** The full text of the Layha is reproduced as an annex at the end of this article.

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 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Tadic, ICTY Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, para. 70.

3 The International Court of Justice (ICJ) has on many occasions given its opinion on the criterion of intensity with respect to armed attacks. The Court discussed it for the first time in the Nicaragua case (para. 191) and later in the Oil Platform case (para. 64). In both these cases, the ICJ underlined the distinction of armed attacks from other attacks by referring to the criterion of intensity.

4 ICTY, Prosecutor v. Tadic, ICTY Case No. IT-94-1, Judgment (Trial Chamber), 7 May 1997, para. 562.

5 ICTY, Prosecutor v. Boškoski et al., ICTY Case No. IT-04-82-T, Judgment (Trial Chamber), 10 July 2008, para. 185.

6 Many small Muslim jihadi groups, such as Harakat al-Ansar, Harakat ul-Mujahidin, Al-Umar Mujahidin (all of them operating in Kashmir), Fatah al-Islam (Gaza), and some Islamic militant groups within Somalia, fail to meet these conditions.

7 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.

8 Apart from the Afghani Taliban, other typical non-state Islamic actors that have been engaged in armed conflict with a government and have, at least at times, fulfilled the stipulations of the ITCY include Al Qaeda, the Islamic Salvation Front (FIS) (Algeria), and the Abu Sayyaf Group (Philippines). The status of two Islamic groups, namely Hamas and Hezbollah, is more complicated. Hamas now controls Gaza but is still a non-state actor because the Occupied Territories (or, to be more precise, Gaza) are not yet recognized as a state. Hezbollah, on the other hand, has a political wing that is represented in the government of Lebanon, but it still qualifies only as a non-state actor. The UN Human Rights Council's two inquiry missions to investigate human rights violations during the Second Lebanon War between Hezbollah and Israel in 2006 treated the conflict as international. 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; ‘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.

9 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.

10 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

11 Special Court for Sierra Leone (SCSL), Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72, Decision on Preliminary Motion based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, para. 22.

12 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. 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. 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.

13 The fourth condition, i.e. innovation of ‘ta'wil’, or their own interpretation of the law, is required by the jamhur (majority) of Muslim jurists. A well-known example of such rebels in Islamic history is that of the Kharijites (Muslim dissenters). See Muhammad b. Idris al-Shafi‘i’, Al-Umm, Dar al-Ma‘rifa, Beirut, n.d., Vol. 4, p. 216; 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. See ‘Ali b. Ahmad b. Sa‘eed, b. Hazm, Al-Muhalla, Dar al-Fikr, Beirut, n.d., Vol. 11, pp. 97–98; 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; and Muhammad al-Sharbini al-Khatib, Mughni al-Muhtaj, Maktaba Mustafa al-Babi, Cairo, 1933, Vol. 4, p. 126.

14 See A. Ibn Hazm, above note 13, Vol. 11, p. 97; I. Shahfi‘i, above note 13, Vol. 4, p. 215; M. Khatib, above note 13, Mughni al-Muhtaj, Vol. 4, p. 126; 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; 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.

15 Mufti Taqi Uthmani, Sheikh al-Qaradawi, Mufti Zahidur Rashidi, and Moulana Ammar Khan Nasir support this view. See T. Uthmani, above note 12, pp. 6–7; Y. Qaradawi, above note 12, Vol. 1, pp. 710–711; and Z. Rashidi and A. K. Nasir, above note 12, 13–57, esp. pp. 17–19, 23, 25, 30, 50. However, they disagree whether the war should be called a jihad or not. For example, Mufti Zahidur Rashidi views it as a jihad (pp. 49–50), whereas Moulana Nasir does not (p. 30).

16 See the Layha, 2010 edition, Introduction, p. 4. It states that compliance with it is obligatory for every person with authority and every mujahid (p. 5). It also stresses that all military and administrative officials, as well as ordinary mujahideen, must follow these rules and conduct their day-to-day jihadi affairs accordingly (p. 5).

17 The entire Part I, i.e. Sections 1–8, is not about the conduct of war but about inducing and inviting those working for the Afghan regime to join the Taliban, and how to treat them. However, two of those sections are relevant to the conduct of war, namely Section 4, which relates to perfidy committed by a person who surrenders, and Section 7 on armed personnel of the Afghan regime who want to surrender but whose true intention is not clear.

