Suicide attacks and Islamic law

International Review of the Red Cross

Volumn 90, Issue 869, 2008, Pages 71-89

  Munir, Muhammad ^a  

^a INTERNATIONAL ISLAMIC UNIVERSITY   (Pakistan)

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[No Author keywords available]

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EID: 84858158115     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383108000040     Document Type: Article

References (96)

1. Up-to-date statistics are hard to come by in Iraq, but a report in the Boston Globe of 10 June 2005 quoted statements by US Defence Department officials (who asked to remain anonymous) that over 50 per cent of the seventy insurgency attacks a day (on average) were carried out by suicide bombers. Casualty levels fluctuate wildly, but average around twelve deaths per suicide attack. The majority of suicide attacks originate from Al Qaeda, and are carried out by zealous recruits from all over the Muslim world who are flooding into Iraq. Other organizations that have also carried out suicide attacks are the Salafi-jihadi umbrella group Jaish Ansar al-Sunnah (JAS) and the Shia cleric Moqtada al-Sadr's Mahdi Army. See A. B. Atwan, The Secret History of Al-Qa'ida, Saqi Books, London, 2006, p. 100.
2. In Palestine most resistance organizations now have a suicide wing. The most active since the outbreak of the second intifada have been Hamas, the Al-Aqsa Martyrs' Brigade (part of Fatah) and the Palestinian Islamic Jihad (PIJ). See Christoph Reuter, My Life is a Weapon: A Modern History of Suicide Bombing, trans. from German by Helena Ragg-Kirkby, Princeton University Press, Princeton N.J. and Oxford, 2004, repr. Manas Publications, Delhi, 2005, pp. 79–114.
3. After the death of the sixth imam, Ja'far al-Sadiq, in ah 148, the majority of Shia acknowledged Imam Musa Kazim as their seventh imam, whereas the minority upheld the claims of his elder brother Isma'il. After the foundation of the Fatimid state in Tunisia by ‘Ubayd-Allah al-Mahdi (ah 297–322/ad 909–34), his descendant al-Mu'iz li-Din Allah (ah 341–65/ ad 953–75) established the Fatimid Caliphate in Egypt. Al-Mustansir, who was the eighth Fatimid caliph, died in ah 487, and one of his sons, al-Musta'li, became the ninth Fatimid caliph and was the imam of the western Isma'ilis, whereas his other son Nizar was the imam of the Nizaris or eastern Isma'ilis. Both types of Isma'ilis are found in India and Pakistan: the eastern Isma'ilis are the followers of the present Aga Khan, and the western Isma'ilis are popularly called Bohoras. The eastern Isma'ilis are also found in east Africa, central Asia, Persia, Syria and China. See Adv.-General v. Muhammad Husen Huseni (Aga Khan case), (1886) 12 Bom. HCR 323, at 504–49
4. see also Asaf A. Fyzee, Outlines of Muhammadan Law, Oxford University Press, New Delhi, 1974, 2nd imp. 1999, pp. 39–43.
5. See Farouk Mitha, Al-Ghazali and the Isma$ilis: A Debate on Reason and Authority in Medieval Islam, Isma'ili Heritage Series, London, 2001, Vol. 5, p. 23.
6. See also Farhad Daftari), “Hasan-i-Sabah and the origins of the Nizari movement”, in Daftari (ed.), Medieval Isma'ili History and Thought, Cambridge University Press, Cambridge, 1998, p. 193
7. Bernard Lewis, The Assassins, A Radical Sect in Islam, Weidenfeld and Nicolson, London, 1967.
8. Sa'ad-Ghorayeb, Amal, Hizbu'llah: Politics and Religion, Pluto Press, London, 2002, p. 67
9. Martin Kramer, “Sacrifice and “self-martyrdom” in Shiite Lebanon”, Terrorism and Political Violence, Vol. 3 (3) (1991), pp. 30–40.
10. See the revised version in Martin Kramer, Arab Awakening and Islamic Revival, Transaction Publishers, New Brunswick, 1996, pp. 231–43.
11. See Ghorayeb, above note 7, p. 6.
12. Judith Palmer Harik, Hezbollah: The Changing Force of Terrorism, I. B. Tauris, London and New York, 2004, pp. 65, 70.
