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Muslims' Share of the Waves: Law, War and Tradition
Abstract
The Muslim jurists opted for a balanced, equitable approach in water resources, particularly the oceans, held and taken care of as a collective, shared, and common asset. They devoted several writings on the humane conduct of hostilities, safety of civilians, seaworthiness of ships and shipwrecks with the help of original sources of Islam and the commandments of Muslim governors. Their principles and practices had remarkably contributed to the law of the sea much before the development of the modern Western international law concerning the oceans. Numerous military expeditions undertaken by Muslims for naval warfare in the Mediterranean Sea (MS) and the Indian Ocean (IO) inspired intellectual engagement of these jurists vis-à-vis port cities and maritime trade routes. The coastal settings even caused differences in opinions among popular schools of thought in Islam. This paper discusses such events in history and outlines issues and principles that emphasized the utility of oceans and shaped the conceptual debate on freedom of navigation in the Muslim world. It tends to suggest that international bodies recognize the customary practices of Muslim littoral states to further refine and develop the modern law of the seas. It recommends that the Muslim countries should develop and promote comprehensive codes in accordance with the maritime principles and practices developed by early Muslim jurists for sustainable exploitation of the marine resources without discrimination.
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Hassan S. Khalilieh, Islamic Law of the Sea: Freedom of Navigation and Passage Rights in Islamic Thought, Cambridge Studies in Islamic Civilization (Cambridge: Cambridge University Press, 2019), vii, 17, http://ijtihadnet.com/wp-content/uploads/Hassan-S.-Khalilieh-Islamic-Law-of-the-Sea_-Freez-lib.org_.pdf.
Ibid.
Majid Khadduri, War and Peace in the Law of Islam (Baltimore: Johns Hopkins Press, 1955). See for instance the legal works of Hanafi School of Thought, particularly of Muhammad al-Shaybani and Muhammad al-Sarakhsi along with Majid Khadduri.
S.D. Goitein, Studies in Islamic History and Institutions (Leiden: Brill, 1968), 299-301. The Umayyad dynasty (661-750 C.E.), the Abbasids (750-1517 C.E.), the Fatimid (909-1171 C.E.) and the Ottomans (1301-1922 C.E.), devoted a massive fraction of military expeditions to naval battles.
Hassan S. Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050): The Kitab Akriyat Al-Sufun Vis-a-Vis the Nomos Rhodion Nautikos (Leiden: Brill, 2006), 19;—, “Legal Aspects from a Cairo Geniza Responsum on the Islamic Law of the Sea: Practice and Theory,” The Jewish Quarterly Review 96 no. 2 (2006): 180-202, https://doi.org/10.1353/jqr.2006.0006; and—, “Human Jettison, Contribution for Lives, and Life Salvage in Byzantine and Early Islamic Maritime Laws in the Mediterranean,” Byzantion 75 (2005): 225-235, https://www.jstor.org/stable/44172998. Much of the work on Islamic maritime law is attributed to Maliki School of Thought, due to the Mediterranean surroundings that influenced Maliki jurists to devise rules relevant to maritime domain.
The Islamic law of the seas deals with the territorial sovereignty, freedom of navigation and exploitation of marine resources. Islamic naval warfare is about the conduct of hostilities and neutrality at the seas, while Islamic maritime tradition concerns shipwreck, salvage, condition of vessels and duties of the captains, etc. These are three interconnected as well as separate entities of law, however, the paper intends to provide the readers an overview of this branch of Islamic law with an intention to explore their original background to understand the early years of maritime expeditions of Muslims.
