Ambivalent universalism? Jus ad bellum in modern islamic legal discourse

European Journal of International Law

Volumn 24, Issue 1, 2013, Pages 367-389

  March, Andrew F ^a   Modirzadeh, Naz K ^b  

^a YALE UNIVERSITY   (United States)

^b HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84877148719     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chs091     Document Type: Article

References (43)

1. For a discussion of interpretive declarations and reservations issued by contracting parties to the UDHR, the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) on shari'a grounds
2. see Mashood Baderin, International Human Rights and Islamic Law (Oxford: Oxford University Press, 2003)
3. Here we dissent from the view advanced in the article by Niaz Shah, 'The Use of Force under Islamic law', this issue, at 343
4. Parts of this section are taken from A. March, Islam and Liberal Citizenship: The Search for an Overlapping Consensus (2009), at 125-127.
5. Contemporary Islamic legal scholar Khalid 'Abd al-Qadir, in a comprehensive treatment of legal questions pertaining to relations with non-Muslims, notes that 'the vast majority of the classical scholars hold that the means of bringing the Islamic message to the unbelievers is by building up strength, equipping the armies and then campaigning in the lands of the unbelievers. Before fighting, unbelievers are given the choice between converting to Islam, paying the jizya (if they are amongst the peoples eligible for it) and war. They all held that the basic principle (al-asl) of relations between Islam and unbelief is war, and that peace is an exception to this rule': K. 'Abd al-Qadir, Fiqh al-aqalliyyat al-muslima (1998), at 38.
6. Sachedina, 'The Development of Jihad in Islamic Revelation and History', in J.T. Johnson and J. Kelsay (eds), Cross, Crescent and Sword: The Justification and Limitation of War in Western and Islamic Tradition (1990), at 44.
7. A. A. al-Mawdudi, al-Jihad fi 'l-Islam (1983), at 42-43.
8. E.g., al-Nabhani (the Palestinian founder of the global Islamist movement, Hizb al-Tahrir), 'Bahth fi 'ljihad', in M.'A. Hasan, al-'Alaqat al-dawliyya fi 'l-Qur'an wa'l-Sunna (1982), at 121-132
9. A. al-Bazri, al-Jihad fi 'l-Islam (1984), at 63, and 'A. Zaydan, Majmu'a buhuth fiqhiyya (1975), at 54-57.
10. E.g., Muhammad Nasir al-Din al-Albani in his commentary on a 9th/10th century statement of creed, 'Jihad as a collective duty is warfare in the path of God to bring the Islamic message to all lands until Islam rules over them. This form of jihad is valid until the Day of Judgment, and it is unfortunate that some writers today deny it': al-Albani, al-'Aqida al-Tahawiyya: Sharh wa ta'liq (1978), at 49.
11. See M.K. Haykal, al-Jihad wa'l-qital fi 'l-siyasa al-shar'iyya (1993), i, at 815-818.
12. 9:5: 'When the forbidden months are past, then fight and slay the pagans wherever you find them. Seize them, beleaguer them, and lie in wait for them in every stratagem of war. But if they repent and establish regular prayers and practice regular charity, then open the way for them. For God is Oft-Forgiving, Most-Merciful.' 9:29: 'Fight those who believe not in God nor in the Last Day, nor hold forbidden that which God and His Messenger have forbidden, nor acknowledge the religion of truth, from among the People of the Book until they pay the jizya and feel themselves subdued.' 9:111: 'Behold, God has bought of the believers their lives and their possessions, promising them paradise in return, [and so] they fight in God's cause, and slay, and are slain: a promise which in truth He has willed upon Himself in [the words of] the Torah, and the Gospel, and the Qur'an. And who could be more faithful to his covenant than God? Rejoice, then, in the bargain which you have made with Him: for this, this is the triumph supreme!'
13. S. Qutb, Fi Zilal al-Qur'an (1973-1974), v, 3, at 1582 (in English: A. Salahi and A. Shamis (trans.), In the Shade of the Qur'an (2002-2009), v. VIII, at 28.
14. M.'A.A. Draz, Nazarat fi 'l-Islam (1972), at 119-120.
15. See M. Shaltut, al-Qur'an wa'l-qital (1983), at 29-30 for this characterization of the preferred method of Qur'anic exegesis, which he refers to as 'tafsir mawdu'i' (thematic exegesis).
16. M.Abu Zahra, al-'Alaqat al-duwaliyya fi 'l-Islam (1964), at 47.
