Editor’s Note: This article is part of the Armed Groups and International Law Symposium, building on the volume edited by Katharine Fortin and Ezequiel Heffes.
Armed non-State actors that assert control over a populated territory and establish governance practices acquire a uniquely complex – and fascinating – set of legal personalities. They are at once subjects of international humanitarian law (IHL) and international human rights law (IHRL), illegal entities under national State law, and de facto legal authorities over the territories under their control.
Today, these dynamics are particularly evident in the case of Islamist armed groups. Many contemporary non-international armed conflicts (NIACs) feature one or more Islamist armed non-State actors among the warring parties. Since the Arab Spring of 2011, an unprecedented number of these armed groups have been engaging in some form of governance whereby they attempt to rule by implementing Islamic law (sharia) – or rather their interpretation thereof.
As Islamist armed groups have become increasingly engaged in contemporary NIACs as well as matters of governance, a body of literature has emerged that investigates the (in-)compatibility between Islamic law and IHL. Building on this body of literature, this contribution intends to explore how Islamist groups position themselves vis-à-vis IHL when they administer territories referring exclusively to sharia. Specifically, it explores the provision of healthcare – an aspect of rebel governance that has remained comparatively unexplored.
Focusing on the cases of Hayat Tahrir al-Sham (HTS), an Islamist armed group centered in northwest Syria, and the Taliban in Afghanistan, the article notes that Islamist rebel rulers can comply with some international humanitarian norms. Specifically, Islamist rebel rulers seem more prone to comply with provisions of IHL if there is congruence between them and Islamic law. Therefore, to promote IHL among Islamist ruling armed groups, humanitarian organizations should attempt to build “bridges” between international humanitarian norms and sharia law, an area where certain local religious leaders may be valuable partners.
Hayat Tahrir al-Sham
Born from the Islamic State of Iraq, which later became infamous worldwide as the Islamic State of Iraq and al-Sham (ISIS), HTS began to engage in some rudimentary forms of governance around mid-to-late 2012, possibly because of the influence of Ahrar al-Sham, a Syrian armed group with close ties to al-Qaida. As HTS consolidated its position in the north-western province of Idlib over the following years, the group’s participation in governance expanded further.
In early 2020, HTS noticeably undertook efforts to provide healthcare, seeking to offer to civilians a preventive responseto Covid-19. By mid-March, the HTS-linked Syrian Salvation Government (SSG)’s Ministry of Health had provided guidance on preventive measures to deal with the virus. HTS also took other active steps. It conducted medical checks on all returnees at the border crossings with Turkey, established temporary quarantine centers at the Bab al-Hawa crossing and other areas, disinfected Idlib’s mosques and police stations, and closed public parks, schools, and universities. Based on these responses, it can be maintained that the attention devoted to healthcare by HTS is compatible with the attention accorded to life and health in Islam (Quran 3:156, 5:32).
In the context of the Covid-19 pandemic, the Head of the SSG called on humanitarian organizations and the World Health Organization (WHO) to share responsibility in Syria’s north-west, thus revealing the SSG’s new willingness to cooperate with international humanitarian actors. This stood in stark contrast with the approach adopted in the past by the group, which had often obstructed international aid organizations (e.g., imposing high taxes).
Here, the governance practices of HTS conform (at least to some extent) to Islamic law and the norms related to “amān” (safe conduct), whereby foreign nationals who ask permission to enter Islamic territories for peaceful purposes are allowed in. Many contemporary Islamic jurists and legal experts have interpreted this concept as one that allows protection to international humanitarian workers who enter a territory exclusively to conduct humanitarian activities.
It also merits noting that HTS does not seem to have engaged in systematic and targeted attacks against medical personnel and medical facilities. By so doing, the group has attempted to comply with sharia provisions (e.g., Quran 2:190) that prohibit the use of violence against individuals who are not engaged in fighting. The increasing protection granted by HTS to international aid workers and its tendency not to use violence against medical workers is also in line with IHL.
However, the relationship between HTS and international aid organizations is more complex than the evidence above may suggest. In fact, a series of obstacles continue to be posed by HTS. Specifically, humanitarian workers reported that in 2019 (and, to some extent, in 2020), they faced attempts by the SSG to exact fees and impose the use of specific suppliers and contractors on aid organizations. As the group continues to interfere to some extent with aid organizations, the degree of compliance of HTS with Islamic law and IHL with regards to health personnel should not be overstated.
Finally, it should be mentioned that healthcare facilities in HTS territories have been subjected to a series of novel regulations in terms of “morality laws.” According to those norms, women cannot access healthcare centers unless dressed in an integral black “niqab” (a veil that covers the head, part of the face, shoulders, and chest). They also cannot access public spaces, including hospitals and schools, or be attended by a male doctor if unaccompanied by a “mahram”(close male relative who acts as a guardian).
