Will McCants: One of the reasons Graeme Wood’s article on the Islamic State in the Atlantic stirred controversy is his statement that “the Islamic State is Islamic. Very Islamic.” Graeme was careful to explain what he meant, but the phrase left the impression that the Islamic State embodied Islamic ideals. “Islamic” is too broad a category. Other categories wouldn’t have worked either. One could also say the Islamic State is “very Sunni” and “very Salafi” but those would be inexact too.
Rather than rehash the debate, I thought we could get a better sense of the relationship between the Islamic State and Islamic scripture if we answer a narrower question: how does the Islamic State approach scripture? By scripture, I mean the Quran and the hadith, the words and deeds attributed to Muhammad and his Companions.
First up was Cole Bunzel, who wrote that ISIS maintains an online network of religious scholars who seek to legitimate the group’s hardline worldview through scripture, grounding ISIS’s actions in an extremist but historical interpretation of Islamic texts.
Sohaira Siddiqui, professor of Islamic theology at Georgetown University Qatar, wrote about ISIS’s selective use of Islamic texts and traditions, which it uses to forward its own agenda.
Andrew March of Yale University analyzed how ISIS has repurposed a 7th-century text to justify its methods of governing Christians residing within its “state.”
Now, Mohammad Fadel, an Associate Professor of Law at the University of Toronto, provides a detailed explanation of ISIS’s conception of international law by examining the group’s reappropriation of classical Islamic legal traditions pertaining to Islamic territory. ISIS’s claim to be the sole legitimate Islamic territory, Mohammad tells us, goes against the last millennium of Muslim legal thought.
Mohammad Fadel: In a recent article, Andrew March and Mara Revkin provided a detailed analysis of the Islamic State’s attempt to establish a domestic legal system that operationalizes its commitment to rule in accordance with Islamic law. One important feature of the Islamic State’s legal framework, however, was not covered in their otherwise very helpful piece: the Islamic State’s understanding of international relations. Understanding the group’s conception of international law illuminates both how it appropriates concepts that are indisputably central principles of Islamic law, but then deploys them in a fashion that differs radically from contemporary Muslim understandings of those principles.
In this case, the relevant concepts in the Islamic State’s legal discourse are, without doubt, foundational to classical Islamic law’s jurisdictional division of the world between the territory of the Islamic state, dār al-islām, and the territory of non-Muslims, dār al-ḥarb. However, as I have shown in an article on the history of Islamic international law, the meaning of these terms, and how Muslim jurists applied them to solve particular legal problems, has a long and complex history which, in the post-World War II era, led most Muslim jurists to conclude that this division is no longer operational.
Of the thirty-two official fatwas (opinions regarding a matter of Islamic law) of the Islamic State that Cole Bunzel published on Jihadica, four of them (nos. 37, 46, 48, and 65) explicitly invoke the concept of the dār al-ḥarb, i.e. the territory of non-Muslims; one of them (no. 46) explicitly invokes the concept of the dār al-islām, i.e. the territory of the Islamic state. One cannot understand how the Islamic State deals with its enemies without understanding how it has appropriated these concepts and applied them as constituent elements of its domestic legal order and its conduct of foreign relations. Fatwa no. 46 asks whether it is lawful for widows of Islamic State fighters, along with their minor children, to leave the jurisdiction of the Islamic State. The answer is a clear no; indeed, a widow who attempts to flee the Islamic State’s jurisdiction is even subject to criminal punishment should she try to leave with children. The opinion provides two reasons for the prohibition, although in fact, they are but two sides of the same coin: immigration to the Islamic State is an obligation that applies universally to all Muslims because the Islamic State is, as a legal matter, the only territory in the world that could qualify as an Islamic state, i.e. dār al-islām and so it follows that emigration from the Islamic State necessarily entails the abandoning a just Islamic order for an unjust polytheistic order, dār al-ḥarb, and is therefore, as the fatwa explains, “a great sin.”
As the fatwa makes clear, however, the fact that the Islamic State is the only Islamic state has implications that go beyond religious conceptions of sin: a woman who attempts to flee with her children beyond the Islamic State’s territory commits a crime and is therefore subject to criminal punishment. Fatwa no. 48 reinforces this prohibition against abandoning the territory of the Islamic State by prohibiting—and presumably rendering criminal—aiding and abetting the departure of Muslims from the territory of the Islamic State by assisting them in procuring for them passports that would enable them to travel.
There is no doubt that the classical Islamic tradition placed high value on Muslims living in an Islamic jurisdiction. Indeed, as far as I know, all foundational Muslim jurists either believed it was obligatory (wājib) or recommended (mandūb) for Muslims residing outside the territory of an Islamic state to immigrate to an Islamic jurisdiction. In the post-classical period, however, whether an Islamic jurisdiction was limited to the territory effectively governed by an Islamic polity became a contentious matter, as has been thoroughly documented by Khaled Abou el Fadl in his important article, “Islamic Law and Muslim Minorities.” The discontinuity between the idea of Islamic territory and Muslim political sovereignty was a result of both the expansion of Muslim populations beyond the territorial jurisdiction of an Islamic polity and the conquest of Muslim territories by non-Muslim invaders, particularly, the Mongols.
