By Sadia Tabassum
April 5, 2013
The contemporary world faces many armed conflicts, most of which are deemed ‘internal’ – or ‘non-international’. This article attempts to identify some of the important problems in the international legal regime regulating these conflicts and to find solutions to these problems by taking the Islamic law of rebellion as our point of reference.
Islamic international law – or Siyar – has been proven to deal with the issue of rebellion, civil wars, and internal conflicts in quite some detail. Every manual of fiqh (Islamic law) has a chapter on Siyar that contains a section on rebellion (khuruj/baghy);1 some manuals of fiqh even have separate chapters on rebellion.2 The Qur’an, the primary source of Islamic law, provides fundamental principles not only to regulate warfare in general but also to deal with rebellion and civil wars.3 The Sunnah of the Prophet elaborates these rules4 and so do the conduct and statement of the pious Caliphs who succeeded the Prophet; these Caliphs,
especially ‘Ali, laid down the norms that were accepted by the Muslim jurists who in time developed detailed rules.5 Islamic history records several instances of rebellion in its early period6 and that is why the subject has always been an issue of concern for jurists. Furthermore, the jurists were very conscious about the obligations of both factions during rebellion because Islamic law regards both warring factions as Muslims.7
The contemporary legal regime dealing with non-international armed conflicts faces three serious problems today. First, states generally do not like to acknowledge the existence of an armed conflict within their boundaries.8 Even when they face strong secessionist movements, they tend to call it a ‘law and order’ problem or an ‘internal affair’.9 Second, it may be difficult to make non-state actors comply with jus in bello because international law is generally considered binding on states only.10 Third, and most importantly, the law does not accord combatant status to insurgents, which is why they are subject to the general criminal law of the state against which they take up arms.
In this study we will analyse the detailed rules of Islamic law regarding the legal status of rebels so as to explore the possible solutions to these problems arising within the contemporary law of armed conflict.
In his landmark study of the Islamic law of rebellion, Khaled Abou El Fadl defines rebellion as ‘the act of resisting or defying the authority of those in power’.11 He says that rebellion can occur either in the form of ‘passive non-compliance with the orders of those in power’ or in the form of ‘armed insurrection’.12 Regarding the target of a rebellion, Abou El Fadl says that it could be a social or political institution or the religious authority of the ‘Ulema’ (legal scholars).13 We may point out here that passive non-compliance to those in power is not rebellion in the legal sense. Similarly, every violent opposition to government or state cannot be called rebellion because the term ‘rebellion’ connotes a high intensity of violence and defiance of the government. Hence, from the legal perspective, the classification made by Muhammad Hamidullah (d. 2002), a renowned scholar of Islamic international law, seems more relevant.
The True Hallmark of Rebellion
Hamidullah says that if opposition to government is directed against certain acts of government officials it is insurrection, the punishment for which belongs to the law of the land.14 He further asserts that if the insurrection is intended to overthrow the legally established government on unjustifiable ground, it is mutiny, while if it is directed against a tyrannical regime on just ground, it is called a war of deliverance. 15 In our opinion, the distinction between mutiny and war of deliverance is based on subjective assessment, as one and the same instance of insurrection may be deemed mutiny by some and a war of deliverance by others.16 Hence, this distinction serves no useful purpose. The point is simply this: that, as opposed to insurrection, the purpose of mutiny or a war of deliverance is not just to get rid of some government officials but to overthrow the government.
Hamidullah mentions the next stages in the violent opposition to government or state under the titles of rebellion and civil war. He says that when insurrection grows more powerful, to the extent of occupying some territory and controlling it in defiance of the home government, it is called rebellion, which may convert into civil war if the rebellion grows to the proportion of a government equal to the mother government.17 Occupying a certain territory and controlling it in defiance of the central government is a useful indicator for identifying rebellion, as we shall see later.
Rebels versus Bandits
The early Muslim jurists also gave detailed descriptions of the rulings of Islamic law regarding violent opposition to government. Generally, they used three terms for this purpose: baghy, khuruj, and hirabah.