The history of Arab navigation is older than the arrival of Joseph in Egypt, two thousand years before Jesus. Based on old Arabic texts, pre-Islamic poetry, and religious books, Syed Sulaiman Nadvi revealed Arabs' devotion to seafaring and maritime trade. See Syed Sulaiman Nadvi, Arbon ki Jahazrani [Arab Navigation] (Azamgarh: Mu'arif Press, 1935), 3. Therefore, by no means, the paper contends that Arab navigation did not exist before Islam. Harsh weather and barren land made the best out of the Arab traders, and seafarers. However, Islam encouraged them to excel in their maritime skills, naval warfare, and travel all corners of the world. They were familiar with navigation on open seas before Islam. See Andrew D. Forbes, “Southern Arabia and the Islamicisation of the Central Indian Ocean Archipelagoes,” Archipel 21, no. 1 (1981): 55-92 (64-68), https://doi.org/10.3406/arch.1981.1638. On the coastal peripheries of the East, Andrew D. Forbes explained, “by the fourth century B.C. trade contacts appear to have been established between, the Near East and Sri Lanka, and by the time of the final collapse of the South Arabian state in the sixth century A.D…Arab ships had almost certainly crossed the Bay of Bengal and reached Southeast Asia…Arab merchants and sailors seemed to have settled peacefully, with the agreement - or at least acquiescence of the local population, and to have intermarried with the local womenfolk. As a result of this peaceful settlement new ethnic and cultural groups - notably the Swahili, the Mappila, the Islamized Malay, and the Hui of the south China coast - were to emerge…certainly the Arab colony in Malabar predates the Islamic era by many centuries.'
“Conduct of Hostilities,” How does Law Protect in War? accessed December 15, 2020, https://casebook.icrc.org/glossary/conduct-hostilities. The term ‘conduct of hostilities’ refers to ways and means used by warring parties in armed conflicts.
Ahmed Al-Dawoody, “Islamic Law and International Humanitarian Law: An Introduction to the Main Principles,” International Review of the Red Cross 99, no. 906 (2017): 1-24, https://doi.org/10.1017/S1816383118000310. Primary sources consist of the Quran, Sunnah, ijma (consensus), and qiyas (analogy). Secondary sources are somehow disputed and consist of several jurisprudential methods for developing the rules. They include istihsan (juristic discretion), maslahah mursalah (public interest), urf (custom), shar' man qablana (law of religions before Islam), madhhab al-sahabi (opinions of the Companions of the Prophet), sadd al-dharai (blocking the means to evil), and istishab (continuation of a previous rule).
The Holy Quran 35:12. Also see, The Holy Quran 17:66-67; 30:46; 31:31; and 42:35. The Quran mentioned water bodies 32 times in comparison to the 13 references to the land.
The Holy Quran 45:12. Ibid.
Hassan S. Khalilieh, Islamic Maritime Law: An Introduction (Leiden: Brill, 1998), 2.
Khadduri, War and Peace in the Law of Islam, 113. For a detailed study on Arab seafaring, their early perceptions towards sea and Muslims naval warfare, see Vassilios Christides, “Naval History and Naval Technology in Medieval Times: The Need for Interdisciplinary Studies,” Byzantion 58, no. 2 (1988): 309-332; Walter Emil Kaegi, Byzantium and the Early Islamic Conquests (Cambridge: Cambridge University Press, 2005); Lawrence Conrad, “Islam and the Sea: Paradigms and Problematics,” review of L 'Islam et la mer: la mosquée et le matelot, vif-xx^ siècle [The Islam and the Sea: The Mosque and the Sailor, 7th 20th Century] (Paris: Librairie académique Perrin, 2000), by Xavier de Planhol, Al-Qantara XXIII, 1 (2002): 123-154.
Ibid.
Emilia Justyna Powell, “Not so Treacherous Waters of International Maritime Law: Islamic Law States and the U.N. Convention on the Law of the Sea,” in Comparative International Law, eds. Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier and Mila Versteeg (Oxford: Oxford University Press, 2018), 578.
Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050), 13.
Ibid. See also Sabir Badalkhan, “On the Med Fishermen of Coastal Makran,” in Proceedings of the 5th Conference of the Societas Iran Ologica Europea, Classical and Contemporary Iranian Studies, vol. II, eds. Antonio Panaino and Riccardo Zipoli (Milan: Mimesis, 2006), 290-291. Also, only during the Caliphate of Hazrat Umar R.A and then Hazrat Muawiya R.A, Arabs entered the coastal region of Makran to reduce piracy in the Arabian Sea by waging war with Meds, who were indigenous fisherfolk and seafarers.
Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050), 14.
Ibid.
Khadduri, War and Peace in the Law of Islam, 112; Ahmad Ibn Yahya Al-Baladhuri, The Origins of the Islamic State (New York: AMS Press, 1968), 235; Muhammad ibn Yarir al- Tabari, The History of al-Tabari, SUNY Series in Near East Studies ed. Said Amir Arjomand, trans. R. Stephen Humphreys, vol. XV (Albany: The State University of New York Press, 1990), 25-32.
Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050), 15.
Ibid.
Al-Baladhuri, The Origins of the Islamic State, 375-376.
Khadduri, War and Peace in the Law of Islam, 111-117. The Mediterranean vessels were the best in quality and stronger than the Red Sea and the Indian Ocean vessels. Muslims imported the best quality wood, instruments for shipbuilding, and trained crew members. They also learned to use the compass during maritime expeditions on European patterns, naming them after stars and constellations. Muslims learned to arm their vessels with Greek fire called fire-ships or harraqas, which could throw an explosive substance at enemy vessels. The admiral of the naval fleet, amir al Bahr acted like a governor of the province and shared authority with the Caliph. Each ship had a qaid (captain) as the head of the naval troops and weaponry, and a rais (sailing master) who directed the sails and oars.
Ibid. Greek fire ended the siege of Constantinople between 673-79 C.E.
Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050), 16.
Ibid.
Khadduri, War and Peace in the Law of Islam, 113.
Ibid.
Ibid.
Ibid., 114.
However, some jurists preferred the protection of Muslim shields, children and women over attack on the enemy vessels. For a detailed discussion see Muhammad ibn al-Hasan al- Shaybani and Majid Khadduri, The Islamic Law of Nations: Shaybani's Siyar (Baltimore: Johns Hopkins Press, 2002).
Khadduri, War and Peace in the Law of Islam, 114.
—, The Islamic Law of Nations: Shaybani's Siyar, 75-103.
Muhammad Hamidullah, Muslim Conduct of State, 3rd ed., rev. (Lahore: Ashraf, 1953)195-199 Khadduri, The Islamic Law of Nations: Shaybani's Siyar, 76; Al-Dawoody, “Islamic Law and International Humanitarian Law: An Introduction to the Main Principles,”8. 36The Holy Quran 2:190.
Al-Dawoody, “Islamic Law and International Humanitarian Law: An Introduction to the Main Principles,” 8.
Ahmed Al-Dawoody, “Management of the Dead from the Islamic Law and International Humanitarian Law Perspectives: Considerations for Humanitarian Forensics,” International Review of the Red Cross 99, no. 905 (2017): 759-784, https://doi.org/10.1017/S1816383118000486. In the Battle of the Trench (627 C.E.), when the enemies requested the return of the corpse of Nawfal ibn Abd Allah ibn alMughiirah in exchange for 10,000 dirhams, the Prophet ordered for the body to be returned and refused to accept the money. In written instructions to the governor of Hadramaut, Yemen, the tradition of Prophet and Caliph Abu Bakr required that ‘dead enemy soldiers are buried, or their bodies handed over to one's adversary after the cessation of hostilities.‘ Islamic legal tradition also records that Prophet had the bodies of dead soldiers buried without asking whether they belonged to the Muslim army or its adversaries.
Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050), 81.
Khadduri, War and Peace in the Law of Islam, 111.
Ibid.
Ibid. For a deeper insight on this topic, see Aly M. Fahmy, Muslim Sea-Power in the Eastern Mediterranean from the Seventh to the Tenth Century A.D. (Cairo: National Publication and Printing House, 1966), 80-148.
Stanford J. Shaw and Gökhan Çetinsaya, “Ottoman Empire,” in The Oxford Encyclopedia of the Islamic World, accessed November 6, 2020.
Ibid.
Ibid. See Sabir Badalkhan, “Portuguese Encounters with Coastal Makran Baloch during the Sixteenth Century. Some References from a Balochi Heroic Epic,” Journal of the Royal Asiatic Society 10, no. 2 (2000): 153 - 169 (154), https://doi.org/10.1017/S1356186300012438.The Med population of Makran region in Pakistan, helped the Ottoman fleet, in the reign of Sultan Suleyman, to maintain safe passage and freedom of navigation against the Portuguese aggression in the Indian Ocean and archipelagos in the sixteenth century.
Shaw and Çetinsaya, “Ottoman Empire.”
Ibid.
Ehud Eiran, “Between Land and Sea: Spaces and Conflict Intensity,” Territory, Politics, Governance 5, no. 2 (2017): 190-206 (190).
Hamidullah, Muslim Conduct of State, 85.
Khalilieh, Islamic Law of the Sea: Freedom of Navigation and Passage Rights in Islamic Thought, 90; The Holy Quran 7:163.
