The Jihadist Laws of War
Spring 2010 - Number 18

The Jihadist Laws of War

Mary R. Habeck

p resident Obama’s first speech commemorating the anniversary of September 11th seemed to signal a change in U.S. policy. Rather than describing a nation at war, the President called the attacks that day “a crime,” and said that the objective of U.S. policy was to bring the perpetrators to justice. The global war of the Bush Administration was apparently over, replaced by a vision of separate, unrelated conflicts in Afghanistan and Iraq, and the need for a law enforcement approach to deal with terrorism. Executive decisions on national security have supported the rhetoric; the Obama Administration began the process of closing Guantánamo, laid the groundwork for putting mastermind Khalid Sheikh Mohammed on trial, and granted Miranda rights to the Nigerian who attempted to blow up an airliner on Christmas Day 2009.

The shift in the U.S. views of the struggle with al Qaeda and its affiliated groups (collectively known as salafi jihadis) has not been met by a change in the rhetoric or actions of America’s enemies, however. They have argued since the 1990s that the United States and other western countries are prosecuting a war on Islam and Muslims that must be met with equal violence. Ayman al-Zawahiri and Osama bin Laden have led the charge, describing in detail the “Zionist-Crusader war against the Muslims” that the West began a thousand years ago and has continued to the present day through four “crusades.” Their statements and speeches throughout the past eight years have been matched by action: guerrilla warfare in Afghanistan, Somalia, and Iraq; mass bombings in Europe, Indonesia, Africa, and elsewhere; and repeated attempts to again attack the United States and Americans around the world.

The conviction of al Qaeda and ideologically affiliated groups that they are involved in a life-or-death struggle—a total war for victory or death—explains why they have embraced legal rulings (fatwas) designed for warfare rather than for some lesser conflict. These fatwas justify the killing of civilians—including women and children; the use of weapons of mass destruction; and the beheading of kidnapped enemies, setting the stage for an absolute war of annihilation.1 The contrast between this view and the U.S. desire to fight a limited conflict characterized by legal constraints and law-enforcement methods could not be more striking.

Nowhere is the mismatch more apparent than in three specific components of the salafi jihadis’ legal framework. The first element states that there are no civilians in warfare, only combatants and noncombatants—categories that depend not on some objective behavioral criteria, but rather on religious affiliation or the judgment of a local expert on their version of shari’a. A second law outlines acceptable handling of captives without regard for the Geneva Conventions or other international mandates. The final element proposes a view of warfare that returns the fight to medieval times or even before—when combat was primarily about financial gain. Together, these three laws show al Qaeda’s commitment to total war, and underline its rejection of both international legal norms and modern Islamic law.

Combatants and noncombatants

Bin Laden’s 1998 declaration of war against the “Jews and Crusaders” was the earliest public expression of al Qaeda’s radical principles of warfare. The statement was not a set of arbitrary remarks, but rather a legal ruling (fatwa) that followed a particular version of shari’a espoused by salafi jihadism. This form of Islam uses violence to undo the interpretations of modernist Islam and return the entire religious community to an imagined past. Although a tiny minority within the Muslim-majority world, salafi jihadis number among their members respected clergy who support the movement with legal rulings that validate each of al Qaeda’s policies in pursuit of the group’s ultimate objectives.

The first principle that these opinions established was that citizens of the United States and its allies were combatants (ahl al-harb) who could legitimately be killed. The reasoning used to justify this conclusion varied. Early on, scholars argued that all Americans were combatants because of their support for Israel and blockade of Iraq. Later, the invasion of Afghanistan and Iraq justified the ruling.2 To avoid the obvious point that this edict would condemn only American decision-makers, Zawahiri and Abu Yahya al-Libi (al Qaeda’s top legal expert) clarified that voting for rulers and paying taxes were enough to make citizens complicit in the crimes of their government.3 The logical conclusion of this line of reasoning was reached in 2004, when a clerical supporter of al Qaeda used evidence from the Qur’an and Islamic commentaries to argue that unbelievers in general had no innate right to life, property, or honor. If al Qaeda had not made a positive treaty or commitment of security to a particular nation, the group had legal permission to kill all of its citizens at will and to take their property whenever possible.4

