The Layha for the Mujahideen: An analysis of the code of conduct for the Taliban fighters under Islamic law

International Review of the Red Cross

Volumn 93, Issue 881, 2011, Pages 81-102

  Munir, Muhammad ^a  

^a INTERNATIONAL ISLAMIC UNIVERSITY   (Pakistan)

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EID: 82555189286     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383111000075     Document Type: Article

References (78)

1. So far, there have been at least three editions of the Layha for the Mujahideen. The first was published on 1 August 2006 and contained only thirty-nine sections. The second was published on 9 May 2009 and consisted of sixty-seven sections. The third (present) edition was published on 29 May 2010 and has eighty-five sections. The preamble states that 'all the military, administrative authorities, as well as all mujahideen must comply in their jihadi affairs with the provisions of the Layha and run their day-to-day jihadi activities according to its rules'. The Islamic Emirate of Afghanistan Layha [Rules] for the Mujahideen, 2010, p. 5 (hereafter Layha). This is repeated in Section 4 of the 2010 edition; see p. 7. All the editions are in the Pashto language and none of them mentions the place of publication.
2. The Taliban are in effective control of many areas in Afghanistan and they run the day-to-day administration in those areas. According to an investigative article in the Wall Street Journal, the Taliban are the main beneficiaries of the Kajaki hydropower plant, repaired and upgraded by the US for more than $100 million. The Taliban charge a flat fee of 1, 000 Pakistani rupees ($11.65) a month to the consumers in the areas under their control in Helmand Province. The estimated electricity revenue collected by the Taliban amounts to some $4 million a year, in a country where the monthly wages of an insurgent fighter come to around $200. The paper claims that the Taliban use the proceeds to fund their war with American and British troops. See Yaroslav Trofimov, 'US rebuilds a power plant, and Taliban reap a windfall: insurgents charge residents for electricity the Afghan government supplies to areas under rebel control', in Wall Street Journal (European edition), 14 July 2010, p. 14.
3. See 'Implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled "Human Rights Council": Mission to Lebanon and Israel (7-14 September 2006) ', UN Doc. A/HRC/2/7, 2 October 2006;
4. 'Implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled "Human Rights Council": Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Resolution S-2/1', UN Doc. A/HRC/3/2, 23 November 2006.
5. See also Avril Mcdonald, 'Terrorism, counter-terrorism and the jus in bello', in Michael N. Schmitt (ed.), Terrorism and International Law: Challenges and Responses, International Institute of Humanitarian Law, San Remo, 2002, p. 65.
6. It is argued that, since the Taliban government did not plan or carry out the 11 September 2001 terrorist attacks on the US, they were not really blameworthy, and thus the dismantling of their government was not warranted. According to Mufti M. Taqi Uthmani, the US attack and overthrow of the Taliban regime was illegal. See Mufti M. Taqi Uthmani, Al-Balag, January 2002, pp. 6-7.
7. See also Sheikh Yusuf al-Qaradawi, Fiqh al-Jihad Dirasa Muqarana li Ahkamihi wa Falsafatihi fi dhaw-i-al-Qur'an wa al-Sunnah, Dar al-Kutub, Cairo, 2009, Vol. 1, p. 711.
8. The Sheikh rejects the toppling of the Taliban and considers the help provided to the Western-backed government in Kabul illegal and incompatible with the conditions laid down by Muslim jurists for seeking help from non-Muslims; see pp. 710-711. Mufti Zahidur Rashidi and Moulana Ammar Khan Nasir are also of the opinion that the toppling of the Taliban regime was illegal. See their views in a special issue of Al-Shari'ah on 'Al Qaeda, the Taliban and the current war in Afghanistan', October 2010, pp. 13-57, esp. pp. 17-19, 23, 25, 30, 50.