13. See Martin Kramer, “The moral logic of Hizballah”, in Walter Reich (ed.), Origins of Terrorism: Psychologies, Ideologies, Theologies, States of Mind, Cambridge University Press, Cambridge, 1990, pp. 131–57, available at http://www.geocities.com/martinkramerorg/MoralLogic.htm (last visited 17 December 2007).
14. Martin Kramer, “The oracle of Hizbu'llah”, available at http://www.geocities.com/martinkramerorg/Oracle2.htm (last visited 17 December 2007).
15. See “An interview with Secretary General of Islamic Jihad”, Al-Hayat, 7 January 2003, p. 10. Shellah asserted that the act was an inspirational one for Islamic Jihad.
16. Ash-Sharq Al-Awsat, London, 21 April 2001
17. Shaul Mishal and Avraham Sela, The Palestinian Hamas: Vision, Violence and Coexistence, Columbia University Press, New York, 2000, p. 109.
18. See Yusuf al-Qardawi, “Shari'yia al-'Amaliyat al-Istishhadiya fi Filastin al-Muhtalla” [The legality of martyrdom operations in the Occupied Palestine], al-Islah, Vol. 375 (15–18 August 1997),p.44;available at: http://www.memri.org/bin/articles.cgi?Page=archives&Area=ia&ID=IA5301 (last visited 17 December 2007). Ibn Baz was severely criticized by Palestinian clerics and politicians, such as Sheikh Muhammad Isma'il al-Jamal, Sheikh al-Bitawi and Dr ‘Abdulaziz al-Rantisi.
19. See Reuter, above note 2, p. 123.
20. al-Islah.
21. al-Islah.
22. al-Islah.
23. al-Islah.
24. See Special Dispatch No. 580, 1 October 2003, available at http://www.memri.org/ (last visited 17 December 2007). In his interview he supported suicide attacks by bombers in Palestine, Afghanistan and Iraq. He considers these attacks to be legal because the idea is to liberate the said countries from the enemy. See “Mufti Masr: al-'Amaliyat fi Al-Iraq wa Filasteen wa Afghanistan Muqawama wa laisat Irhaban” [Egyptian mufti: Operations in Iraq, Palestine and Afghanistan are resistance and not terrorism], Al-Sharq al-Awsath, 26 April 2006.
25. See “Leading Egyptian government cleric calls “martyrdom attacks that strike horror into the hearts of the enemies of Allah””, Special Dispatch No. 363, 7 April 2002, available at http://www.memri.org/ (last visited 17 December 2007).
26. “Cleric condemns suicide attacks”, BBC, 11 July 2003, available at www.bbc.com (last visited 17 December 2007).
27. See “Al-Tantawi laqqana Al-Qardawi darsan fi al-fatwa” [Tantawi gave a lesson to Qardawi regarding his fatwa], Al-Sharq al-Awsath, 17 April 2002.
28. Tantawi asserted that the bombers are allowed to target Israeli army soldiers, but that it is not permissible to target civilians (Al-Sharq al-Awsath.). However, as we shall prove below, even the first type of attacks are not allowed under the Islamic jus in bello. When a bomber disguises him or herself whether s/he targets soldiers or civilians, a perfidious act, which is strictly prohibited in war under Islamic law, is committed. But if a soldier who does not disguise her- or himself commits a suicide attack to kill and maim many enemy soldiers, his or her act would be warfare heroism. The latter act is not prohibited in Islamic law. Sheikh Tantawi has blurred the distinction between these two types. i.e., perfidy and warfare heroism.
29. In an interview with a Kuwaiti-based magazine he described suicide attacks carried out by the Palestinians as “the best cure” and opined that no peace treaty is allowed with the Jews. See “Al-'Amaliyat al-Istishhadyia Khair ‘Ilaj” [Martyrdom operations are the best cure], al-Mujtama'a, No. 1422, 17 October 2000, p. 59.
30. See his “Al-Irhabwa al-'Amaliyat al-Istishhadiyya” [Terrorism and the martyrdom operations], al-D'awah, No. 1838, 18 April 2002, p. 39. He gives examples of heroism in warfare to prove that the suicide operations carried out by the Palestinians are justified. But, as we shall see later, the analogy is wrong.