At the same time, al Qaeda’s leaders had to admit that traditional Islamic law, which they supposedly respected, forbade the killing of certain innocents (women, children, and the elderly). To deal with this inconvenient truth, they undermined the protections afforded by the law by arguing that the stipulations were conditional, not absolute, and by detailing numerous exceptions to them.5 The result of their legal contortions on this point was a fatwa that sanctioned the indiscriminate slaughter of ten million Americans with nuclear devices or other weapons of mass destruction.6

Other rulings dealt with apostates and collaborators, concluding that the judgment for both was the same: they had left Islam and had to be fought and killed.7 Al Qaeda theorist Abu Mus’ab al-Suri’s lengthy treatment of the global Islamic resistance discussed in considerable detail the legal rulings that mandated death for anyone who aided either the infidels or apostate leaders (i.e., all the rulers of Muslim-majority countries today).8 A large number of similar statements have followed from al Qaeda’s legal experts, declaring that the blood of anyone who works with the Americans, NATO, the UN or other unbelievers in Iraq, Afghanistan, Somalia, and elsewhere was “permitted,” an Islamic legal phrase that allows any Muslim to kill them without penalty.9

In practice, these opinions have allowed al Qaeda to justify to its members and sympathizers the seemingly random murder of noncombatants. For instance, Abu Mus’ab al-Zarqawi, the late head of al Qaeda in Iraq, used the same legal arguments put forward to justify the murder of Americans to declare all Shi’a—men, women, and children—worthy of death, and acted on this belief with car bombs that indiscriminately killed thousands of civilians. When al Qaeda’s leadership eventually rejected Zarqawi’s policy, it was not because they agreed with more traditional scholars that Islamic law prohibited it, but because they thought this slaughter was counterproductive for achieving their objectives in Iraq and elsewhere.10

The statements and actions of one al Qaeda affiliated group, the Caucasus Emirate, shows how these rulings affect the war on the ground. In 2006, the Shari’a Court of the Ingush sector issued a fatwa that designated the entire Russian population of Ingushetia “invaders,” and civilian men, women, and children all “military colonists” that could be killed.11 In neighboring Dagestan, the ruling—following al Qaeda’s fatwa on Americans—was even more sweeping: “Dagestan is the land of Islam. Therefore all infidels on the territory of Dagestan are lawful military targets for the mujahidin.”12 In line with these rulings, attacks in both regions deliberately targeted civilian non-Muslims, and Russians in particular.

Other statements specified that the fighters were permitted to kill anyone who helped the enemy by word, deed, or money. This encompassed Muslims who aided or worked for the infidels, people who prevented the introduction of shari’a or accepted the laws of the infidels, and those who were “ideologically at war with Islam.”13 The murder of police officers in their homes, politicians on the streets, and ordinary Muslims who spoke out against the killings followed.

Prisoners of war

Al Qaeda’s treatment of prisoners confirms its commitment to an absolute war divorced from international conventions or the beliefs of most Muslims. The theoretical construct for dealing with wartime captives was created by Abu Mus’ab al-Suri, who cited traditional sources of Islamic law to assert that there were three sorts of prisoners: infidel women and children; infidel adult men; and apostates. The first group had to be enslaved—there was no other alternative.14 The second group had three potential fates: they could be killed outright, ransomed for money or for Muslim captives, or enslaved; the choice between these options was at the discretion of the commander.15 The apostates, in contrast, had to be killed without a chance for repentance, since they were traitors to Islam. Missing from this menu of choices is the one accepted by the entire international community: that captured fighters are kept as prisoners of war for the duration of the conflict.

Official statements by al Qaeda’s leaders, including Zawahiri and Abu Yahya al-Libi, have confirmed that al-Suri’s views are the basis for al Qaeda’s framework for prisoners. Combatants and noncombatants could be seized as captives and disposed of “in a way that serves the interests of the Muslims,” wrote Zawahiri, with ransom as the most desirable outcome. Al-Libi trained new fighters in Northern Pakistan to kill, enslave, or hold for ransom any infidels that fell into their hands, while the Taliban leadership issued a special directive to its soldiers in 2009 confirming that their official policy was the same as that presented by al-Libi and al-Suri.16

