By Marta Wojtowicz
Description: The Advice and Guidance to the Fighters on the Battlefields was issued by Ê¾AlÄ« al-SistÄnÄ« in February 2015 and directed to the fighters involved in the campaign against ISIS, addressing the issue of their conduct in war. The fatwÄ is an example of humanitarian considerations in warfare framed in the terms of Islamic law and ShÄ«Ê¿Ä« legal scholarship.
Commentary: In February 2015, Imam Ê¾AlÄ« al-SistÄnÄ« of Najaf issued a fatwa outlining the principles guiding the conduct of war for his followers. SistÄnÄ« is one of the highest-ranking ShÄ«Ê¿Ä« legal scholars in Iraq, recognized as the authority to be followed – marjaÊ¿ al-taqlÄ«d. This opinion was primarily intended for the use of militants involved in the campaign against ISIS and their affiliates in northern Iraq. The fatwa invites comparison with the sources of international law, providing a ShÄ«Ê¿Ä« perspective on humanitarian principles to be observed during the conduct of war.
The document should be read in conjunction with the opinions issued by SistÄnÄ« at the outbreak of the conflict, in particular, his fatwÄÂ from 13 June 2014 calling all civilians able to carry arms to mobilize against the ISIS threat. This call proved highly consequential, creating an Islamic law obligation for those who followed al- SistÄnÄ«â€™s religious guidance. The fatwÄÂ prompted a widespread mobilization of Iraqi civilians in southern Iraq during the summer of 2015, and the creation of numerous para-military groups which would subsequently be known as the hashd al-shaÊ»bi or the Popular Mobilization Units.
This picture is complicated by the fact that many of the groups active during the war have declared the acceptance of religious guidance from Imam Ê¾Ali Khamenei, the Supreme Leader of Iran. Practical consequences of the divisions related to the religious authority were seen throughout the campaign. For instance, the groups recognizing the authority of SÄ«stÄnÄ« were the only ShÄ«Ê¿Ä« militia organizations authorized to support the regular security forces inside Mosul.
SistÄnÄ«â€™s intervention in June 2015, as well as the scale of response to his call seen across southern Iraq as a result, have raised questions on the matter of political influence of the marÄjiÊ¿ of Najaf and their willingness to actively intervene in the political affairs of Iraq. In this context, Ê¾Ali al-SistÄnÄ« is often considered a key, albeit restrained, actor in the countryâ€™s political process. Some of his interventions after the fall of the Baathist regime in 2003 were seen as attempts to reconcile Islamic religious principles with democratic thought.
The Advice and Guidance to the Fighters on the Battlefields was announced over six months after the original mobilization of the militia forces. By that time, the Iraqi Security Forces and Popular Mobilization had regained control over some key locations in the vicinity of Baghdad and Karbala (e.g. Jurf al-Sakhar in Babil province) and started positioning themselves for an offensive in the SunnÄ«-majority areas. Therefore, concerns had been raised that the high presence of ShÄ«Ê¿Ä« military element would lead to humanitarian abuses, exacerbated by the Popular Mobilization groups deficiencies in military discipline and training.
SÄ«stÄnÄ«â€™s advisory fatwÄ presents an outline of rules applicable to the conduct of war, providing insight into the contemporary interpretation of the laws of war in the ShÄ«Ê¿Ä« jurisprudence. The opinion introduces the basic rules in war as â€œnecessitated by the wisdom and mandated by primordial nature of human beings.â€ The QurÊ¾Än and the tradition of the Prophet are principal sources for the ShÄ«Ê¿Ä« interpretations of the Islamic law. The majority of source material refers back to the tradition revolving around additional members of the family of the Prophet, Imam Ê»AlÄ« in particular. SistÄnÄ« makes an explicit reference to the á¸¤adÄ«th al-Thaqalayn, accepted by both the ShÄ«Ê¿Ä« and SunnÄ«s, which highlights the importance of the Prophetâ€™s family example.
In the fatwÄ, the tradition related to the conflicts with ImÄm Ê¾AlÄ«â€™s involvement provides a crucial reference point for the interpretation of the rules of modern warfare, in particular, those cases when a conflict occurs among the Muslims. Events from the early military history of Islam â€“ the Battle of Siffin, the Day of the Camel, the Battle of Karbala, the Night of Harir â€“ provide basic examples for the rules of conduct applicable in war.
The substantive content of the opinion touches on some key issues in the conduct of hostilities, following the path set by this tradition. Some of the themes overlap with the major principles of the international law of armed conflicts, although both the systematization and the framing are distinct. These common issues include the protection of non-combatants, respect for fallen opponents, ban on looting or collective punishment. â€œThe lives of those who do not fight you are sacred, especially the weak among the elderly, the children, and the women, even if they were the families of those who fight you.â€ Notably, by February 2015, reports on the Popular Mobilization and regular security forces committing abuses during the conflict had gained notoriety.