31. His justification is based on the principle of reciprocity (Qur'an 2:194 and 16:126), or rather his understanding of it. However, he forgets 16:127, which is what the Prophet (PBUH) himself followed. He also justified attacks with weapons of mass destruction (WMDs) on infidels. See his Kuffar par ‘Aam Tabahi Musalath karne ki Shar'i Haisiat, trans. Hafiz ‘Aamar Siddiqui as Justification of Attacking Infidels with WMDs, Darul-Esha'at, Lahore, 2005, pp. 23–24. The Saudi authorities arrested him, but he was released in November 2003. He openly admitted that he had made mistakes in some of his previous fatwas. It is not clear which fatwa(s) he meant. He has not interacted with the media since then.
32. He expressed his views in an interview with the Al-Rabitha magazine of the Organization of the Islamic Conference (OIC). See “La Ba'sa bi Ikhtiyar Tariqat al-Mout fi Halatin Wahidah” [No problemin choosing to die in one situation], Al-Rabithah, No. 453, October, 2002, pp. 12–13. He, too, gives many examples of warfare heroism in Islam to prove that Palestinian suicide attacks are justified. The timing of both the above remarksisnoticeable. Sheikh Salman's article was publishedon18April, the date of the suicide attack onthe US embassy in Beirut. Dr ‘Ajeel's interview was published in the October issue of Al-Rabitha, the month when the headquarters of US and French forces were attacked by suicide bombers.
33. See Jonathan Halevi, “Al Qaida's intellectual legacy: New radical Islamic thinking justifying the genocide of infidels”, Jerusalem Center for Public Affairs, available at http://www.jcpa.org/jl/vp508.htm (last visited 17 December 2007). This report is translated into Arabic, copied and displayed by www.aafaq.org. However, the motives of both websites (www.jcpa.org as well as www.aafaq.org) are dubious. For example, the original report does not give authentic information, is selective in choosing clerics who take a stand on the topic, and does not mention the original fatwas issued by them; it lists scholars who are not mentioned by the jihadis and omits more radical militants such as Ayman Al Zawahiri or clerics such as Faisal Mawlavi and many others.
34. Bernard K. Freamon, “Martyrdom, suicide, and the Islamic law of war: a short legal history”, Fordham International Law Journal, Vol. 27, 2003, p. 299.
35. Fordham International Law Journal., pp. 317–53.
36. Fordham International Law Journal., p. 306.
37. Fordham International Law Journal., p. 368.
38. See Mufti Muneeb-ur-Rahman, Qatl-i-Na Haq ka hukm [Rule for unjustified homicide], n.d. Although the fatwa itself is undated, some of the muftis who signed it have put dates as well, ranging from December 2004 to March 2005. It was circulated in the press on 18 May 2005.
39. Qatl-i-Na Haq ka hukm [Rule for unjustified homicide]., p. 3.
40. The fatwa mentions that it had not been a crime to fight occupying forces to liberate one's country, but without giving any details. Qatl-i-Na Haq ka hukm [Rule for unjustified homicide]., p. 3.
41. See his Hawa ki Nam [In the name of Hawa], Jami'a Islamia, Rawalpindi, 2005, p. 409. The book is based on the rulings issued by the author, who avoids specifically mentioning whether he justifies such attacks in Palestine or elsewhere.
42. See “Ulama convention opposes “Sharia by force””, Dawn, 18 April, 2007, p. 1.
43. Muslim Ibn Al-Hajjaj, Saheeh Muslim, Dar Ehya Al-Turath Al-$Arabi, 1955, Vol. 4, p. 2065, hadith no. 2682.
44. Isma$eel Al-Bukhari, Saheeh Bukhari, Dar Sahnun, Istanbul, 1992, Vol. 3, p. 32.
45. Saheeh Bukhari., Vol. 3, p. 212.
46. M. Ibn Al-Hasan Al-Shaybani, Syar Al-Kabir, quoted in a commentary by Sarakhasi, Dar al-kutub $Elmiya, Beirut, 1997, Vol. 4, p. 250. Shaybani's original book is not available; the text is found only with Sarkhasi's commentary.
47. Ibn Taymiyah, Majmu'a Fatawa Sheikh al-Islam, Dar $Aalam Al-Kutub, Ryadh, Vol. 25, p. 540.
48. See Muhammad Tahir ibn ‘Ashoor, Al-Tahreer wa al-Tanweer, Dar Sahnun, Tunisia, Vol. 1, p. 215.
49. See 'Ali Shari$ati, Martyrdom: Arise and Bear Witness, trans. $Ali Asghar Ghassemy, Ministry of Islamic Guidance, Tehran, 1981, p. 144. He does not say explicitly that it was a suicide. He does say that Husayn had chosen shahdat.