9. See Muhammad b. Idris al-Shafi'i', Al-Umm, Dar al-Ma'rifa, Beirut, n. d., Vol. 4, p. 216;
10. and 'Abdullah b. Ahmad b. Muhammad b. Qudama, Al-Mughni 'Ala Muktasar al-Khirqi bi Sharh al-Kabir 'ala matn al-muqn', Dar al-kutub al-Arabi, Beirut, 1972, Vol. 10, p. 52. Some Muslim jurists do not consider the condition of ta'wil necessary, deeming it enough if the rebels only aim to gain power and authority. The obvious example of this category is when 'Abdullah b. Zubair was chosen by the people of Hijaz, Iraq, and Egypt as their head of state, but his group was defeated by the Umayyad Caliph Marwan b. al-Hakam.
11. See 'Ali b. Ahmad b. Sa'eed, b. Hazm, Al-Muhalla, Dar al-Fikr, Beirut, n. d., Vol. 11, pp. 97-98;
12. Muhammad b. Ahmad b. Juzzi, Qawanin al-Ahkam al-Shariyyah wa Masa'l al-Furu' al-Fiqhiyya, Dar al-'Ilm lil maliyyin, Beirut, 1974, p. 393
13. and Muhammad al-Sharbini al-Khatib, Mughni al-Muhtaj, Maktaba Mustafa al-Babi, Cairo, 1933, Vol. 4, p. 126.
14. M. Khatib, above note 13, Mughni al-Muhtaj, Vol. 4, p. 126;
15. Muhammad b. Ahmad al-Qurtubi, al-Jami' li Ahkam al-Qur'an, Matba'a Dar al-Kutub al-Masriyyah, Cairo, 1950, Vol. 16, pp. 317-319;
16. Muhammad Khair Haykal, Al-Jihad wa al-qital fi al-Syasa al-Shar'iyya, 2nd edition, Dar al-Bayariq, Beirut, 1996, Vol. 1, pp. 63-69. Haykal's book does not discuss syasa al-shar'iyyah, despite the title.
17. It is important to note that, despite their employment more often than not in combat roles (such as securing military logistic lines/oil lines or interrogation of detainees), private military companies (PMCs), also known as private military firms (PMFs) and mostly employed in Iraq and Afghanistan, are covered by existing modern-day IHL. This reflects the grey area of the law. While PMCs constitute a challenge for IHL, they are covered by IHL. Unless they are part of the armed forces of a state or have combat functions for an organized armed group belonging to a party to the conflict, members of PMCs are considered civilians. However, if they participate in hostilities they lose protection from attack during such participation and, if captured, can be tried for mere participation in hostilities. See, e.g., International Committee of the Red Cross (ICRC), 'International humanitarian law and private military/security companies', available at: http://www.icrc.org/eng/resources/documents/faq/pmsc- faq-150908.htm (last visited 22 December 2010).
18. Secondary works on Islamic jus in bello usually give some space to the issue of POWs but such works are not comprehensive. A good work is Gerhard Conrad, 'Combatants and prisoners of war in classical Islamic law: concepts formulated by Hanafi jurists of the 12th century', in Revue de Droit Pénal Militaire et de Droit de la Guerre, Vol. 20, Nos 3-4, 1981, pp. 271-307.
19. This work is exclusively on POWs in Islam, but is not exhaustive and fails to elaborate the complex rules regarding POWs and the reasons behind the differences of opinion among the early Muslim jurists. Another noteworthy study is that of Khaled Abou El Fadl, 'Saving and taking life in war: three modern Muslim views', in Muslim World, Vol. 89, No. 2, 1999, pp. 158-180, in which he discusses the work of three modern scholars of the twentieth century;
20. see also Syed Sirajul Islam, 'Abu Ghraib: prisoner abuse in the light of Islamic and international law', in Intellectual Discourse, Vol. 15, No. 1, pp. 15-19.
21. Works based on secondary sources include Yadeh Ben Ashoor, 'Islam and international humanitarian law', in International Review of the Red Cross, No. 722, March-April 1980, pp. 1-11, especially pp. 3-7;
22. and Troy S. Thomas, 'Prisoners of war in Islam: a legal enquiry', in Muslim World, Vol. 87, January 1997, pp. 44-53.
