Summarized by Hadi Qazwini
This post is part of the Roundtable on the History of Islamic International Law. It is a summary of Will Smiley and Aimee Genell‘s and contribution titled “Ottoman Empire: War and Peace” to volume eight of the Cambridge History of International Law series, co-edited by Intisar Rabb and Umut Özsu.
Will Smiley and Aimee Genell’s chapter, “Ottoman Empire: War and Peace,” investigates the Ottoman dynasty’s theories and practices surrounding war and peace from its 8th/14th century origins as a north-central Anatolian emirate through its heyday as a vast empire spanning three continents and then its eventual collapse in the 14th/20th century. The authors maintain that the Ottoman Empire – like its counterparts – “was made by and for war,” and therefore discussions about the laws of war and the practices of the state are deeply intertwined with the history of the empire. However, rather than beginning with “text and theory” (i.e., Islamic legal theories and laws), Smiley and Genell begin with Ottoman state practice: what was the state’s practice and what did those in charge believe was legally meaningful or binding? The authors argue that while specific ideas and practices about war and peace changed over time, two remained consistent: the necessity of providing justifications for war “through particular grievances” and the making and keeping of peace agreements.
Smiley and Genell maintain several basic postulates in their study: First, the Ottoman Empire was not “just Islamic.” This means that ideas about war and peace were developed in conjunction with non-Muslim neighbors and enemies. Second, religion was not the sole modus vivendi of the Ottoman Empire. Like other empires, realpolitik concerns were equally if not more important than religious concerns. Third, the Ottoman Empire was always enmeshed in larger contexts. These contexts were never simply a matter of “in” and “out,” that is, with sharp distinctions between the sultan’s domains and those outside.
These postulates inform the authors’ central argument in the chapter: throughout the longue durée of Ottoman history, while ideas changed, Islamic law and religious concerns functioned to bolster, modify, or challenge secular rules and reasons for war and peace rather than shape them. To make their case, the authors draw on several examples, such as the differences between the concepts and practices of plundering raids/conquests (gaza) and religious wars (jihād), whereby the former “was at best vaguely inspired by canonical Islamic law” and included non-Muslim allies whereas the latter was more strictly a Muslim religious obligation; rules governing war captivity and ransom, which were “regulated by systems of customary law” and drew on “principles of custom and honor recognizable by Muslims, Christians, and Jews alike”; the creation and implementation of mutual oaths of fidelity and treatymaking (ʿahdnames), which drew on Byzantine-Venetian and Venetian-Mamluk precedents and “were treaties of friendship, regulating commerce and relations”; and justifications for war through offering particular pretexts, such as betrayal (and not necessarily religious reasons).
With respect to justifications for war and peace-making, Smiley and Genell note that while ideas changed over the course of Ottoman history, by the late 9th/16th century the Ottomans were making claims to universal imperial dominion. Ottoman victory over the Mamluks (who had controlled Mecca and Medina and who had harbored the last ʿAbbāsid caliph) and the conquest of Constantinople helped bolster these claims. At this point, the authors maintain that Islamic law was used to support Ottoman claims of universal dominion, especially during the reign of Sultan Sulaymān the Lawgiver (r. 926-74/1520-66). According to the authors, by the 10th/16th century the Ottoman dynasty had articulated its claims to rule in detailed Islamic legal terms, and this was most evident in the legal thought and opinions of its chief jurist and judge Abū al-Suʿūd (often referred to as Ebussuud Efendi) Muḥammad b. Muṣṭafā al-ʿImādī (d. 982/1574). In addition to being chief judge (qāḍī al-quḍāt), Abū al-Suʿūd held the position of chief jurist (shaykh al-Islām) for over thirty years, longer than any of his predecessors or successors. He is often said to have been responsible for successfully bringing together Ottoman administrative law (qānūn) and Islamic law (sharīʿa). Smiley and Genell contend that Abū al-Suʿūd “harnessed the Islamic legal tradition to justify a sultanic ‘monopoly on force’: only the sultan, his opinions insisted, could authorize a jihād.” Despite this religious pretext, however, the authors maintain that neither Abū al-Suʿūd nor the sultan undermined the primacy of peace treaties or secular justifications for war, such as treaty violations.
This trend of treaties and war launched “for geopolitical reasons and accompanied by the articulation of particular grievances (or pretexts)” continued into the 11th/17th and 12th/18th centuries, even though during this century especially, according to the authors, “Ottoman official ideology seems to have leaned more heavily on religious justifications for war than ever before.” The citing of secular reasons for war is evident in documents produced by Ottoman officials, such as the formal explanation for war with Russia in 1768 by the Ottoman de facto foreign minister, which was presented to the British ambassador. Smiley and Genell explain that the 1768 “manifesto” reveals that “religious law reinforced treatise and customs; the fatwa might have indicated that the war was religiously authorized, but the reason for it was Russian violation of secular treaty obligations, not of religious edicts.”
The authors note that by the end of the 12th/18th and beginning of the 13th/19th centuries, the Ottoman elites were adjusting to a world in which they no longer held military superiority and had to face increased European economic and military power in addition to being forced to relinquish Muslim lands. Nevertheless, they argue, during this period the empire “elevated treaty making within the diplomatic arsenal as the main tool to preserve imperial sovereignty…[i]n a stunning reversal, treaties now safeguarded what war had achieved in the earlier periods. From the nineteenth century through the Treaty of Lausanne (1923) concluding the First World War, Ottoman diplomats, and later international lawyers, relied on European peace treaties to secure imperial lands.” Following these developments, the authors maintain that the 13th/19th century witnessed the Ottoman Foreign Ministry doubling down on international law and European territorial guarantees to preserve imperial sovereignty; the Foreign Ministry established the Office of Legal Counsel and, during the same period, “international law became a part of the standard curriculum at the School for Civil Service and the Imperial Law School.” In the early 20th century, the authors maintain, international law was used as a means to reassert Ottoman equality in international relations, including after the empire’s demise:
Despite the theory that the Ottoman Empire had been destroyed, the Ankara delegation had operated with many of the same goals that had animated the wartime government under the CUP: end the Capitulations and other privileges for foreigners, incorporate the remaining autonomous provinces into the regular system of administration, and achieve true equality, not paper equality in international relations.
 This document has been translated to English by Michael Talbot and can be found on the SHARIASource portal: https://beta.shariasource.com/documents/2924.
 For the English version of the Treaty of Lausanne, provided by the Turkish Ministry of Foreign Affairs, see “Treaty with Turkey and other Instruments signed at Lausanne,” Republic of Türkiye Ministry of Foreign Affairs, https://www.mfa.gov.tr/treaty-with-turkey-and-other-instruments-signed-at-lausanne.en.mfa.