I. INTRODUCTION
When it was established that Osama Bin Laden and his organization Al Qaeda were behind the 11 September attacks in the US, the age-old images of Islam, the fanatical, backward and stagnant religion threatening Western civilization, were revitalized within the OrientalistFootnote 1 discourse. The ‘9/11’ attacks also provoked apprehension about jihad and its potential implications, including massive terrorist attacks on Western nations, the re-establishment of the caliphate,Footnote 2 the subjugation and murder of non-Muslims and Islamic world conquest through the use of brutal force.Footnote 3 This oversimplified representation of Islam is further supported by Huntington's ‘clash of civilizations’ model, in which Islam is simply deemed ‘a religion of the sword … [which] glorifies military virtues.’Footnote 4 The fact that there is no plain or uncontested definition of jihad in Islam is largely obscured by this portrayal, which crudely considers hostility to be an inherent feature of Islam.Footnote 5 Nevertheless, becasue many Islamic wars or acts of terrorism were ostensibly committed in the name of Islam and under the duty of jihad,Footnote 6 it is important to examine the Islamic laws of war—in particular the concept of jihad.
After briefly introducing the basic concepts of Islamic ‘just war’ principles, the article will show how the fighting verses of the Qur'an have evolved over time in accordance with the practical difficulties faced during the course of Islamic history. Following an assessment of the opposing doctrinal views on the potential implications of jihad, the study will argue that the concept of jihad should no longer be interpreted in its literal and narrow sense, but be adjusted to accord with the new historical conditions, particularly the United Nations' principles, and that jihad should be conducted through peaceful means. In order to support such a conclusion, this article will undertake a historical and contextual examination of the sources of Islamic law with a view to illustrating their continuing relevance to the debate on the doctrine of jihad, and its compatibility with Islamic State obligations under modern international law.
II. SOURCES OF ISLAMIC JURISPRUDENCE
The question of how the sharia (Islamic law) regulates the notions of just recourse to, and just conduct in war, requires a brief examination of the origins, development and hierarchy of Islamic law. By providing this brief overview, this section aims to lay the groundwork for the forthcoming analysis of Islamic humanitarian principles and the doctrine of jihad.
Islamic belief took its roots from the divine revelations given to Muhammad, whose chief mission was to establish an orderly world in accordance with the sacred messages he received from God. The Qur'an, the sole sacred scripture of the Muslims, consists of these revelations, and as such it constitutes the primary source of Islamic law. Since the Qur'an is believed to contain the very word of God, it is considered the most authoritative and authentic record of Islamic law.Footnote 7 The second principal source of the sharia incorporates the short anecdotal accounts of the Prophet Muhammad's deeds, sayings and views, known as the sunna; the written account of this prophetic tradition is termed hadith. Footnote 8 For Muslims the significance of the hadith lies in the fact that Muhammad was the messenger of God's revelations and, by so being, his deeds, sayings and opinions can and should be taken into account in order to gain a better understanding of the Qur'anic injunctions.Footnote 9
Sharia, which literally means the highway to good life, has three additional ‘non-revealed’ sources (ie were not among God's direct revelations to Muhammed which formed the content of the Qu'ran); (1) ijma: the general consensus of commentators on a point of law; (2) qiyas: the method of analogical reasoning; and (3) ijtihad: the application of independent personal reasoning in the interpretation of Islamic jurisprudence.Footnote 10 Historically, these sources proved to be crucial in providing answers to a question of law when the primary sources were silent on the matter involved. Particularly following the death of Muhammad, the Prophet's contemporary followers (sahaba) employed the method of general consensus (ijma) with a view to enriching Islamic jurisprudence. However, after the time of sahaba, mainly due to political divisions in the growing Muslim community, this consensus-based source of law effectively came to an end.Footnote 11 This difficulty, however, was largely compensated for by frequent recourse to the method of independent reasoning (ijtihad), which played a crucial role in preventing the sharia from becoming stagnant in the face of novel problems and challenges.Footnote 12Ijtihad, in this sense, enabled Islamic jurisprudence to evolve in line with changing socio-political and economic conditions.
By the end of the 9th century, through general consensus and independent reasoning, a significant body of legal rulings and precedents accumulated. In the 10th century, nevertheless, many jurists, who represented the Sunni majority, had come to believe that all the basic questions of law had been resolved and that personal interpretation of the law was no longer necessary;Footnote 13 henceforth, the task of jurists was merely to emulate or follow the existent precedent (taqlid).Footnote 14 This policy was finally followed by the official declaration of the Iraqi jurists to close the door for ijtihad,Footnote 15 a decision which was meant to keep the guiding principles of Islam intact and standardize the tradition.Footnote 16 While this development did not stop all Muslim jurists from employing independent reasoning to resolve new problems, the leaders of many Islamic schools (except for Shias) complied with this restrictive policy, causing Islamic law to ‘hibernate’ for nearly a millennium and delivering a significant blow to the progress of the sharia. Footnote 17 Today, many ‘reformist’ Muslim scholars rightly advocate the revival of individual reasoning, consistent with the basic tenets of primary sources, with the aim of enabling Islamic law to respond to the necessities of the modern socio-political context.Footnote 18 As will be discussed below, the rejection of blind adherence to tradition and out-dated legal concepts that are not responsive to contemporary challenges, and the demand for revival in analytical thinking with a view to generating just or satisfying outcomes, are crucial in contextualizing the current debate on the practical implications of jihad in the United Nations era.