23. The first article briefly discusses the interpretation of Qur'anic verses regarding POWs; unfortunately, the author does not give references for many works discussed in his article. In the second work, the author has given a summary of Islamic law regarding POWs. A recent work in Arabic is 'Ameur al-Zemmali (ed.), Maqalat fi al-Qanun al-Duwali al-Insani wa al-Islam, 2nd edition, ICRC, n. p., 2007.
24. This is a compilation of fifteen essays previously published in the International Review of the Red Cross on the various aspects of Islamic jus in bello, in some cases in comparison with international humanitarian law. A comprehensive examination of the subject is given by Ameur Zemmali, Combattants et prisonniers de guerre en droit islamique et en droit international humanitaire (Combatants and Prisoners of War in Islamic Law and International Humanitarian Law), Pédone, Paris, 1997.
25. For a full study of the issue of POWs in Islam, see Muhammad Munir, 'The protection of prisoners of war in Islam', in Islamic Studies (forthcoming).
26. Muhammad b. Ahmad b. Rushd, Bidayat al-Mujtahid, trans. Imran A. K. Nyazee, Garnet Publishing Ltd., Reading, 1994, Vol. 1, p. 456;
27. Muhammad b. Ahmad b. Juzii, al-Qawanin al-Fiqhiyya, Dar al-Kutub al-'Ilmiya, Beirut, n. d., p. 99;
28. Ahmad b. Idris al-Qarafi, Al-Furuq (along with Idrar al-suruq 'ala Anwa' al-Furuq), Dar al-m'rifa, Beirut, n. d., Vol. 3, p. 17.
29. 'Alauddin Abu Bakr al-Kasani, Bada'i' al-Sana'i', Dar Ehia al-Tourth al-'Arabi, Beirut, 2000, Vol. 6, p. 94.
30. See Muhammad b. al-Hasan al-Shaybani, Kitab al-Siyar al-Kabir, Sharh (commentary) ed. Abu Bakr al-Sarkhasi, 'Abdullah M. Hasan al-Shafi'i, Dar al-kotob al-'Ilmiya, Beirut, 1997, Vol. 4, p. 300.
31. 'A. Kasani, above note 32, Vol. 6, p. 95.
32. Abu al-'Abas Ahmad b. Jabir al-Baladhuri, Kitab Futuh al-Buldan, trans. Philip Khuri Hitti, Columbia University, New York, 1916, Vol. 1, p. 66.
33. Abu Bakar al-Jassas, Ahkam al-Qur'an, ed. Sidqi M. Jamil, Dar al-Fikr, Beirut, 2001, Vol. 3, p. 582.
34. Abu 'Ubayd b. Salam, Kitab al-Amwal, trans. Imran A. K. Nyazee, Garnet Publishing Ltd., Reading, 2002, pp. 120-121.
35. 'Imaduddin Isma'il b. 'Umar b. Kathir, Tafsir al-Qur'an al-'Azim, Matba' al-Manar, Cairo, 1346 A. H., Vol. 4, p. 221.
36. Abul Walid Muhammad ibn Rushd, The Distinguished Jurist's Primer, trans. Imran Nyazee, Reading: Garnet Publishing Ltd, 1994, Vol. 1, p. 456.
37. It is said that al-Nadr b. al-Harith was killed in captivity. According to Ibn Kathir, al-Nadr was killed during the war. See Isma'il b. 'Umar b. Kathir, al-Bidaya wa al-Nihaya, maktaba al-Ma'rif, Riyadh, 1966, Vol. 3, p. 35.
38. He was set free in Badr on condition that he would stop his blasphemous poetry against Islam and not fight the Muslims again. He broke his promise and again asked for pardon but this time he was executed. See Abu Bakr b. Ahmad al-Sarkhasi, Kitab al-Mabsut, ed. Sabir Mustafa Rabab, Dar Ihya al-Turath al-'Arabi, Beirut, 2002, Vol. 10, p. 26.
