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Professor Joel Hayward
The Ethics and Laws of War
Learning Objectives:
At the end of this lecture students should be able to:
 Identify and understand the key elements of Western Just War (“Bellum
iustum”) and Islamic Jihad concepts
 Understand and evaluate the purpose and importance of those frameworks
Summary:
 The Qur’an and Sunnah reveal a conception of war that is just
 That framework is highly compatible with Western Just War
 Both cover the causes and conduct of war
 Both seek to minimise the harm brought by war
 Both closely match the Geneva Conventions
Different historical development?
Christian / Western Just War tradition
 Concepts are not explicit in Christian scriptures
 Evolved as values to inform rulers, but not as binding laws
Islamic tradition
 Concepts are explicit in scriptures and the Sunnah
 Therefore they became enshrined in laws within the Sharia
Classical philosophers
 Cicero (106-43 BC)
Early Christian writers
 Ambrose (339-397)
 Augustine (354-430)
 Thomas Aquinas (1225-1274)
 Francisco de Vitoria (1481-1546)
 Hugo Grotius (1583-1645)
Modern thinkers
 Michael Walzer (1935-)
Classical philosophers
 Cicero (106-43 BC)
Early Christian writers
 Ambrose (339-397)
 Augustine (354-430)
 Thomas Aquinas (1225-1274)
 Francisco de Vitoria (1481-1546)
 Hugo Grotius (1583-1645)
Modern thinkers
 Michael Walzer (1935-)
Key Just War conclusions of the western philosophers
 War is always a hated thing but not necessarily morally wrong
 Under certain circumstances killing may actually be morally necessary
 The harm of war must be outweighed by a “greater good”
 And war must conform to clear principles
The Key Principles (by stage)
 ius ad bellum (Justice going into War)
 ius in bello (Justice during War)
Note: for a war to be just, it must be just in both stages
Pronunciation key:
ius = “yoos”
ius ad bellum (Justice going into War)
 Just Cause
 Right Intention
 Last Resort
 Legitimate Authority
 Proportionality
 Probability of success
Ordinarily “self defense”
Ordinarily to create a “better state of peace”
Ordinarily “no greater violence than needed”
ius in bello (Justice during War)
 Proportionality
 Discrimination
 Nothing malum in se
Pronunciation key:
Malum in se =
“Marlim in say”
 Key principles of just war embedded within western canon
law by c. 1275
 Informed the conduct of war during the Renaissance (15th,
16th C.)
 Grotius’s De iure belli ac pacis = ideas on “mutual
agreement” within the “community of states”
 Dramatic violations of principles during the 20th Century
 Led to Geneva Conventions of 1949
Prophet Muhammad ‫ﷺ‬
Holy Qur’an revealed episodically between 610 and 632
Allah revealed concepts of warfare between 622 and 632
Qur’an continued the wahi with great convergence with Torah and Injeel, but did
not draw upon the biblical war narratives
At Jericho, “they destroyed with the sword every living thing in it: men and
women, young and old, cattle, sheep and donkeys.” — Joshua 6:21
Hijjra to Medina 622
Battle of Badr 624 313 / 950
Battle of Uhud 625 700 / 3,000
The Ditch 627 3,000 / 10,000
Battle of Khayba 628 1,600 / 10,000
Fateh of Mecca 630 10,000
Battle of Hunayn 630 12,000 / 20,000
Battle of Ta’if 630 12,000
Tabuk Campaign 630 30,000 (claimed)
Killed in all battles:
216 Enemies
138 Muslims
354 Total
Only 2 enemy soldiers died per month for ten years
Only 1 Muslim soldier died each month for ten years
“If anyone kills a person, unless it is for murder or fasad in
the land, it is as though he has killed all of humanity. And
whoever saves a life, it is as though he has saved all of
humanity.”
— Surah 5 al-Ma’idah 32 (revealed in 7 AH)
“Fighting is ordained for you, though it is hateful to you;
but it may be that you hate a thing which is good for you,
and that you love a thing which is bad for you. Allah
knows what you do not know.”