Hamidullah, Muslim Conduct of State, 85.
Wahba Zuhayli, Al-fiqh al Islami wa Adilatuhu [Islamic Jurisprudence and its Proofs] vol. 4 (Damascus: Dar al-Fikr, 1985), 72.
Hamidullah, Muslim Conduct of State, 85.
Ibid.
Ibid., 82.
Ibid., 83-84.
There are core chapters of fiqh manuals consisting of the rules pertaining to Waqf (public property), which explains the concept of public utility and ownership, government revenues and taxation. For instance, Abu Ubayd Sallam, The Book of Revenue: Kitab Al-Amwal, Great Books of Islamic Civilization, trans. Imran Ahsan Khan Nyazee (Reading: Garnet Publishing, 2002); and Imam Abu Yousuf, Kitab ul Al Kharaj (Leiden: Brill, 1969). Water courses, rivers and canals are discussed under the chapter of kitab al Shurb in Imam Alauddin Abi Bakr Bin Mas'ud Al-Kasani Al-Hanafi, Bada'i Al-Sana'i Fi Tartib Al-Shara'I, eds. M. Ali Mu'awiz & Adil A. Abdul Baqi (Beirut: Dar Al-kotob al-Ilmiyah, 2009).
Hamidullah, Muslim Conduct of State, 85.
Ibid.
Hassan S. Khalilieh, “Maritime Law,” Oxford Islamic Studies Online, accessed November 4, 2020, http://oxfordislamicstudies.com/article/opr/t349/e0063.
Ibid.
Ibid.
Freedom of the high seas, as enshrined in article 87 of UNCLOS, comprises; (1) freedom of navigation; (2) freedom of overflight; (3) freedom to lay submarine cables and pipelines; (4) freedom to construct artificial islands and other installations; (5) freedom of fishing; (6) freedom of scientific research. While article 89 states that no state may validly purport to subject any part of the high seas to its sovereignty. See Khalilieh, Islamic Law of the Sea: Freedom of Navigation and Passage Rights in Islamic Thought, 93-94. Khalilieh, however, observes that ‘Muslims were certainly not the first to introduce laws of the free sea. Earlier monotheistic religions and cultures enshrined free access to the sea as a natural right and defended it by initiating regulations and concluding diplomatic and commercial agreements.‘
Badalkhan, “Portuguese Encounters with Coastal Makran Baloch during the Sixteenth Century. Some References from a Balochi Heroic Epic,” 154.
Irini Papanicolopulu, “The Duty to Rescue at Sea, in Peacetime and in War: A General Overview,” International Review of the Red Cross 98, no. 902 (2016): 491-514 (491), doi:10.1017/S1816383117000406.
Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050), 32.
The Holy Quran 54:13; and Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050), 27. 'The Quran counts the ship among the miracles of God and 28 verses enumerate her benefits to mankind in which 23 of them contain the word fulk and safina occurs 4 times in 3 verses, juwar is used in two verses, jariya in one verse, and 'dhat alwa- wa-dusur' meaning 'made of planks and nails' as well in one verse.'
Ibid.
Deborah R. Noble, “The Principles of Islamic Maritime Law” (Ph.D. diss., University of London, 1988), 89-91.
Ibid.; and Khalilieh, Islamic Maritime Law: An Introduction, 149-161.
Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050), 72.
Ibid., 39.
Noble, “The Principles of Islamic Maritime Law,” 205-207.
Ibid.
Abd al-Rahman Ibn Ahmad Ibn Fayi, Ahkam al-Bahr fi al-Fiqh al-Islami (Beirut: Dar al-Andalus al-Khadra, 2000), 552-554.
Khalilieh, “Maritime Law.”
Wael B. Hallaq, “Was the Gate of Ijtihad Closed?” International Journal of Middle East Studies 16, no. 1 (1984): 3-41, https://www.jstor.org/stable/162939. Hallaq describes Ijtihad as ‘the maximum effort extended by the jurist to master and apply the princioles and rules of Usūl al-fiqh (legal theory) for the purpose of discovering God's law.‘
Al-Baladhuri, The Origins of the Islamic State, 375-376.
Ibid.; and Abraham L. Udovitch, “An Eleventh Century Islamic Treatise on the Law of the Sea,” Annales Islamologiques 27 (1993): 38-39, https://www.ifao.egnet.net/anisl/027/03/.
