deliberate intent does not … attain to the force of obligation’.206

200
See, for example, As-Sarakhsī, Explanation of As-Siyar Al-Kabīr
(n 106) 281–4, 263, 258–9.
201
Ibid 305.
202
For details, see ibid 255–6.
203
For the answer, see ibid 252–7.
204
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 521.
205
While discussing peace, Grotius, made it very clear that only the king or
the highest authority can make peace. Thus, this peace-making tool offered by
Al-Shaybani had no equivalent whatsoever in Grotius’s perspective, as it seems.
See Grotius, The Law of War and Peace (n 5) 848.
206
Ibid 332.

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He also added, in line with Al-Shaybani’s teachings, that ‘the promise of

madmen, idiots, and children are null and void’.207

5.5.4 Types of Ama’an

Ama’an to Al-Shaybani is defined by the actual contract, whether it was

a unilateral decision or grant or even if it was done through negotiations.
Thus, to him, it seems that the wording of the contract determines the
type, the jurisdiction as well as the terms and conditions of ama’an. He
did not talk about the need to write down this type of contract, unlike the
case of treaties. Thus, it could be verbally granted.
This leaves us with many types of ama’an as far as its conditions and
limits are concerned. However, Al-Shaybani discussed many possible
types and forms of ama’an. What could be said however is that he
explained that the wording of the ama’an contract could be used in any
way that could correspond to how a linguist would interpret it.208

5.5.5 Ama’an as a Sacred Peace Tool

Al-Shaybani dealt with this contract as if it was a sacred peace promise

in which the foreigner receiving it shall come to no harm during its term
and within its jurisdiction. Indeed, in all cases Al-Shaybani dealt with
ama’an as if it was, once granted, a sacred covenant. Even when the
ama’an giver was ordered by the authority not to grant ama’an, if he
does grant it to anybody the beneficiary will benefit from it and the
ama’an giver could face punishment, as seen above. There is a great deal
of evidence of the sacredness of this covenant as in the following
examples.
It is better to extend this pledge of security to those who did not have
it, than to harm anyone who has been granted it. In one case, for
instance, Al-Shaybani takes the example of Muslims besieging people in
their stronghold, with four of those people having been granted ama’an,
after which they came out from their fortification in a group of twenty
people. In this case, if the four men are identified they should be safe.
Meanwhile the rest are considered to be fay.209 Al-Shaybani asserts that
the four musta’amanoon should under no circumstances be harmed. Even
if conciliation is not reached with them, they still have the right to go

207
Ibid.
208
Some examples and further explanation can be found in As-Sarakhsī,
Explanation of As-Siyar Al-Kabīr (n 139) 421–2.
209
Spoils of war taken from non-Muslims without war or violence.

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254 Islamic international law

back to their safe place, wherever it may be. Even in the event of their
refusal to return to dar-al-harb they may not be killed or enslaved.
However, the imam has the right to give an ultimatum, after which if they
still refuse to leave they can be made dhimmi and can be transferred to
the dar-al-Islam.210
If in the last case, however, everyone in that group from the besieged
fort claimed to be one of the four musta’amanoon and there is no precise
way to know which are telling the truth, they should all be considered to
be what they claim to be.211 Al-Sarakhsi justifies this judgment of
Al-Shaybani by stating the general Islamic rule: abandoning the right (to
execute or capture the non-musta’amanoon of this group) is better than
doing the forbidden (e.g. executing those with ama’an among the group).212
Moreover, in many cases Al-Shaybani ruled that people must be safe as
long as they believe that they are granted ama’an, even if this was not the
case. For example, if Muslims told the people of dar al-harb that they
would give them ama’an if they allowed them to enter that country, the
former should not kill any of the latter because an ama’an contract has
been concluded. This should mean that even if it is the intention of the
ama’an provider to trick the other party and gain entry (with the
intention to kill, capture or acquire booty), the ama’an will still be valid.
This is because, Al-Sarakhsi explains, the ama’an is a very sacred and
important contract in Islam and the receiver of ama’an should always be
safe when accepting it in good faith. Hence, even if the Muslims in this
case claimed to be merchants they have no right to violate the implicitly
understood ama’an therein.213
Even when ama’an is made under a condition not fulfilled by the
beneficiary, it will still be (in most cases) valid until the musta’aman
reaches a place of safety. Furthermore, in such cases Al-Shaybani took
the view that it is the duty of Muslims to make sure that the person
reaches a place of safety in all cases.214 It is understandable that if the
ama’an is still valid, the duty of returning the person to his place of
safety or to dar al-harb must still be fulfilled. However, the idea of

210
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 409–10.
211
This is probably the principle we know today: ‘Let A Hundred Guilty Be
Acquitted But One Innocent Should Not Be Convicted.’ However, being a jurist
and chief justice himself Al-Shaybani is no stranger to principles of justice,
therefore for those familiar with his writings, it would be no surprise to see him
applying such legal principles to international legal issues.
212
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 4109–111.
213
Ibid 507.
214
See example in As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 526.

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The law of peace 255

making the contractor responsible for fulfilling a contract, even if the

other party has not done so, is what makes this ‘contract’ an exception.
Al-Sarakhsi, explaining this, gives another example of when Islam
rendered the contract valid even if one party did not fulfil his duties. He
likened it to the case when a master has agreed to emancipate his slave in
exchange for a deferred payment of 1000 dinar by the latter, who will
have to strive and earn the named amount to pay to the former by a
specified date. The slave will be set free even if he does not fulfil the
agreement by failing to pay the agreed amount to his master.215
From the above, it is clear that ama’an is an extraordinary peace-
making tool. This in itself indicates the nature of Islamic international
law in the eyes of Al-Shaybani and whether it is dominated by motives of
peace or by war.
However, although Al-Shaybani often discussed the rules applicable to
those entering foreign lands with ama’an, it has been very difficult to
locate any treatment of this topic in the work of Augustine, Gratian,
Aquinas and even Grotius. The only exception is Grotius’s hint in his
statement that when a person ‘comes either from the enemy or from a
foreign country and entrusts himself to the good faith of another people
or king … such a person tacitly binds himself to do nothing against that
government under which he seeks protection’.216 It is difficult to establish
whether he was referring to ama’an or refuge. In addition, it is difficult
to compare this view to that of Al-Shaybani, even if we assume that he is
discussing ama’an here, because Grotius only set out one rule similar to
that already stated by Al-Shaybani on the topic of ama’an requiring the
respect of the host country.
Nevertheless, what in Vitoria’s view should be granted to foreigners is
much more extensive than that of Al-Shaybani. This is because, accord-
ing to Vitoria they can travel, reside, explore, fish, hunt, mine and marry
anywhere they wish on earth. They are not required to have any form of
permission such as that required by Al-Shaybani. Instead, they are free to
do all of the above while fully protected by the law of nature and no one
has the right to prevent or stop them from so doing.217
Vitoria here assumes that the law of nations grants all persons a right
of movement to all parts of the world; a right of using rivers, seas,
harbours and all communal things to all foreigners. This concept was also

215
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 526.
216
Grotius, The Law of War and Peace (n 5) 857.
217
Francisco de Vitoria, De Indis De Ivre Belli Relectiones, Text of 1696
(Ernest Nys ed., John Pawley Bate tr., The Carnegie Institution of Washington
1917) 151–4.

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256 Islamic international law

stretched by Vitoria to grant foreigners the absolute right protected by

law to trade, have access to mining, explorations and all matters of this
kind in foreign lands. Thus, he supposes that the Spaniards could have
travelled anywhere and the people of the host land have no right to
prevent them from entering so long as they are not ‘hurtful’. Thereafter
the aborigines would have no right to expel the Spaniards and if they try
to do so they would be violating both the law of nations and divine law at
the same time. Therefore, a war against them to stop them expelling the
Spaniards would be lawful.218 To justify this Vitoria was saying that ‘it
was permissible from the beginning of the world (when everything was in
common) for any one to set forth and travel wheresoever he would. Now
this was not taken away by the division of property.’219
In this point, we can see that Grotius, who, as we have seen above, was
in favour of allowing free travel in order to occupy ‘empty lands’ and
utilize them, succeeded Vitoria. The danger of this notion is all too clear.
Vitoria continually emphasized the point that his ideas must not be
employed in any other way than how he has expressed and explained
them. Yet this notion he supports snatches any right of resistance from
the hands of the powerless. He states this by claiming that such resistance
to foreign admission and stay is illegal. Thus, his notion could easily
permit a ‘legal’ occupation by the powerful and the many of the
powerless or the few without any resistance.

5.6 DIPLOMATIC MISSIONS AND EMISSARY

Diplomacy is a very important tool of dialogue, which can prevent wars
and conflicts and even turn hostile relations into peaceful ones.
Al-Shaybani discussed rules for the respect and guarantee of safety and
comfort of envoys even during war.220 Ama’an in his writings is used to
facilitate peaceful interactions between states and peoples during peace
and war. Diplomatic immunities are also discussed within this topic. In
addition, the privileges of diplomats and even the conditions of their
ama’an were made easier and more prestigious for official envoys and
diplomats, as we shall see.
Here, one could imagine that almost a thousand years later Grotius
would have a more advanced world of diplomacy than that which
Al-Shaybani had witnessed or even hoped for. However, whether this

218
Ibid 151–3.
219
Ibid 151.
220
Abū al-Wafā (n 103) 95.

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The law of peace 257

affected Grotius’s contribution is what should be discovered through

comparing Al-Shaybani’s input as follows.

5.6.1 Diplomatic Immunities and Privileges

Al-Shaybani granted an exceptionally high level of immunity and various

privileges to diplomats and envoys, some of which are not found even in
today’s legal systems. The following examples of these immunities are
not an exhaustive list. Grotius too, in this field, had a similar approach to
that of Al-Shaybani in terms of giving importance to the topic and the
many privileges and immunities for diplomats. For example, agreeing
with Cicero, he thinks that there could be no better example of just cause
of war than that of the ‘ill-handling of ambassadors’.221

The right of automatic safe conduct

As we have seen above, ama’an can be granted for trade or a visit but
must be issued by an eligible person[s] and it is defined by the wording
of the contract. However, for envoys it is considered an automatic right to
have ama’an and there is no need to issue one. In addition, envoys
entering dar-al-Islam with no formal invitation or permission will still be
automatically covered by ama’an. This is a level of tolerance that does
not appear to have been reached before Al-Shaybani and remains
distinctive because clearly, even today’s diplomatic rules still fall far
short of them.222 Al-Shaybani promoted this level of tolerance and
insisted that it must be the case even during war. This is apparent from
the example given by him of the case of a message carried from a foreign
king to the head of a Muslim campaign. In such a case, the messenger is
considered a musta’aman until he reaches the Muslim commander and
conveys his message.223 Furthermore, Al-Sarakhsi adds that:

indeed the messenger is safe on both sides, this is the case both in Islam and
before it. This is because the decision of war and peace cannot be taken
without messengers, so the envoy must be safe to convey the message. When
an envoy uttered some unacceptable words in the presence of the Messenger
peace be upon him, the latter said ‘had you not been a messenger, I would
have killed you’ so with this it is clear that envoys must be safe.224

221
Thomas Alfred Walker, A History of the Law of Nations: From the
Earliest Times to the Peace of Westphalia, 1648, vol 1 (Cambridge University
Press 1899) 304.
222
Abū al-Wafā (n 103) 96.
223
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 515–16.
224
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 106) 296.

