“According to us,” the Taliban wrote, “civilians are those who are in no way involved in fighting. The white-bearded people, women, children and common people who live an ordinary life, it is illegitimate to bring them under attack or kill them. But… the police of Kabul admin, those personnel of the security companies who escort the foreigners’ supply convoys and are practically armed, similarly those key figures of the Kabul admin who support the invasion and make plans against their people, religion and homeland, those people who move forward the surrender process for Americans in the name of peace and those Arbakis [i.e. militias] who plunder the goods, chastity and honour of the people by taking dollar salaries, all these people are civilian according to you. No Afghan can accept that the above mentioned people are civilian… They are directly involved in the protraction of our country’s invasion and legally we do not find any difficulty in their elimination, rather we consider it our obligation.”
It was one poignant example of the debate, which similarly exists in international humanitarian law (IHL), over what constitutes direct participation in hostilities (DPH). And it mirrored some of the arguments that the US appears to embrace: under US law, “material support” to terrorism is a federal crime (though to be targeted for assassination by US forces, suspects must demonstrate a much higher level of “terrorist engagement”).
More importantly, the Taliban letter forms part of what has come to be known as “jihadi jurisprudence” - sometimes sophisticated legal arguments used by jihadist groups to justify violations of IHL, and according to many Muslim scholars, perversions of Islamic law itself.
Jihadi military jurisprudence is increasingly studied by humanitarians as they seek to understand the degree to which there is room for even the most radical armed groups to be influenced in favour of the protection of civilians and aid workers.
Even within jihadist circles, there is a debate about acceptable norms of behaviour in war.
“It’s an opportunity that that debate exists,” says Ronald Ofteringer, an adviser to the International Committee of the Red Cross’s director of operations and an expert in Islamic law. “It is surely not an issue to subscribe to all kinds of different concepts. But… we have to engage with all parties to a given conflict and look for commonalities that help us and allow us to make a difference - even if it is on one issue and not on all issues.”
The new generation of irresponsible jihadis are in the habit of striking in random fashion without consulting anyone.
For Andrew March, associate professor of Islamic law at Yale University, there is a window through which humanitarians can negotiate with jihadist groups.
Concepts like distinction and proportionality - “all these things we take seriously,” he says - “these distinctions are available [within jihadist circles], but they have to be worked into from an Islamic perspective.”
As such, he advises aid workers not to abandon these principles in negotiations with such groups.
“The idea of neutral humanitarians is not inaccessible to them,” he says. “But from their view, it has to go through their conceptions of neutrality… Your neutrality and your non-targetability is something that they determine…They don’t regard themselves as being subject to any arbitrary authority, except their own.”
Jihadist groups and IHL
Some armed groups in the Muslim world speak in IHL discourse and are compliant with its requirements, in some cases, even more than their own governments. Gazan armed groups like Hamas and Islamic Jihad even provide their own training on IHL to their combatants.
Others, however, see Islamic law and international law as inherently irreconcilable. Many al-Qaeda insurgents, for example, show contempt for IHL. “The amount of respect we hold for your international law is even less than you show for our defined Islamic Shariah,” said a 2007 al-Qaeda propaganda video which cited “international infidel law”.
In recent years, says James Cockayne, now president of the United Nations University in New York, but formerly a senior associate with the International Peace Institute, armed groups in the Muslim world have shifted from presenting themselves as groups seeking self-determination under international law in the 1950s to 1970s, to “a more revolutionary trend that rejected public international law as an artefact of Western domination.”
But that is not to say that their actions are random or ad hoc. Many groups have devised their own careful Islamic reasoning to support their actions, which are themselves subject to legal debate even within jihadist circles.
One of the most important areas of concern for humanitarians is the permissibility of targeting civilians.
“Armed groups that espouse a strict religious agenda… tend to authorize a wider range of lawful targets than IHL,” writes the Geneva Academy of International Humanitarian Law and Human Rights in a January 2014 policy brief on armed groups and the protection of civilians. “Groups that call for global jihad often define the targets of their military operations in especially broad terms.”
Jihadist groups offer a variety of justifications for attacks on civilians. Some argue that because non-Muslim armies are killing Muslim civilians, they are reciprocally justified in killing non-Muslim civilians. Others say civilians contribute to the war effort in “deed, word or mind”. Still others say it is sometimes impossible to distinguish civilians from combatants.