The Taliban abduction of Koreans is instructive for showing the linkage between this theoretical landscape and actual practice in war. In the summer of 2007, the Taliban took captive a group of Korean men and women who had traveled to Afghanistan on a short-term missionary trip. Over the following weeks, the Taliban executed the pastor leading the group as well as another male hostage and demanded the release of their own captured fighters, a ransom for the remaining captives, and the withdrawal of Korea from the war in Afghanistan. After receiving a substantial sum for the safe return of the hostages, the Taliban boasted that they used the money to buy weapons and would be taking more captives soon.17 Not long after the two men were killed, al-Libi issued a statement justifying the conduct of the Taliban according to the salafi jihadist version of Islamic law. He argued that the Koreans—even the women—were combatants, and that therefore shari’a permitted them to be captured and killed if the Taliban so chose.18

Al Qaeda’s conduct of war in places as disparate as Iraq, the Caucasus, and the middle of the Sahara show the group’s adherence to these principles. Kidnapping for ransom or to compel the release of captured fighters is an integral part of warfare, the killing of prisoners occurs routinely, and in none of the areas under their control has al Qaeda or its affiliated groups attempted to keep prisoners alive in camps.19 When al Qaeda in Iraq seized and executed captured American and British civilians, at times through public beheading at the hand of Zarqawi himself, Zawahiri condemned the actions not because this was barbaric behavior and against their version of shari’a, but because these “scenes of slaughter” were giving the mujahideen a bad name. To stop the criticism, Zawahiri recommended that Zarqawi just put a bullet in the prisoners instead.20

Spoils of war

The targeting of “all Americans” in al Qaeda’s 1998 declaration of war was widely reported in the United States, but another section of the statement that called for supporters to plunder Americans attracted less attention. The justification for spoils of war has, however, a long history in medieval Islamic jurisprudence, beginning with the Qur’an itself and reaching through the reported sayings of Muhammad (the hadith) to the rulings of all the schools of Islamic law. Although repudiated by modernist interpreters of the shari’a, this legal background provided al Qaeda with a starting point for its call on supporters to seize the wealth of the infidels as an integral part of war with the United States.

Leaders of al Qaeda and affiliated groups have since issued statements further defining and legitimating spoils, and their fighters have acted on these rulings in battlefields around the world. Abu Mus’ab al-Suri again provided the most developed rationalization for booty, beginning with Muhammad himself, who said that his livelihood was “under the shade of swords”—a phrase often cited by salafi jihadis to justify plundering the enemy during wartime.21 Al-Suri argued that, based on Muhammad’s example, the legitimate way to finance any jihad was through contributions from the mujahideen and spoils “from the wealth of the infidels and apostates.” Citing legal precedents, al-Suri then justified taking the property and money of most of the rest of the world: the current governments in Muslim-majority countries, “most” foreign and native infidels in those countries, anyone who cooperated with occupation forces, relatives of those who were proven to support the infidels, and the combatant infidels in their own countries.

The technical terms used by al-Suri in his discussion—ghanima and fay’—describe spoils taken during combat and booty seized without a struggle, respectively. His approval of fay’ is particularly interesting, since this could be used to justify stealing property or wealth from any unbeliever. The later determination that infidels have no innate right to property has only reinforced this legal interpretation. Al-Suri explored as well the issue of dividing the ghanima, discussed in great detail in medieval Islamic law, with the conclusion that 20 percent of the ghanima should be put into a central depository for the mujahideen as a group, while 80 percent would be given directly to the fighters who took it.22 From there, each separate unit could decide how to divide up the booty, although al-Suri recommended that every member of the unit, whether they participated directly in the operation that seized the spoils or not, be given a share.23

Later statements by al Qaeda supporters and affiliated groups affirmed al-Suri’s conclusions. An official order by the Taliban decreed that everything seized from infidels during battle was ghanima that would be divided as al-Suri had determined: 20 percent would be sent to the main Taliban treasury (the Bayt al-Mal) while 80 percent would be distributed among the mujahideen who fought that particular battle. Spoils seized without fighting (fay’), including corporations, organizations, or goods being carried to the infidel forces, would be sent entirely to the Bayt al-Mal.24 Other clerics have seen it as their duty to incite fighters to take spoils and put behind them any squeamishness about booty created by infidel propaganda. Among others, Shaykh Atiyatallah urged the mujahideen to remember that the most honorable material rewards were those gained as war booty, while Anwar al-Awlaqi argued that Muslims who denigrated spoils had bought into an infidel mind-set. In truth, he said, ghanima and fay’ were the reason that Muslims were rich when they fought jihad and poor when they neglected the duty.25