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258 Islamic international law

Interestingly, the absolute prohibition on the killing of ambassadors in

Grotius’ writings appears when he stressed that an ‘ambassador may not
be put to death by way of retaliation for similar treatment of an
ambassador by his principal’.225 For the ‘right of retaliation’, says he,
‘can not be claimed against ambassadors’.226 Yet, according to Grotius,
‘if an ambassador should attempt armed force he can indeed be killed,
not by way of penalty, but in natural defence.’227
As indicated above, whether there is a prior arrangement and agree-
ment to receive the envoy is not important to Al-Shaybani, as his safety
must be respected in all cases.228 In this regard, he said:

if Muslims found a harbi (foreigner) in dar-al-Islam and he claimed that he

entered with ama’an, he should not be believed […]. The same applies if he
claims to be an envoy of his king to the Caliph, he should not be believed and
he should be considered as fay … However, if he has demonstrated a letter
bearing a resemblance to a letter from his king and claimed that it is from the
king he should be safe until he delivers the message. The ama’an here is
respected as we highly suspect that he could be right.229

In comparison, to Grotius the rights and duties of embassies ‘in so far as

they are matter of jus gentium, affect those ambassadors only who are
employed by Sovereign Powers inter se’.230 As it will be difficult to
determine with whom the sovereign power lies in some cases of civil
war, the principle may, exceptionally, be departed from in such cases.231
In addition, Grotius agrees with Al-Shaybani largely as he thinks that
‘[t]he law of nations accords to ambassadors, (1) a right of admission,
(2) immunity from violence’.232 However, he takes the different view that
in some cases ambassadors could be denied access, something with
which Al-Shaybani might not agree.233 Thus, the right of admission is not
absolute in Grotius’s law. He sees it obligatory only in the absence of
reasons for rejecting admission. The problem is the way Grotius
explained the legitimate reasons for rejection, among which we find: (1)
if the sending state is planning war or is at war with the recipient; (2) if

225
Walker (n 221) 304.
226
Grotius, The Law of War and Peace (n 5) 447.
227
Ibid 444.
228
Abū al-Wafā (n 103) 96.
229
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 106) 295–6.
230
Walker (n 221) 302.
231
Ibid.
232
Ibid. See also Grotius, The Law of War and Peace (n 5) 440.
233
Walker (n 221) 302.

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The law of peace 259

the sending state is a ‘wicked nation’; and (3) if the sender is an

atheist.234 Thus, it is hard to see how the system envisaged by Grotius
would support peace initiatives, or avoid or stop wars by utilizing the
important ambassadorial role on such occasions when these are high-
lighted as proper reasons for rejecting the entry of ambassadors.

Freedom of movement
According to Al-Shaybani, not only has the diplomatic envoy the right to
enter and reach the authority, he also has the right to move and return
whenever he wishes.235 For example, in the previous case, although it is
during wartime, if he decides to leave the Muslim military camp, he
would normally be allowed to do so and shall be safe. Al-Shaybani
further rules that the musta’aman does not become a citizen and does not
have to abide by the rules;236 rather he has entered the abode for a certain
aim, then returns to his abode. Hence, he should not be prevented from
going back.237 The only exception to this is in the event that the Muslim
commander fears that the musta’aman (whether a messenger or not) has
learned about strategically sensitive issues that he might convey to an
enemy. The authority then has the right to halt their movement until the
danger has passed. Exceptionally, the commander here has the right to
keep this person until the danger has passed. Therefore, he could even
take them back to dar al-Islam.238 Parallel to this is Grotius’s rule that, if
need be, ‘an immediately threatening peril may be met, if there is no
other proper recourse, ambassadors can be detained and questioned’.239
We can see that Grotius went further to allow questioning on top of the
necessary restriction of movement permitted by Al-Shaybani. However,
to both scholars, this should be an exception to the rule that should only
be authorized in serious cases.

The right to dignified treatment

Not only during peace but even at war and even when, as in the
previously mentioned case, the movement of the envoy represents a
danger to the State, dignified treatment must always be maintained with

234
Grotius, The Law of War and Peace (n 5) 440–41.
235
Abū al-Wafā (n 103) 123.
236
Regarding religious duties.
237
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 106) 305–307.
238
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 515–17.
239
Grotius, The Law of War and Peace (n 5) 444.

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260 Islamic international law

respect to envoys. For instance, in no case would the authorities have the
right to chain or by any means persecute envoys.240

The right to support and protection

In all cases, envoys should be treated well and if the authority sees that
the return of the envoy no longer represents a threat (such as in the
previous case), it has to provide him with whatever means are needed to
reach a place of safety. This includes money, a means of transport and
even guards when needed.241

The legal responsibility of diplomats

Al-Shaybani addressed issues related to the responsibility of visitors from
abroad and subjects visiting other states. For example, a person was
allowed to take as much money as he wished out of the country he was
visiting if he did not accumulate it through breaking his ama’an
conditions. Thus taking monies forcefully or without the permission of
the owner will be considered a violation of the ama’an. In such a case, if
he brings this money to dar-al-Islam he will be ordered to return it to the
person to whom it belongs. Nevertheless, the imam does not have the
right to force him to do so because he has violated his own oath by
breaking the ama’an in that abode he was in.242 This rule applies to
envoys as well, especially if they have used their official status to
accumulate this money.243
Meanwhile, Grotius, discussing the same topic from a different angle,
asserts: ‘[i]t is the better opinion that the movables of an ambassador and
other articles annexed to his person are exempt from all seizure by way
of pledge or for satisfaction of a debt, whether by process of court or by
royal hand.’244
As for immunities, Grotius took the view that:

if an ambassador commits an unimportant offence, it may be winked at; or the

ambassador may be ordered to quit the country. If the crime be heinous, and
such as injuriously affects the public weal, the ambassador must be sent to
him who accredited him, with a request that he shall either punish him or

240
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 516.
241
Ibid.
242
Abū al-Wafā (n 103) 115.
243
Muhammad Ibn Ahmad As-Sarakhsī, Explanation of Al-Siyar Al-Kabīr of
Muḥammad Ibn Al-Hasan Al-Shaybānī [Sharih Kitab Al-Siyar Al-Kabir Li-
Muhammad Ibn Al-Hasan Al-Shaybani – Imla Muhammad Ibn Ahmad Al-Sarakhsi],
vol 4 (Salah Al-Deen Al-Munajjid ed, Ma’had Al-Makhtu’tat 1971) 1138–40.
244
Walker (n 221) 304.

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The law of peace 261

surrender him for punishment … in case of extreme necessity, nevertheless,

not by way of punishment but by way of preventing some grave, especially a
public, evil an ambassador may be apprehended and examined, and, if he be
guilty of armed assault, he may be slain in self-defence by the person
assailed.245

In this area, it should be noted that both Al-Shaybani and Grotius have
discussed this topic in principle, but the details they go into sometimes
differ considerably.

Lifting diplomatic immunity and its consequences

In Al-Siyar Al-Kabīr it is stated that if the imam decides to withdraw the
ama’an for some reason (in accordance with the rules), he should ask the
musta’aman to leave within a certain period of time. However, he must
not narrow this period for them in such a way that could be harmful.246
This was explained as follows: this is because he (the imam) is
responsible for both his people as well as those with ama’an.247
Furthermore, Al-Shaybani went on to discuss the different possible
scenarios such as if the person owns land, is married to a subject of the
state or other possible scenarios in which the legal issues would be more
complex and flexible answers were given by Al-Shaybani to all of these.

5.6.2 Responsibility of the Sending States

In the twenty first century, an ambassador can make his state legally
responsible once he has signed an agreement on its behalf. The question
asked here is: what would the case be if an envoy sent by a Muslim
leader in the eighth century had made a binding agreement on behalf of
his state if he was not authorized to do so? In answering this hypothetical
question, Al-Shaybani would say that the envoy’s state is legally respons-
ible for the agreement.248

Verifying messages sent through envoys

In Al-Shaybani’s view, the Siyar principle, dictating that verification and
authentication in international relations is required, must always be
followed.249 The following example illustrates the intent of Al-Shaybani
in this regard. If the prince and the Muslims made ama’an, Al-Shaybani

245
Ibid 303–304. See also Grotius, The Law of War and Peace (n 5) 444.
246
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 1868.
247
Ibid 1869.
248
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 471–2.
249
Abū al-Wafā (n 5) 118.

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262 Islamic international law

says, and then he sent a man to inform the other party of the termination
of it; then this man returns and informs the prince that the message is
delivered; the Muslims still must not breach the ama’an until they verify
that the message has reached the other party. He added that if this was
the other way round and the leader of dar-al-harb sent two envoys to
notify their withdrawal from the ama’an carrying a sealed letter, then this
should be sufficient as their testimony against their own people is
accepted considering the fact that they were both musta’amanoon until
the message was delivered.250

Ensuring that diplomats have carried out their missions

The purpose of sending envoys is usually to carry out a mission; the
sending state must ensure that the mission is accomplished. Accordingly,
this mission must be facilitated.251 For example, Al-Shaybani, in many
cases, stresses that simply sending an envoy does not always mean that
the message is delivered. Thus, the legal implications of such a diplo-
matic move can only take effect if the message is actually delivered.252

The principle of reciprocity

Al-Shaybani had already promoted this principle in this field long before
the world came to recognize it as an international law principle.253
Throughout his writings, Al-Shaybani reminds his reader of the principle
of reciprocity as a main tool in international relations. He is consistent in
deploying this principle while addressing international interactions. He,
for example, ruled that ‘if they do not take the tithe from what Muslims
carry while entering their land but they do this to non-Muslim subjects of
the state, we must take the tithe from them as they do to our subjects’.254
Thus, if other states do not charge subjects of the Muslim State then their
subjects must not be charged. Although Al-Shaybani applies this prin-
ciple in diplomatic relations, to him, this principle must not allow
betrayal of other states in retaliation.255 Thus, reciprocity must never be
taken as pretext to allow one people to betray others in retaliation.

250
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 476–7.
251
Abū al-Wafā (n 103) 101.
252
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 468–70.
253
Abū al-Wafā (n 103) 102.
254
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 95) 2144.
255
Abū al-Wafā (n 103) 103.

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The law of peace 263

Diplomats exceeding mission confines

Al-Shaybani took the view that the sending state is responsible for what
its envoy[s] are doing even if the latter have exceeded the boundaries of
their mission.256 For example, if the envoy was authorized to convey a
certain message and then he abused this mission by adding to the
message something that could be harmful for the recipient or beneficial
for the envoy, the sending authority remains responsible for actions of the
envoy. In fact, he ruled that whatever rights were initiated by the action
of the envoy must still be respected. Whereas, whatever burdens were
inflicted on others by exceeding the confines of the mission must be
rendered void. Where some have already been implemented they must be
redeemed or compensated for by the sender.257

Impersonating diplomatic envoys

If this happens, Al-Shaybani advised that the perpetrator should not be
able to benefit from immunities and privileges. To him this is one of the
absolutely prohibited acts in international relations. For example, in a
case mentioned above, he ruled that:

if some Muslims entered dar-al-harb and said: we are the messengers of the
Caliph. Whether they produced a letter similar to his or not, and this was used
by them to trick the others; then the latter allowed them into their country;
then it is prohibited unto them to kill any of the people of that abode or take
any of their wealth so long as they are there.258

Accordingly, Al-Shaybani was against deception as a tool in diplomacy.