III. ISLAMIC TRADITION ON WARFARE
Islam was established in 7th century Arabia, and in less than a century it rapidly grew into an empire, the borders of which stretched from Spain across to North Africa, and from the Middle East to China.Footnote 19 Islam is based on highly detailed rules that govern broad aspects of human behaviour, including all private and public matters, moral issues, ritualistic and formal observances, modes of worship, good manners and hygiene. Through a casuistic methodology, an approach to religious and moral matters can be inferred from the sharia and relevant instructions may be obtained as to what is right and wrong under Islam.Footnote 20
Islam also regulates and constrains the exercise of force. In the Qur'an, the divine entity is extensively associated with efforts to discourage the employment of illicit force by the promise of eternal punishment.Footnote 21 Although the primary sources of Islam do not command Muslims to turn the other cheek,Footnote 22 as will be discussed below, during the early period of Islam fighting was, in principle, deemed inappropriate and lethal force was employed only when peaceful alternatives failed to prevent persecution and oppression, or to secure Muslims' right to freely exercise their religion.Footnote 23 During the formative years of Islam, Muhammad had preferred peaceful alternatives to secure and consolidate the well-being of the Muslim community and to spread the word of Islam. To that end, he at times engaged in trade and made alliances with non-Muslims,Footnote 24 and, when necessary, sought protection from those who rejected Islam.Footnote 25 It was only later, after the establishment of a stronger political entity in Medina, that the aim of warfare came to include the spread of Islamic influence; yet even then such wars had to be fought in accordance with certain rules and restrictions. Contrary to popular misconceptions,Footnote 26 therefore, Islamic tradition does not impose an unqualified duty to resort to warfare against all those who reject the Islamic faith. To be sure, Islam recognized warfare as a legitimate tool to defend the Muslim community and, under certain conditions, to expand the sphere of its public order. It is also fair to note that, over the centuries, in particular following the rule of the so-called ‘first four-rightly guided caliphs,’Footnote 27 many Islamic States, under the pretext of Islam, engaged in numerous wars principally for military and political purposes.Footnote 28 However, according to Islamic laws of war, for warfare to be recognized as legitimate, it must be fought in accordance with certain principles which regulate the manner in which wars should be engaged and conducted.Footnote 29
Whilst it is not the main focus of this article to compare Islamic just war doctrine with its Catholic counterpart, it is useful to highlight that in their classical forms, both Islamic and Catholic just war thinking share some common traits with respect to the concepts of just recourse to, and just conduct in, warfare.Footnote 30 Reminiscent of the Catholic tradition, Islamic just war principles not only regulate the justificatory bases of warfare (jus ad bellum), but also the ways in which hostilities ought to be conducted (jus in bello). Indeed, Islamic jus ad bellum norms, comparable to those of Catholic teaching, require wars to be a matter of last resort, waged as a response to unjust aggression, persecution or corruption, openly declared by a legitimate authority, with the right intention and limited (but achievable) objectives. At the same time, the requirements that the means employed in warfare must be proportionate to the end sought and that combatants must be distinguished from non-combatants show parallels to ‘Western’ jus in bello norms.Footnote 31 While the substance or content of these procedures undoubtedly varied at the practical level,Footnote 32 one of the most crucial differences between Catholic and Islamic teaching on war evolved at a later stage: while the ‘Western’ tradition, starting from the early modern era, accommodated itself to the secularization of international politics, Islamic just war thinking was largely governed by religious principles until the post-World War II era, which inaugurated the decolonization process and enabled almost every Islamic state to adopt the rules and processes of modern international law.Footnote 33 As will be discussed below, for the purposes of this article, Islamic States' adoption of the modern and secular international legal framework governing the use of force discourse has significant ramifications for our endeavour to reinterpret the parameters of jihad. It is to the examination of Islamic humanitarian principles that we will now briefly turn.
A. Islamic Jus in Bello Rules
Islamic just war tradition contains some important guidelines for the manner in which Muslims have to conduct themselves during armed conflict. As noted above, such ethical and practical guidelines concerning the methods, means, and limits of justified force correspond to some degree to the Catholic jus in bello principles, in that they are similarly based on the pillars of ‘proportionality’ and ‘discrimination.’Footnote 34 These principles require combatants to strike the right balance between the dictates of military necessity and humanitarian concerns, and, as such, demand belligerent parties to use proportionate means to achieve a military objective and to distinguish between military and civilian targets in order to minimize loss of civilian life or damage to civilian property.Footnote 35 The following Qur'anic verse, for instance, is pertinent to the notion of proportionality in armed hostilities: ‘And if one has retaliated to no greater extent than the injury he received, and is again set upon inordinately, God will help him: for God is One that blots out (sins) and forgives (again and again)’ (Q. 22: 60).Footnote 36 Likewise, the notion that one should not engage in violence any longer than is necessary under the circumstances is firmly embedded in the following verse: ‘And fight them on until there is no more tumult or oppression, and there prevail justice and faith in God altogether and everywhere; but if they cease, verily God doth see all that they do’ (Q. 8: 39).