39. For details see Muhammad Munir, 'Public international law and Islamic international law: identical expressions of world order', in Islamabad Law Review, Vol. 1, Nos 3 and 4, 2003, p. 382.
40. See Najmuddin al-Muhaqiq al-Hilli, Shara'i' al-Islam, ed. Syed Sadiq al-Sherazi, Dar al-Qari, Beirut, 2004, Vol. 1, p. 251;
41. and Sa'id b. Habbat al-Rawandi, Fiqh al-Qur'an, ed. al-Siyad Ahmad al-Husaini, Matba'a Ayatullah, Qum, 1985, Vol. 1, p. 347;
42. Zeinuddin b. 'Ali al-Shahid al-Sani, Al-Rawdah al-Bahiyah fi Sharh al-Lum'ah al-Dimashqiyah, Dar Ihya al-Turath al-'Arabi, Beirut, 1983, Vol. 1, p. 222.
43. See also The Holy Scriptures according to the Mosoretic Text, The Jewish Publication Society, Philadelphia, 1953, p. 237;
44. and Good News Bible: Today's English Version, Harper Collins, Glasgow, 1976, p. 191. They were punished for their treachery, but this is how the people of a besieged city were supposed to be treated when captured by Jews.
45. See M. T. al-Ghunaymi, 'Nazratun 'Aammah fi al-Qanun al-Duwali al-Insani al-Islami', in Ameur al-Zemmali (ed.), Maqalat fi al-Qanun al-Duwali al-Insani, 2nd edition, ICRC, n. p., 2007, p. 48.
46. Yahya b. Sharaf al-Nawawi, Sharh Sahih Muslim, Matba' Mahmud Tawfiq, Cairo, n. d., Vol. 7, p. 463.
47. It is said that the captives of Mustaliq were first distributed among the Companions but later, when the Prophet (PBUH) married Juwayriya bt. al-Harith (d. 50 AH/670 CE), the daughter of the leader of the tribe, the Companions set the captives free. See Abu Dawud al-Sajistani, Sunan Abi Dawud, ed. Muhammad Abdul Hamid, Maktaba al-asriyya, Beirut, n. d., Hadith No. 3931, Vol. 4, p. 22;
48. and Muhammad b. 'Abdullah al-Nisapuri, Al-mustadrak 'ala al-sahihayn, ed. Mustafa 'Abdul Qadar, Dar al-kutub al-ilmiya, Beirut, 1990, Vol. 4, p. 28. One of the narrators in the chain of this hadith is considered of weak authority, which makes the hadith less authentic.
49. See Muhammad b. Habban, Al-ihsan fi taqrib sahih Ibn Habban, ed. Shu'aib al-Arnaout, Mu'assasat al-risala, Beirut, 1988, Hadith No. 4054, Vol. 4, p. 11. However, according to an authentic report, her father procured her release and she subsequently married the Prophet (PBUH).
50. See Shibli Nu'mani and Syed Suliman Nadawi, Sirat al-Nabi, al-Faisal Nashiran-i-Kutub, Lahore, n. d., Vol. 1, pp. 252-253.
51. Some 6, 000 combatants of Hunayn were not only set free but each one of them was given a special Egyptian set of clothing as well. See S. Nu'mani and S. S. Nadawi, above note 56, Vol. 1, p. 368. 'Umar b. al-Khattab ordered Abu 'Ubayda, his commander, to release the captives of Tustar; see Abu al-'Abas Ahmad b. Jabir al-Baladhuri, Kitaqb Futuh al-Buldan, trans. Francis Clark Murgotten, Columbia University, New York, 1924, Vol. 2, p. 119. 'Umar also wrote to his commander to release the captives of Ahwaz and Manadhir when these were captured.
52. Al-Tabrezi, Mishkat al-Masabih, al-Maktab al-Islami, Cairo, n. d., Hadith No. 3955;
53. Ibn Majah, Sunnan, Dar Ehya Al-Turath Al-'Arabi, Beirut, n. d., 2 Vol. 2, p. 101.
54. For details, see Muhammad Munir, 'Suicide attacks and Islamic law', in International Review of the Red Cross, Vol. 90, No. 869, March 2008, p. 85, also available at: http://www.cicr.org/web/eng/siteeng0.nsf/html/review-869-p71 (last visited 22 December 2010).