What Al-Shaybani initiated in the eighth century is what we now have in
Article 38/1 of the Protocol Additional to the Geneva Conventions of
1949 relating to the Protection of Victims of International Armed
Conflicts (Protocol I), 1977.259
Once again, the attention paid by Al-Shaybani and Grotius to this topic is
enormous. However, given the fact that he himself was an ambassador,
Grotius could have said more about the topic: he was appointed by
Sweden as an ambassador to France in 1634.260 Hence, it is curious that
he did not cover all the topics of diplomatic law, at least in the 1645 edition.

256
Ibid 105.
257
See the example discussed by Al-Shaybani in As-Sarakhsī, Explanation of
As-Siyar Al-Kabīr (n 139) 571.
258
Ibid 507.
259
Abū al-Wafā (n 103) 109.
260
Richard Tuck, The Rights of War and Peace: Political Thought and the
International Order from Grotius to Kant (Oxford University Press 1999) 95.

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264 Islamic international law

5.7 ARBITRATION
Arbitration is one of the most important conflict resolution tools and it is
a relatively old practice. Al-Shaybani explains arbitration as another tool
that was used by the Messenger to resolve international disputes and
maintain peace and security. This is similar to arbitration as known in
contemporary international law.
Al-Shaybani discussed rules and procedures that should be followed in
arbitration as follows:

1. An arbitrator must be an independent body agreed upon by all

parties.
2. Also, all parties must agree to submit to the arbitrator’s decision.

In one case, he discussed the situation where two enemies have decided
to end hostile activities by arbitration. In this case, the two parties shall
assign the task of judging between them to a named person (or group).
They both should agree that whatever the judgment should be it must be
respected and implemented.261 Al-Shaybani, to justify this method,
discussed the famous case of Banu-Kuraidah, the Jewish tribe that
committed treason (during war) after signing an agreement with Prophet
Muhammad that they would respect the peace agreement and would not
help his enemy against him. Conversely, they joined the masses of Arab
tribes who gathered in a plot to eliminate Muslims by killing every
Muslim in Medina. The Arab tribes decided to leave after a long lasting
siege after losing hope of entering the city due to the big ditches that had
been dug by the people of Medina to protect themselves. Following this,
the Muslim army was directed to besiege Banu-Kuraidah in their
stronghold. After a certain period, they agreed with the Prophet to accept
the judgment of the Muslim Sa’ad Ibn Mua’ad (who was a member of
their tribe). Sa’ad, using the common punishment for treason at the time,
decreed the execution of all those who were capable of carrying arms and
capturing the rest.262
From this example and based on the writings of Al-Shaybani, Abū
al-Wafā draws the following conclusions:263 first, Al-Shaybani sees
arbitration as a permissible tool in resolving international issues between
Muslims and non-Muslims. Secondly, Muslims knew the principle of

261
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 587–92.
262
Ibid.
263
Abū al-Wafā (n 103) 126.

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The law of peace 265

taradi (to agree to be bound by the decision of a certain arbitrator) in

arbitration as a main principle, which could be resorted to in resolving
international conflicts. Thus Al-Shaybani recalls one example when the
selected arbitrator asks one party: ‘and upon you is the oath of God and
his Covenant that the verdict in your case is what I judge? They said:
yes.’264
Meanwhile, Grotius held the opinion that ‘war was only justified when
there was no possibility of effective arbitration’.265 He proposed that
‘[f]irst, war may be obviated by a conference … Second, war may be
obviated by arbitration … Third, war may be obviated by lot.’266 If this is
true, then there are two points to highlight here: first, Grotius was in
favour of peaceful conflict resolutions before war can be justified.
Second, Grotius endorses arbitration as one of the means of conflict
resolution, something that I did not find in Aquinas before him, which
raises the question of whether there was any link between Al-Shaybani
and Grotius in this regard too. What is more is that while arbitration, to
Al-Shaybani, can be used to settle differences and to resolve disputes
before, during and after war, to Grotius it seems that it is a facility that is
no longer available once war begins. This is because Grotius held the
position that ‘a good man should not prosecute a just war any longer than
needed to secure satisfaction for harm done’.267 Thus to end wars it is
satisfaction of the party and not other settlements which could end them.
This is because he did not speak of any other means or even need to end
war but the satisfaction of the party with a ‘just cause’.
Nevertheless, Grotius was in favour of the same type of arbitration
discussed by Al-Shaybani in which the decision of the chosen arbitrator
is binding upon parties without the need for any further referral or
judgment.268 However, Grotius is different in that he professes some
further limitations on the arbitrator’s jurisdiction. He is of the opinion
that ‘arbitrators ought not to decide concerning possession’, as he thinks
it is a matter for domestic law alone.269

264
As-Sarakhsī, Explanation of As-Siyar Al-Kabīr (n 139) 590.
265
Quoted in: Bellamy (n 161) 73.
266
Grotius, The Law of War and Peace (n 5) 560–63.
267
James Turner Johnson, Ideology, Reason, and the Limitation of War:
Religious and Secular Concepts 1200–1740 (Princeton University Press 1975)
227.
268
Grotius, The Law of War and Peace (n 5) 823.
269
Ibid 825.

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266 Islamic international law

5.8 CONCLUSION
In this chapter, it has been shown that Al-Shaybani and Grotius offered
many peace-making tools and rules to govern peace and peaceful
relations. Here, the contributions of Augustine, Gratian and Aquinas are
very limited in comparison to either Grotius or Al-Shaybani. In fact, I can
confidently say that in this chapter the comparison can only take place
between Grotius and Al-Shaybani and Vitoria. Yet the work of Vitoria
was not more relevant than Augustine, Gratian and Aquinas for he only
offered some discussions of some of the detailed rules I have considered
above. In most cases, he did not discuss the issues I discussed. For
example, he did not consider diplomacy at all. Even when we compare
his notes to Al-Shaybani as in the case when I discussed the facility of
ama’an, Vitoria’s input was very small. Grotius too was not included in
many of the cases I considered simply because he had not paid attention
to many of them.
Nevertheless, when both Grotius and Al-Shaybani discussed the topics,
it was clear that there are significant parallels. Differences sometimes
occur either in the details or in the subdivisions, but it cannot be said that
one of them was more accurate or sophisticated than the other. Moreover,
while I assumed that Grotius, who lived nearly a millennium after
Al-Shaybani, should have been much closer in opinion and complexity of
legal details to contemporary international law, this was only correct in
very few instances.
However, some topics were discussed by Al-Shaybani in detail while
readers will struggle to find any traces of them in Grotius. The example
of this is the subject of ama’an. Important as it is, Grotius seems to have
given it no consideration in the The Law of War and Peace. Apart from
this, which is a key difference, the two scholars otherwise are comparable
in approach.
On the other hand, as far as treaties are concerned we have seen that
Al-Shaybani discussed them as a legal outcome of a legal action taken on
behalf of a legal entity (a state), whereas Grotius discussed treaties as if
they were mere promises by individuals whether they were kings or
others. Thus, it is not clear whether Grotius was writing with the legal
personality of the state in mind. Nevertheless, both Al-Shaybani and
Grotius believed that individuals were responsible for their behaviour
before the law and this was the foundation of good behaviour in
international society.

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6. Conclusion
As a cornerstone of what is believed by one-sixth of the world’s
population to be their international law, the book of Al-Shaybani and its
author cannot be underestimated. In this book, I completed the task of
highlighting the importance of one of the oldest books on international
law, Al-Siyar Al-Kabīr, written in the eighth century. Al-Shaybani’s book,
I have demonstrated, was unique in that era, and indeed no comparable
work existed until the seventeenth century when Grotius wrote The Law
of War and Peace. Yet most legal historians have paid Al-Shaybani very
little attention.
The aim was to evaluate Al-Shaybani’s contribution to the field of
international law from a historical perspective. I looked at Al-Shaybani as
a missing page in the Western histography of international law. Thus, I
compared him to Augustine, Gratian, Aquinas, Vitoria and Grotius as far as
their contributions to this field were concerned. I selected these latter five
scholars because they were each deemed the most significant contributor
to this field in their own time. I noticed that most legal historians
working on international law draw heavily on the work of these scholars.
The selection of St. Augustine from the fifth century was to see
whether he had influenced Al-Shaybani in any way or form or whether
Al-Shaybani was entirely original in his contribution. Initially, along with
St Augustine, I only selected Gratian from the twelfth century and
Aquinas from the thirteenth century. However, as these scholars did not
cover most of the topics dealt with by Al-Shaybani, scholars from later
times were introduced and thus Vitoria and Grotius were selected as well.
Chief as they all are, I first would like to express concern about a
practice that has been noticed in many of the works consulted. Many
scholars either implicitly or explicitly suggest that the views of the
scholar they are examining are a complete representation of his culture,
state, religion or civilization’s views on the issues discussed. An example
of this is when somebody tries to give the impression that the views of St
Augustine on war are those that Christianity or Christians unanimously
held. This was never the case as other Christian thinkers before and after
him held different views. Thus, I firmly believe that the opinion of
Al-Shaybani should not be taken as if all Muslim jurists shared it nor

267

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268 Islamic international law

should those of any of Augustine, Gratian, Aquinas, Vitoria or Grotius be

taken as representative of what all Europeans or Christians believed. This
common mistake must be avoided in all future studies.
Meanwhile, a significant finding of this study was the fact that Islamic
international law, although not fully adopted by many governments, is
still active. I have demonstrated that more than 1.5 billion (one-sixth) of
the world’s population would follow this law if they had to select between
its rules and the rules of the contemporary power-centred international law.1
In the first chapter, it was demonstrated that more than one inter-
national law could and did actually exist together. The question left to be
answered is whether a single system of law should be imposed on all
nations without taking into account any cultural, religious or social
differences. This, as shown above, is the source of disarray in which the
state of international law has recently been. Therefore, the world has
either to agree one legal system that takes into account differences or to
choose to live with anarchy. Imposing one legal system that belongs to
one theory (capitalism) or one culture (Western) on the world would have
no less bitter results than those we live with today.2 Thus, an urgent
reform of the current system by appreciating the reality of the world’s
legal, cultural, social and religious map would be the only solution to
have an effective and practical as well as more just system.3
As we have seen above, there is no doubt that both Siyar and Western
international law were grounded in religious and divine origins. It is true,
however, that they both have great juristic input but all of this was still
based, in part, on religious notions and can often (if not always) be traced
back to religious origins as I demonstrated in this work. Nevertheless,
Western international law today, by the effort of many jurists, is attempting
to distance itself from such facts.4 However, these attempts can only
succeed if they can cut contemporary Western international law from its

1
See, for example, S. S. Ali, ‘Resurrecting Siyar through Fatwas? (Re)
Constructing “Islamic International Law” in a Post-(Iraq) Invasion World’ (2009)
14 Journal of Conflict and Security Law 115, 115–44.
2
Anthony Carty, ‘The Yearning for Unity and the Eternal Return of the
Tower of Babel’ (2007) 1 European Journal of Legal Studies 1 <http://
cadmus.eui.eu/handle/1814/6841> (accessed 6 June 2018) 1.
3
Yasuaki Onuma, ‘When Was the Law of International Society Born?’
(2000) 2(1) 65 JHIL <http://heinonline.org/HOL/Page?collection=journals&
handle=hein.journals/jhintl2&div=6&id=&page=> (accessed 6 October 2009) 65.
4
Martti Koskenniemi, ‘Colonization of The “Indies” – The Origin of
International Law’ (University of Zaragoza, December 2009) <http://www.
helsinki.fi/eci/Publications/Koskenniemi/Zaragoza-10final.pdf> (accessed 22
January 2018).