It is important to note that these humanitarian principles did not emerge in a vacuum; rather they transpired within the practice of warfare with a view to achieving measure and moderation in the employment of lethal force. Some of these rules were revealed to Muhammad in response to specific circumstances and needs. For instance, the necessity of exercising restraint in avenging injuries was laid down following the defeat at Uhud (625) in which Muhammad, in his anger, vowed revenge as he saw the mutilated body of his uncle Hamza: ‘If God gives me power over the Quraysh,’ he exclaimed, ‘I will mutilate seventy of their men [in the next confrontation].’Footnote 37 Yet, soon after, the Prophet reportedly received a revelation which unequivocally prohibited the use of disproportionate measures in the delivery of punishment and recommended the exercise of forbearance and patience towards the enemy:Footnote 38 ‘And if ye do catch them out, catch them out no worse than they catch you out: But if ye show patience, that is indeed the best (course) for those who are patient’ (Q. 16: 126). Some other jus in bello norms emerged from ‘non-revealed’ sources, that is, they were either formulated by the Prophet himself or by his legitimate successors (caliphs). According to the tradition, Muhammad had repeatedly underlined the necessity of proportionality in the use of legitimate force by asking his companions to respect the bodies of the living and the dead (including animals), avoid torture or other ill-treatment of prisoners, respect the dignity and integrity of all combatants, and refrain from using poisoned weapons against the enemies as well as damaging nature.Footnote 39
The Islamic law of nations also contains the principle of distinction, which requires belligerents to distinguish between combatants and civilians, and prohibits the killing of women, children and the old, as well as the blind, the helpless, and the crippled.Footnote 40 Tradition shows that this principle of distinction can be traced to an incident in which the Prophet Muhammad encounters a slain woman while riding in battlefield and expresses his disapproval of the practice of killing women and children, which later prompted a distinct code of conduct that includes the prohibition of killing non-combatants and of wanton destruction of livestock, trees, orchards and wells.Footnote 41 Shirazi notes that before the commencement of armed aggression the Prophet would instruct his soldiers in the following manner:
Do not handcuff or tie up the prisoners. Do not mutilate. Do not kill the wounded. Do not pursue one retreating or one who throws down his weapon. Do not use treacherous means with the enemy. Do not kill the old, the young or the women. Do not cut down trees, unless you are forced to do so. Do not deploy poison in the lands. Do not cut off water supply. No house should be entered without permission and the people have safety. If any of the Muslims, whether high ranking or otherwise, give temporary refuge to any of the infidels to hear the message of God then let him do so. If he follows you then he is your brother in religion; but if he refuses, secure his safety and seek help from God.Footnote 42
Similar humanitarian principles which require Muslim combatants to distinguish military targets from innocent civilians and to protect the environment during hostilities had also been emphasised by the first and the fourth caliph.Footnote 43 While it would be implausible to assume that Muslim combatants (even in the early period) had invariably adhered to the basic precepts of Islamic humanitarian principles, the application of such humanitarian rules were at times enforced through punitive or disciplinary measures taken against those who exceeded the reasonable limits of warfare.Footnote 44 There are some recorded examples which show that the Prophet or his caliphs took some serious measures against those who had engaged in pre-Islamic methods of warfare, ie, going beyond the limits of proportionality and necessity.Footnote 45 Arguably, however, it was mainly the notions of faith and/or fear of the ultimate punishment of God that effectively prevented many Muslim warriors from violating the basic rules of Islamic humanitarian laws. As Khadduri rightly emphasizes, Islamic just war principles, being part and parcel of the sharia, were meant to apply irrespective of practical concerns (eg reciprocity); the adherents of Islam were required to impose restrictions on their warlike conduct because such was commanded by God.Footnote 46 Eaton also addresses this point:
The rapidity with which Islam spread across the known world of the seventh to eighth centuries was strange enough, but stranger still is the fact that no rivers flowed with blood, no fields were enriched with the corpses of the vanquished. As warriors the Arabs might have been no better than others of their kind who had ravaged and slaughtered across the peopled lands but, unlike these others, they were on a leash. There were no massacres, no rapes, no cities burned. These men feared God to a degree scarcely imaginable in our time and were in awe of His all-seeing presence. … [T]here was no place in which they could hide from this presence, and while vast distances beckoned them ever onwards they trod softly on the earth, as they had been commanded to do.Footnote 47
B. Islamic Jus Ad Bellum Rules
In close connection with jus in bello rules, Islam also contains rules on jus ad bellum, according to which wars must not only be conducted in accordance with religious values, but also be fought with the right intent: not for the spoils of war,Footnote 48 nor for personal glory, but for the cause and in the name of God.Footnote 49 At the same time, the purpose of each war must be the promotion of Islamic values and the achievement of ultimate peace under the Islamic public order.Footnote 50 Again, as underlined earlier, similar to the ‘Western’ just war tradition, the concepts of just cause (defence against the enemy or fight in the name of God), right intent (pursuit of the Islamic ideals of promoting the good and condemning the evil), competent authority (the Prophet or his legitimate successor),Footnote 51 a reasonable chance of success,Footnote 52 and the objective of peaceFootnote 53 constitute the backbone of Islamic jus ad bellum rules. Footnote 54
Islam declared all forms of secular wars (harb) evil, and said they were to be avoided at all costs. To this end, the Prophet Muhammad sought to end the inter-tribal wars, which had been prevalent among the pagan Arabs. He unified the fragmented clans in the cause of Islam and introduced the concept of jihad as the only legitimate form of military force under the banner of Islam.Footnote 55 Yet, while the Islamic tradition discusses many war-related issues in extensive legal and theological texts, it is extremely difficult to identify a clear canon of Islamic attitude towards warfare. Certainly, the problem of identifying explicit rules or unequivocal interpretation is not particular to Islam, but is shared by almost any religious and ethical system based on sacred texts attributed to divine revelation, and esoteric in content. Such texts often support theses and moral positions which seem to offer conflicting alternatives.Footnote 56 Within the context of the Qur'an, the matter assumes a more complicated character due to the poetic style and complex structure of the text, in which later verses appear to contradict earlier ones. It would thus be incorrect to presume that Islamic sources provide a catalogue of clear-cut standards governing the doctrine of jihad. Footnote 57
The main problem with interpretation lies in the controversy over whether jihad is justified only in defence against oppression or also further encompasses expansionist wars against non-Muslims. As most scholars indicate, the Qur'an is not always linear in format or unambiguous in its message regarding warfare.Footnote 58 Not surprisingly, therefore, Muslim thinkers are divided upon the factual implications of jihad: while some scholars underline that there is ‘no compulsion in Islam’ (Q. 2: 256) and that the very purpose of Islamic warfare is to deter aggression or oppression against Muslims,Footnote 59 others rely upon a rigid interpretation that envisages a universal struggle to eradicate the forces of immorality and unbelief, a global Muslim rule, conversions, and the re-establishment of the caliphate through, if necessary, the use of military force.Footnote 60 In order to have a better understanding of these positions, we must first explore the meaning of jihad more closely, and then proceed to look at the evolution of the concept under a military doctrine (dar-ul-Islam and dar-ul-harb) developed during Islam's imperial period.