55. Imam al-Nasa'i, al-Sunnan al-kubra, Dar Al-Kotob Al-Elmyia, Beirut, n. d., Vol. 5, p. 187, Hadith Nos 8625 and 8626;
56. Abu Bakr al-Baihaqi, al-Sunnan al-kubra with al-Jawhar al-Naqi, Dar al-Fikr, Beirut, n. d., Vol. 9, p. 83. This hadith is also quoted with slightly different wording in Abi Ja'far al-Tahawi
57. Sharh Ma'ni al-Asa'r, Dar Al-Kotob Al-'Ilmia, Beirut, n. d., Vol. 3, p. 222.
58. See The Islamic Emirate of Afghanistan Rules for the Mujahideen (August 2006), Sections 10 and 11.
59. See The Islamic Emirate of Afghanistan Rules for the Mujahideen (May 2009), Sections 8, 20, and 21. The same applied to punishment for Afghan National Army members. If the captive was a commander, a district head, a high-ranking official, or a foreign Muslim, then the authority for all the above options was vested in the Imam or his deputy (Section 8).
60. See Muhammad Taqi Usmani, The Authority of Sunnah, Idaratul Qur'an wal 'uloom al-Islamia, Karachi, 1993, p. 6.
61. See Muhammad Munir, 'Is zina bil jabr a hadd, ta'zir or siyasa offence? A reappraisal of the Protection of Women Act 2006 in Pakistan', in Yearbook of Islamic and Middle Eastern Law, Vol. 14, 2008-2009, p. 115.
62. M. Cherif Bassiouni, 'Crimes and the criminal process', in Arab Law Quarterly, Vol. 12, 1997, p. 270.
63. See Hans Wehr, A Dictionary of Modern Written Arabic, ed. J. Milton Cowan, Librairie Du Liban, Beirut, 1980, p. 766.
64. See 'Abdul Qadar 'Awdah, Al-tasri'h al-jana'i al-Islami, 4th edition, Dar Ihya al-Turath al-Arabi, 1985, Vol. 1, p. 663. 76 The qesas crimes include murder, voluntary homicide, involuntary homicide, intentional crimes against the person, and unintentional crimes against the person. See 'A. Q. 'Awdah, above note 75, Vol. 1, pp. 663-668;
65. and M. C. Bassiouni, above note 74, p. 270. Diya (blood-money) is the punishment for homicide or wounding with quasi-deliberate intent (shibh al-'amd), i.e. an intentional act but without using a deadly implement. This includes the performance of expiation (kaffara) by the culprit and the payment of the 'heavier blood-money' (diya mughallaza) by his 'aqila (which consists of all the male members of the culprit's tribe and, if their number is not sufficient, the members of the nearest tribes; alternatively, of the fellow workers in his profession or his confederates). Diya is also the punishment for homicide or wounding by khata' (mistake), for cases assimilated to mistake (ma ujriya mujra al-khata'), and for indirect homicide (qatl bi al-sabab). See, 'A. Q. 'Awdah, above note 75, Vol. 1, pp. 668-671.
66. See also Joseph Schacht, An Introduction to Islamic Law, Universal Law Publishing Co., Delhi, 1997, pp. 181-186;
67. M. A. Haleem, Omer Sherif, and Kate Daniels (eds), Criminal Justice in Islam, I. B. Tauris, London, New York, 2003, pp. 43-44. Details of qesas and diya are beyond the scope of this article.
68. Another term used instead of syasa was 'nazar fil-mazalim'. The qadis have to follow the instructions given to them by the Imam in the exercise of his powers of syasa within the bounds set by the Shari'a (syasa al-shari'yyah). See J. Schacht, above note 76, p. 54. Under the concept of syasa, the sovereign may order the use of such procedural methods as he sees fit to discover where the truth lies. Moreover, apart from hudud offences, it is for the sovereign to determine what behaviour constitutes an offence and what punishment is to be applied in each case. See N. J. Coulson, A History of Islamic Law, Universal Law Publishing Co, Delhi, 1997, p. 132.