Baghy literally means disturbing the peace and causing transgression (ta’addi).18 In legal parlance, it denotes rebellion against a just ruler (al-imam al- ‘adl).19 The term khuruj, literally ‘going out’, was originally used for rebellion against the fourth caliph, ‘Ali, and those rebels were specifically termed Khawarij (‘those who went out’). Later, however, the term was assigned to rebellions of various leaders among the household (ahl al-bayt) of the Prophet against the tyrannical Umayyad and Abbasid rulers.20 In other words, the term khuruj was used for just rebellion against unjust rulers. However, the just and unjust nature of the
war is a subjective issue on which opinions may differ. That is why the Muslim jurists developed the code of conduct for rebellion irrespective of whether the rebellion is just or unjust, and it is for this reason that the two terms khuruj and baghy came to be used interchangeably.21 The term hirabah, on the other hand, is used for a particular form of robbery on which Hadd punishment is imposed.22
While any government would generally deem rebels to be bandits and robbers, the Muslim jurists forcefully asserted that rebellion stands distinct from robbery and that, as such, rebels are not governed by the general criminal law of the land23 even if punitive action could be taken against them for disturbing the peace and taking the law into their own hands.24
Dar al-baghy: territory under the control of rebels
Territory under the control of the rebels is called dar al-baghy (‘territory of rebels’) and the Hanafi jurists consider it outside the jurisdiction of the central government of the Islamic state. The territory under the control of the central government is called dar al-‘adl, an antonym of dar al-baghy.25 As we shall see later, culprits of a wrong committed in dar al-baghy cannot be tried in the courts of dar al-‘adl even if the central government re-establishes its control over dar al-baghy.26 Dar al-baghy may conclude treaties with other states as well.27 Decisions of the courts of dar al-baghy are generally not reversed even if the central government recaptures that territory.28 Taxes are to be paid while crossing the borders of dar al-‘adl to dar al-baghy and vice versa.29 Thus, for all practical purposes dar al-baghy is considered another state.30 However, as we shall see later, it is given only de facto, not de jure, recognition.31
How Do We Identify Rebellion?
The concept of rebellion in Islamic law comes under the doctrine of Fasad fi ’l-ard (‘disturbing peace and order in the land’).32 According to Muslim jurists, there are various forms of fasad and the ruler has been given the authority under the doctrine of siyasah33 for maintenance of peace and order in the society. The two important forms of Fasad mentioned explicitly in the Qur’an are hirabah34 and baghy.35 In both of these, a strong group of people take up arms in defiance of the law of the land and challenge the writ of the government. However, hirabah is dealt with as a crime and the criminal law of the land is applied to the muharibin,36 while baghy is governed by the law of war and the bughah are dealt with as combatants, even though, under the doctrine of siyasah, the government can take punitive action against the rebels for disturbing the peace of the society. This issue will be further elaborated below, after we explain the criterion for identification of rebellion.
The litmus test for determining the existence of baghy and for distinguishing it from hirabah is whether or not those taking up arms againstthe government challenge the legitimacy of the government or the system. While muharibin do not deny the legitimacy of the government or the system, bughah consider themselves to be the upholders of justice and claim that they are striving to replace the existing illegitimate and unjust system with a legitimate and just order. In technical terms, it is said that the bughah have ta’wil (legal justification for their struggle).
Thus, there are two ingredients of baghy:
1. A powerful group establishes its authority over a piece of land in defiance of the government (mana‘ah, resistance capability); and
2. this group challenges the legitimacy of the government (ta’wil ).
Both muharibin and bughah have enough mana‘ah but rebels have ta’wil, which muharibin lack.37
The legal status of rebels in Islamic law: combatants or bandits?
The issue of rebellion attracted serious questions of theology as well as of legality, both of which were very important for Muslim jurists. However, the jurists not only separated the legal issues from those of theology but also separated those of jus in bello from those of jus ad bellum. Thus, they analysed the questions about the conduct of hostilities during rebellion irrespective of whether the rebellion was just or unjust, that is, without taking sides – an approach adopted by scholars of international humanitarian law (IHL) in the contemporary world.38
Before we explain the extent to which the application of criminal law ceases in case of rebellion, it is pertinent to discuss briefly the various categories of crime in Islamic law.
Categories of Crime in Islamic Law
As opposed to other legal systems, in which crimes are generally considered violations of the rights of the state, Islamic law divides crimes into four different categories depending on the nature of the right violated: 39
a) Hadd is a specific crime deemed to be a violation of a right of God;40
b) Ta‘zir is a violation of the right of an individual;41
c) Quisas, including diyah and arsh, is deemed to be a violation of the mixed right
of God and of an individual in which the right of the individual is deemed to predominate;42 and
d) Siyasah is a violation of the right of the state.43
The nature of the rights involved determines the application of various rules and principles of Islamic criminal law. Hadd penalties cannot be pardoned by the state because these are deemed to be the rights of God and as such only God can pardon these penalties.44 Similarly, the state does not have the authority to pardon ta‘zir punishments, although the aggrieved individual or his legal heirs can pardon, or reach a compromise with, the offender.45 The same is the case with the Quisas punishments.46 One may consider the part of criminal law covering hadd, ta‘zir, and qisas and diyah as rigid because the state has little role to play in this area. The state can, however, pardon or commute a siyasah punishment because it is deemed a right of the state.