18 Guarantee in the Layha means a guarantee to be given in terms of immovable property or a personal guarantee. It does not mean a guarantee of movable property or money guarantee. Layha, Introduction, Section 3.

19 The Imam is the head of the Taliban, Mullah Muhammad ‘Omar, and Na'ib Imam is his deputy. Layha, Introduction, Section 1. Ta‘zir (deterrent, corrective) punishment is discussed below.

20 For the procedure if no provincial qadi has been appointed, see Layha, Section 10.

21 Section 23 of the Layha allows the burning of private vehicles if used for the transport of goods or other services of ‘infidels’.

22 Ibid., Section 25.

23 Ibid., Section 11. There is no other punishment for them.

24 Ibid., Section 12.

25 According to Section 16 of the Layha, ta‘zir punishment can only be given by the Imam or his deputy or qadi. The same section mentions that if a district qadi wants to give the death sentence as a ta‘zir punishment, he must get the approval of the provincial qadi; if there is no provincial qadi, the governor is authorized to deal with matters of death and ta‘zir.

26 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).

27 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 Conrad, Gerhard, ‘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. 271–307Google Scholar. 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 Fadl, El, ‘Saving and taking life in war: three modern Muslim views’, in Muslim World, Vol. 89, No. 2, 1999, pp. 158–180Google Scholar, in which he discusses the work of three modern scholars of the twentieth century; see also Islam, Syed Sirajul, ‘Abu Ghraib: prisoner abuse in the light of Islamic and international law’, in Intellectual Discourse, Vol. 15, No. 1, pp. 15–19Google Scholar. Works based on secondary sources include Yadeh Ashoor, Ben, ‘Islam and international humanitarian law’, in International Review of the Red Cross, No. 722, March–April 1980, pp. 1–11Google Scholar, especially pp. 3–7; and Thomas, Troy S., ‘Prisoners of war in Islam: a legal enquiry’, in Muslim World, Vol. 87, January 1997, pp. 44–53CrossRefGoogle Scholar. 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. 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.

28 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).

29 Qur'an, verse 9:5.

30 M. Khatib, above note 13, Vol. 4, p. 228; A. Ibn Hazm, above note 13;, Vol. 7, pp. 309, 346.

31 Muhammad b. Ahmad b. Rushd, Bidayat al-Mujtahid, trans. Imran A. K. Nyazee, Garnet Publishing Ltd., Reading, 1994, Vol. 1, p. 456; Muhammad b. Ahmad b. Juzii, al-Qawanin al-Fiqhiyya, Dar al-Kutub al-‘Ilmiya, Beirut, n.d., p. 99; 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.

32 ‘Alauddin Abu Bakr al-Kasani, Bada'i‘ al-Sana'i‘, Dar Ehia al-Tourth al-‘Arabi, Beirut, 2000, Vol. 6, p. 94.

33 Ya‘qub b. Ibrahim Abu Yusuf, Kitab al-Kiraj, Maktabh Farooqia, Peshawar, n.d., p. 378.

34 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.

35 ‘A. Kasani, above note 32, Vol. 6, p. 95.

36 Verses 8:67–68 of the Qur'an brought censure upon the Prophet (PBUH) because no revelation attesting to this being lawful had been sent to him and because the Companions were tempted by ransom. However, as is mentioned in these verses, ransom was legalized: ‘Enjoy, then, all that is lawful and good among the things which you have gained in war, and remain conscious of God: verily, God is much-forgiving, a dispenser of grace’.

37 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.

38 M. Shaybani, above note 34, Vol. 3, p. 124. Shaybani mentions that al-Hasan only allowed the execution of POWs during war, while Hammad b. Abi Suliman used to condemn their execution after the war.

39 Abu Bakar al-Jassas, Ahkam al-Qur'an, ed. Sidqi M. Jamil, Dar al-Fikr, Beirut, 2001, Vol. 3, p. 582.

40 Abu ‘Ubayd b. Salam, Kitab al-Amwal, trans. Imran A. K. Nyazee, Garnet Publishing Ltd., Reading, 2002, pp. 120–121.

41 ‘Imaduddin Isma‘il b. ‘Umar b. Kathir, Tafsir al-Qur'an al-‘Azim, Matba‘ al-Manar, Cairo,1346 A.H., Vol. 4, p. 221.