Much attention is devoted to the issues arising from facing Muslims on the battlefield. In a brief comment, more closely related to the just war issue rather than the law of war, SistÄnÄ« reinforces the justification for waging a war when other Muslims are acting as oppressors. He highlights the protections afforded to non-Muslims further in the text. The call for an open mind and â€œrespect for different tribes and racesâ€ can be seen to anticipate the difficulties arising not only from the conduct of hostilities against the SunnÄ« Muslim groups but also from the complex ethnic and religious composition of northern Iraqâ€™s provinces, Ninawa and Kirkuk in particular.
The Advice and Guidance to the Fighters on the Battlefields was a normative reference point for the Iraqi fighters following SistÄnÄ«â€™s religious guidance in the course of the campaign against ISIS. Therefore, i applied not only to para-military groups created as a result of the fatwÄ from June 2014, but also to the large proportion of the regular Iraqi Security Forces members who recognize SistÄnÄ«â€™s authority as a marjaÊ¿. In fact, although the presence of paramilitary ShÄ«Ê¿Ä« groups in Ninawa and other majority-Sunni provinces in northern Iraq had been anticipated to drive the risks of sectarian violence, reported abuses against the civilian population remained relatively limited in scale and uncoordinated. Although this can be attributed to a range of practical circumstances and political influences, SistÄnÄ«â€™s religious authority was arguably among the mitigating factors.
The Guidelines raise questions on the practical regulation and dissemination of the rules of warfare among the regular and irregular militia units in the Islamic law jurisdictions. Although Iraq is a party to the main humanitarian law treaties, including the Geneva Conventions and its first Additional Protocol, the practical application of these instruments have been questioned by human rights advocates, in particular, in regard to the Popular Mobilization Units. Although the militias have been incorporated within the chain of command of the Iraqi Security Forces, with the Prime Minister as the Commander-in-Chief overseeing the Popular Mobilization Commission, these organizations have been functioning with a significant degree of autonomy. Conversely, the principles outlined by SistÄnÄ« enjoyed the privilege of both wider distribution and acceptance in the framework of his religious authority.
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 Hamid Dabashi & Joyce N. Wiley, MarjaÊ¿ al-TaqlÄ«d, The Oxford Encyclopedia of the Islamic World. Oxford Islamic Studies Online, http://www.oxfordislamicstudies.com/opr/t236/e0505.
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 Ahmed Ali & Kimberly Kagan, ISW Blog: The Iraqi Shiâ€™a Mobilization to Counter the ISIS Offensive ISW Blog (2014), http://iswresearch.blogspot.com/2014/06/the-iraqi-shi-mobilization-to-counter.html [https://perma.cc/4W32-K5JJ ].
 Shia Militias in Iraq, 23 Strategic Comments iâ€“ii (2017).
 Michel Knigths & Hamdi Malik, The al-Abbas Combat Division Model: Reducing Iranian Influence in Iraqâ€™s Security Forces The Washington Institute for Near East Policy, https://www.washingtoninstitute.org/policy-analysis/view/the-al-abbas-combat-division-model [https://perma.cc/C2VR-286S].
 Harith Hasan al-Qarawee, The â€˜formalâ€™ MarjaÊ¿: ShiÊ¿i clerical authority and the state in post-2003 Iraq,Â British Journal of Middle Eastern Studies 1â€“17, 4 (2018).
 Iraq: Pro-Government Militiasâ€™ Trail of Death, Human Rights Watch (2014), https://www.hrw.org/news/2014/07/31/iraq-pro-government-militias-trail-death [https://perma.cc/6ZJ2-HYRY].
 Hossein Modarresi Tabatabaâ€™i, An introduction to ShÄ«Ê»Ä« law: a bibliographical study 2 (1984).
 Customary International Humanitarian Law, International Committee of the Red Cross, https://ihl-databases.icrc.org/customary-ihl/eng/docs/home (last visited Nov. 12, 2018).
 al-SÄ«stÄnÄ«, supra note 1.
 Iraq: Militias Escalate Abuses, Possibly War Crimes, Human Rights Watch (2015), https://www.hrw.org/news/2015/02/15/iraq-militias-escalate-abuses-possibly-war-crimes [https://perma.cc/329J-2C6K].
 Saled Qassim, Disputed Zones: A Reservoir of Eternal Conflict The Washington Institute for Near East Policy, https://www.washingtoninstitute.org/policy-analysis/view/disputed-zones-a-reservoir-of-eternal-conflict [https://perma.cc/529P-LEJB].
 Adel al-Gabouri, The Role of the Popular Mobilization Forces in the Iraqi Political Process, https://www.washingtoninstitute.org/policy-analysis/view/the-role-of-the-popular-mobilization-forces-in-the-iraqi-political-process [https://perma.cc/ACA6-ZES7].
 Compare Onder Bakircioglu, Islam and warfare: context and compatibility with international law (2014).
 E.g. Erik Slobe, Amnesty: Iraq militias committing war crimes (Jurist blog), https://www.jurist.org/news/2017/01/amnesty-iraq-militias-committing-war-crimes/ (last visited Nov. 11, 2018).
 Issam Saliba, Iraq: Legislating the Status of the Popular Mobilization Forces | Global Legal Monitor (2016), http://www.loc.gov/law/foreign-news/article/iraq-legislating-the-status-of-the-popular-mobilization-forces/ (last visited Nov. 12, 2018).