50. See his “A discussion of Shaheed”, in Gary Legenhausen and Mehdi Abedi (eds.), Jihad and Shahadat: Struggle and Martyrdom in Islam, Institute for Research and Islamic Studies, Houston, 1986, pp. 239–40.
51. See details of the incident in Al-Qurtubi, al-Jami'a li Ahkam al-Qur'an, Dar al-kutub al-Misryyia, n.d., Vol. 2, pp. 362–363
52. Ibn Jareer al-Tabary, The History of al-Tabary: The Conquest of Arabia, trans. Fred M. Donner, 1993, pp. 105–34.
53. The translation is taken from the English translation by Pickthall, above, unnumbered note. According to other commentators the verse is generally understood to outlaw suicide and other forms of self-harm. See The Qur'an: A New Translation, trans. Abdel Heleem, Oxford University Press, Oxford, 2004, repr. Oxford World's Classics series, 2005, p. 22. (The quotation in the text above is, however, taken from Pickthall, above, unnumbered note).
54. See details of the incident in Tarmizi, Sunnan, hadith no. 2898
55. Abi Dawood, Sunnan, hadith no. 2151. Abu Ayub al-Ansari, who was among those who witnessed this incident, stood and said, “How could you interpret this verse [2:195] in this way, which is revealed regarding the Ansar. Abu Ayub stated that when Islam became powerful, we told each other without informing the Prophet (PBUH) that since Islam has gained strength and has many allies; we seem to have neglected our businesses. Therefore, we should stay back to gain what is lost, when the verse [And be not cast by your own hands to ruin] revealed.” Qur'an 2:195.
56. Imam Abu Yusuf, a senior Hanafi jurist and the Chief Justice of Haroon al-Rashid, formulated this principle in this way: “No expedition can be dispatched without the permission of the government.”
57. See Abu Yusuf, Kitab al-Khiraj, ed. M. Ibrahim al-Banna, Maktaba Farooqia, Peshawar, n.d., p. 385.
58. For discussion of Dworkin's theory, see my “How right is Dworkin's “right answer thesis” and his “law as integrity theory”?”, Journal of Social Sciences, Vol. 2 (1) (August 2006), pp. 1–25.
59. See Article 51 of 1977 Protocol I to the Geneva Conventions. See also Hans-Peter Gasser, “Acts of terror, “terrorism” and humanitarian law”, International Review of the Red Cross, Vol. 84 (847) (September 2002), p. 555.
60. 'Abd al-Jalil, Shu'ab al-Iman (MS. Bashir Agha, Istanbul, No. 366), p. 558.
61. Imam Shoukani, Nail al-Awtar, Ansar Al-Sunah Al-Muhammadiya, Lahore, n.d., Vol. 7, p. 246.
62. Abdul Malik ibn Hisham, Al-Sirah Al-Nabawyia, ed. Mustafa Al-Saqa et al., Dar al-Ma $rifah, Beirut, n.d., Vol. 2, p. 632.
63. Muslim, above note 47, Vol. 3, hadith no. 1738, p. 1361.
64. See Badruddin 'Ayni, $Umdah Al-Qari Sharh Saheeh al-Bukhari, Idarat Al-Taba$at Al-Muneeriya, Cairo, n.d., Vol. XV, p. 94.
65. Shaybani, above note 50, Vol. 1, p. 185. According to Sarakhasi, it means that any act that resembles treachery in letter or spirit must be avoided.
66. See also Imam Termidhi, Sunnan, Dar Sahnun (Gagri, Yayinlari), Istanbul, n.d., Vol. 4, hadith no. 1580, p. 143.
67. Qur'an, 8:58.
68. Qur'an, 2:190. Pickthall's translation of “wa la ta$atadu” differs from that of the majority of commentators (above, unnumbered note).
69. For example, according to Mufti M. Taqi it means “and do not transgress. Verily Allah does not like the transgressors.” See his The Meaning of the Noble Qur'an, Maktab Ma$ariful Qur'an, Karachi, 2006, Vol. 1, p. 60.
