245 246 247 248 249 250
Qur'an 60:12 (emphasis added):
O Prophet! When believing women come to thee to take the oath of fealty to thee that [...] they will not disobey thee in anyjnst matter then do thou receive their fealty [...].
Muhammad Asad, The Message of the Qur'an: Translated and Explained (1984), 858 nl8.
There are some exceptions, such as, if one is forced to comply with an unjust, ultra vires or even unlawful command for duress, an issue discussed under necessity. Khaled Abou El-Fadl, Speaking in God's Name: Islamic Law, Authority and Women (2001), 196.
Qur'an 4:135. This concept of obeying what is good is accepted in International law although there is much less guidance provided on the international plane (as compared with Islam) as prospectively how to determine what law or laws are so immoral as to require disobedience. According to Antonio Cassese, International Criminal Law (2nd ed, 2008), 36:
[the substantive justice] doctrine favours society over the individual
(favour societatis). Extreme and reprehensible applications of this doctrine can be found in the Soviet legal system (1918-58) or in the Nazi criminal law (1933-45). [...] [Radbruch] propounded the notion that positive law must be regarded as contrary to justice and not applied where the inconsistency between statute law and justice is so intolerable that the former must give way to the latter.
While one has little difficulty finding authority on the 'intolerable' nature of the Soviets or Nazis in retrospect, one must remember that there were many governments that traded and worked with these regimes while still in power. There is much oppression in the world today and while no doubt many will criticise these regimes when they have fallen, these regimes do not seem to have much trouble trading and otherwise interacting with the majority of governments of the world. Those who do demonstrate against these 'yet-to-be-declared-evil' regimes are generally in the clear minority.
Sally Neighbour, In the Shadow of Swords: On the Trail of Terrorism from Afghanistan to Australia (2004), 84. Neighbour (ibid, 26) reproduces the bai'at (baya'), or the pledge of allegiance to the leader, in this case of the Indonesian Jama Islamiyya
Legal basis for hostilities
Chapter 2 —83
The UN Charter provides that States have an 'inherent right of individual or collective self-defence if an armed attack [occurs ...] until the Security Council has taken measures necessary to maintain international peace and security'. 232 The Charter provides that the Security Council is the primary organ responsible for maintaining this peace and security.253 The formula used by the Security Council to permit the use of force is that States may use 'all necessary means' against the offending party,254 including against non-State parties.255 The use of force not authorised under the Charter therefore, prima facie remains unlawful.
Similarly, all use of force not sanctioned by the shari'a is prima facie unlawful. There is a tension here between international law and the shari'a
(for example if use of force is lawful under the shari'a but is not sanctioned by the Security Council) and is briefly commented upon in the conclusion to this section but is an area that requires much further specific
independent examination. The presumption under the shari'a, however is that Muslim States are bound by their treaty agreements, in this instance by the provisions of the UN Charter.
It is now convenient to examine the three specific cases, with respect to djihad, to identify the reasons legitimately for which:
251 252 253 254
255
group's pledge by Muslims in Malaysia, Indonesia, Singapore and Australia, which clearly demonstrated this understanding that obedience does not extend to what is Islamically wrong. That a follower has an obligation to correct the leader in these instances.
See also Baghi (rebellion) in chapter 5. Article 33 of the Rome Statute. Article 51 UN Charter. Article 24(1) UN Charter.
For example, Security Council, UN Security Council Resolution 678, 29 Noiiember 1990, (1990) <http://daccess-dds-
ny.un.org/ doc/ RESOLUTION / GEN/ NRO/ 575/ 28/ IMG / NR057528.pdf?OpenEle ment> at 15 February 2010.
UN Security Council, Security Council Decides States, Regional Organizations May Use 'All Necessary Means' To Fight Piracy Off Somalia Coast For 12-Month Period, Resolution 1846 (2008) Adopted Unanimously; Security Council S C /9514 2 December 2008 (2008)
<h ttp ://w w w .u n .o rg /N e w s/P re ss/docs/2008/sc9514.doc.htm> at 15 February 2010. See generally Gordon Prather, Use all necessary means (2002)
<http://www.wnd.com/news/article.asp?ARTICLE_ID=29189> at 15 February 2010. for the implication for the use of force, for a Resolutions not containing this specific formula.
C hapter 2 - 8 4 (a) hostilities can be initiated
(b) hostilities may continue and
(c) when hostilities may or may not cease.
The law surrounding these three particular exigencies, particularly (a) is now considered as an ius ad bellum issue. Issues (b) and (c) are considered in the discussion of ius in hello in chapter 3
(a) Reasons for which hostilities may be initiated
According to Cottier the only legitimate use of armed warfare under
international law is to weaken the military force of the enemy,256 but makes no mention of the reasons for which these armed attacks may be
undertaken in the first place, and therefore, even with the Charter
constraints,257 prima facie more permissive than the enumerated reasons for engaging in armed djihad. The validity or otherwise of this statement is now examined.
The Qur'an mentions four forbidden or sacred lunar months during which Muslims may not commence hostilities.258 The jurisprudence on Muslims fighting in the prohibited periods is quite settled and it is certain that armed conflict initiated during these prohibited times cannot prima facie qualify as djihad. Fighting in defence is not explicitly prohibited and would in any event be permitted for necessity.
Historically, some 'legitimate reasons' 'necessitating' armed djihad
have included self-defence, the protection of the faith and the dignity of the Muslims, but only when they possessed an effective fighting force, as alternately, armed action would humiliate Muslims.259 The measure of efficacy with respect to djihad is arguably the degree of success of the action taken to right a wrong.260
256
257
258
259 260
Michael Cottier, 'Article 8 Part 2. Jurisdiction, admissibility and applicable law1 in O Tiffterer (ed) Commentanj on the Rome Statute of the International Criminal Court,
(1999) 173,199.