— Surah 2 Al-Baqarah 216
Surah 22 al-Hajj:
A moral obligation to fight was later revealed (2:190-193,
216 and 224)
Surah al-Shura 42:41:
“And whoever defends himself after he has been
wronged, there is no way [of blame] against him”
Just Cause
 Self-defence
 End of severe religious oppression
 Pre-emption against evident threat
 Maintaining the sanctity of Al-Masjid Al-Haram
Right Intention
 The Pursuit of Peace
 Absence of greed
 Absence of hatred
 Forgiveness where possible
Last Resort
 After attempts at diplomacy have failed
Legitimate Authority
 The king, caliph, emir, or sultan
Restraint
 Immediate cessation of violence if the opponent stops
“But if they cease, Allah is Most Gracious, Most Merciful.
Fight them until there is no [more] fitnah and [until]
worship is for Allah. And if they desist, then know that
hostility can only be directed against the oppressors.”
— Surah 2 Al-Baqarah 192-193
— Surah 8 Al-Anfal 61
ْ‫م‬ُ‫ك‬ْ‫ي‬َ‫ل‬َ‫ع‬ ٰ
‫َى‬‫د‬َ‫ت‬ْ‫ع‬‫ا‬ ‫ا‬َ‫م‬ ِ‫ل‬ْ‫ث‬ِ‫م‬ِ‫ب‬ ِ‫ه‬ْ‫ي‬َ‫ل‬َ‫ع‬ ‫ُوا‬‫د‬َ‫ت‬ْ‫ع‬‫ا‬َ‫ف‬ ْ‫م‬ُ‫ك‬ْ‫ي‬َ‫ل‬َ‫ع‬ ٰ
‫َى‬‫د‬َ‫ت‬ْ‫ع‬‫ا‬ ِ‫ن‬َ‫م‬َ‫ف‬
“If any one transgresses against you, you also may retaliate
against them to an equal extent.”
— Surah 2 Al-Baqarah 216
Proportionality
Discrimination
 Women, children, elderly and all non-combatants not to be harmed, and nor
are their houses and possessions
 Prisoners and wounded to be treated with respect and humanity
The Prophet’s ‫ﷺ‬ instructions to the army he dispatched to Mu’ta in 629 CE:
“Attack in the name of Allah, and fight His enemy and yours in Al-Sham. You will
encounter men secluded in monasteries, withdrawn from others. Do not attack
them. You will find other people seeking out Satan and sin. Draw your swords
against them. Do not kill a woman or a young child, or the old and infirm. Do not
destroy the date palm, cut down trees, or destroy a dwelling.”
― Al-Waqidi, Kitab al-Maghazi; Ibn Hisham, Al-Sirah al-Nabawiyya.
 Key principles guided the Great Expansion
 “Rules” within al-Shaybani’s ‫الـسـيـر‬ ‫كـتـاب‬
‫الـكـبـيـر‬ (Greater Book of International Law (c.
773)
 Embedded early within Islamic fiqh (by c.
1000 CE)
 Most famous set of written rules in ‘Ali ibn
Tahir al-Sulami’s Kitab al-Jihad (c. 1080)
 Causes of war, and conduct of war, must both
be just
 Violations of the rules sometimes occurred and various works and fatawa
have challenged some issues
 Yet the basic concepts have remained largely unchanged
 Greatest violations have been recent (by non-state actors)
Battle of Solferino, 24 June 1859
France and Sardinia
versus
Austria
c. 270,000 combatants
c. 40,000 casualties
Henri Dunant ICRC 1863
Geneva Conventions
1864, 1929, 1949 and three protocols in 1977
Govern the distinction between and treatment of
combatants
noncombatants
“Hors de combat”
prisoners
refugees
Pronunciation key:
“or da comba”
Caveats:
 The concept of “military necessity” offers a lot of flexibility
 Conventions do not illegalize “foreseen but unintended” harm
 Open to interpretation
Hague Conventions (1899 and 1907)
Based largely on the Lieber Code issued by Abraham Lincoln in 1863
Govern “unfairly advantageous” or “unnecessarily cruel” weapons and tactics
Expanding bullets, non-metallic fragments, poison gases
Regulate how to fight fairly and proportionally
Proportionality: “doing the minimum necessary to facilitate victory”
Geneva Conventions =
Who to Fight (Distinction)
Hague Conventions =
How to Fight (Proportionality)
The conventions say little on
why or whether to fight
Conclusions:
 Western and Islamic traditions have sophisticated intellectual
frameworks for limiting war’s harm
 Neither is pacifistic or intended to outlaw all war