70. Shaybani, above note 50, Vol. 4, p. 186.
71. Abu Dawood, Sunnan, Dar Sahnun, Istanbul, 1992, Vol. 3, p. 137, hadith no. 2687.
72. For more details see my “Non-combatant immunity in Islamic law”, in Hamdard Islamicus, forthcoming.
73. Al-Tabrezzi, Mishkat al-Masabih, al-Maktab al-Islami, hadith no. 3955
74. Ibn Majah, Sunnan, Dar Ehya Al-Turath Al-$Arabi, Beirut, n. d., Vol. 2, p. 101.
75. In some of the reports there is an addition: “that she was not capable of fighting.” Abu Dawud, Sunnan, Sunnan, Vol. 3, p. 122
76. Shoukani, Nail al-Awtar, above note, 62, Vol. 7, p. 261.
77. Ibn Majah, Sunnan, above note 72, Vol. 2, p. 948, hadith no. 2842
78. Imam al-Nasa'i, al-Sunnan al-kubra, Dar Al-Kotob Al- $Elmyia, Beirut, Vol. 5, p. 187, hadith nos. 8625 and 8626
79. Abu Bakr al-Baihaqi, al-Sunnan al-kubra with al-Jawhar al-Naqi, Dar al-Fikr, Beirut, n.d., Vol. 9, p. 83.
80. This hadith is also quoted with slightly different wording in Abi Ja'far al-Tahwi's Sharh Ma'ni al-Asa'r, Dar Al-Kotob Al-'Ilmia, Beirut, Vol. 3, p. 222.
81. Abu Zakaryia Nawavi, Sharh Saheeh Muslim, Matba'at Mahmood Tofeeq, Vol. II, p. 48
82. see also Al-Qurtubi, Ahkam al-Qur'an, 1950, Vol. 1, p. 232.
83. This is the situation of tatarrus, i.e. when the enemy uses Muslim prisoners, women and children, their own non-combatants, as human shields, then Muslims can attack the enemy but must take the utmost precautionary measures to protect the captives. See Abu Bakar Al-Sarkahsi, al-Mabsut, Dar Ehya Al-Turath Al- $Araibi, Beirut, 2002,Vol. 10, p. 154.
84. The same applies to a night raid on the enemy. For further details, see my “Non-combatant immunity in Islamic law”, above note 71.
85. 'Ali al-Muttaqiy, Kanz-ul-'Ummal, Haiderabad Daccan, Vol. II, No. 6259, on the authority of al-Baihaqiy.
86. See Shaybani, above note 50, Vol. 5, pp. 285, 286. Here the context is interesting. Shaybani mentions that a tax collector at the time of ‘Umar asked him about how much tax to charge to businessmen coming from dar al-harb - literally the abode of war but technically from outside the territorial jurisdiction of the Muslim state.
87. See for a very fine discussion of the technical meaning of dar al-harb Sarkahsi, Al-Mabsut, above note 76, Vol. 10, pp. 85–94
88. Sayyid Maududi, Suud (Urdu), Islamic Publications, Lahore, 1973, pp. 312–13. ‘Umar advised him to charge exactly the same as Muslim businessmen were charged by them. Sarakhasi gives the reason for this ruling and cites the above maxim. He further argues that if our own businessmen were not charged any tax, we should not charge any; and if the others charged us 5 per cent we have to charge them 5 per cent. Similarly “their businessmen should be charged taxes only once every year even if they visited our land several times because they charge our businessmen only once a year; because relations between us and them are based on reciprocity.”
89. See Shaybani, above note 50, Vol. 5, pp. 285–6.
90. Moulana 'Abdul Majid, Tafsir-ul-Qur'an, Darul-'Ishaat, Karachi, 1991, Vol. 1, p. 125
91. Muhammad Tahir ibn 'Aashoor, Al-Tahreer wa al-Tanweer, Dar Sahnun, Tunis, n.d., Vol. 1, p. 210.
92. This is the opinion of'Abdullah ibn 'Abbas, Qatadha, Dahak and Suddi. See Ibn $Aashor, above note 80, Vol. 1, p. 210.
93. Muhammad ibn Ahmad al-Qurtubi, al-Jam'i li Ahkam al-Qur'an, Dar al-Kutub al-Misria, Vol. 1, p. 240.
94. Imam Mawardi, Al-Ahkam al-Sultaniya, Matba$t Mahmoodyia, Cairo, n.d., p. 84.
95. Qur'an, 2:60.
96. Qur'an, 2:205.