The first al Qaeda members to put these rulings into practice were the 9/11 hijackers, whose leader instructed them to take booty from anyone they killed, even if it were only “a cup or a glass of water.”26 Since September 11th, jihad fighters in Iraq, Afghanistan, Pakistan, the Caucasus, Somalia, and elsewhere have been eager to boast about booty taken during battle, with many groups asserting that the major source of their financing is spoils.27 Material described as booty by the mujahideen includes everything from ammunition, weapons, and vehicles to cell phones and cameras. At the same time, the issue of spoils has caused some problems for the mujahideen. Fighting over the rich ghanima seized in Algeria created conflict within the Salafist Group for Call and Combat (GSPC), for instance, leading to charges of misuse of the wealth seized during jihad, and the mujahideen informing on each other to the security services.28

Developments in Iraq, where al Qaeda claimed absolute control over territory in 2006-2007, show what the rulings on spoils would mean in a salafi jihadist state. In a statement issued two months after the declaration of the Islamic State of Iraq, the leader of the new “country,” Abu ‘Umar al-Baghdadi, asserted that he had overseen the implementation of shari’a—including the appointment of religious judges, the application of Islamic punishments for sins, and the collection of the spoils of war.29 These spoils included dozens of villages taken from the Shi’a, along with their houses, farms, and ranches. Al-Baghdadi noted that the property stood empty and ready for settlers, and offered to turn the land over to any Palestinian who wanted to move to the new state.30

Absolute war and limited conflict

The combined effects of al Qaeda’s legal maneuvering can be seen wherever the group or its ideological affiliates has fought for any length of time. In places such as Iraq, the Caucasus, Somalia, and Afghanistan/Pakistan, the murder of thousands of innocent civilians, the capture and execution of prisoners, and the seizure of plunder followed naturally from rulings issued by al Qaeda’s experts in jurisprudence. It is perhaps even more disquieting that when new rulings or reinterpretations of older rulings have appeared, they have tended to make al Qaeda’s war more absolute, rather than reduce its scope. The designation of all non-Muslims as combatants without an innate right to life and property, the legal ruling to kill ten million Americans, and the random execution of captives all came years after September 11th. The direction of al Qaeda’s evolving legal framework is clear, pointing to a redefinition of the conflict from all-out war to a war of annihilation.

All of which clashes fundamentally with the American vision of the conflict. Since the attacks of 9/11, the United States has been highly conscious of the legal limits placed on warfare, although immediately after the attacks the Bush Administration sought to push those boundaries outward. After a series of cautionary events at Abu Ghraib, Guantánamo, and elsewhere—as well as through a rethinking of the conflict—the United States moved toward more conventional views of the laws of war. This movement has been given further impetus by the Obama Administration, which has shied away from conceptualizing the clash with al Qaeda as a war at all. The result is a curtailing of U.S. action and a move toward emphasizing law enforcement rather than military means for prosecuting a limited conflict with the people who attacked the United States.

Whether this shift in views and practice will deter, disrupt, and defeat a group intent on carrying out a war of annihilation remains to be seen.

 

Mary R. Habeck is an Associate Professor of Strategic Studies at Johns Hopkins School of Advanced International Studies. She is the author of Knowing the Enemy: Jihadist Ideology and the War on Terror (Yale University Press, 2006).