Islam’s prohibition against targeting civilians has exceptions - namely necessity. Mohammad Ibn al-Hassan al-Shaybani, the first Muslim jurist to codify Islamic rules of war, wrote in his seminal treatise, for example, that flooding enemy cities was acceptable even if women, children, slaves or Muslim prisoners were inside their gates. Some degree of collateral damage is seen to be acceptable if it helps achieve an imperative goal. In other words, the ends justify the means.
In the autumn 2011 issue of its monthly magazine Inspire, al-Qaeda in the Arabian Peninsula (AQAP) argued that if combatants and non-combatants were mixed together and integrated, it was permissible for Muslims to attack, even if civilians are killed, “but this should only be done with the intention of fighting the combatants.”
The case of occupation
Islamic law imposes strict limitations on violence when Muslims initiate hostilities against non-Muslims. However, according to Mohammad Fadel, associate professor of Islamic law at the University of Toronto, Muslims are legally entitled to use all means to repel an invasion of Muslim territory.
Militants resisting foreign military occupation tend to consider all nationals of the occupying power to be a potential target, the Geneva Academy says.
For example, Sheikh Ahmad Yassin, a founder and spiritual leader of Hamas, said in a 2001 press interview: “The Geneva Convention protects civilians in occupied territories, not civilians who are in fact occupiers… All of Israel, Tel Aviv included, is occupied Palestine. So we’re not actually targeting civilians - that would go against Islam.”
In 2001, after the US invasion of Afghanistan, Sheikh Hassan Qaid, then head of the Libyan Islamic Fighting Group, issued a fatwa, stating: “By declaring war against the Muslims and occupying their countries, the United States of America has made all of its worldwide interests into legitimate targets for the mujahideen [guerrilla fighters]… Those interests include military, economic, humanitarian, diplomatic, cultural, tourism, or anyone else anywhere around the globe.”
He said women, children, and the elderly should not be specifically targeted, but that there was “no sin in killing them” if they were in the vicinity of those whose killing is permissible. Permissible targets extended to all those who supported the US with oil, intelligence, shared military bases or “moral support” in its “war against the Muslims in Afghanistan.”
In a May 2012 statement, AQAP invited Muslims in Yemen to “target Americans everywhere”.
Targeting fellow Muslims
Extremist militant groups use several lines of reasoning to target Muslim civilians too.
According to March, several maxims of Islamic theology guide such interpretations: First, in Islamic law, acts are judged by their motives. Second, necessity makes the unlawful lawful. Third, individual harm is tolerated to prevent communal harm.
As such, “if it is necessary to fight the non-Muslim, the killing of Muslims becomes permissible,” he says. In this case, a Muslim who is killed accidentally by another Muslim is considered a martyr and can receive compensation. “This reduces the stakes of killing in the first place,” March says.
Extremist groups have also justified the killing of Muslim civilians - especially those of the Shia sect of Islam - on the basis that they are kufar, or disbelievers.
In the Salafist view, since Muslims are obliged to participate in defensive jihad, those who instead cooperate with a non-Muslim invading power or collaborate with an enemy against Muslims are considered apostates. Many jihadists argue the punishment for apostasy is death (though this is disputed in mainstream Islamic thought). The Taliban in Afghanistan and al-Qaeda in Iraq have justified attacks on civilian bureaucrats - accused of belonging to Western-backed governments - on this basis.
Palestinian-Jordanian Islamist ideologue Abu Muhammad al-Maqdisi has gone even further, arguing that all governments that do not apply Islamic law, including democratic governments, are infidels and apostates. Like much Salafist doctrine, this interpretation defies the mainstream view. In his book Fiqh al-Jihad (Jurisprudence of War), Yusuf al-Qaradawi, one of the most influential Sunni scholars of modern times, argues that Arab regimes that mock Shariah should be challenged through peaceful means wherever possible.
Limits on militant action
But even those groups with very wide definitions of legitimate targets have their limits.
The winter 2012 issue of AQAP’s Inspire magazine reminded followers that: “one should avoid targeting places of worship for any religion or faith, regardless whether they are Christian, Jewish, or other. One should also avoid harming civilians who are citizens of countries that have no relation with the conflict, even if they are non-Muslim.”