1. The concept of jihad
The use of force is treated under distinct headings in Islam. The Qur'an makes occasional reference to the concept of ‘war’ (harb), yet it also makes frequent reference to ‘fighting’ (qital), and even more frequent reference to the notions of ‘struggle’ or striving' (jihad and other derivations).Footnote 61 Technically speaking, jihad means ‘struggle’ and refers to warfare engaged against non-Muslims.Footnote 62 However, jihad in its broad sense may also refer to non-violent means of struggle in the cause of God; that is, use of military force represents only one dimension of jihad, since the concept of jihad not only implies sheer force, but also debate and persuasion through dialogue.Footnote 63 Majid Khadduri, one of Islam's most respected theologians, in his seminal work, War and Peace in the Law of Islam, defines the concept of jihad as follows:
The term jihad … means ‘exerted.’ Its juridical-theological meaning is exertion of one's power in Allah's path, that is, the spread of the belief in Allah and in making His word supreme over this world … The jihad, in the broad sense of exertion, does not necessarily mean war or fight, since exertion in Allah's path may be achieved by peaceful means as well as violent means. The jihad may be regarded as a form of religious propaganda that can be carried on by persuasion or by sword.Footnote 64
The notion of ‘exerting one's power for God,’ therefore, opens up doors for various alternatives as to what may constitute jihad. Islamic scholars usually distinguish between four distinct ways of jihad: (1) jihad by the sword: fighting in the cause of Allah against oppressors and unbelievers; (2) jihad by the heart: purification of oneself and the resistance of sin; (3) jihad by the tongue: peaceful propagation of the Islamic messages; and (4) jihad by the hands: fighting against evil through pious acts.Footnote 65Jihad thus not merely refers to an external struggle against the enemies of Islam and idolaters, but also to an internal struggle against temptation and evil (nafs) in order to become a better Muslim. In this context, it is noted that when the Prophet Muhammad returned from a battle he reportedly told his companions: ‘We return from the lesser jihad to the greater jihad [al-jihad al-akbar].’Footnote 66 This hadith clearly underlines that inner strife for spiritual growth or cleansing is not only more demanding, but also more significant than the external battles fought against the enemy.
Nevertheless, as noted earlier, the Qur'anic text appears to have an ambivalent attitude toward warfare: whilst some passages clearly condemn the oppression of the weak and declare that believers should fight only in self-defence, other passages seem to provide unequivocal justification for war or fighting for the purpose of subduing unbelievers. Hence, any conclusion as to whether the Qur'an does indeed condone offensive war carried out for the faith appears to be left to the interpretation of the analyst.Footnote 67
In order to grasp this ostensibly ambiguous attitude of the Qur'an toward jihad, one needs to look at the genesis of Islam and the broader socio-political context in which the military form of jihad gradually evolved. Islam emerged in seventh century Arabia, where warfare was regarded as a matter-of-fact;Footnote 68 the use or threat of military force was the most prevalent method of conducting relations among political entities, which included the dominant Arab tribes as well as the powerful Sasanian and Byzantine empires.Footnote 69 The Prophet Muhammad lived and received his early revelations in the city of Mecca, which was beset by tribal raids, cycles of vengeance and incessant blood feud. At this time, however, Arabia was subject not only to rivalry among the fragmented Arab tribes, but also to the competition and interventions of its powerful neighbours, since it was located at the centre of one of the most lucrative international trade routes.Footnote 70
The socio-political setting within which the Prophet Muhammad lived, and to which he was opposed, was marked by corruption and immorality, a period known as jahiliyyah (‘age of ignorance’). The salient features of jahiliyyah included polytheism and idolatry, sexual and other forms of decadence, female infanticide and incessant bloodshed.Footnote 71 It was against this backdrop that Muhammad's reformist message posed a significant threat to the religious, economic and political status quo. Radically, Muhammad challenged the establishment, called for social justice and equality for the vulnerable segments of society, and denounced polytheism and idolatry. He further summoned the people to strive (jihad) to eradicate jahiliyyah, and lead a virtuous life based on Islamic principles.Footnote 72
However, during this Mecca period (610–622 AD), while the Prophet Muhammad did not have many supporters and thus had weak political power, jihad had a mild tone, which essentially meant the propagation of Islamic faith in a non-violent manner.Footnote 73 At this stage, fighting was not allowed, because enemies were evidently stronger than the small community of persecuted Muslims, who were commanded to employ peaceful alternatives when dealing with the pagans or the so-called ‘People of the Book’ (Jews, Christians, Sabaeans and Zoroastrians).Footnote 74
Having threatened the political and economic interests of the dominant tribes (particularly the Quraish) of Mecca, the Prophet and his followers were met with strong resistance and remained under constant pressure applied by the pagan and polytheistic groups. This compelled Muhammad and his small community to move (hijra) from Mecca to Medina (622 AD) where he established the first Islamic community-State.Footnote 75 This migration ushered in a new stage in the development of Islam, which gradually took on a political form with the emergence of a new community (ummah) that was constantly growing in number and firmly bound together by their faith.Footnote 76 The establishment of such a theologico-political unit in Medina, in other words, marked a radical transition from a position of weakness to strength, whereby Islam could, if necessary, be spread by the sword, and acquire a universal character. Muslims accordingly no longer had to act passively, for they were now able to counteract the enemy with force. The following verses were revealed at this stage, when violence was deemed not only necessary for the survival of the Islamic community, but also inevitable:Footnote 77
Those who believe, and suffer exile and strive with might and main in God's cause, with their goods and their people, have the highest rank in the sight of God. They are the people who will achieve salvation. (Q. 9: 20); To those against whom war is made, permission is given (to fight), because they are wronged;—and verily, God is most powerful for their aid (Q. 22: 39).Footnote 78
In light of these verses, it seems evident that jihad may be waged in self-defence and in an attempt to redress injustice. However, as touched upon earlier, the application of force under jihad is limited by the principles of necessity and proportionality. Indeed, some important verses belonging to this period clearly require that jihad should be invoked as a measure of last resort and be fought within the strict confines of proportionality and necessity.Footnote 79