 
  1. An important caveat needs to be made here: there is a sharp distinction between these fatwas and the shari’a rules recognized by most Muslims. Al Qaeda has reached into the distant past to justify its legal principles, ignoring modern developments in Islamic law and supporting the most extreme interpretations of the shari’a in order to carry out an unrestricted campaign against its enemies. The vast majority of Muslims do not share these views of Islam or recognize them as legitimate, and many members of the ‘ulama have condemned their implementation over the last eight years. This has not stopped al Qaeda, however, which sees as one of its duties the replacement of current Islamic practice with its extremist version of the religion.
  2. See Yusuf al-‘Uyayri, “The Truth of the New Crusader War,” August 2, 2002, http://web.archive.org/web/20020802071104/www.alneda.com/index.php-subject=7&rec=227.htm.
  3. “Knowledge for Acting Upon; The Manhattan Raid,” al-Sahab Media Productions, September 10, 2006; “Statement by Abu-Yahya Al-Libi on Korean Hostages,” www.muslm.net, August 29, 2007, www.muslm.net/vb; see also “Ideological and Organizational Methodology for Al-Qa’ida in the Land of Al-Kinanah,” January 2007, altabetoun.110mb.com.
  4. Essay Regarding the Basic Rule of the Blood, Wealth and Honour of the Disbelievers, At-Tibyan Publications. August/September 2004.
  5. “A Statement from Qaidat al-Jihad regarding the Mandates of the Heroes and the Legality of the Operations in New York and Washington,” April 24, 2002, http://web.archive.org/web/20031011102320/http://www.mepc.org/public_asp/journal_vol10/0306_alqaeda.asp.
  6. Shaykh Nasir bin Hamid al-Fahd, “A Treatise on the Legal Status of Using Weapons of Mass Destruction against Infidels,” May 2003, www.jihadspin.com/NuclearFatwa.pdf.
  7. The basis for much of this reasoning was a seminal fatwa by Ahmad Shakir, an Egyptian cleric widely respected by traditional Muslims. Shakir argued that anyone who collaborated with occupiers had become an apostate and left the religion of Islam. This was not just a statement about religious beliefs, since the traditional shari’a rules for anyone who left Islam were divorce, disinheritance, and death. Two major statements by al Qaeda on the issue of Muslims who help unbelievers against other Muslims quote Shakir’s fatwa extensively: Zawahiri, A Treatise on the Exoneration of the Nation of the Pen and Sword of the Denigrating Charge of Being Irresolute and Weak (As-Sahab Media, March 2008), http://www.fas.org/irp/dni/osc/exoneration.pdf, and [no author], The Operation of 11 Rabi Al-Awwal: The East Riyadh Operation and Our War with the United States and Its Agents, The Center for Islamic Studies and Research, 2003, http://www.ratatak.com/docs/ourwar.htm.
  8. Abu Mus’ab al-Suri, The Call for Global Islamic Resistance, CENTRA Technology translation, September 2006, 174ff.
  9. See, for example, Shaykh Nasir bin Hamas al-Fahd, The Exposition Regarding the Unbelief [Kufr] of the One Who Assists the Americans (at-Tibyan Publications, December 2003).
  10. “Letter from Zawahiri to Zarqawi,” July 9, 2005, http://www.weeklystandard.com/Content/Public/Articles/000/000/006/203gpuul.asp.
  11. “Amir Habibulla: We Consider Each Russian as an Invader,” May 2, 2006, http://old.kavkazcenter.com/eng/content/2006/05/02/4650.shtml.
  12. “Jama’at ‘Shariah’ Promises to Attack Sochi and a Synagogue in Shamilkala,” February 23, 2007, http://old.kavkazcenter.com/eng/content/2007/02/23/7525.shtml.
  13. “Jama’at ‘Shariah’: Our Purpose Is the Restoration of Islamic State,” March 31, 2007, http://old.kavkazcenter.com/eng/content/2007/03/31/7890.shtml; “Jamaat ‘Shariah’ Press Release,” July 28, 2007, http://web.archive.org/web/20071021025701/www.jamaatshariat.com/ru/content/view/335/34/.
  14. This discussion is based on al-Suri, The Call for Global Islamic Resistance, 1148ff. According to medieval jurists, this enslavement also meant, for an infidel woman, that she became sexually available to the Muslim man who captured her.