As we shall see below, when mana‘ah is coupled with ta’wil – that is, when there is rebellion – the criminal law relating to the first three categories of rights ceases to apply. It is only area relevant to the right of the state (siyasah) that remains applicable. Importantly, this part of criminal law is flexible, as the government can pardon or commute the punishments. This becomes the basis for any pronouncement of general amnesty for rebels, as well as for concluding peace settlements with them.
Suspension of a major part of criminal law during rebellion
Muhammad b. al-Hasan al-Shaybani, the father of Muslim international law, says:
‘When rebels repent and accept the writ of the government, they should not be punished for the damage they caused [during rebellion]’.47
Explaining this ruling, the famous Hanafi jurist Abu Bakr al-Sarakhsi says:
That is to say, they should not be asked to compensate for the damage they caused to the life and property [of the adverse party]. He means to say: when they caused this damage after they had organized their group and had attained mana‘ah. As for the damage they caused before this, they should be asked to compensate it because [at that stage] the rule was to convince them and to enforce the law on them. Hence, their invalid ta’wil would not be deemed sufficient to suspend the rule of compensation before they attained mana‘ah.48
Shaybani himself mentions a similar rule when he says: ‘When those who revolt lack mana‘ah, and only one or two persons from a city challenge the legitimacy of the government and take up arms against it, and afterwards seek Aman [peace], the whole law will be enforced on them’.49 Sarakhsi explains this ruling inthese words: ‘because they are like robbers, and we have already explained that when ta’wil lacks mana‘ah, it has no legal effect [it cannot suspend the rule of compensation]’.50
Shaybani further states it explicitly that, even if the government and the rebels conclude a peace treaty on the condition that the rebels would not be asked to make compensation for the damage they caused before they attained mana‘ah, this condition would be invalid and the law would be enforced on them: If the rebels have caused damage to life and property before they revolted and fought, and after revolting they conclude a peace treaty on the condition that this damage should not be compensated, this condition will be invalid and the rules of Quisas and of compensation for damage of property will be applied on them.51
It does not amount to treachery. Rather, accepting this condition will amount to violating fundamental norms of Islamic law. Hence, this stipulation is deemed ultra vires and as such null and void. Sarakhsi elaborates the principle behind this rule in the following words:
Because this compensation is binding on them as a right of the individual [whose life or property was damaged] and the ruler does not have the authority to waive the rights of individuals. Hence, the stipulation from their side regarding the suspension of the rule of compensation is invalid and ineffective.52
However, as mentioned above, they will not be asked to compensate for the damage they caused after attaining mana‘ah in the same way as non-Muslim combatants are not asked to compensate for the damage they caused during war even after they embrace Islam.53 Sarakhsi says:
After they attain mana‘ah, it becomes practically impossible to enforce the writ of the government on them. Hence, their ta’wil – though invalid – should be effective in suspending the rule of compensation from them, like the ta’wil of the people of war [non-Muslim combatants] after they embrace
Sarakhsi also quotes the precedent of the Companions of the Prophet in this regard. Imam Ibn Shihab al-Zuhri reports the verdict that enjoys the consensus of the Companions regarding the time of civil war between Muslims:
At the time of Fitnah [war between Muslims] a large number of the Companions of the Prophet were present. They laid down by consensus that there is no worldly compensation or punishment for a murder committed on the basis of a ta’wil of the Qur’an, for a sexual relationship established on the basis of a ta’wil of the Qur’an and for a property damaged on the basis of a ta’wil of the Qur’an. And if something survives in their hands, it shall be returned to its real owner.55
It must be noted here that the suspension of the criminal law or of the worldly punishment does not imply that the acts of rebels were lawful. Shaybani asserts that if the rebels acknowledge that their ta’wil is invalid they would be advised to make compensation for the damage they caused, although legally they cannot be forced to do so. ‘I will advise them by way of fatwa to compensate for the damage they caused to life and property. But I will not legally force them to do so.’56
Sarakhsi explains this ruling by saying:
[b]ecause they are believers in Islam and they acknowledge that their ta’wil was invalid. However, the authority of enforcing the law on them vanished after they attained mana‘ah. That is why they will not be legally compelled to compensate the damage, but they should be given fatwa because they will be responsible before God for this.57
As opposed to rebels, a gang of robbers who possess mana‘ah but lack ta’wil are forced to compensate for the damage and are punished for the illegal acts. Sarakhsi says:
[b]ecause for robbers mana‘ah exists without ta’wil, and we have already explained that the rule is changed for rebels only when mana‘ah is combined with ta’wil, and that the rule of compensating for the damage is not changed when one of these exists without the other.58
Thus, Islamic law acknowledges some important rights for those fighting in a civil war or – to use the IHL terminology – non-international armed conflict.59
Sadia Tabassum is Lecturer in the Department of Law, International Islamic University, Islamabad. She received her LLM in International Law from the same University.