In the Medina period (622–632 AD), it was thus made clear that as long as there was murder and the persecution of people because of their Islamic belief, the religion allowed the use of the sword to stop this oppression.Footnote 80 Significantly, this period witnessed Islam's first decisive victory in the war of Badr (624 AD) where, through the inspiring leadership of the Prophet Muhammad, a mere 300 Muslims defeated over a thousand Meccans. This unexpected triumph was regarded as divine approval of the new religion. It also laid the foundation of Muhammad's secular power: he was no longer solely considered to be the Prophet of the Muslim community, but also their military commander and political leader.Footnote 81
Later on, as the strength of the Islamic State grew further and the opposition of the pagans continued, Islam gradually went beyond a defensive posture and acquired a more militant character. The fight against the pagans was no longer merely imposed as a duty to deter aggression. It was aimed at invading the enemy's homes with a view to stopping their ‘ungodly mischief’Footnote 82 or preventing their anticipated attacks against the Islamic community.Footnote 83 Nonetheless, before directly engaging in hostilities with the pagans, the Prophet Muhammad would, as a matter of custom, first send an official letter to polytheistic tribes inviting them to accept Islam.Footnote 84Jihad was launched against those who did not acknowledge Islam as their faith.Footnote 85
From this perspective, it may be argued that the use of defensive force is allowed against aggressors and pagans, and that Muslims are obliged to use force to repel persecution and vindicate their rights. Yet the question still stands unanswered: does vindication of rights encompass the pursuit of Islamic supremacy over other beliefs, or further justify military force to spread the word of God? As noted earlier, this question has a controversial character. We may, in this respect, identify two major schools of thought; the first one vehemently argues that jihad in the cause of Allah is approved by the Qur'an only for defensive purposes. Accordingly, Muslims are entitled to wage warfare only against those who fight against Muslims; they may not initiate hostilities or commit aggression. Defensive force, on the other hand, is by no means unlimited; it may only be continued until the oppression ceases or the persecutor desists.Footnote 86 It is also suggested that wars of aggression in general, and terrorism in particular, are diametrically opposed to the very idea of the Qur'an, which says ‘if any one slew a person—unless it be for murder or for spreading mischief in the land—it would be as if he slew the whole people: and if any one saved a life, it would be as if he saved the life of the whole people’ (Q. 5: 32).Footnote 87 Furthermore, proponents of this school of thinking seek to illustrate that at the very core of Islam lies the notion of peace, which forms the basis of Islamic legal framework. Jihad, in this vein, constitutes a just, defensive and exceptional form of belligerence which aims to achieve an ideal Islamic public order with a view to providing justice and equality for all people.Footnote 88 In an attempt to explain the implications of the belligerent (‘sword’) verses of the Qur'an, such scholars essentially maintain that verses which command fighting against the pagans are not referring to the use of military jihad against unbelievers as a whole, but rather against those who had attacked the Muslim community.Footnote 89 According to Sachedina, for instance, ‘it is not unbelievers as such who are the object of force, but unbelievers who demonstrate their hostility to Islam by, for example, persecution of the Muslims.’Footnote 90
However, on the other side of the debate there are those who reject any rigid distinction between offensive and defensive forms of jihad. Such commentators generally believe that Islam has a sacred and mandatory duty to spread the message of Islam, if necessary by force, to all human beings. The ultimate purpose of Islam, according to this view, is to universalize Islam, the final truth and the only true religion of God.Footnote 91 Mawdudi, a representative of this thinking and one of the most widely read authors among Muslims, posits that unity among Muslims is not based upon the mundane ties of race, history, geography, language, mutual interests, economics or culture, but upon Islam and their commitment to follow the divine path of God in their lives.Footnote 92 Mawdudi denies the possibility of any social change without changing the theoretical views of leaders and upper classes who are seduced by the evil agents of jahiliyyah (ignorance, barbarism, immorality and ungodliness).Footnote 93 The purpose of jihad, in this context, is to eliminate the dominance of un-Islamic systems and replace them with religious order based upon Islamic principles.Footnote 94 According to this view, Islam must never accept the bondage of corrupt regimes, but must be employed as a revolutionary ideology to transform the status quo and propel humanity toward greater freedom and morality:
Islam is a revolutionary ideology which seeks to alter the social order of the entire world and rebuild it in conformity with its own tenets and ideals. ‘Muslims’ is the title of that ‘International Revolutionary Party’ organized by Islam to carry out its revolutionary programme. ‘Jihad’ refers to that revolutionary struggle and utmost exertion which the Islamic Nation/Party brings into play in order to achieve this objective. …Footnote 95
Syed Qutb, whose views continue to inspire Taliban, Al-Qaeda and other militant groups, represents a more radical interpretation of Islam.Footnote 96 Strongly influenced by Mawdudi and the influential 13th century Sunni scholar Ibn Taymiyya, Qutb argues that modern world is plagued by ignorance (jahiliyyah), which is ‘based on rebellion against God's sovereignty on earth:’Footnote 97 the establishment of God's sovereignty on earth through the abolishment of man's dominion, ie, ‘the taking away of sovereignty from the usurper to revert it to God,’ and the enforcement of the divine law (sharia) instead of man-made laws cannot be achieved merely by peaceful means. Those who usurp the supremacy of God, according to Qutb, will not give up their domination solely though preaching; if this had been the case, the task of establishing the supremacy of God would have been easy for the Prophets of all times.Footnote 98 Therefore, in order to free man from servitude to anyone other than God and secure the supremacy of God's will in a universal manner, both preaching and military jihad must be used:Footnote 99
According to Qutb, Islam is not a ‘defensive movement;’ on the contrary, it has been ‘a movement to wipe out tyranny and to introduce true freedom to mankind.’ He therefore strongly criticized those scholars who were apologetic and defensive while discussing the implications of jihad. Footnote 100 Any divinely-ordained Islamic system, Qutb argues, has in fact ‘a God-given right to step forward and take control of the political authority so that it may establish the Divine system on earth.’Footnote 101 To Qutb, therefore, the doctrine of jihad may legitimately go beyond the contours of peaceful propagation of the faith by encompassing the employment of the sword as a means of fighting worldly corruption and liberating mankind.