  15. A fourth option, to let the prisoners go free, al-Suri rejected as abrogated by later actions of Muhammad.
  16. Zawahiri, Exoneration; Labik Video Production, “They Are Coming,” n.d., http://web.archive.org/web/20070202023850/http://siteinstitute.org/ and http://web.archive.org/web/20070214051300/http://mypetjawa.mu.nu/archives/186528.php; “Taliban Set Rules for Handling Captives,” Daily Times (Pakistan), July 28, 2009, http://www.dailytimes.com.pk/default.asp?page=2009%5C07%5C28%5Cstory_28-7-2009_pg7_35. The apparent silence on enslaving captives almost certainly reflects the reluctance of the newspaper to report this ruling rather than a difference in Taliban and al Qaeda views on the issue.
  17. “Taliban Website Releases Interview with Official Spokesman Regarding Korean Prisoners,” July 29, 2007, www.alhanein.com; “Taliban Says ‘A Large Amount of Money Received’ on Abduction,” Kyodo Clue III, September 1, 2007.
  18. “Statement by Abu-Yahya Al-Libi on Korean Hostages,” August 29, 2007, www.muslm.net/vb.
  19. In fact, to aid fighters in their captive-taking, al Qaeda put out a guide to kidnapping in one of its official magazines in 2004. Abu Hajar ‘Abd al-‘Aziz Bin Isa al-Muqrin, “To All Those Who Are Seeking Jihad on the Arabian Peninsula,” al-Battar, Iss. 10, May 24, 2004, SITE Translation.
  20. “Letter from Zawahiri to Zarqawi.”
  21. The following discussion is taken from al-Suri, The Call for Global Islamic Resistance, 1430ff.
  22. In medieval Islamic law, this 20 percent would be given to the Caliph for the support of the Islamic state and for God’s work.
  23. In al Qaeda’s “bylaws,” the group specified that their “Amir” (Commander) would have full authority to pass fatwas on the distribution of spoils. “Al-Qa’ida Bylaws,” n.d., http://www.ctc.usma.edu/aq/pdf/AFGP-2002-600048-Trans.pdf.
  24. “Unveiled: The Honour Code for Taliban fighters,” August 3, 2009, http://news.rediff.com/slide-show/2009/aug/03/slide-show-1-reading-talibans-rulebook.htm.
  25. Shaykh Atiyatallah, “Great Hopes of Jihad in Somalia,” January 8, 2007; Anwar al-Awlaqi, “Allah Is Preparing Us for Victory,” n.d., http://www.kalamullah.com/Books/Allahispreparingusforvictory.pdf.
  26. “Translation of Hijackers’ Letter,” n.d., http://212.150.54.123/articles/articledet.cfm?articleid=419.
  27. “Jama’at ‘Shariah’: Our Purpose Is the Restoration of Islamic State,” March 31, 2007, http://old.kavkazcenter.com/eng/content/2007/03/31/7890.shtml; “Ansar al-Sunnah Claims 19 Attacks in Various Iraqi Areas, Posts Video of ‘Booty,’” al-Fajr Media Center, June 7-12, 2007, w-n-n.com; Dr. Hani al-Siba’i, “Ansar Al-Islam, Ansar Al-Sunnah Army, Abu-Mus’ab Al-Zarqawi, and Abu-Hafs Brigades,” Al-Basrah Net, March 14, 2004; MEMRI, “Interview with Seifullah Jalali, the Taliban Commander of Kabul Province, Afghanistan,” al-Arabiyya TV, December 3, 2009; “Taliban Deputy Leader Rejects Involvement in Afghan Peace Talks,” Afghan Islamic Press, June 3, 2009; “Interview with Muhammad Nadir Haqju, Taliban’s Military Official in the Sar-e-Pol Province,” Al-Sumud Magazine 4, Iss. 42, December 2009, http://shamikh.net/vb/; Ikram Miyundi, “Our Heroic Martyrs, Episode 34,” Al-Sumud Magazine 4, Iss. 42 (December 2009); Ahmad Zaidan, “Interview with Baitullah Mehsud,” al-Jazirah (Doha), December 2007. The pirates off the coast of Somalia are motivated to carry out their attacks for many reasons, but one salafi jihadist writer argued that they should see their “maritime invasions” as a way to take lawful booty for the jihad in the Horn of Africa. “Towards a Religious Jihadi Maritime Invasion,” September 24, 2009, http://www.alqimmah.net/showthread.php?t=11750.
  28. Ikram Ghioua, “GSPC Conflict over Issue of Dividing Spoils (Ghanima),” L’Expression (Algiers), December 18, 2006.
  29. Abu-Umar al-Husayni al-Qurayshi al- Baghdadi, “Truth Has (Now) Arrived, and Falsehood Perished,” December 22, 2006, www.tajdeed.org.uk/forums/.
  30. Abu-Umar al-Husayni al-Qurayshi al- Baghdadi, “Victory from Allah and a Speedy Help,” February 3, 2007.