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Conclusion 269

historical origins. In fact, some of the most well-grounded Western phil-

osophers of international law today are now calling for greater consider-
ation of religious thought in order to enrich what they see as a morally
bankrupt and politically corrupt contemporary system of international law.5
That aside, in this book, I was able to assure the reader that this work
is built on the true and original thoughts of Al-Shaybani. I did this by
studying and analysing the available texts on the commentary of
Al-Sarakhsi on his book, through which I was able to select the most
authentic and complete text. I was also able to compare this selected text
to the original manuscript held at Leiden and assure readers that this
undoubtedly is the original text.
Otherwise, all scholars studied in this book are distinguished scholars
in their fields and more importance is attached to them than many others
in their times. Further, Al-Shaybani, Gratian and Grotius were all jurists
and theologians, with the exception that only Al-Shaybani worked as
Chief Judge of the State. Meanwhile, Augustine, Al-Shaybani and
Grotius had a direct link with the rulers of their states. They had a direct
impact on the practice of international law in their states both in their
time and after they died. All of these scholars lived in different times
with centuries dividing their contributions.
It can also be said that all of the considered thinkers were religious
individuals and were greatly affected by this in their writings. All of them
except Al-Shaybani followed the Christian faith. Yet Gratian, Aquinas
and Grotius heavily relied on Greek and Roman philosophies available to
them in supporting their arguments. Meanwhile, Augustine and
Al-Shaybani were more interested in religious rules and practices to
arrive at answers to their legal questions. Vitoria appeared to take a
middle way between the two. Meanwhile, Al-Shaybani did not rely
directly on Roman or any other ancient legal systems. The only possible
linkage could be his employment of the principle of reciprocity.6 He also
referred to some Arabic practices, but normally he did this more
indirectly by referring to these practices only when they were practised
by the Messenger or by his companions.
Notwithstanding the above, I have noticed that it is unlikely that
Al-Shaybani borrowed from other civilizations, as I have struggled to

5
See, for example, Carty, Tuck and O’Donovan discussed in Anthony Carty,
‘The Moral Theologian, Oliver O’Donovan and International Law’ (2008) 9
Political Theology 339, 339–62.
6
This, for example, is apparent when he said that foreigners must be made
to pay as much tax as subjects are paying when they’re visiting the country of
these foreigners.

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270 Islamic international law

find any link between him and other civilizations or something that they
could have offered him as there were no works comparable to his. From
another angle, however, I discovered that there were many similarities
between what Al-Shaybani produced and what modern European thinkers
offered. The question that should be asked, therefore, is whether the great
European jurists coming centuries later, like Vitoria and Grotius, had any
knowledge of Al-Shaybani’s teachings and whether they were influenced
by his ideas. What is equally important too, therefore, is to know whether
European founders of modern international law had been exposed to the
great amount of Islamic literature translated into Latin and introduced to
most European centres of knowledge7 just before Vitoria and Grotius and
others started to write. What I can add to this today is the fact that I
found many indications of such a relationship supporting the speculations
of many experts I discussed. I have shown on different occasions that
especially with regard to Aquinas, Vitoria and Grotius, there are substan-
tial conjectures and indications that they had knowledge of Islamic
teachings on the issues they were discussing. If we take, for example, the
well-known European philosopher Aquinas, who had a significant influ-
ence on both Vitoria and Grotius, we find that he was greatly affected by
his exposure to Islamic writings. Given this, I strongly believe that the
speculation that great European international lawyers must have been
influenced by Al-Shaybani in one way or another is a substantive
assumption and not mere guesswork.
In addition, despite the fact that a very large amount of Arabic knowledge
was readily available in Latin as it was translated and imported through Italy
and Spain, we struggle to see any acknowledgement of such works in
Western writings when Europe emerged from the dark ages. Moreover, I
have discovered two facts about Vitoria and Grotius. First, they both had
substantial knowledge of the international law perspective Al-Shaybani
took. They both showed an unmistakably similar approach and held
opinions identical to that of Al-Shaybani whereas such practices were not
possible to trace in Europe before them. Understandably, it may have
been difficult for some of them to acknowledge such influences in that
age even if they had wished to. Nevertheless, building on that stated above, I
think that it is worthwhile for future studies to consider the influence
Al-Shaybani could have had on later flourishing European scholars.
Related to this, while Augustine, Gratian and Aquinas limited them-
selves to a small number of questions centred around whether or not a

7
Christopher G. Weeramantry, Islamic Jurisprudence: An International
Perspective (Macmillan 1988) 94–111.

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Conclusion 271

Christian is allowed to fight, Al-Shaybani and Grotius applied a relatively

comprehensive approach when dealing with international legal issues.
Once again, Vitoria offers much more than the others but not as much as
the latter two. Meanwhile, especially on the issue of humanitarian
grounds of comparison, it was only Vitoria who could be compared to the
outstanding humanistic approach of Al-Shaybani. However, Al-Shaybani,
who was writing in the eighth century, was the first to come up with a
‘comprehensive’8 treatment of international law subjects. His book was
and still is a great achievement.
In a letter to Louis XIII, Grotius dedicated his book to the king and
requested his support for its implementation in Christian nations and
churches.9 Thus, Grotius was undeniably targeting Christians as his main
audience and Al-Shaybani’s main audience was Muslims. Therefore,
the audience of both Grotius and Al-Shaybani are religious individuals.
The only difference in this regard is that the latter shared the same source
of law with all of his audience, whereas the former did not. This is
probably why Grotius referred to natural law and relied on Roman law
and other sources in order to make it appealing to all Christian nations.
Meanwhile, distinctively, the similarities between the opinion of
Al-Shaybani and that of Vitoria are many. Although Vitoria did not write
as much as the former, where they both addressed a subject it takes some
time to distinguish their differences. For example, they both seem to
uphold the view that freedom of religion must always be guaranteed and
if not, it must always be granted, even if force is required. I have
elaborated above that this is not a very different approach to that of the
supporters of imposing a Western style of democracy and capitalism on
‘non-democratic nations’. Al-Shaybani, opposing many, including the
head of his school, thinks that even force is allowed to be used in order to
allow others to learn about the message of Islam. Thus, it is obvious that
any obstruction to this knowledge transmission could justify the normally
prohibited use of force. This is because he believes that people must be
able to hear about Islam (their right) and to freely accept its call or reject
it. Meanwhile, to Vitoria, while you are not allowed to fight people
because of their difference in religion (a new concept in Europe), he
allowed individuals to travel, reside, invest, mine, exploit and fish or hunt
anywhere in the world, provided that this is only done in non-privately
owned spaces. However, if individuals were prevented from exercising
this freedom, the preventer would become a legitimate target of just war.

8
Considering the time he was writing in and even centuries later.
9
Hugo Grotius, Hugo Grotius. The Law of War and Peace: De Jure Belli Ac
Pacis Libri Tres (Francis W. Kelsey tr., Indianapolis 1925) 5.

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272 Islamic international law

Also, even after individuals travel and reside anywhere they wish, any
attempt to evict them or hinder their activities or the preaching of
Christianity would permit war. Furthermore, if there is a considerable
number of Christians in an area and they would like to dismiss their ruler,
Vitoria allowed the Pope the right to install a Christian ruler over that
land, and any objection would be faced by use of force.
There is mainly only one exception, therefore, to the prohibition of the
use of force for both Al-Shaybani and Vitoria; however, the explanation
and the details are at variance, as we have seen. Such hypotheses held by
those scholars, centuries ago, should be considered in light of the current
wave of support for the toppling of regimes, invading countries and
intervening in the civil and domestic affairs of other states under the
pretence of spreading democracy or safeguarding human rights and
freedoms. Although all of these latter rationales are mere justifications by
certain jurists for the actions of some powers, they are becoming, by the
day, widespread factual legal notions of Western international law. This is
especially true after the Security Council permitted the intervention on
such grounds in the recent (2011) war in Libya by Resolution 1973. The
Council has also turned a blind eye to the fact that this mission was no
more than regime change and another attempt to install a pro-Western
‘democracy’ in Libya. In fact, today, in the West, especially the USA, it is
manifest in the elites and the ruling class and their advisers on inter-
national legal matters that democracy can be and indeed should be
imposed on others. This is done not for the sake of the masses, as is
being claimed, but in order to keep control of the world in the face of the
growing powers of other states which are considered by the same
individuals as undemocratic. There is a real risk represented in notions
such as the so-called ‘Coalition of the Democracies’. In fact, foreign
policies of the USA, including that of Obama, contain explicit support
for such dangerous ideologies.10 This is especially dangerous, as it seems
that whenever such movement succeeds in causing a regime change for
such a cause, the outcome would be the spread of terrorism, civil wars and
bloodshed. This is true, at least, in the cases of Iraq, Libya and Yemen.
The difference between the views of Al-Shaybani and Vitoria on one
hand and this dangerous notion on the other is apparent. For although
they all support the use of force in order to convey ideas, neither
Al-Shaybani nor Vitoria support the forceful implementation of the

10
Anthony Carty, ‘From a Unipolar to a Multipolar World: A Post-Bush US
Presidency for a Post-Western World’ in Marie-Luisa Frick and Andreas Ober-
prantacher (eds), Power and Justice in International Relations: Interdisciplinary
Approaches to Global Challenges (Ashgate 2009) 13–15.

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Conclusion 273

knowledge they preach. They both support guaranteeing the right to

preach these ideas but not to impose them. In contrast, the current
Coalition of Democracies goes so far as to the point where the use of
force is justified to impose a ‘democratic system’ in another state that has
triggered no need for such action. This league, which believes in the
spreading of Western-styled democracies even by force, is fundamentally
hypocritical. The same democratic system they are ready to impose by
force in one nation, they are ready to fight in another according to what
their interests dictate.11
After all, as set out in the first chapter, if the world is to be a better
place, no one should have superiority over the other, especially in terms
of international law. For the latter to be implementable and respectable, it
must first respect every nation and it must contain the respect of each and
every living civilization. This is particularly important in a fast-moving
world where the Western powers do not and cannot be the only controller
of world affairs or the only prescriber of what the law should be in
international society. Thus, Carty argues that:

the need still remains for an ontology of international society, which is not
imprisoned by the inevitable unilateralism of the Western subjectivism, but
can reveal a vision of a large whole of international reality, of which the West
should have the maturity to accept that it is a significant but not dominant part.12

In fact, what the world might need most is to be freed from the disguised
Western freedom. This must not be understood in a way that supports the
argument of Al-Shaybani or Vitoria, but it must be interpreted as an
indication that their writings were genuine attempts to place limitations
on the use of war at their time. This is because war knew no limits in
their times and places. There was no United Nations Charter during the
time of both Al-Shaybani and Vitoria and the world was warlike indeed.
However, today, using force to advance any idea is extremely dangerous
and entirely unacceptable after the world has reached the peace deal of
the UN. This peace deal, although not complete, is the best achieved so
far and must be improved by way of furthering mutual respect rather than
furthering selfish interests through the misuse of noble notions such as
democracy and human rights.
Nevertheless, I have come to conclude that all of the six scholars,
considered in this study, are distinguished and that they have earned their
reputations by hard work and great achievements and not by mere