42 Abul Walid Muhammad ibn Rushd, The Distinguished Jurist's Primer, trans. Imran Nyazee, Reading: Garnet Publishing Ltd, 1994, Vol. 1, p. 456.

43 However, the reports about the execution of al-Nadr b. al-Harith and one of the two concubines of ‘Abdullah b. Khattal are less authentic.

44 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.

45 Abu ‘Ubayd, above note 42, p. 130, n. 24.

46 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.

47 He was a Muslim living in Medina but he killed an innocent Muslim, reverted to the pre-Islamic faith, joined the enemy and thereby committed high treason, embezzled public money, bought two concubines who would compose blasphemous poetry, and started a campaign against Islam. For the Islamic state there were many other wanted criminals, but they were all pardoned at their request. For details see Munir, Muhammad, ‘Public international law and Islamic international law: identical expressions of world order’, in Islamabad Law Review, Vol. 1, Nos 3 and 4, 2003, p. 382Google Scholar.

48 See M. Shaybani, above note 34, Vol. 2, p. 261. This is also the opinion of a great many classical jurists, including ‘Abdullah b. ‘Umar (d. 73 ah/692 ce), al-Hasan al-Basri (d. 346 ah/957 ce), ‘Ata, Dhhak b. Muzahim al-Hilali (d. 100 ah/718 ce), and Ismail b. ‘Abdul Rahman, known as al-Sudi (d. 127 ah/744 ce). Ibn Rushd agrees with this opinion. See A. Ibn Rushd, above note 31, Vol. 1, p. 369. According to Shi‘a jurisprudence, the Imam has only three options: mann, fida’ (ransom either for money or in exchange for POWs held by the enemy), or enslavement; Shi‘a jurists consider execution while in captivity illegal. See Najmuddin al-Muhaqiq al-Hilli, Shara'i‘ al-Islam, ed. Syed Sadiq al-Sherazi, Dar al-Qari, Beirut, 2004, Vol. 1, p. 251; 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; 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.

49 Deuteronomy 20:13–14 (Holy Bible, New King James Version, The Gideons International, New York, 1987, p. 230). See also The Holy Scriptures according to the Mosoretic Text, The Jewish Publication Society, Philadelphia, 1953, p. 237; 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.

50 Y. Abu Yusuf, above note 33, pp. 378, 380.

51 M. Shaybani, above note 34, Vol. 4, pp. 313–314.

52 Syasa literally means ‘policy’ and comprises the whole of administrative justice, which is dispensed by the sovereign and by his political agents, in contrast to the ideal system of Shari‘a law, which is administered by the qadi. The mazalim courts and the institution of muhtasib (ombudsman) are examples of syasa in the early justice system of the Abbasid Caliphate.

53 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.

54 See also Articles 109 and 111 of the Third Geneva Convention of 1949.

55 Muslim, Sahih, Vol. 3, p. 1442, Hadith No. 1808; Yahya b. Sharaf al-Nawawi, Sharh Sahih Muslim, Matba‘ Mahmud Tawfiq, Cairo, n.d., Vol. 7, p. 463.

56 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; 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. 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). See Shibli Nu‘mani and Syed Suliman Nadawi, Sirat al-Nabi, al-Faisal Nashiran-i-Kutub, Lahore, n.d., Vol. 1, pp. 252–253.

57 Abu ‘Ubayd, above note 40, pp. 116–120.

58 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. Ibid., pp. 112–114.

59 A. Baladhuri, above note 58, Vol. 2, pp. 116, 120.

60 He paid 400 dirhams or five camels per slave and set them free and said: ‘An Arab shall not be enslaved’. See Abu ‘Ubayd, above note 40, p. 135. The enslavement of the women and children of Banu Quraydha was the result of arbitration; the Prophet (PBUH) did not enslave the POWs of other battles.

61 Al-Tabrezi, Mishkat al-Masabih, al-Maktab al-Islami, Cairo, n.d., Hadith No. 3955; Ibn Majah, Sunnan, Dar Ehya Al-Turath Al-‘Arabi, Beirut, n.d., Vol. 2, p. 101. For details, see Munir, Muhammad, ‘Suicide attacks and Islamic law’, in International Review of the Red Cross, Vol. 90, No. 869, March 2008, p. 85CrossRefGoogle Scholar, also available at: http://www.cicr.org/web/eng/siteeng0.nsf/html/review-869-p71 (last visited 22 December 2010).