These practices constitute a blatant violation of the universal, non-discriminatory right of access to healthcare guaranteed under international law. At the same time, they constitute a violation of the Islamic principle of fundamental equality between men and women. HTS, however, justifies its attitude by means of reference to the norms of private and public morality found in the Quran and the “hadiths” (reports of statements and actions of the Prophet Muhammad), which the group interprets in a literal, extremist, and decontextualized fashion.
The Taliban
Founded in 1994 in the context of the Afghan civil war that erupted after the Soviet withdrawal, the Taliban ruled Afghanistan between 1996 and 2001. From approximately 2005 until August 2021 (when it swept back into power), the Taliban were engaged in a NIAC against the Afghan government (and the United States and other coalition States). Upon conquering territories throughout Afghanistan, the Taliban progressively (re)engaged in practices of governance.
As far as healthcare is concerned, the Taliban established health commissions that were in charge of implementing the group’s health policy and overseeing all healthcare services. In 2020-2021, as Covid-19 spread throughout Afghanistan, the Taliban’s General Commission for Public Health launched awareness workshops. The group’s healthcare workers also engaged in distributing facemasks, soap, and awareness pamphlets. Furthermore, the Taliban proceeded to set up quarantine centers and test inbound travelers. Based on these observations, it can be argued that the attention devoted to healthcare by the Taliban conforms to the attention accorded to life and health in Islam.
Importantly, and surprisingly for a group that was known for its prohibition of international humanitarian operations in the 1990s, the Taliban lifted a ban on the World Health Organization (WHO) and the International Committee of the Red Cross (ICRC) and guaranteed the security of aid and health workers in 2020. Confirming the Taliban’s change in attitude, at least with respect to Covid-19, in June 2020 the Afghan Red Crescent Society activated medical teams in areas under Taliban control and the Norwegian Refugee Council held coronavirus awareness sessions in Taliban-controlled areas.
Embracing the understanding advanced by contemporary Islamic jurists that humanitarian workers are entitled to “amān”in virtue of their peaceful humanitarian mission, it appears that the Taliban engaged in these practices in a manner that is consistent with Islamic law. As with the HTS example above, the increasing protection granted by the Taliban to international aid workers is also in line with IHL.
However, also mirroring the HTS example above, the extent of the Taliban’s compliance with Islamic law and IHL should not be overstated. The group, in fact, continued to impose obstacles on international aid organizations and — despite removing NGOs as legitimate targets in its 2010 code of conduct — was involved in attacks against medical facilities and workers. These attacks, in particular, violate the provisions of Islamic law that prohibit the use of violence against non-combatants (e.g., Quran 2:190; Bukhari, Kitab al Jihad, Ahadith No. 2791, 3377, 2295, 2832). Agreeing with those who include medical personnel engaged exclusively in medical work in this category, the Taliban arguably violated Islamic law in this regard.
Even more concerning was the Taliban’s attitude towards women’s right to healthcare. For instance, when women needed to visit a healthcare facility, they had to be accompanied by a “mahram” (both along the way and once inside the medical facility) and cover their entire body. Male doctors could not treat female patients without a mahram present. In this context, when female doctors were not available, women found themselves excluded from healthcare, forced to travel long distances, and exposed to risks to their life. Inside hospitals, gender segregation was also enforced among workers.
Once again in a close parallel to the HTS practice described above, these Taliban practices clearly violate the universal,non-discriminatory right to access to healthcare guaranteed by IHL as well as the Islamic principle of natural equality between men and women. As expected, the Taliban justified its policies by means of reference to specific shariaregulations of which they give a literal, extremist, and decontextualized interpretation. Similarly concerning was the Taliban practice of forcing health workers to give priority and preferential treatment to the group’s own members, which contradicts customary IHL.
Conclusion
The HTS and the Taliban case studies highlight how Islamist rebel authorities willingly comply with selective international humanitarian norms, even if they do so based on the extent to which those norms are compatible with Islamic law, which remains the legal framework within whose boundaries these groups navigate. Therefore, Islamist armed groups should not be viewed through a binary lens as entities that either violate or respect international humanitarian law. Instead, they may follow (even if imperfectly) certain rules while deliberately disregarding others. These preliminary considerations suggest that, in the case of ruling Islamist armed groups, provisions of IHL are best promoted by connecting them with the provisions of sharia, which Islamist armed groups regard as their legal (and moral) reference.
Efforts by humanitarian organizations and humanitarian workers should thus focus on finding ways in which the norms sanctioned by IHL can be connected with the provisions of sharia. While some difference has emerged between the case studies of the Taliban and HTS presented above, the two groups also proved to share important similarities in their approach to governance on matters of healthcare. Therefore, it seems that building on the convergence between IHL and sharia law may be persuasive with multiple Islamist rebel rulers, and may be more realistic and more effective than pursuing a sui generis approach to each single group. In this regard, a good strategy for increasing IHL compliance in territories controlled by Islamist armed groups could be for humanitarian organizations operating in those areas to build partnerships with local Islamist religious leaders who combine a sound knowledge of Islamic law with appropriate training in IHL.
Author’s Note: The discussion of the Taliban in this article refers to the period 2005-2021, when the group was an insurgency.