11
Ibid 14–26.
12
Ibid 26.

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274 Islamic international law

polemic historical recordings. St Augustine, to begin with, was indeed a

great thinker, eloquent and a goal achiever. He was a prolific writer
whose contribution to theology, philosophy and history cannot be under-
estimated. Reading his works was challenging only because of the
volume he wrote. Nevertheless, unlike what many legal historians have
concluded, he did not offer much legal text on issues relating to
international relations. Gratian, on the other hand, was, as considered by
many legal historians, a contributor to the field of law as much as he was
to that of theology. Yet still when it comes to international relations his
legal input was not much more significant than that of Augustine. In
contrast, the often-cited thinker of the late Middle Ages, Aquinas did
offer a deserving contribution to theology and philosophy. As far as legal
rules to govern international relations of his time are concerned, I accept
that he did mention some; however, they were indeed very minor. The
issue is not these three great minds but legal historians who have us
believe that their contributions to the fields of international law, espe-
cially the law of war, was as great as their contributions to theology,
philosophy and history. What they offered to international law, great as it
might be, was no more than general moral and theological comments on
some subjects on international relations. What they were concerned with
in this area was mainly the question of when is it permissible for an
individual to join or go to war.
However, Al-Shaybani, Grotius and Vitoria, although they were theo-
logians, have offered what legal historians interested in international
relations can never exclude. Al-Shaybani as early as the eighth century
did offer a complex legal detailed discussion of all topics related to
international relations of his time. He offered to his reader a manual of
legal rules on all subjects related to what we today call international law.
This, in addition, is still very much relevant to today’s international legal
system and sometimes a clear anticipation of what humanity has finally
reached in the field.
No one, I found, among all those working on the area throughout the
Middle Ages to the seventeenth century was comparable to Al-Shaybani
in terms of comprehensiveness and legal complexity except Hugo Gro-
tius, who lived 900 years after him. They both excelled in being
comprehensive at covering the wide subjects of the area, and in exploring
the details of the topics they covered. Second, but not as comparable, lies
Vitoria, who did offer quite a good deal of treatment of war topics and
international relations.
Overall, Al-Shaybani’s contribution to the field of international law is
too great to be ignored or even marginalized. The previous works of legal
historians ignores his contribution to an unacceptable extent. There are

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Conclusion 275

many ways by which Al-Shaybani contributed to the field of international

law, most importantly is that, in ‘explored’ history, he was the first to
study the subject of ‘international law’13 separately from other fields of law.
On the other hand, Al-Shaybani, along with other Islamic international
law scholars, employed a method in which he limited the scope for
manoeuvre that leaders and warriors had in deciding upon international
law matters. This was done by offering a detailed casuistic treatment to
all possible scenarios with juristic rules to prevent decision makers from
inventing different and possibly biased ways of interpreting the law to
further their own aims. Here the achievement of Grotius is comparably
commendable.
From another perspective, I was able to show the following features of
Al-Shaybani’s writings on international law. First, Al-Shaybani through-
out his work seems to have held the role of custom in high regard. This
is apparently a direct outcome of his application of the principle of
reciprocity in international legal relations. I observed that his rules
applicable to others were somewhat common in the related brief histor-
ical accounts I wrote. For he would only change the then widely
practised international rule in two cases:

1. He would impose some limitations on the rule to humanize or

otherwise limit the injustices it bears. He usually does this by
imposing these limitations on his fellow compatriots.
2. He suggested that some existing cruel rules could be done away
with or otherwise amended by an international treaty.

Second, the international law of Al-Shaybani is a universal one. This is

because in the eighth century, no one could have envisaged the world as
a place that is shared by one human race whose members have to live
with each other and not claim superiority over one another for any
reason. Human beings were only different in their level of piety, which is
judged by God alone and in a life other than this and in a world other
than that in which we live. In fact, it can confidently be said that
Al-Shaybani was explicitly suggesting the possibility of changing the
course of international law and humanizing the harsh practices of the
Middle Ages by utilizing the law of treaty he offered. For example,
he originated the possibility whereby some states could agree a cessation

13
As I have already noted, international law here does not necessarily mean
the contemporary international legal system. Grotius too was not writing on an
international law of the twenty-first century, yet he is still held by many to be the
father of international law.

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276 Islamic international law

of the then common practice of killing/enslaving captives. Thus, the UN,

in principle, as a universal peace agreement was, at least in spirit, present
in the writings of Al-Shaybani, the international lawyer of the most
powerful state at the time.
In addition to the points above, Al-Shaybani put forward some
outstanding principles to follow in international relations as legal obliga-
tions and not just as moral teachings. Some of these principles can be
identified as follows:

1. The principle of reciprocity: Al-Shaybani maintained that while

states have the sovereignty and right to impose regulations inter-
nally, international reciprocity should always be upheld, especially
when clear mutual rules had not been agreed.
2. The unity of the human race: to Al-Shaybani there is only one human
race, any other distinctions are made by God for his wisdom and thus
are acceptable as they are and no one has the right to distinguish or
be distinguished before the law because of race, gender, colour,
capacity or any other involuntary human distinctions.
3. The relationship with other states and other people on the inter-
national level must always be built on respect for the dignity of the
human being and must always be built on good faith and mutual
respect.
4. Individuals are subjects of international law and therefore they are
directly affected by its rules.
5. All agreements must be respected and honoured. Even when parties
have the right to withdraw from them, other parties must be given
due notice before any action based on the withdrawal is taken.
6. While peace was not the norm and the world was warlike,
Al-Shaybani did limit the use of force to only three specific cases:
self-defence; defence of the oppressed; and defence of the freedom
of religion. He considered all other types of war illegal. War should
always be the last resort in international relations. Peace must
always be the goal if a war had to be fought and not the other way
around.
7. If war was inevitable, it must never be carried out in a way as if it
were the goal. Thus he introduced many limitations on the conduct
of war. He established the principle of non-combatants and empha-
sized many rights for prisoners of war and belligerents. It can be
said that Al-Shaybani did humanize war to a very large extent by
imposing limits on the conduct of war that can only be found in
contemporary international humanitarian rules.

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Conclusion 277

8. Women and children and elders must always be protected: even in

the event that an enemy has killed women and children, the other
party must not retaliate for such an act.
9. If two states are at war, this should not mean that the war is against
all subjects. Instead, subjects of enemy states have the right to
travel, trade and reside in other countries even when their state is at
war with them. This is what he organized under the institution of
ama’an, under which subjects of enemy states would enjoy all the
rights mentioned above.
10. Furthermore, subjects of other states can become subjects of the
state as dhimmi, in which they will still have their own religion and
they will not be asked to perform any other religious duties.
Protection for subjects of the states is granted based on their status
as subjects, not on their religious or racial affiliations.
11. The rights of human beings incorporated into Al-Shaybani’s writ-
ings are, in many aspects, not less significant than those contempor-
ary international human rights that the law would claim to
guarantee.
12. Peace must be respected once agreed. Even breaches by subjects of
other states should not provoke the nullification of a peace treaty
unless it was clearly understood to be the will of the other state to
breach such agreement.
13. Diplomacy must be given a high status, and protection and privil-
eges and immunities for diplomats must be granted. On the other
hand, Al-Shaybani established that diplomats are the responsibility
of the sending state. Thus, their actions are considered to be their
state’s wish.
14. Public interest must always be taken into consideration when
concluding treaties with others.
15. When treaties are concluded, they must be honoured and their
conditions must be fulfilled. Treachery is totally prohibited and so
is injustice.
16. Lies and deception must never be used in international relations.
Even when others commit such acts, the principle of reciprocity
does not allow for retaliation.

Finally, from the above, there is no doubt that the historical writings
studied in this book could be utilized to nurture a better understanding
between civilizations. They could be used to further peace and to initiate
a dialogue that should only lead to making the world a better place for
everyone. The idea that one nation, one religion, one civilization or one
approach should dominate the whole world has only resulted in failures,

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278 Islamic international law

wars and destructions for everyone. Appreciation, acceptance and mutual

respect between all nations, civilizations, religions and schools of
thoughts have always led to making the world a more peaceful place for
all.

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SELECTED WEBSITES
www.archive.org: Internet Archive
www.icj-cij.org: International Court of Justice
www.icrc.org: International Committee of the Red Cross
www.un.org: United Nations

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Index
Names beginning with Al- and El- appear in alphabetical sequence as though
these prefixes are missing. For example, entries for Al-Shaybani appear under S
and not A.

Abbasid Caliphate vii, 5, 26, 85, 176 musta’amanoon (persons protected

Abou el Fadl, Khaled viii, 86 by ama’an)
Aboul-Enein, Youssef H. 111, 118–19, harming or killing prohibited
121 203, 247, 251, 253–4
Abu-Hanifa, al-Nu’mān ibn Thābit hostages as 247
(founder of Hanafi School) vii, liabilities of 203, 212, 252, 259
5, 25, 27, 39, 79, 80, 90, 194, ransom prohibited 207–8
231–3 war against prohibited 133, 203
authorship of Al-Siyar Al-Saghir war to protect 227
postulated 27 pre-Islamic roots of 110, 222,
on peace 233 226–7
mowada’ah (peace treaties with travel and trade between warring
non-Muslims) 35, 216, states 170, 277
230–33, 243–5 see also cross-border travel and
war for proselytism rejected 133, trade
134, 136, 231, 271 see also international relations,
see also jihad (use of force) between Muslims and
see also Hanafi School of Islamic non-Muslims; peace
jurisprudence amān see ama’an (safe conduct)
Abu-Yusuf 5, 25, 27, 39, 44, 79 ambassadors see diplomatic missions
Afsah, Ebrahim 8–13 Al-Ameeli’s edition of Sharih Kitab
agreements see covenants; treaties Al-Siyar Al-Kabīr (Leiden
Alfazari, Abu-Ishaq 6 edition) 35, 36–8
Ali, Moulavi Cherágh 189–90 see also Al-Siyar Al-Kabīr
ama’an (safe conduct) 34, 216, 227, (Al-Shaybani)
233 An-Na’im, Abdullahi Ahmed 22–3
ambassadors, automatic right to appropriation of land and property see
law of war under Al-Siyar,
257, 258
ghanimah (spoils of war); spoils
see also diplomatic missions
of war, non-Islamic thought
authority to grant 239, 250, 252 Aquinas, St Thomas 46, 67, 274
definition and types 250–51, 253 Islamic scholarship, influence on
legal consequences and validity 62–3, 270
251–2 jus in bello 166, 175, 178
sacredness 253–6 civilians, killing of 167, 169