62 Ibn Majah, above note 61, Vol. 2, p. 948, Hadith No. 2842; 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; 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, Sharh Ma‘ni al-Asa'r, Dar Al-Kotob Al-‘Ilmia, Beirut, n.d., Vol. 3, p. 222.

63 See The Islamic Emirate of Afghanistan Rules for the Mujahideen (August 2006), Sections 10 and 11.

64 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).

65 Ibid., Preamble, pp. 2–4.

66 See Layha, Sections 24 and 25.

67 Ibid., Sections 11, 24, and 25.

68 In IHL, contractors who supply to the army are treated as POWs under Article 4(4) of the Third Geneva Convention of 1949.

69 In the 2009 edition, ta‘zir punishment under Section 8 was vested in the governor or the Imam or his deputy, depending on the rank of the captive. However, there was some overlap. Under Sections 20 and 21 of the same edition this authority was vested in the governor.

70 Section 10 covers the options available for dealing with members of the Afghan National Army, police, and other state personnel. Ta‘zir is not mentioned initially among the options but the end of the section says that only ‘the Imam, his deputy or the provincial qadi, are authorized to award the death sentence or ta‘zir’.

71 According to Ahnaf, there are only five hudud crimes. They are: sariqa (theft), haraba (highway robbery), zina (adultery/fornication), qadhaf (slander), and shorb al-khamar (drinking alcohol). Other Sunni schools of thought add two more to this list: ridda (apostasy) and baghi (transgression). Prosecution and punishment for hudud crimes are mandatory.

72 See Muhammad Taqi Usmani, The Authority of Sunnah, Idaratul Qur'an wal ‘uloom al-Islamia, Karachi, 1993, p. 6.

73 See Munir, Muhammad, ‘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. 115Google Scholar.

74 M. Bassiouni, Cherif, ‘Crimes and the criminal process’, in Arab Law Quarterly, Vol. 12, 1997, p. 270CrossRefGoogle Scholar.

75 See Hans Wehr, A Dictionary of Modern Written Arabic, ed. J. Milton Cowan, Librairie Du Liban, Beirut, 1980, p. 766. Technically, qesas means that the accused be treated/punished the same way in which he treated/punished the victim: ‘so he is killed as he killed and is wounded as he wounded [the victim]’. Qesas is the punishment only for intentional homicide (qatl al-‘amd) and intentional wounding (jarh al-‘amd). 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; 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. See also Joseph Schacht, An Introduction to Islamic Law, Universal Law Publishing Co., Delhi, 1997, pp. 181–186; 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.

77 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.

78 However, see Saeed Hasan Ibrahim, ‘Basic principles of criminal procedure under Islamic Shari‘a’, in Haleem et al., above note 76, p. 22.

79 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 ‘al-syasa 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, see Imran A. Nyazee, Theories of Islamic Law, IIIT & IRI, Islamabad, 1995, 2nd reprint, 2005, pp. 111–112. 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; 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.

80 See Layha, Introduction, Section 2.

81 The rule seems to be in conformity with Islamic law. However, a person spying on the Taliban will probably be a person who at least knows their language. So only an Afghan or a Pashtun could do this job and not a foreign national. According to the Layha, only the Imam, his deputy, the provincial qadi, or the provincial governor can order the execution of the spy; see Section 17, p. 20. This section seems to be in conformity with Islamic law. Under Section 20, a person who is accused of spying but whose guilt could not be proved may be sent into exile. In Section 21, the Layha strictly prohibits the taking of photographs of any execution. This is in sharp contrast to the Taliban in the Swat Valley in Pakistan, who, during their control of the area in the summer of 2008, made videos of executions and circulate them accordingly. Moreover, under Section 22 of the Layha, the relatives of any person facing execution must be informed (p. 25). Other sections that are also grounded on Islamic law are the following: the disputes of people under the Taliban's control must be resolved under Islamic law (Section 62); cases once decided must not be reopened (Section 63); the mujahideen should take extreme care not to harm someone's person or property (in the areas under their control) and any violation must be punished accordingly (Section 63); the mujahideen are not permitted to let a minor who as yet has no beard to live with them (Section 69); mutilation is strictly prohibited (Section 70); the mujahideen are not allowed to collect usher, zakat, or other donations by force (Section 71); and finally, under Section 73, kidnapping for ransom ‘in the name of the Islamic Emirate’ is strictly prohibited. These provisions obviously apply in the areas under the control of the mujahideen.