17. 'A.'A. Mansur, al-Shari'a al-Islamiyya wa'l-qanun al-duwali al-'amm (1971), at 378.
18. 'U. al-Sa'id al-Sharqawi, Shari'at al-qital fi 'l-Islam (1972), at 33.
19. W. al-Zuhayli, al-'Alaqat al-duwaliyya fi al-Islam (1981), at 93.
20. M.S.R. al-Buti, al-Jihad fi 'l-Islam (1997), at 93.
21. M. Shadid, al-Jihad fi 'l-Islam (n.d.), at 119.
22. Y. al-Qaradawi, Fiqh al-jihad: dirasa muqarana li-ahkamih wa-falsafatih fi daw' al-Qur'an wa'l-Sunna (2009), i, at 256.
23. M.R. Rida, Fatawa (ed. S. al-Din al-Munajjid and Y.Q. Khuri, 1970-1971), iii, at 1152-1156.
24. In Donner, 'The Sources of Islamic Conceptions of War', in J. Kelsay and J.T. Johnson (eds), Just War and Jihad: Historical and Theoretical Perspectives on War and Peace in Western and Islamic Traditions (1991), at 31-70.
25. Jackson, 'Jihad and the Modern World', 7 J Islamic L and Culture (2002) 11
26. See also al-Banna (the founder of the Muslim Brotherhood and, thus, mentor of sorts to Sayyid Qutb), 'Risalat al-jihad', in Majmu' rasa'il (n.d.), at 297
27. 'A. al-Wahhab Khallaf, al-Siyasah al-shar'iya, aw Nizam al-dawla al-Islamiya fi 'l-shu'un al-dusturiya wa'l-kharijiya wa'l-maliya (1977), at 76-77
28. M.S. Khattab, al-Rasul al-Qa'id (1964), at 22
29. H.I. Hasan, al-Nuzum al-Islamiyya (1939), at 78
30. A. Sabiq, Fiqh al-sunna (1969-1971), ii, at 613
31. A. Shalabi, al-Jihad wa'l-nuzum al-'askariyya fi 'l-tafkir al-islami (1974), at 58-60
32. H. al-Hajj Hasan, al-Nuzum al-islamiyya (1987), at 476
33. 'A. al-Hamid Bakhit, Zuhur al-islam wa siyadat mabadi'ihi (1977), at 287
34. 'U.A. al-Farjani, Usul al-'alaqat al-duwaliyya fi 'l-islam (1984), at 87-88
35. 'U.J. Dumayriyya, Manhaj al-islam fi 'l-harb wa'l-silm (1982), at 128-130.
36. He cites for these views 'A. ibn Nafi' al-'Alyani, Ahammiyat al-jihad fi nashr al-da'wa al-Islamiyya wa'l-radd 'ala al-tawa'if al-dalla fih (1995).
37. D. Cook, Understanding Jihad (2005), at 96.
38. 'Fitna' is a notoriously difficult concept to translate. It can mean trial or temptation, but also tumult, turmoil, or sedition. In referring to Muslims living in non-Muslim states, it most likely invokes interference in the practice of Islam by non-Muslim authorities or majorities with the aim of seducing Muslims away from Islam or preventing them from practising it in peace and security.
39. Mawlawi, 'al-Mafahim al-asasiyya li'l-da'wa al-islamiyya fi bilad al-gharb', in A. Shamala (ed.), Risalat al-muslimin fi bilad al-gharb' (1999), at 211-212.
40. It should be noted that these groups are, of course, not all similar, nor do they share a perspective on Islamic law or an equally vigorous rejection of international law. Hamas and Hezbollah both acknowledge international law and claim to apply it in their ranks. However, they are all non-state armed groups that justify the use of armed force, and rely to varying degrees on Islam-based reasoning in explaining their behaviour.
41. A fascinating example of this can be found in an al-Qa'ida propaganda video featuring Adam Gadahn or 'Azzam al-Amriki,' the Californian who joined al-Qa'ida and long acted as its liaison to the English speaking world through widely-distributed videos. Against a backdrop of the scrolling text of a fatwa ruling that, despite the strong prohibition on attacks against embassies in Islamic law, al-Qa'ida fighters are permitted to attack embassies in Muslim countries in retaliation for violations of sovereignty and the laws of war by Western states, as well as against images of former Secretary of State Colin Powell presenting the (later disavowed) 'evidence' of Iraq's illegal possession of nuclear weapons prior to the US invasion of that country, Gadahn states, 'We respect your international laws as much as you respect our Islamic Shari'a' (video on file with the authors).
42. A well-meaning journalist on his way to Waziristan once asked one of the authors for several Quranic verses that would effectuate his release should he be kidnapped in the course of his travels. Alas, at least thus far, Islamic legal texts do not function as a 'cryptex' that will activate certain outcomes in the Muslim world. 'Cryptex' is a neologism created by the author Dan Brown in his novel, The Da Vinci Code, blending the words 'codex' and 'cryptology'
43. see Wikipedia, Cryptex, available at: http://en.wikipedia.org/wiki/ Cryptex (last visited 4 July 2012).