289

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290 Islamic international law

lying to the enemy 172–3 biblical authority for war 71, 76,
just war theory 53, 62, 103, 152, 103–4, 104, 142–3
154 peace as the objective of war
conditions of a just war 105, 149 103–4, 122–3, 124, 126–7,
forced conversion rejected 139 218
peace as the objective of war reprisal 154
123, 124 self-defence 131
reprisal 154 sovereign authority 103–4, 150,
self-defence 131 151, 152, 162
war to punish non-believers and war to punish non-believers and
sinners 105–6, 124, 127,
sinners 103–4, 106, 116,
138, 139–40
123, 124, 126–7, 142–3,
Al-Shaybani compared with 96,
267, 269 165, 233
just war theories see Aquinas, St wars of conversion 106, 138
Thomas, just war theory; Al-Shaybani compared with 45–6,
jihad (use of force) 94–5, 267, 269
use of divine authority 73 just war theories see Augustine,
spoils of war 183, 192–3 St, just war theory; jihad
prisoners of war 185–6, 201, 203, (use of force)
205, 206 on peace 232–3, 243
Summa Theologica 62 use of divine authority 71, 73
Arabia spoils of war 183, 192, 193
early Islamic era 55–6 prisoners of war 185, 201, 203,
pre-Islamic era 53–6, 59, 108–10, 205
187, 222–3 Averroes (philosopher, aka Ibn
arbitration (sulih) 220, 227, 233, 244, Rushed) 62
264–5 Al-awzai, Abd al-Rahman (founder of
see also mowada’ah (peace treaties Awzai School) 25, 28, 42, 75
with non-Muslims); peace Ayala, Pedro López 63, 64, 67
Aristotle 62, 76, 95, 100, 219, 221
prisoners of war, enslavement 51, Bader, Gamal 23
59, 181, 205, 206
Bassiouni, M. Cherif 228
see also prisoners of war,
Bellamy, Alex J. 76, 149, 156, 171,
non-Islamic thought,
enslavement 176, 243
spoils of war 88, 181 Boisard, Marcel A. 62, 63, 228
Askin, Kelly D. 183 booty see law of war under Al-Siyar,
Augustine, St 273–4 ghanimah (spoils of war);
civitas terrenae and civitas dei spoils of war, non-Islamic
division 82–3, 88 thought
jus in bello 166, 167, 175, 178 Brown Scott, James 177
civilians, killing of 165, 169 Bsoul, Labeeb Ahmed 4–5, 6–7,
lying to the enemy 173 18–19, 233, 244
military tactics harming civilians Byzantium (Eastern Roman
171 Empire) 53, 84, 107, 113, 184–5,
surrender 219 223
just war theory 52–3, 149, 154 see also Roman international law

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Index 291

Cairo edition of Sharih Kitab Al-Siyar conciliation (sulih) 220, 227, 233,
Al-Kabīr (edited by Al-Munajjid) 244, 264–5
30–38, 40, 45, 128 see also mowada’ah (peace
see also Al-Siyar Al-Kabīr treaties with non-Muslims);
(Al-Shaybani) peace
Carty, Anthony 10, 12, 13–14, 273 Confucianism 100, 221–2
Casassa, Charles S. 52, 95 conversion, religious see religious
chattels, appropriation of see law of conversion
war under Al-Siyar, ghanimah covenants
(spoils of war); spoils of war, ama’an see ama’an (safe conduct)
non-Islamic thought dhimmi agreements (with
Cherágh Ali, Moulavi 114, 190 non-Muslims in dar al-Islam)
children 4, 208, 209, 227
ama’an, no right to grant 250, 252 treaties see treaties
see also ama’an (safe conduct) cross-border travel and trade 34, 91,
child soldiers 168, 252 227, 229, 233, 255–6
enslavement 204 between warring states 170, 277
see also civilians; women see also ama’an (safe conduct);
China, ancient, views on peace 100, international relations
221–2 Crusades 60, 100, 142
Christianity customary law
biblical authority for war 20, 71, customs of war see international
76–7, 103, 104, 136, 142–3 humanitarian law, Western; law
Christian and non-Christian of war under Al-Siyar
relations see international Siyar as customary international
relations, between Muslims and law 21–2
non-Muslims see also Siyar (Islamic
Grotius’s views on 20–21, 77 international law)
Christian and natural law as source of Siyar 75–6, 275
distinguished 76, 155–6 see also Siyar (Islamic
Judeo-Christian basis of Western international law), sources
international law 20–21, 268–9
pacifism 71, 102–4, 218
dar al-harb and dar al-Islam division
Cicero 155, 181, 217–18, 221
civilians 81–90, 202–3, 210
killing of ama’an see ama’an (safe conduct)
under Al-Siyar 117, 160, 161, cross-border travel and trade see
162–4, 168, 169, 277 cross-border travel and trade
Western jurisprudence 165–7, diplomatic missions see diplomatic
168–9, 170, 172 missions
military tactics harming ribat (safeguarding the borders
under Al-Siyar 164, 171, 172 of dar al-Islam) 120–21,
Western jurisprudence 171 128–9
prisoners see prisoners of war, see also jihad (use of force)
non-Islamic thought; prisoners see also international relations,
of war, under Al-Siyar between Muslims and
see also children; women non-Muslims

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292 Islamic international law

De Jure Belli ac Pacis (On the Law of Eastern Roman Empire (Byzantium)
War and Peace) (Grotius) 2, 20, 53, 84, 107, 113, 184–5, 236
66, 97, 150–51, 157, 217, 230, see also Roman international law
266 emissaries see diplomatic missions
Decretum (Concordia Discordantium enslavement of prisoners of war see
Canonum) (Gratian) 46, 53, 94, prisoners of war, non-Islamic
126 thought, enslavement; prisoners
dhimmis (non-Muslims in dar of war, under Al-Siyar,
al-Islam under covenant) 250, enslavement
254, 277 envoys see diplomatic missions
dhimmi agreements 4, 208, 209, Eppstein, John 232
227, 250
diplomatic missions 277 Al-Fizari, Abi-Ishaq 6
diplomatic immunities and fiqh see Islamic jurisprudence
privileges 221, 228 forced conversion see religious
ama’an automatically granted conversion; wars of conversion
257, 258 foreigners
see also ama’an (safe conduct) ambassadors see diplomatic
dignified treatment 259–60 missions
freedom of movement 259 relations between Muslims and
support and protection 260 non-Muslims see international
withdrawal 259, 261, 263 relations, between Muslims and
duties of ambassadors and sending non-Muslims
states 260–61, 262 Vitoria on the rights of 255–6
ambassadors exceeding missions see also Vitoria, Francisco de
262–3
deception 263 Gaber, Mohammad Hosny
messages, verifying 261–2 Mohammad 16–17, 58
reciprocity 262 Gazi, Mahmood A. 18, 19, 20, 21, 27,
see also reciprocity doctrine of 28, 30, 31, 41
Al-Siyar Gentili, Alberico 8, 47, 63, 64, 147
see also peace Gentilis see Gentili, Alberico
dispute settlement (sulih) 220, 227, ghanimah (spoils of war) see law of
233, 244, 264–5 war under Al-Siyar, ghanimah
see also mowada’ah (peace treaties (spoils of war)
with non-Muslims); peace Al-Ghunaimi, Muhammad Tal’at 39,
distribution of prisoners see prisoners 53–4, 64, 107, 141, 146
of war, non-Islamic thought, Gratian 274
enslavement; prisoners of Decretum (Concordia
war, under Al-Siyar, Discordantium Canonum) 46,
enslavement 53, 154
divine authority jus in bello 166, 172, 175, 178
biblical authority for war 20, 71, civilians, killing of 167, 168, 169
76–7, 103, 104, 136, 142–3 lying to the enemy 173
Shari’ah see Shari’ah just war theory 53, 130, 142, 154,
Donner, Fred M. 56 178

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Index 293

peace as the objective of war self-defence 131–2, 151, 156,

123, 124, 126 157
sovereign authority 149, 150, sovereign authority 150–51,
151, 152 152–3, 157, 159
war to punish non-believers and war to punish non-believers and
sinners 104, 105–6, 123, sinners 139, 143, 144, 146,
124, 126, 127, 143 156, 159
wars of conversion 106, 138 peace 177, 266
Al-Shaybani compared with 46, arbitration 265
267, 269 definition of 229
diplomatic missions 221, 256–7,
just war theories see Gratian, just
258–9, 260–61, 263
war theory; jihad (use of
as good faith 217–18
force) peace treaties see Grotius, Hugo,
use of divine authority 71, 73, 76 treaties
spoils of war 183, 185, 192, 193 tribute to secure peace 236
prisoners of war 201, 203, 205 promises 252–3
Greece, ancient 50–51, 52, 59 of refuge or safe conduct 255,
Aristotle see Aristotle 266
just war theory 88, 99, 108, 154 see also ama’an (safe conduct)
peace, views on 217, 220, 221 Al-Shaybani compared with 29, 42,
Plato 99–100, 181, 221 65, 73, 269, 274
refugees and asylum 220 just war theories 155–9
spoils of war 88, 181 see also Grotius, Hugo, just
Groot, Hugo de see Grotius, Hugo war theory; jihad (use of
Grotius, Hugo 8, 15–16, 46, 47, 97, force)
274 peace theories see Grotius, Hugo,
Christianity, views on 20–21, 77 peace; peace
Christian and natural law scope of international law theory
distinguished 76, 155–6 95, 97, 130
Islamic scholarship, influence on 2, treaties see Grotius, Hugo,
38, 63, 65, 66–8, 270 treaties; treaties, under
jus in bello 166, 175–6, 178 Al-Siyar
civilians, killing of 167, 168 use of divine authority 20, 71, 76
military tactics harming civilians use of sources 92, 269, 271
171 spoils of war 158, 183, 192, 214–15
just war theory 20–21, 122 land occupation 256
alternatives to war 148–9 prisoners of war 185, 186, 199,
Christian and natural law 203, 206, 247–8
distinguished 76, 155–6 treaties 230, 266
conditions of a just war 157 see also treaties
enforcement of legal rights 156 breach, consequences of 243
neutrality 153 cancellation and nullification
peace as the objective of war 248–9
123–4 implementation 238
pious intent in fighting, need for interpretation rules 241, 245–6
149, 157 pacta sunt servanda principle 65,
reprisal 156 196, 226, 234–5

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294 Islamic international law

ratification 237 jus in bello

reinstating original situation 242 civilians, killing of 165–7, 168–9,
Al-Shaybani’s views compared 170, 172
see treaties, under Al-Siyar defensive force, response to
terms breaching jus cogent norms 166–7
238 lying to the enemy 172–3
written treaties 235 military tactics harming civilians
works 171
De Jure Belli ac Pacis (On the prisoners of war see prisoners of
Law of War and Peace) 2, war, non-Islamic thought
20, 66, 97, 150–51, 157, just war theory see just war theory
217, 230, 266 modern era 155, 176–7, 191, 272–3
Truth of Christian Religion 66–7 spoils of war see spoils of war,
non-Islamic thought
Hamadah, Farouq 6 see also international law;
Hamidullah, Muhammad 7, 14, 15, international relations; jihad
51–2, 53, 63–4, 189 (use of force); law of war
Hanafi School of Islamic under Al-Siyar
jurisprudence 5, 25, 40, 79–80, international law
136 customary law 21–2, 75–6
see also Abu-Hanifa, al-Nu’mān ibn international humanitarian law see
Thābit (founder of Hanafi international humanitarian law,
School) Western; law of war under
Holy Qura’an see Shari’ah, Holy Al-Siyar
Qura’an Islamic see Siyar (Islamic
hostages 187, 198, 219, 246–8 international law)
as musta’amanoon (persons treaties see treaties
protected by ama’an) 247 Western
see also ama’an (safe conduct) ancient Greek sources of see
ransom 188, 197, 207–8 Greece, ancient
see also prisoners of war, Eurocentrism of 3, 8, 13–14, 23
non-Islamic thought; prisoners Judeo-Christian basis 20–21,
of war, under Al-Siyar 268–9
human rights 277 perceived deficiencies of 10, 14,
humanitarian intervention 133 16
Roman sources of see Roman
Ibn Rushed (philosopher, aka international law
Averroes) 62 Siyar comparison 18–21
India, ancient 100–101 Siyar influence on 22, 43, 60–68,
international humanitarian law, 270
Western Westphalian system 9
anticipated by Siyar 22, 43, 62, international relations
63–4, 65, 109, 214 between Muslims and non-Muslims
historical development 99–108 ama’an see ama’an (safe
jurists see Aquinas, St Thomas; conduct)
Augustine, St; Gratian; Grotius, dar al-harb and dar al-Islam
Hugo; Vitoria, Francisco de division 81–91, 192, 202,

