Al-Sarakhsī’s Contribution to the Islamic Law of War

This paper examines the contributions of the Ḥanafī jurist al-Sarakhsī (d. 483 AH/1090-91 CE) to the development of the Islamic conceptions of (1) jus ad bellum (the principles concerning the permissibility of the decision to wage war) and (2) jus in bello (the rules regulating warfare) in both international and domestic armed conflicts. By examining al-Sarakhsī’s treatment of the use of force by both state and non-state actors in his monumental work al-Mabsūṭ, this paper answers important questions concerning Islamic justifications for waging war and Islamic rules regulating warfare. First, it asks whether Islam sanctions offensive war against non-Muslims because of their religious beliefs. Second, it investigates the extent to which Islamic jus in bello
rules are consistent with the four Geneva Conventions of 1949 and their Additional Protocols? Third, examines the circumstances under which it is permissible for Muslims to rebel against their ruler? Fourth, it explores the meaning of terrorism according to Islamic law and whether or not terrorism is punishable under Islamic law.

This paper compares al-Sarakhsī’s interpretations with those of other prominent Ḥanafī, Mālikī, Shāfi‛ī and Ḥanbalī jurists regarding the Islamic law of war. Al-Sarakhsī’s answers to the questions posed above may provide some insight into the potential impact the law of war of one of the world’s most influential legal systems may have on the peace of our globalized world. This paper argues that certain rules developed by al-Sarakhsī regulating the wartime conduct of Muslim armies ought to be reevaluated by Muslim jurists today in light of present armed conflict in both international and domestic contexts.

The paper was first published on Journal of Islamic and Near Eastern Law, 14 (1), 2015.