While such radical views provide the major reference points for contemporary fundamentalist movements, some other representatives of the second school base their conceptions on different grounds. Among these commentators, there are those who maintain that the peaceful Meccan verses had been abrogated by the so-called ‘sword verses’ revealed later in Medina. Muslim exegetical tradition initially employed the method of abrogation (naskh) to explain or contextualize the seemingly contradictory passages of the Qur'an by linking the disputed verses to traditions relating to specific historical conditions.Footnote 102 According to the traditional Muslim view, divine revelations were given in response to different and inconstant predicaments faced by the Prophet Muhammad and the Muslim community. In other words, God personally guided Muhammad through His revelations in difficult and uncertain times. In cases of apparent contradiction, therefore, the earlier verses must be considered to be revealed in accordance with the contingency of the moment, while the later revelations must be deemed normative and binding.Footnote 103 Some traditionalists on this account argue that within the context of jihad, the Medina verses take precedence over the earlier revealed Meccan verses:Footnote 104 for instance, Qur'an 2: 256, which states that ‘let there be no compulsion in religion,’Footnote 105 had been abrogated by Qur'an 9: 73Footnote 106 with regard to polytheists and by Qur'an 9: 29 with respect to the ‘People of the Book.’Footnote 107 Put differently, although the ‘no compulsion’ rule was revealed as universally valid and banned the notion of religious coercion, following the revelation of the two subsequent verses it was abrogated and thus its ruling had never been enforced ever since. Friedmann convincingly posits that this view may easily be supported by the deeds of Prophet Muhammad, who forced the Arab pagans to embrace Islamic faith and did not accept anything from them except conversion; it appears inconceivable that the Prophet would have acted as such had he been obliged to follow the ‘no compulsion’ rule.Footnote 108
2. Dar-ul-Islam and Dar-ul-Harb
What is clear with respect to the concept of jihad is that, despite all the ambivalence as to its precise implications, many Qur'anic passages which deal with warfare seem to regard the military form of jihad as a valid or rather necessary means of dealing with unbelievers, particularly in cases where Muslims are attacked by them. Furthermore, under a military doctrine, developed during the era of Abbasid and Umayyad dynasties, which divided the world into two domains: dar-ul-harb and dar-ul-Islam, jihad may be waged for the purpose of spreading the Islamic faith.Footnote 109 The term dar-ul-Islam (house of Islam) includes countries wherein Islamic legal order and faith prevails, whilst the rest of the world is referred to as the ‘house of unbelief’ or the ‘house of war’ (dar-ul-harb). According to this doctrine, a legitimate Muslim country was in principle justified in waging jihad against dar-ul-harb states in order to bring the latter under the sway of Islamic order.Footnote 110 In fact, waging jihad in order to subdue the dar-ul-harb and bring it into the realm of dar-ul-Islam was deemed a religious duty of the caliph.Footnote 111 However, as the historical practice of concluding peace treaties or suspending hostilities with non-Muslim polities indicates, a permanent state of war between Muslim and non-Muslim communities did not necessarily call for the military form of jihad. Footnote 112 Khadduri, in this context, notes that:
In theory the dar-ul-Islam was always at war with dar-ul-harb. The Muslims were under a legal obligation to reduce the latter to Muslim rule in order to achieve Islam's ultimate objective, namely, the enforcement of God's law (the sharia) over the entire world. The instrument by which the Islamic states were to carry out that objective was jihad …, which was always justifiably waged against the infidels and the enemies of the faith. … But the jihad did not always mean war, since Islam's objective might be achieved by peaceful as well as violent means.Footnote 113
Here it is important to reiterate that the primary purpose of jihad is to strive against non-believers in the name of Islam. According to the Islamic worldview, the ‘People of the Book’ have a special status, ie, they are allowed to pursue their religions in line with their rituals and authoritative scriptures. However, they were not to proselytise or encroach upon the Muslims, and had to pay a poll tax known as the jizya.Footnote 114 Indeed, while the spread of Islam was mainly achieved through conquests and colonization, the chief concern of the conquerors was not to impose Islam by means of force upon those who professed a monotheist religion, and revered holy scriptures recognized by Muslims. These people were allowed to practise their religions under certain conditions imposed by the Islamic legal order. In contrast, as Lewis notes, ‘for those who were not monotheists and possessed no recognized scriptures, the alternatives were harsher,’Footnote 115 since one of the main objectives of jihad was to proselytise unbelievers either through violent or non-violent means.Footnote 116
Admittedly, the difference between Islam and other monotheistic traditions lies in its relatively belligerent character. Some scholars assert that Muhammad believed the day of final judgement was at hand and this gave him a sense of urgency; he wished to create a community of true believers who could lead a righteous life and be saved from the dreadful punishment of the last day. Muhammad's method for achieving this goal was not characterized by pacifism; in contrast, he preached a militant piety to fight against infidelity and ungodly immorality.Footnote 117 However, the characteristics of military means to achieve the objectives of Islam had never been straightforward, for the contours of the Islamic use of force discourse had been subject to various changes in accordance with the exegesis of a given difficulty and in line with the capabilities of the Islamic community to confront such a challenge. Not surprisingly, therefore, after the death of Muhammad and the so-called ‘four rightly-guided caliphates,’ the legitimacy of waging war, jus ad bellum, became more complicated in the Muslim tradition, because, starting from a relatively early stage, the Islamic world was no longer a politically unified polity. By the middle of the 8th century, there had been two independent and mutually hostile Muslim States: the Abbasids and Umayyads. From the 10th century onward, the number of independent Muslim States increased dramatically.Footnote 118 This politically fragmented structure of the Islamic world obviously affected the contours of Islamic jus ad bellum principles, for the interpretation and application of the sharia varied significantly from one Islamic country to another depending on the relevant socio-political context. The Islamic just war tradition became even more problematic when Muslim rulers largely abandoned the practice of consulting the jurists to determine whether or not they were justified in waging jihad. Footnote 119 This delivered an additional blow to the development of the sharia—including Islamic laws of war—which had already been rendered dormant by the above-mentioned policy of closing the doors for innovative and independent thinking (ijtihad).
IV. THE NEED FOR A CONTEXTUAL READING OF JIHAD IN THE UNITED NATIONS ERA
To date, an authoritative line of demarcation between defensive and offensive jihad has not been clearly drawn. What is clear, however, is that during the Prophet's lifetime the notion of jihad acquired various meanings in line with the historical predicaments faced by the Muslim community. Accordingly, jihad moved from a pacifist character, to defensive and thereafter to a somewhat belligerent form to eliminate idolatry and immoral practices, as well as to universalize the influence of Islamic faith. The meaning of jihad has thus been subjected to various changes in accordance with the dictates of socio-political conditions. Therefore, an eclectic reading or rigid application of jihad, irrespective of the overall spirit of Islam and surrounding practical circumstances, is likely to be counterproductive.