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Index 295

207, 210–13, 226, 245, 248, Shari’ah see Shari’ah

254, 257–60 Islamic law see Shari’ah
dhimmis see dhimmis ‘Islamic law of nations’ controversy
(non-Muslims in dar 9–11
al-Islam under covenant) see also Siyar (Islamic international
diplomatic missions see law)
diplomatic missions Islamic Law of Nations: Shaybani’s
forced conversion see religious Siyar (Khadduri) 39–41, 42
conversion; wars of istinqaad (humanitarian intervention)
conversion 133
Islamic hostility to non-Islamic
Italy, Islamic intellectual legacy 63–4,
world refuted 81–90, 228
65, 270
reciprocity doctrine 8, 11, 59–60,
76, 202, 262, 275, 276
travel and trade see cross-border Japanese model of Western
travel and trade engagement 10–11
treaties see treaties Jewish law
war for proselytism see jihad Judeo-Christian basis of Western
(use of force), war for international law 20–21, 268–9
proselytism on peace 217
Western jurisprudence 8, 51–2, on war 100
59, 88–90 jihad (use of force) 13, 34, 176–8,
see also just war theory, war to 223–4
punish non-believers and definition 86, 120–22
sinners ‘war of words’ connotation 83
peace see peace istinqaad (humanitarian
war see international humanitarian intervention) 133
law, Western; jihad (use of jus in bello see law of war under
force); just war theory; law of Al-Siyar, jus in bello
war under Al-Siyar musta’amanoon see ama’an (safe
international travel and trade see conduct), musta’amanoon
cross-border travel and trade (persons protected by ama’an)
Isidore of Seville 104, 184 neutrality 153
Islamic international law see Siyar peace as the objective of war
(Islamic international law) 124–6, 127–8
Islamic jurisprudence (fiqh) 12, 14, secured with jiziyah (tribute or
31, 68, 78 poll tax) 83, 133–4, 135,
Awzai School see Al-awzai, Abd 137–8, 142, 148, 227–8, 236
al-Rahman (founder of Awzai readiness for war, need for 127–8
School) reprisal 156–7
Hanafi School 5, 25, 40, 78, 80, ribat, relationship with 120, 128–9
136 self-defence 116, 131–2, 156, 174
see also Abu-Hanifa, al-Nu’mān sovereign authority 151, 152, 162,
ibn Thābit (founder of 177
Hanafi School) threshold of injury justifying war
Maliki School 25–6, 80–81 153–4
see also Malik war for proselytism 133–42, 146–9,
Shafi’i School 26, 78 271–2

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296 Islamic international law

alternatives to war 83, 133–4, under Al-Siyar see jihad (use of

135, 137, 138, 142, 148 force)
forced conversion rejected 83, sovereign authority 103–4, 149–51,
113, 134, 138–9, 272 152–3, 157, 159, 162
pious intent in fighting, need for war to punish non-believers and
128, 149, 177–8 sinners 99, 102, 113–14
Shari’ah basis for 137, 140 Aquinas 105–6, 124, 127, 138,
Al-Shaybani’s and Abu-Hanifa’s 139–40
views contrasted 133, 134, Augustine 103–4, 106, 116, 123,
136, 231, 271 124, 126–7, 142–3, 165
Al-Shaybani’s and Vitoria’s views Gratian 104, 105–6, 123, 124,
contrasted 135–6, 144 126, 127, 143
Al-Shaybani’s views explained Grotius 139, 143, 144, 146, 156,
141–2, 146–8 159
war to punish sinners 164–5 Vitoria 63, 105, 135–6, 143–6
see also law of war under Al-Siyar wars of conversion see wars of
jiziyah (tribute or poll tax) to secure conversion
peace 83, 133–4, 135, 137–8, Western jurists see Aquinas, St
142, 148, 227–8, 236 Thomas, just war theory;
see also jihad (use of force); peace Augustine, St, just war theory;
Johnson, James Turner 155–6, 170, Gratian, just war theory;
171, 175, 176 Grotius, Hugo, just war theory;
jus ad bellum see jihad (use of force); Vitoria, Francisco de, just war
just war theory theory
jus in bello see also international humanitarian
Al-Shaybani’s views on see law of law, Western; law of war under
war under Al-Siyar, jus in bello Al-Siyar
Western jurisprudence see
international humanitarian law, Kelsay, John 96, 120, 160
Western, jus in bello Khadduri, Majid 8, 27, 35–6, 68, 250
just war theory 52–3, 62–3 Islamic Law of Nations: Shaybani’s
of ancient Greece 88, 99, 108, 154
Siyar 39–41, 42
biblical authority for war 20, 71,
kharaj (land tax) 202, 204, 210
76–7, 103, 104, 136, 142–3
conditions of a just war 105, 149, Koran see Shari’ah, Holy Qura’an
157 El-Kosheri 82, 223–4
humanitarian intervention 133
Islamic see jihad (use of force) Lammers, S.E. 175, 176
modern era 155, 176–7, 191, 272–3 land, appropriation of see law of war
neutrality 153 under Al-Siyar, ghanimah (spoils
peace as the objective of war of war); spoils of war,
122–7, 218 non-Islamic thought
see also peace land tax (kharaj) 202, 204, 210
of pre-Islamic Arabia 55, 108–10 law of nations see international
reprisal 154, 156 law
Roman law 101–2, 108, 147, 148 law of war under Al-Siyar 34, 98–9,
self-defence 131–2, 151, 156, 157 110–12, 118–19, 276

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Index 297

ghanimah (spoils of war) 180, 187, Western international humanitarian

190, 191–2, 193, 200, 203–4, law anticipated 22, 43, 62,
208–9 63–4, 65, 109, 214
see also spoils of war, see also international humanitarian
non-Islamic thought law, Western; Siyar (Islamic
division of 213–14 international law)
earnings, treatment as 212 Leiden University
gifts, treatment as 211–12 Islamic manuscript collection 65–6
land occupation 209–10 Leiden edition of Sharih Kitab
non-Muslims excluded from 121 Al-Siyar Al-Kabīr (edited by
prisoners see prisoners of war,
Al-Ameeli) 35, 36–8
under Al-Siyar
see also Al-Siyar Al-Kabīr
property or chattels, appropriation
210–11 (Al-Shaybani)
spoils obtained by prisoners
abroad 212–13 Malik 24, 25, 79, 80
jus ad bellum see jihad (use of Maliki School of Islamic
force) jurisprudence 25–6, 78–81
jus in bello 115, 117–18, 160–61, Al-Muwatta (Malik) 24, 80
178 Maximus of Turin, St 183
casualties, treatment of 117, 161, mediation (sulih) 220, 227, 233, 244,
173 264–5
child soldiers 168, 252 see also mowada’ah (peace treaties
civilians, killing of 117, 160, with non-Muslims); peace
161, 162–4, 168, 169 Montesquieu 50
flags, colour of 119 mowada’ah (peace treaties with
horses, use in war 119 non-Muslims) 35, 216
laying siege 161 cancellation or nullification 248–50
lying to the enemy 161, 172 definition 243–5
military tactics harming civilians guarantees under 246–8
164, 171, 172 interpretation rules 245–6
mistaken killing, remedies for Al-Sarakhsi’s commentary on 230,
173–4
231, 247
travel and trade between warring
Al-Shaybani’s and Abu-Hanifa’s
states 170, 277
unnecessary suffering and views compared 231, 232, 233
punishment 164–5, 171 see also law of war under Al-Siyar;
war crimes 173–4 peace; sulih (dispute
just war theory see jihad (use of settlement); treaties
force) Muldoon, James 52, 95, 130, 139
peace see peace Al-Munajjid’s edition of Sharih Kitab
prisoners of war see prisoners of Al-Siyar Al-Kabīr (Cairo edition)
war, under Al-Siyar 30, 31, 33–6, 37–8
ribat (safeguarding the borders of see also Al-Siyar Al-Kabīr
dar al-Islam) 120–21, 128–9 (Al-Shaybani)
Al-Shaybani’s realist approach to Muslim and non-Muslim relations see
96, 147–8 international relations, between
soldiers, permission for combat 119 Muslims and non-Muslims

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298 Islamic international law

‘Muslim law of nations’ controversy arbitration 220, 227, 233, 244,

9–11 264–5
see also Siyar (Islamic international Christian pacifism 71, 102–4, 218
law) defined as the absence of war
musta’amanoon see ama’an (safe 218–19, 228–9
conduct), musta’amanoon diplomatic missions see diplomatic
(persons protected by ama’an) missions
Al-Muwatta (Malik) 24, 80 Grotius on see Grotius, Hugo,
peace
Neff, Stephen C. 107, 111–12, 116, Islam, peace as tenet of 223–5
155, 221 Islamic hostility to non-Islamic
negotiations to avoid war world refuted 81–90, 228
arbitration 220, 227, 233, 244, as the objective of war, under
264–5 Al-Siyar 124–6, 127–8
diplomatic missions see diplomatic see also jihad (use of force)
missions secured with jiziyah (tribute or
see also mowada’ah (peace treaties poll tax) 83, 133–4, 135,
with non-Muslims); peace 137–8, 142, 148, 227–8, 236
neutrality 153 as the objective of war, Western
see also jihad (use of force); just jurisprudence 122–7, 218
war theory see also just war theory
non-combatants see civilians peace treaties see treaties, peace
non-Muslim and Muslim relations see treaties
international relations, between pre-Islamic Arabia, views on 222–3
Muslims and non-Muslims Roman views on see Roman
Nussbaum, Arthur 47, 100, 145, international law, peace
182–3, 207, 214 Al-Shaybani’s general writings on
96, 177, 216, 229, 232–3, 266,
O’Donovan, Oliver 13–14 276
On the Law of War and Peace (De see also international
Jure Belli ac Pacis) (Grotius) 2, humanitarian law, Western;
law of war under Al-Siyar
20, 66, 97, 150–51, 157, 217,
Plato 99, 181, 221
230, 266
plunder see law of war under Al-Siyar,
Oppenheim, Lassa 1–2, 21, 108 ghanimah (spoils of war); spoils
Ottoman Empire 57 of war, non-Islamic thought
poll tax (jiziyah) to secure peace 83,
pacta sunt servanda principle 65, 196, 133–4, 135, 137–8, 142, 148,
226, 234–5 227–8, 236
see also treaties see also peace
pacts see covenants; treaties prisoners of war, non-Islamic thought
peace 182–3
ama’an see ama’an (safe conduct) civilian prisoners
ancient Chinese views on 100, see also civilians
221–2 killing of 184, 186, 188, 198, 199
ancient Greek views on 217, 220, women, rape and sexual slavery
221 183