Without necessarily abandoning the idea that immigration to an Islamic territory is either obligatory or meritorious, post-classical Muslim jurists reinterpreted the concept of Islamic territory so that it encompassed any territory where Muslim sovereignty previously prevailed, combined with the continued existence of a Muslim population adhering to elements of Islamic law, or to any place where Muslims could freely manifest Islamic practices. The tendency to broaden the identification of a territory as Islamic whenever Muslims live there and can practice their religion freely reaches its logical climax in the work of post-World War II Muslim reformists such as the Syrian jurist Wahba al-Zuhayli, who argued that the world, as a result of progress in international relations, had effectively become one jurisdiction (dār).
It would be misleading, however, to suggest that the historical divorce between what makes a territory Islamic and effective Muslim political sovereignty was universally accepted. The Mālikīs were the most important dissenters to the “inflation” that the Shāfiʿīs and the Ḥanafīs endorsed in connection with the concept of Islamic territory. Likewise, certain Salafi-oriented scholars in the modern period also rejected arguments by contemporary scholars such as Zuhayli that effectively dissolved any distinction between Islamic territory and non-Islamic territory. But, with respect to the Mālikī preservation of the nexus between effective Muslim sovereignty, the nature of the territory as either Islamic or non-Islamic, and the duty of migration, there was a clear strategic logic to their reasoning. The Islamic West, where Mālikism predominated, was a frontier region with more or less constant warfare with European Catholics which was characterized by more or less a clear, even if fluid, border between Islamic territory and non-Islamic territory. By emphasizing the duty of Muslim populations under Catholic rule to immigrate to territories under effective Muslim sovereignty on pain of being deemed an apostate, Mālikī jurists must have understood that if they were to treat such populations as Muslims, with all the privileges they would have under Islamic law, it would have rendered the prosecution of future wars against Catholic powers substantially more difficult, if not impossible from the perspective of Muslim states in the Islamic west.
Indeed, as Jocelyn Hendrickson’s work The Islamic Obligation to Emigrate: al-Wansharīsī’s Asnā al-Matājir Reconsidered has shown, the celebrated leader of resistance against the French invasion, ʿAbd al-Qādir al-Jazāʾirī, invoked the long-standing Mālikī view that Muslims living under non-Muslim rule— in this case, those Algerians living under French dominion— were under an obligation to emigrate from such territories to territories under effective Muslim sovereignty on pain of being treated as apostates. Significantly, unlike the contemporary position of the Islamic State, Mālikī jurists, while generally affirming the duty of Muslims living in territories not subject to effective Muslim sovereignty to immigrate to Muslim polities, other Muslim polities were not declared to be non-Islamic on the grounds of their inadequate adherence to Islamic law.
The claim of the Islamic State to represent the only legitimate Islamic territory is thus contrary to the last millennium of Muslim legal thought on the nature of what an Islamic territory means, even taking into account the more rigorous Mālikī view. This Islamic State’s claim to be the only Islamic jurisdiction, however, is not only exclusivist and exclusionary; it also enables what can only be described as its lawlessness with regard to its enemies. If only the territory that it controls is Islamic territory, than the limitations that apply to its conduct in Islamic territory, e.g. rights to freedom, life and property, and that one can be punished only in accordance with Islamic law, do not restrict it in its dealings with enemies. This is most clearly seen in its horrific treatment of Muslim captives.
Perhaps the most dramatic example of this reasoning was literally on display in the Islamic State’s decision to immolate the Jordanian pilot, Muath al-Kasasbeh, a decision that can only be justified if the Islamic State treated him as an apostate, but the same reasoning applies to its mass executions of prisoners captured from the organized Syrian and Iraqi armed forces. Under classical Islamic law, wars between Muslims were legally understood to be civil wars— conflicts among brothers— and therefore granting quarter to those who surrendered was obligatory. By contrast, non-Muslim prisoners of wars captured in international conflict had no right to quarter, and so could be executed, enslaved, ransomed, or released gratis as determined by the head of state in accordance with the interest of the Muslim community. Prisoners who were apostates, i.e., those who had been Muslims at one point in their lives but then renounced Islam, were denied quarter and were to be executed unless they repented.
By demarcating all territories surrounding them as non-Islamic, the Islamic State is free to ignore any claims that the non-Muslims living there are entitled to the protections of Islamic law granted to non-Muslim communities living in Islamic territory, thereby allowing themselves to enslave those non-Muslim populations, as took place most notoriously with the Iraqi Yazidi population. By declaring all Muslims who fight against it as apostates, the Islamic State is not only free to execute them whenever they defeat them, but is under a duty to do so, except in circumstances of severe emergency, a position made clear in Fatwa no. 52. In enslaving non-Muslims, and executing and immolating captured Muslims and non-Muslims, the Islamic State claims to be applying the norms followed by the early Muslim community in its wars in the 7th century; but even granting that the early Muslim communities did enslave some of its captives and execute others, their practice at that time was in accord with prevailing customary standards of war that applied to both sides in any conflict, and thus are more accurately understood to be reflections of the customary law of war in the 7th century than a reflection of the permanent Islamic rules of warfare.
So, even if we were to accept the Islamic State’s characterization of itself as the only legitimate Islamic jurisdiction in the world, it would still be required to treat its non-Muslim enemies in accordance with the customary standards of the 21st century, and not those of the 7th. Along the same lines, even if we were to accept their characterization of their Muslim enemies as apostates, even apostates have the right to repent, and there is nothing to suggest that the Islamic State gives its “apostate” prisoners an opportunity to repent from their apostasy. These examples illustrate the larger point: that while the Islamic State certainly appropriates well-known concepts from the Islamic tradition, it does so in a way that is not only strikingly divergent from the long-term historical development of those concepts, it also applies them in a way that seems self-serving and ignores the inner integrity of the very rules which it claims to espouse.