 Only to reduce wars to those that are necessary and to ensure they
are fought humanely
Thank you

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Western and Islamic Just War, by Professor Joel Hayward

  • 1. Professor Joel Hayward The Ethics and Laws of War
  • 2. Learning Objectives: At the end of this lecture students should be able to:  Identify and understand the key elements of Western Just War (“Bellum iustum”) and Islamic Jihad concepts  Understand and evaluate the purpose and importance of those frameworks
  • 3. Summary:  The Qur’an and Sunnah reveal a conception of war that is just  That framework is highly compatible with Western Just War  Both cover the causes and conduct of war  Both seek to minimise the harm brought by war  Both closely match the Geneva Conventions
  • 4. Different historical development? Christian / Western Just War tradition  Concepts are not explicit in Christian scriptures  Evolved as values to inform rulers, but not as binding laws Islamic tradition  Concepts are explicit in scriptures and the Sunnah  Therefore they became enshrined in laws within the Sharia
  • 5. Classical philosophers  Cicero (106-43 BC) Early Christian writers  Ambrose (339-397)  Augustine (354-430)  Thomas Aquinas (1225-1274)  Francisco de Vitoria (1481-1546)  Hugo Grotius (1583-1645) Modern thinkers  Michael Walzer (1935-)
  • 6. Classical philosophers  Cicero (106-43 BC) Early Christian writers  Ambrose (339-397)  Augustine (354-430)  Thomas Aquinas (1225-1274)  Francisco de Vitoria (1481-1546)  Hugo Grotius (1583-1645) Modern thinkers  Michael Walzer (1935-)
  • 7. Key Just War conclusions of the western philosophers  War is always a hated thing but not necessarily morally wrong  Under certain circumstances killing may actually be morally necessary  The harm of war must be outweighed by a “greater good”  And war must conform to clear principles
  • 8. The Key Principles (by stage)  ius ad bellum (Justice going into War)  ius in bello (Justice during War) Note: for a war to be just, it must be just in both stages Pronunciation key: ius = “yoos”
  • 9. ius ad bellum (Justice going into War)  Just Cause  Right Intention  Last Resort  Legitimate Authority  Proportionality  Probability of success Ordinarily “self defense” Ordinarily to create a “better state of peace” Ordinarily “no greater violence than needed”
  • 10. ius in bello (Justice during War)  Proportionality  Discrimination  Nothing malum in se Pronunciation key: Malum in se = “Marlim in say”
  • 11.  Key principles of just war embedded within western canon law by c. 1275  Informed the conduct of war during the Renaissance (15th, 16th C.)  Grotius’s De iure belli ac pacis = ideas on “mutual agreement” within the “community of states”  Dramatic violations of principles during the 20th Century  Led to Geneva Conventions of 1949
  • 12.
  • 13. Prophet Muhammad ‫ﷺ‬ Holy Qur’an revealed episodically between 610 and 632 Allah revealed concepts of warfare between 622 and 632 Qur’an continued the wahi with great convergence with Torah and Injeel, but did not draw upon the biblical war narratives At Jericho, “they destroyed with the sword every living thing in it: men and women, young and old, cattle, sheep and donkeys.” — Joshua 6:21
  • 14. Hijjra to Medina 622 Battle of Badr 624 313 / 950 Battle of Uhud 625 700 / 3,000 The Ditch 627 3,000 / 10,000 Battle of Khayba 628 1,600 / 10,000 Fateh of Mecca 630 10,000 Battle of Hunayn 630 12,000 / 20,000 Battle of Ta’if 630 12,000 Tabuk Campaign 630 30,000 (claimed)
  • 15. Killed in all battles: 216 Enemies 138 Muslims 354 Total
  • 16. Only 2 enemy soldiers died per month for ten years Only 1 Muslim soldier died each month for ten years
  • 17.