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Index 299

combatants, killing of 198–9, 201, punishment

203 prisoners of war see prisoners of
enslavement 183, 184–6, 205, 206 war, non-Islamic thought;
Aristotle’s views on 51, 59, 181, prisoners of war, under
205, 206 Al-Siyar
hostages 187, 198, 219, 247–8 war as see just war theory, war to
prisoners of war, under Al-Siyar 34, punish non-believers and
187–90, 192, 194–5, 215 sinners
agreements on prisoner protection
195–6, 202, 204 Qura’an, Holy see Shari’ah, Holy
becoming subjects of the state 208
Qura’an
benevolent freeing of 188, 197,
206–7
capture of enemy settlements 202, reciprocity doctrine of Al-Siyar 8, 11,
204, 208 59–60, 76, 202, 262, 275, 276
civilian prisoners, killing of 188, see also international relations,
196, 199, 202 between Muslims and
combatants, killing of 196–200, non-Muslims; Siyar (Islamic
201–3 international law)
enslavement 188, 189, 205 religious conversion
‘distribution’ term preferred converts to Islam, prisoner status
203–4 203, 208, 247
mothers and children 204 forced conversion
Muslims exempted 205 rejected in Western jurisprudence
slavery prohibited except for 136, 139, 272
POWs 189–90 rejected under Al-Siyar 83, 113,
upper class prisoners 206 134, 138–9, 272
hostages 246–8 wars of conversion see wars of
as musta’amanoon 247 conversion
see also ama’an (safe conduct), war as punishment see just war
musta’amanoon (persons theory, war to punish
protected by ama’an) non-believers and sinners
ransom 188, 197, 207–8 war for proselytism see jihad (use
humane treatment 188 of force), war for proselytism
Muslim converts 203, 208, 247 wars of conversion see wars of
Muslims in enemy hands 188, 208 conversion
see also law of war under Al-Siyar ribat (safeguarding the borders of dar
promises 65, 196, 226, 234–5, 252–3 al-Islam) 120–21, 128–9
see also covenants; treaties see also law of war under Al-Siyar
property, appropriation of see law of Roman international law 51–2, 57, 59,
war under Al-Siyar, ghanimah 88–9
(spoils of war); spoils of war, of Byzantium (Eastern Roman
non-Islamic thought Empire) 53, 84, 107, 113,
proselytism, war for see jihad (use of 184–5, 236
force), war for proselytism; just just war theory 101–2, 108, 147,
war theory, war to punish 148
non-believers and sinners; wars peace 217, 218–19, 221, 222
of conversion arbitration 220

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300 Islamic international law

Cicero on 217–18, 221 eminence as international jurist,

pax Romana 82 views on 24, 29, 42, 43
tribute to secure peace 236 Islam, view of 141–2
Seneca 98 methodology and reasoning style
spoils of war 181–2, 213 see Al-Siyar Al-Kabīr
prisoners of war 184–5 (Al-Shaybani), methodology
and reasoning
safe conduct (ama’an) see ama’an sources see Siyar (Islamic
(safe conduct) international law), sources
St Augustine see Augustine, St Western jurists, compared with
see under Aquinas, St Thomas;
St Maximus of Turin 183
Augustine, St; Gratian;
St Thomas Aquinas see Aquinas, St
Grotius, Hugo; Vitoria,
Thomas Francisco de
Al-Sarakhsi, Muhammad Ibn Ahmad works
31 Al-Muwatta (Malik), version of
commentary on Al-Siyar Al-Kabīr 24
see Al-Siyar Al-Kabīr Al-Siyar Al-Kabīr see Al-Siyar
(Al-Shaybani), Al-Sarakhsi’s Al-Kabīr (Al-Shaybani)
commentary on Al-Siyar Al-Saghir (Shorter Book
self-defence, war in of International Law) 27–8,
under Al-Siyar 116, 131–2, 156, 42–3, 160–61, 162
174 writing style 26, 68
see also jihad (use of force) sinners, war to punish
Western jurisprudence 131–2, 151, under Al-Siyar 164–5
156, 157 see also jihad (use of force)
see also just war theory non-Islamic thought see just war
Seneca 98 theory, war to punish
Al-Shafi’i (Imam Al-Shafi’i) 26, 91 non-believers and sinners
Al-Sharawi, Muhammad Mutwali 189 Siyar (Islamic international law)
Shari’ah 7, 61, 68 concept 6–16, 18–20
Holy Qura’an 7, 70–71, 72, 111 critiques of 10–13, 81–2
as customary international law 21–2
on equality of mankind 224
as divinely based law 7, 8, 11, 12,
on fighting non-Muslims 137,
16–17, 20, 57
140 see also Shari’ah, as source of
on prisoners of war 197 Siyar
on readiness for war 127 doctrines
ijma’a (consensus of opinion) 68, ama’an see ama’an (safe
73–4 conduct)
qiyas (analogy) 73, 74 jihad see jihad (use of force)
as source of Siyar non-Muslims, relations with see
hierarchy of sources 69–70, 72–3 international relations,
sourcing principles 68–9 between Muslims and
Sunnah 71–3 non-Muslims
Al-Shaybani, Muḥammad ibn peace see peace
al-Ḥasan reciprocity 8, 11, 59–60, 76, 202,
biography 24–7, 79 262, 275, 276

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Index 301

sulih (dispute settlement) 220, Western international law

227, 233, 244, 264–5 see also international law,
see also mowada’ah (peace Western
treaties with non-Muslims) comparison with 18–21
on treaties see treaties influence on 22, 43, 60–68, 270
unity of human race 275, 276 Al-Siyar Al-Kabīr (Al-Shaybani) 5, 24
early scholars of 5–6 background to 28
forced conversion rejected 83, 113, editions 32–3, 269
134, 138–9, 272 Cairo edition (edited by
see also religious conversion; Al-Munajjid) 30, 31, 33–6,
wars of conversion 37–8
importance of 16–23, 268 Leiden edition (edited by
individual application of 19–20, 93, Al-Ameeli) 35, 36–8
276 English language studies of 39
international law character, Islamic Law of Nations:
controversy 7–11, 15 Shaybani’s Siyar (Khadduri)
‘Islamic law of nations’ controversy 39–41, 42
9–11 influence on Western international
neglect by Western jurists 1–2, 62, law 22, 43, 60–68, 270
267, 274 method of analysing
origins 4–5 Islamic historical sources,
rationality of 11 treatment of 44–5, 49
recognition of 17–18 sources, non-Islamic see Siyar
Al-Siyar Al-Kabīr see Al-Siyar (Islamic international law),
Al-Kabīr (Al-Shaybani) sources
sources translations and citations 47–8
ancient Greek 50–51, 52, 59 methodology and reasoning 26, 68,
see also Greece, ancient 90–97
customary law 75–6, 275 casuistic method 6, 90, 275
non-Islamic sources generally Hanafi and Maliki School
56–60, 75 influences 90
pre-Islamic Arabian 53–6, 59, Al-Sarakhsi’s commentary on (ie:
108–10, 269 Sharih Kitab Al-Siyar
Roman 51–2, 57, 59, 88–9, 269 Al-Kabīr) 30–32, 37, 40–41,
see also Roman international 137, 154, 196, 210
law on diplomatic missions 257
Shari’ah see Shari’ah, as source distinguished from Al-Shaybani’s
of Siyar text 40, 125–6, 129
taxation editions 32–3, 269
jiziyah (tribute or poll tax) 83, Cairo edition (edited by
133–4, 135, 137–8, 142, Al-Munajjid) 30, 31, 33–6,
148, 227–8, 236 37–8
kharaj (land tax) 202, 204, 209 Leiden edition (edited by
war Al-Ameeli) 35, 36–8
conduct of see law of war under juristic value 32, 35
Al-Siyar on mowada’ah (peace treaties
justification of see jihad (use of with non-Muslims) 35, 216,
force) 230–33, 243–5, 247, 249

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302 Islamic international law

themes see Siyar (Islamic in pre-Islamic Arabia 54, 222–3

international law), doctrines under Al-Siyar 266, 276, 277
slavery see prisoners of war, breach, consequences of 243
non-Islamic thought, flexibility in negotiations 235
enslavement; prisoners of war, fulfilment of promises 65, 196,
under Al-Siyar, enslavement 226, 234
Spain, Islamic intellectual legacy Grotius’s and Al-Shaybani’s
60–61, 63–4, 65, 67, 270 views compared see Grotius,
spoils of war, non-Islamic thought Hugo, treaties
ancient Greece 88, 181 implementation 237–8
modern era 191 interpretation rules 240–41,
pre-Islamic Arabia 187 245–6
prisoners of war see prisoners of limited application of 239–40
war, non-Islamic thought period of treaty 242
Roman law 181–2, 213 ratification 236–7
Western jurisprudence 158, 182–4, reinstating original situation 242
192–4, 214–15, 256 status 140, 196, 225–6, 233
see also law of war under Al-Siyar, termination 241–2
ghanimah (spoils of war) terms breaching domestic rules
Stumpf, Christoph A. 20–21 239
sulih (dispute settlement) 220, 227, terms breaching jus cogent norms
233, 244, 264–5 236, 238
see also mowada’ah (peace treaties written treaties 235–6
with non-Muslims); peace see also covenants; international
Sunnah 71–3 law; Siyar (Islamic
see also Shari’ah international law)
tribute (jiziyah) to secure peace 83,
taxation, Islamic see Siyar (Islamic 133–4, 135, 137–8, 142, 148,
international law), taxation 227–8, 236
Al-thawri, Sufyan 134, 137, 140 see also peace
travel and trade, cross-border see Tuck, Richard 157, 158–9
cross-border travel and trade
treaties Vitoria, Francisco de 46–7, 67, 96–7,
pacta sunt servanda 65, 196, 226, 274
234–5 biblical authority, use of 71, 76–7,
peace treaties 50, 107, 217, 219–20, 136
230, 233 foreigners
see also peace Christian and non-Christian
as bar to war under Al-Siyar 133, relations 89–90
134, 136, 225–6 rights of 255–6
cease fire agreements 228 Islamic scholarship, influence on 2,
dhimmi agreements 4, 208, 209, 62, 64, 270
227 jus in bello 176
guarantees under 246–8 civilians, killing of 168–9, 170,
mowada’ah see mowada’ah 172
(peace treaties with defensive force, response to
non-Muslims) 166–7

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Index 303

just war theory 106–7, 129–30, on humanitarian intervention 133

178–9 on Al-Shaybani’s eminence as jurist
defence of religious 24, 42
freedom/proselytism 63, 105, on sourcing principles of Al-Siyar
135–6, 143–6, 271–2 68–9
forced conversion rejected 136, on treaties 234, 238, 239
272 Walker, Thomas A. 116–17
humanitarian intervention 133 war, under Al-Siyar see law of war
neutrality 153 under Al-Siyar
peace as the objective of war 124 wars of conversion
self-defence 132
under Al-Siyar 83, 113, 134, 138–9
sovereign authority 150, 152
Crusades 60, 100, 142
war to punish sinners 165–6
peace 124, 230, 266 Western jurisprudence 105, 106,
Al-Shaybani compared with 29, 71, 108, 113, 124, 138
73, 76–7, 95, 269, 271 rejected 136, 139
acceptance of alternative legal Weeramantry, Christopher G. 2, 12,
systems 89–90 22, 43, 64, 82, 190
individual application of Wells, H.G. 141
international law 93–4 Western international law see
just war theories see jihad (use of international law, Western
force); Vitoria, Francisco de, Wheaton, Henry 2–3
just war theory women
reasoning style 65 ama’an, right to grant 250, 252
use of divine authority 71, 76–7 see also ama’an (safe conduct)
spoils of war 158, 192, 193–4, killing of see civilians, killing of
214–15 mother and child slaves 204
land occupation 256 rape and sexual slavery 183
prisoners of war 198–9, 203, see also children; civilians
204–5 wrongdoers, war to punish
Vollenhoven, Cornelius van 97, 229, under Al-Siyar 164–5
230 see also jihad (use of force)
non-Islamic thought see just war
al-Wafā, Abū 3, 24, 33, 39 theory, war to punish
on arbitration 264–5 non-believers and sinners
on dar al-harb and dar al-Islam
division 81–9, 210 Al-Zuhili, Wahbeh 112–13

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