69. However, see Saeed Hasan Ibrahim, 'Basic principles of criminal procedure under Islamic Shari'a', in Haleem et al., above note 76, p. 22.
70. Muslim jurists expounded the part of the Islamic legal system that was fixed and left the part that was flexible - changing with the times, according to the needs of the Muslim community - to the Imam (the head of the Islamic state). It is this function that the ruler carried out through a policy called 'alsyasa al-shar'iyya'. A typical example given by Ahnaf of a syasa offence is the crime of apostasy. As discussed above, the fate of POWs is left to the Imam or head of the Muslim state. Similarly, Imam Sarkhasi (d. 483 AH/1090 CE) of the Hanafi school of thought, while commenting on the execution of a person by crushing his head between two stones because he had killed a handmaid in exactly the same way, argues that the Prophet (PBUH) punished him by way of syasa and that there was no mutilation because he had endangered the peace of the land and was a habitual criminal. See A. Sarkhasi, above note 46, Vol. 26, p. 128. The explanation when the Prophet (PBUH) executed a habitual thief who was previously given hadd punishment, but who deserved to be given a harsher punishment, is similar. See Abdur Rahman al-Nasai, Sunnan al-Nasai, Maktabh Dar-ul-uloom, Lahore, Hadith No. 4892. For some interesting discussions of syasa
71. see Imran A. Nyazee, Theories of Islamic Law, IIIT & IRI, Islamabad, 1995, 2nd reprint, 2005, pp. 111-112.
72. For works on syasa, see Ibn Taymiyya, al-Syasa Al-Shar'iyya, Dar al-Kutub Al-'Arabiya, Beirut, 1966, trans. Omar A. Farrukh, Ibn Taimiya on Public and Private Law in Islam, Khayats, Beirut, 1966;
73. and Ibn Al-Qaim, Al-Turuq al-Hukmiya fi Al-Syasa Al-Shar'iya, Matba't Al-Sunnah Al-Muhamaddiya, n. d. M. K. Haykal, above note 14, does not discuss syasa al-shar'iyyah, despite its title; it does discuss almost all issues relating to jihad.
74. Imam Shoukani, Nail al-Awtar, Ansar Al-Sunnah Al-Muhammadiyya, Lahore, n. d., Vol. 7, p. 246.
75. Abdul Malik b. Hisham, Al-Sirah Al-Nabawyia, ed. Mustafa Al-Saqa et al., Dar al-Ma'rifah, Beirut, n. d., Vol. 2, p. 632.
76. In most cases, non-state actors do not in fact comply with the principle of distinction that was stressed by the Prophet (PBUH) and his successors in their wars. See Muhammad Munir, 'The protection of women and children in Islamic law and international humanitarian law: a critique of John Kelsay', in Hamdard Islamicus, Vol. 25, No. 3, July-September 2002, pp. 69-82;
77. and Muhammad Munir, 'Non-combatant immunity in Islamic law', under review for possible publication in Journal of Islamic Law and Culture. According to a fatwa (legal ruling) issued on 23 February 1998 by the so-called 'World Islamic Front' - a group consisting of Osama bin Laden and four other persons representing Islamic militant groups in Egypt, Pakistan, and Bangladesh - 'Killing the Americans and their allies - civilian and military - is an individual obligation for any Muslim who can do so in any country...'. In addition, the fatwa urges Muslims 'to kill Americans and plunder their money wherever and whenever they find it'. Available at: http://www.fas.org/irp/world/ para/docs/980223-fatwa.htm (last visited 22 December 2010).
78. The original fatwa is undated but was published on 23 February 1998 in Al-Quds al-Arabi, London edition, p. 3, available at: http://www.library. cornell.edu/colldev/mideast/fatw2.htm (last visited 22 December 2010). This injunction is contrary to Islamic jus in bello.