Ibid.
Ibid.
See Mahmood Kooriadathodi, “Cosmopolis of Law: Islamic Legal Ideas and Texts Across the Indian Ocean and Eastern Mediterranean Worlds” (PhD diss., Leiden University, Leiden, 2016), https://openaccess.leidenuniv.nl/bitstream/handle/1887/44973/Mahmood_Dissertat ion_09_Nov_2016.pdf?sequence=1; and Forbes, “Southern Arabia and the Islamicisation of the Central Indian Ocean Archipelagoes,” 64-68. Andrew Forbes records the spiritual journey of Gheraman Perumal, Raja of Kodungalur, a legend in Keralan history who ‘had a strange dream in which he saw the moon split into two halves, one of which fell to the ground. A party of Arab pilgrims passing through Kodungalur, on their way to Adam's Peak interpreted this dream to the Raja as a divine call to embrace Islam. Gheraman Perumal is said to have accepted this analysis, and to have set sail for the Hadramawt. Here he is said to have settled. After his death he was buried, near either the Hadramawti port of Shihr, or in neighbouring Zafar. Before his death Gheraman Perumal is said to have sent missionaries, headed by Malik ibn Dinar, to spread Islam.‘
Fayi, Ahkam al-Bahr fi al-Fiqh al-Islami, 9. For instance, authors such as George Hourani, Sayyid Salman Nadvi and Patricia Risso concentrated on the Indian Ocean as an arena of Islam, yet they focused on Arab navigational skills, trade routes with cursory references to legal institutions. See George Hourani and John Carswell, Arab Seafaring in the Indian Ocean in Ancient and Early Medieval Times (Princeton: Princeton University Press, 2003); Sayyid Sulaiman Nadvi, The Arab Navigation (Lahore: Ashraf, 1966); and Patricia A. Risso, Merchants and Faith Muslim Commerce and Culture in The Indian Ocean (Boulder: Taylor & Francis Group, 2019), http://public.eblib.com/choice/PublicFullRecord.aspx?p=5313056. There is vast amount of scholarly work to be unearthed in primary Sunni schools, historical accounts of Muslim travelers, legal commentaries, fatawas, khitab, glossaries, policy and legal directives of rulers, in the Mediterranean and Indian Ocean rims.
Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050), 19. He remarks that the book Al-Muwatta by Malik Ibn Anas (97-179/715-795), Mudawwana al-Kubra compiled by Sahnun ibn Sa'id ibn Habib at-Tanukhi (160-240/776-854), and Kitab Al-Umm of Muhammad Ibn Idris al- Shafi'i (150-204/767-820) are arranged according to the Byzantine legal classification.
Noble, “The Principles of Islamic Maritime Law,” 248-252.
Ibid.
Ram P. Anand, “Maritime Practice in South-East Asia until 1600 A.D. And the Modern Law of the Sea,” in International Law and the Developing Countries: Confrontation or Cooperation? Ed. Ram P. Anand (Boston: Martinus Nijhoff Publishers, 1987), 59.
Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050), 248-256.
David Smock, Ijtihad: Reinterpreting Islamic Principles for the Twenty-First Century, report (Washington, DC: United States Institute of Peace, 2004), http://www.jstor.org/stable/resrep12312.
For example, International Review of the Red Sea on War and Security at Sea, no. 902, https://international-review.icrc.org/reviews/irrc-no-902-war-and-security-sea discussed lacunas in the theory and practice of law on navigational rights, exploiting marine sources, in the South China Sea, and maritime hotspots. Despite their diversity, the articles in this volume were oblivious to the standpoint of Islam. International Review of the Red Sea no. 881, https://international-review.icrc.org/reviews/irrc-no-881-conflict-afghanistan-ii. Although ICRC had welcomed the professors from the Faculty of Shariah & Law at the International Islamic University (IIUI), Islamabad, in 2011 for listening to their inputs on Islamic law of war and rebellion given the armed conflict in Afghanistan, such exercise was never undertaken in the context of maritime. Tuba Azeem, “Armed Conflict at Sea: A Critical Analysis with Special Reference to Shariah” (Masters diss., International Islamic University, Islamabad, 2019). Moreover, there are only a few theses in academic institution like IIUI on such issues.