Muslim jurists, in particular during the classical period of Islam (from the 7th to 13th centuries), had constantly sought to answer the pressing needs of international relations. The formulation of the categorical division of the world between dar-ul-harb and dar-ul-Islam in this context constitutes an excellent example of how jurists answered the practical impossibility of universalizing Islam across the globe.Footnote 120 The result of this division was in reality not a state of actual hostilities; instead it was rather a state of non-recognition of the enemy.Footnote 121 This did not, however, prevent Muslims from concluding treaties of peace with their enemies on numerous occasions. This state of affairs further induced some jurists, particularly Shāfi'īs, to coin another controversial category of dar-ul-sulh (bode of peace) or dar-ul-ahd (bode of covenant),Footnote 122 which refers to countries with which Islamic States have armistice, diplomatic ties, or peace agreements.Footnote 123 These covenants enabled both Muslims and non-Muslims to negotiate directly with one another and to maintain peaceful relations for long years.Footnote 124 The division of dar-ul-sulh, despite its controversial and impermanent status,Footnote 125 was adopted in accordance with the Muslim realization once again that the obligation of military jihad could not be maintained actively against all external enemies who were much stronger than those faced during the rise of the Islamic faith.Footnote 126
In the contemporary world, all Islamic States, with their diverse political, economic and social structures, are parties to international treaties of various kinds. Most importantly they are members of the United Nations (UN), and are thus bound by its Charter, which puts explicit emphasis on peace as its fundamental end, and expresses a determination ‘to save succeeding generations from the scourge of war.’Footnote 127 Modern international law, as it emerged following the Second World War, aims to maintain global peace and security by promoting amicable solutions of international disputes and establishing ‘conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.’Footnote 128 The UN Charter expressly stipulates that ‘armed force shall not be used, save in the common interest,’Footnote 129 and in the case of self-defence under article 51. With its explicit prohibition on the use of aggressive force, the UN Charter is clearly distinguished from the League of Nations, for Member States, following the unprecedented devastation of the Second World War, clearly renounced their sovereign prerogative to use or threaten to use force.Footnote 130 Today, article 2(4) of the UN Charter, which explicitly outlaws ‘the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the United Nations,’ is considered to belong to the customary norms of international law, and, as such, is binding upon all states.Footnote 131
The prohibition against unilateral use of aggressive force constitutes today's secular jus ad bellum principle and the primary norm of modern international law. Self defence, absent Security Council authorization, is accordingly the sole legitimate basis for the use of force (casus belli).Footnote 132 The modern law of nations, in this regard, not only abolished sovereign States' unqualified right to war as an instrument of State policy,Footnote 133 but also reduced the traditional just war reasons (including the recovery of property, securing redress for wrongdoings or avenging injuries) to only self defence.Footnote 134 The religious or moral justness of a given conflict is thus no longer relevant to an assessment of whether or not the use of force is compatible with the UN Charter. Indeed, as Kunz rightly observes, under the UN collective security system, the concept of bellum justum has been replaced by that of bellum legale, ie, the moral or religious notion of intrinsic justice no longer plays a role in determining the legality of warfare.Footnote 135 It follows that all member States of the UN, regardless of their political or religious affiliations, are debarred from resorting to the use of force, unless it is authorized by the Security Council or is undertaken for defensive purposes under article 51.
Being part and parcel of this secularized international legal system, Islamic States, as their recent practice demonstrates, usually justify their use of international force by reference to the UN Charter, rather than to the doctrine of jihad. Footnote 136 While governments of Muslim States sometimes invoke the rhetoric of jihad to rally popular support,Footnote 137 at the international level they often attempt to legitimize their position through legal means. Furthermore, almost all modern Islamic States formally denounce sectarian violence and terrorist attacks allegedly undertaken in the name of Islam.Footnote 138 Notably, the Organisation of the Islamic Conference (OIC),Footnote 139 which is currently composed of 57 Islamic countries, clearly expresses its determination to comply with the modern norms of international law. In its preamble, the Charter of the OIC affirms Member States' commitment ‘to adhere … to the principles of the United Nations Charter … and international law.’Footnote 140 Likewise, the OIC Convention on Combating International Terrorism reaffirms the resolve of Islamic States to adhere ‘to the principles of International Law and the United Nations Charter as well as all relevant UN resolutions on procedures aimed at eliminating international terrorism.’Footnote 141
At the practical level, Islamic States have also frequently resorted to diplomacy or other methods of peaceful settlement of international disputes. Examples of such efforts include the conclusion of a peace treaty between Israel and Egypt,Footnote 142 the settlement of territorial questions between Qatar and Bahrain,Footnote 143 Egypt and Israel,Footnote 144 Emirates of Dubai and Sharjah,Footnote 145 Libya and Tunisia,Footnote 146 recourse to settlement of legal disputes between Algeria, Mauretania and Morocco,Footnote 147 Libya and the United Kingdom and the United States.Footnote 148 As these examples suggest, mechanisms of modern international law are being employed by Muslim States as a medium of peaceful settlement of international disputes.
It must be noted that the prohibition on the use of aggressive force in interstate relations and the necessity of resorting to alternative channels of dispute resolution may also be supported by reference to the Qur'an, which has abundant verses to bolster the idea that Islam takes peace as its fundamental objective.Footnote 149 Observed from this perspective, it is arguable that the obligation of Islamic States to adhere to the principles of modern international law is compatible with the basic tenets of the sharia, which allows Islamic States to enter peace treaties with Muslims and non-Muslims alike, and recognizes the binding nature of such treaties in line with the maxim pacta sunt servanda. Footnote 150 The following Qur'anic verses support this point:
How can there be a league, before God and His Apostle, with the Pagans, except those with whom ye made a treaty near the sacred Mosque? As long as these stand true to you, stand ye true to them: for God doth love the righteous (Q. 9: 7); But if they violate their oaths after their covenant, and taunt you for your Faith,—fight ye the chiefs of Unfaith: for their oaths are nothing to them: that thus they may be restrained (Q. 9: 12); And fulfil (every) engagement, for (every) engagement will be enquired into (on the Day of Reckoning) (Q. 17: 34).