82 Layha, Section 57, pp. 51–52. The Layha uses the terms ‘martyrdom attacks’ instead of ‘suicide attacks’, but how can a person be called a ‘shaheed’ (martyr) when he kills himself? A shaheed is a person killed by the enemy. In addition, the Layha uses the term ‘martyr mujaheed’ for ‘suicide bomber’.

83 See Layha, 2009 edition, above note 64, Section 41.

84 For a detailed study of perfidy and ruse, see Muhammad Munir, ‘The conduct of the Prophet (PBUH) in war, with special reference to prohibited acts’, in Insights, forthcoming.

85 ‘Abd al-Jalil, Shu‘ab al-Iman, MS. Bashir Agha, No. 366, Istanbul, p. 558.

86 Imam Shoukani, Nail al-Awtar, Ansar Al-Sunnah Al-Muhammadiyya, Lahore, n.d., Vol. 7, p. 246.

87 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.

88 Under the Treaty of Hudaybiyya between the Muslims and the Meccans, if a Muslim were to run away from Mecca and join the Muslims in Medina he would be returned, but if a non-Muslim were to leave Medina and join the Meccans he would not be returned.

89 Ahmad b. Hanbal al-Shaybani, al-Musnad, Mu'asasah Qurtubah, Cairo, n.d., Vol. 4, p. 323; Abdul Malik b. Hisham, al-Sira al-Nabawiyya, Dar Ehya al-Turath al-‘Arabi, Beirut, 1995, Vol. 3, p. 347.

90 M. Shaybani, above note 34, Vol. 1, p. 185. According to Sarkhasi, it means that any act that resembles treachery in letter or spirit must be avoided. See also Imam Termidhi, Sunnan, Gagri Yayinlari, Istanbul, n.d., Vol. 4, p. 143, Hadith No. 1580.

91 Qur'an, verse 8:58.

92 M. Shaybani, Vol. 2, pp. 66–67.

93 See Article 37(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. Perfidy is defined as ‘acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence’.

94 Committing suicide is strictly prohibited in Islamic law. Suicide in Islamic law is intentional self-murder by the believer. There is a hadith qudsi – a statement of the Prophet (PBUH) ascribed to God himself – in which he says that a wounded man takes his own life. God then says, ‘My servant anticipated my action by taking his soul (life) in his own hand; therefore, he will not be admitted to paradise’. See Al-Bukhari, Isma‘il, Sahih Bukhari, Dar Sahnun, Istanbul, 1992, Vol. 3, p. 32Google Scholar. In another saying of the Prophet (PBUH), he has given a stern warning to a person committing suicide, stating that the wrongdoer would be repeating the suicidal act endlessly in hell and would reside in hell for ever. Ibid., Vol. 3, p. 212.

95 For details, see M. Munir, above note 61.

96 Layha, Section 70.

97 Y. Qaradawi, above note 12, Vol. 2, p. 1092.

98 Sheikh Qaradawi argues that, since the Palestinians have obtained missiles that can hit Israel, martyrdom operations are no longer allowed (ibid., p. 1092). If the same argument is applied in Afghanistan, where (1) the Taliban are so strong that for almost ten years the world's strongest and most well-equipped army has been unable to defeat them and (2) the Taliban possess more sophisticated weapons than the Palestinians, then the use of suicide attacks as a method of warfare should be strictly prohibited.

99 One possibility is when such a soldier pretends to be surrendering and, on approaching the enemy, blows himself up. But this again is perfidy, and in the future soldiers who genuinely wanted to surrender would not be trusted by the enemy.

100 But see Said Mahmoudi, ‘Non-state Islamic actors and international humanitarian law’, unpublished paper presented at the Conference on Perspectives on International Humanitarian Law between Universalism and Cultural Legitimacy, The Hague, 27 November 2009.

101 Section 81 of the Layha corresponds to Section 63 of the 2009 edition. It is clearly very questionable whether disguising the Taliban to look like the locals will protect them (the locals) or will expose them to danger.

102 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 Munir, Muhammad, ‘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. 69–82Google Scholar; 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). 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.

103 Layha, Section 57(2, 3).

104 This is the crux of the Introduction of the Layha. See, Sections 1–8, pp. 6–14.