  • 18. “If anyone kills a person, unless it is for murder or fasad in the land, it is as though he has killed all of humanity. And whoever saves a life, it is as though he has saved all of humanity.” — Surah 5 al-Ma’idah 32 (revealed in 7 AH)
  • 19. “Fighting is ordained for you, though it is hateful to you; but it may be that you hate a thing which is good for you, and that you love a thing which is bad for you. Allah knows what you do not know.” — Surah 2 Al-Baqarah 216
  • 21. A moral obligation to fight was later revealed (2:190-193, 216 and 224)
  • 22. Surah al-Shura 42:41: “And whoever defends himself after he has been wronged, there is no way [of blame] against him”
  • 23. Just Cause  Self-defence  End of severe religious oppression  Pre-emption against evident threat  Maintaining the sanctity of Al-Masjid Al-Haram Right Intention  The Pursuit of Peace  Absence of greed  Absence of hatred  Forgiveness where possible
  • 24. Last Resort  After attempts at diplomacy have failed Legitimate Authority  The king, caliph, emir, or sultan Restraint  Immediate cessation of violence if the opponent stops
  • 25. “But if they cease, Allah is Most Gracious, Most Merciful. Fight them until there is no [more] fitnah and [until] worship is for Allah. And if they desist, then know that hostility can only be directed against the oppressors.” — Surah 2 Al-Baqarah 192-193 — Surah 8 Al-Anfal 61
  • 26. ْ‫م‬ُ‫ك‬ْ‫ي‬َ‫ل‬َ‫ع‬ ٰ ‫َى‬‫د‬َ‫ت‬ْ‫ع‬‫ا‬ ‫ا‬َ‫م‬ ِ‫ل‬ْ‫ث‬ِ‫م‬ِ‫ب‬ ِ‫ه‬ْ‫ي‬َ‫ل‬َ‫ع‬ ‫ُوا‬‫د‬َ‫ت‬ْ‫ع‬‫ا‬َ‫ف‬ ْ‫م‬ُ‫ك‬ْ‫ي‬َ‫ل‬َ‫ع‬ ٰ ‫َى‬‫د‬َ‫ت‬ْ‫ع‬‫ا‬ ِ‫ن‬َ‫م‬َ‫ف‬ “If any one transgresses against you, you also may retaliate against them to an equal extent.” — Surah 2 Al-Baqarah 216 Proportionality
  • 27. Discrimination  Women, children, elderly and all non-combatants not to be harmed, and nor are their houses and possessions  Prisoners and wounded to be treated with respect and humanity
  • 28. The Prophet’s ‫ﷺ‬ instructions to the army he dispatched to Mu’ta in 629 CE: “Attack in the name of Allah, and fight His enemy and yours in Al-Sham. You will encounter men secluded in monasteries, withdrawn from others. Do not attack them. You will find other people seeking out Satan and sin. Draw your swords against them. Do not kill a woman or a young child, or the old and infirm. Do not destroy the date palm, cut down trees, or destroy a dwelling.” ― Al-Waqidi, Kitab al-Maghazi; Ibn Hisham, Al-Sirah al-Nabawiyya.
  • 29.  Key principles guided the Great Expansion  “Rules” within al-Shaybani’s ‫الـسـيـر‬ ‫كـتـاب‬ ‫الـكـبـيـر‬ (Greater Book of International Law (c. 773)  Embedded early within Islamic fiqh (by c. 1000 CE)  Most famous set of written rules in ‘Ali ibn Tahir al-Sulami’s Kitab al-Jihad (c. 1080)  Causes of war, and conduct of war, must both be just
  • 30.  Violations of the rules sometimes occurred and various works and fatawa have challenged some issues  Yet the basic concepts have remained largely unchanged  Greatest violations have been recent (by non-state actors)
  • 31.
  • 32. Battle of Solferino, 24 June 1859 France and Sardinia versus Austria c. 270,000 combatants c. 40,000 casualties
  • 34. Geneva Conventions 1864, 1929, 1949 and three protocols in 1977 Govern the distinction between and treatment of combatants noncombatants “Hors de combat” prisoners refugees Pronunciation key: “or da comba”
  • 35. Caveats:  The concept of “military necessity” offers a lot of flexibility  Conventions do not illegalize “foreseen but unintended” harm  Open to interpretation
  • 36. Hague Conventions (1899 and 1907) Based largely on the Lieber Code issued by Abraham Lincoln in 1863 Govern “unfairly advantageous” or “unnecessarily cruel” weapons and tactics Expanding bullets, non-metallic fragments, poison gases Regulate how to fight fairly and proportionally Proportionality: “doing the minimum necessary to facilitate victory”
  • 37. Geneva Conventions = Who to Fight (Distinction) Hague Conventions = How to Fight (Proportionality) The conventions say little on why or whether to fight
  • 38. Conclusions:  Western and Islamic traditions have sophisticated intellectual frameworks for limiting war’s harm  Neither is pacifistic or intended to outlaw all war  Only to reduce wars to those that are necessary and to ensure they are fought humanely

Notas do Editor

  1. Not The minimum necessary But The minimum necessary to guarantee victory