In December 2013, AQAP publicly apologized after one of its fighters killed patients and medics inside a hospital during an AQAP attack on a Yemeni Defence Ministry complex. It said it had specifically instructed its fighters not to enter the hospital or the prayer space during the attack, and offered to pay blood money to the victims.
According to the Combating Terrorism Center (CTC) at West Point, documents captured from Osama bin Laden’s compound in Abbottabad, Pakistan, show that bin Laden disapproved of the attempted attack in 2010 on New York City’s Time Square. Under Islamic law, Muslims are bound to respect promises made and contracts or treaties signed. Bin Laden argued that by taking U.S. citizenship a year earlier, the Pakistani-born attacker had signed a social contract with the State. His action, bin Laden said, “amounts to betrayal and does not fall under permissible lying to [evade] the enemy [during times of war].”
Mullah Omar, leader of the Taliban, banned the use of anti-personnel landmines in 1998, denouncing them as “un-Islamic and anti-human”. Armed groups in Afghanistan continue to use them, but the Taliban insists each mine is carefully placed and detonated against “military targets” only. In 2010, Mullah Omar also instructed his fighters “to take every possible precaution to protect the people’s lives and property as well as the public infrastructure.”
Debate within jihadist circles
Extremist interpretations are also subject to much debate, even within jihadist circles.
Analysts say some of these debates are less about what is religiously acceptable and more about what would be strategically viable or politically popular. (Many recruits to extremist groups know precious little about Islam).
Nonetheless, in February 2009, Fadil Harun, an al-Qaeda operative involved in the 1998 US embassy bombings in East Africa, published a manuscript on a jihadist website distancing al-Qaeda from “the new generation of irresponsible jihadis” around the world who “are in the habit of striking in random fashion [at unlawful targets] without consulting anyone”.
According to the captured documents, bin Laden himself had similar concerns about the “ideology and operational conduct of regional jihadi groups”.
"Since when did we speak of killing women and children? Since when did we speak of killing the laymen of the Shia?"
In another sign that even al-Qaeda has its limits, Ayman al-Zawahri - allegedly linked to the 1997 massacre of tourists in Egypt and current leader of al-Qaeda - reportedly asked the then head of al-Qaeda in Iraq, Abu Musab al-Zarqawi, during the bloodshed there in 2006, whether it was necessary to behead so many people.
Some groups are re-interpreting the rules of jihad over time, as they seek more credibility from the international community or from their own constituencies.
Whereas the Taliban instructed in its 2006 Code of Conduct that NGOs were “tools of the infidels” and as such legitimate targets, the revised 2010 Code of Conduct did not mention NGOs, taking what appeared to be a more flexible approach.
Overstating Islamic influence
However, it is important not to overstate the influence of the various interpretations of Islamic law on the actions of armed, even Islamist, groups. Many of their justifications for targeting civilians are not, in fact, rooted in Islamic arguments, but rather in strategy or practical necessity. In many cases, the violence simply amounts to terror and asymmetrical warfare.
“We would accept the rules [of IHL] if Israel would use them,” said Ismail Abu Shanab, a Hamas leader, in a 2002 interview with Human Rights Watch. “If you ask us to comply, that is not difficult. Islamic teachings support the Geneva Conventions. They are accepted. When it comes to the other party, if they don’t abide, we cannot be obliged to them, except insofar as we can achieve something.”
Hassan Nasrallah, head of the Lebanese armed group Hezbollah, echoed the sentiment in a 2006 interview with Amnesty International:
“As long as the enemy undertakes its aggression without limits or red lines, we will also respond without limits or red lines… We will be very careful to avoid civilians unless they force us to.”
Usama Hasan, a senior researcher in Islamic studies at the Quilliam Foundation, which tries to counter extremism, says there is yet another limitation to keep in mind. Islamic jurisprudence, or fiqh, has two strands: the rules and norms emerging from the less humane medieval times, and the more humanitarian, modern interpretations.
“It is possible to influence [jihadists] towards the most humanitarian and humane reading of medieval [jurisprudence], but it is important to remember they are operating within that paradigm. So the best way to address it is to force a paradigm shift [towards the modern interpretations]… It’s a very slow process.”