As noted earlier, tradition shows that Muhammad had engaged in various agreements with non-Muslim tribes and abided by the terms of such covenants.Footnote 151 In fact, entering into binding agreements or making alliances with non-Muslim communities with an intention to honour the terms and conditions provided therein has been a settled Muslim tradition, compliance to which is commanded by the primary sources of Islam, that is, by the Qur'an and the sunna. Footnote 152 It is well-known that both at the early, formative period and at the period of strength, the Prophet concluded strategic treaties with neighbouring Christian and Jewish tribes without insisting that they adopt Islam, but principally imposing a payment of contributions (jizya) to the Islamic state in return for protection.Footnote 153
Arguably, therefore, lawfully concluded treaties (such as the UN Charter) are binding on Islamic States not only due to secular reasons, but also due to the fundamental principles of Islamic jurisprudence, which manifestly require fastidious observance of the obligations stemming from such agreements. As Hassan rightly observes, ‘in Islam a contract or treaty is not merely a secular affair, but in fact a religious one; it is, therefore, safeguarded by divine as well as human sanctions.’Footnote 154 In the light of the above, one may safely conclude that Islamic jus ad bellum principles must be read contextually by subjecting the doctrine of jihad to the demands of modern international law, which has been developed with a view to preventing humankind from employing armed aggression as an instrument for advancing political, economic or religious objectives.
V. CONCLUSION
The lack of a consensus over the conflicting verses of the Qur'an renders the task of clarifying the bounds of military jihad quite complex. What is more, Muslims no longer possess a central religious authority (caliph), like the Roman Catholic Pope, to interpret the divergent or equivocal passages. They are, therefore, dependent on the guidance of religious scholars and clerics of diverse schools of thought. To date, many texts of Islamic jurisprudence from all periods unfortunately remain unstudied or unpublished; or those that are published have not been unequivocally interpreted. The proliferation of independent Muslim States with their own distinct pre-Islamic cultural backgrounds has also contributed to the emergence of diverse juridical theories concerning warfare.Footnote 155
There is no doubt that Islam spread its universal message both through persuasion as well as through force. It is also true that many battles during the expansionist phase of Islam were offensive in order to eliminate idolatry and spread the word of God. However, as noted above, military force represents only one dimension of jihad, which also contains peaceful and pious forms of struggle in the name of God. In fact, the latter form of jihad, which includes the purification of the soul and the inner struggle of each individual to become a righteous person, had been considered by Muhammad to be the greater jihad in Islam. Those who seek to reduce the application of jihad merely to the use of the sword generally adopt a literal interpretation of jihad by detaching it from its broader historical context. This reading of military jihad tends not only to ignore large numbers of peaceful Qur'anic verses or hadith,Footnote 156 but also to overlook the fact that Islam has constantly striven to meet the political and military exigencies of a given period by envisaging responsive strategies. The Islamic law of war was thus not developed in a vacuum; rather cultural, political, military and religious factors have played a significant role in shaping its legal contours. Rules on jihad have not remained stable but rather have been subject to change in line with the demands of practical realities. The same holds true for the most significant corpus of the Islamic law of nations, which has largely been developed during the so-called ‘golden ages of Islam’ where collective reasoning (ijma) and independent individual thinking (ijtihad) were strongly encouraged with the aim of preventing the sharia from becoming rigid or unresponsive in the face of changing socio-political contexts.Footnote 157 The categorical division of the world between dar-ul-harb and dar-ul-Islam and the invention of dar-ul-sulh or dar-ul-ahd are all examples of how the Muslim world attempted to remain dynamic by formulating flexible principles to interact with non-Muslim communities in the international arena.
Today, Islamic regimes, with their diverse composition and socio-political structures, are active subjects of the modern law of nations, which, with its universal character, has the potential to promote peaceful coexistence for the international community. The UN Charter, the centrepiece of modern international law, strictly prohibits recourse to warfare for the solution of international disputes, and renounces the use of aggression in national policy. By becoming parties to the UN Charter, Islamic States, just like other member States, have made a commitment not to resort to unilateral force beyond self defence and collective enforcement measures ordered by the Security Council, and strive to settle their international disputes through peaceful means. As noted earlier, for Muslims States, a breach of contractual obligations has both material (eg enforcement measures taken by the Security Council) and religious ramifications, for they are bound by the terms of lawful treaties not only because of secular reasons, but also because of the basic principles of the sharia that clearly command adherence to the legally concluded agreements: ‘O ye who believe! Fulfil (all) obligations' (Q: 5:1). As Yusuf Ali, in his commentary on the Qur'an, explains, Muslims are to comply with their obligations, be it human or divine; hence if a State enters into a treaty it is the obligation of every individual living in that State ‘to see that as far as lies in his power, such obligations are faithfully discharged … [because] truth and fidelity are parts of religion in all relations of life.’Footnote 158
Islamic teaching, therefore, can be said to require Muslims to be faithful to the principles of the UN Charter, which aims to further the notions of international peace and security.
The modern political and military context of international relations also calls for a contextual analysis of the Qur'anic verses and the hadith on the doctrine of jihad. This may be achieved through identifying the specific conditions in which the response was revealed, and understanding the Qur'an and prophetic tradition in their unity. While the primary sources of Islam are deemed immutable, it is also clear that, in the face of ambiguity or apparent conflict in the Qur'anic injunctions or the hadith, the sources must be subjected to an independent and analytical scrutiny (ijtihad), which, particularly during the classical period of Islam, had significantly contributed to the development of Islamic law and theology. Any interpretation that does not duly take into account the relevant historical context along with abundant Qur'anic verses and hadith devoted to peace and tolerance will fall short of addressing the requirements of the modern world wherein wars, whatever motivation they carry behind them, possess the potential for humanity's ultimate destruction. Today, State aggression is no longer legitimate (or viable) in solving international disputes, nor does the Islamic community, which literally lives in the four corners of the world, require the use of the sword to spread the message of Islam. Jihad, as a result, should be conducted in accordance with the exigencies of present circumstances; that is, not by the sword, but by the heart and tongue.