Articles 2(4) and 51 of the UN Charter limit the scope of the legitimate use of force under international law.
Qur'an 9:5; Qur'an 9:36. The Qur'an nominates four sacred months which are (the lunar months of) Zul-qa'dah, Zul-hijjah, Muharram, and Rajah.
Michael Cook, Forbidding Wrong in Islam (2003), 55. Ibid.
Chapter 2 —85
The Qur'an permits fighting in verses 22:39-40,261 reproduced below and contains the conditions under which fighting can commence.
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. (They are) those who have been expelled from their homes in defiance of right (for no cause) except that they say "Our Lord is God." Did not God check one set of people by means of another there would surely have been pulled down monasteries churches synagogues and mosques in which the name of God is commemorated in abundant measure.
While the 'start' of, or the aggressor in, a conflict is not always easy to identify with any degree of certainty,262 the right of all parties to self- defence is recognised under the shari'a as it is under international law.263 Thus notwithstanding the proposition under the UN Charter that the use of force is only really lawful for States in the case of self-defence, this has not stopped the many wars raging around the globe. Analogously the Qur'anic prohibition on the use of force other than in defence has not been strictly observed by Muslims. Nonetheless, the notion that w ar is reserved for defence and is a last resort is uncontested. It is a moral and legal aspiration codified in the Qur'an, and predates the UN Charter.
Notwithstanding the 'law', and for tire practical use of force by the USA against al-Qa'eda, and perhaps not entirely unreasonably, al-Qa'eda believed that it was entitled to attack US military interests (everywhere) in self-defence. 264 The question of whether al-Qa'eda's attacks or for that matter tire US's attacks were in 'self defence' is a question of fact. Al-Qa'eda legitimises its attacks against the US military on the Arabian Peninsula, where in al-Qa'eda's view,263 Muslim sovereignty was 'usurped' through the US's support for the 'heretical' Saudi monarchy.266 On the other hand,
261 262 263 264 265 266
Qur'an 22:39-40 (emphasis added).
Michael Wood, 'Necessite et Legitime Defense dans la lutte contre le terrorisme: Quelle est la Pertinence de l'Affaire de la Caroline Aujourd'hui? N'a pas de loi? 1 (Paper presented at the Colloque en Grenoble: la necessite en droit international, Grenoble 2007) 286.
Article 51 of the UN Charter.
Peter Bergen, Holy War, Inc. : Inside the Secret World of Osama bin Laden (2001), 105.
Yaroslav Trofimov, The Siege of Mecca: The Forgotten Uprising in Islam's Holiest Shrine (2007), 54.)
While the issue of the blanket legitimacy of fighting non-Muslims on the Arabian Peninsula is not absolutely settled it clearly depends on the factual situation surrounding each attack. There is prima facie shari'a legitimacy of such attacks in al-Qa'eda's view, arguably based on Qur'an 2:191:
Chapter 2 —86
the shari'a recognises the US's reciprocal right to fight al-Qa'eda
everywhere. The fact that the US has the far greater capacity to achieve its strategic goals, while al-Qa'eda may not, is on principle a secondary issue, although each party m ust be presum ed to know its protagonist's relative strengths and the consequences that can flow.267
Pre-conditions for armed djihad
If hostilities are likely to commence, there is an unanimous opinion that non-Muslims m ust first be invited to Islam, thus, if they accept Islam, presumably preventing w ar between the two 'Muslim' parties. In satisfying this first element the al-Qa'eda-World Islamic Front, through bin Laden, invited President Bush and through him the US-Coalition to Islam.268 Note however, that that the 'disbelief' of the other party, in the absence of
molestation, oppression or persecution of Muslims or others,269 is not a ground
for commencing an armed djihad. This thesis argues that Anglophone Western States are not oppressive towards its Muslim citizens, although their treatment of aliens generally is not included in this analysis. Secondly, Muslims must invite the enemy into a treaty relationship before actual fighting commences 270 In the current war against terror, this step may not be necessary because the Coalition has rejected this option.271
267
268
269
270
271
And slay them wherever ye catch them and turn them out from where they have turned you out; [...]
This issue is discussed further below when al-Qa'eda's attacks on the WTC in New York are considered. See text accompanying n .
For example: Heba Kandil, Qaeda urges Bush, non-Muslims to embrace Islam: video
(2006) <http:/ / www.swissinfo.org/eng/swissinfo.html?siteSect=43&sid=7029989> at 15 June 2006. The report (ibid.) stated that al-Qa'eda's message was delivered by 'an American convert named Adam Yahiye Gadahn and [al-Qa'eda's second in command] Ayman al-Zawahri'. There have been several similar calls by al-Qa'eda and associated Muslim groups.
American Muslims have not as a group complained of systematic oppression on grounds of their faith and the rate of conversion to Islam corroborates this assertion: Mbave Lo, Muslims in America: Race, Politics, and Community Building
(2004), 29. The large numbers of African-American Muslims have complained of systematic oppression and discrimination but the oppression and discrimination predated their conversion to Islam: ibid. In any event there does not appear to be such an appeal from American Muslims to al-Qa'eda nor has al-Qa'eda publicly claimed that it was invited to 'assist the oppressed' in the USA.
Qur'an 17:15; Abu'l Hussain Muslim, Al Jami'us Sahih vol 3 (1972), 943. See also the hadith commencing with the words "When you meet your heathen enemies summon them to three things. [...]', 46 above; and Rudolph Peters, Jihad in Classical and Modem Islam (1996), 37.
C hapter 2 —87
Recall further that armed djihad is a collective duty and thus generally is not obligatory on any particular individual. This obligation however is to be read as follows: that armed djihad is mandatory on every eligible Muslim male who is capable of fighting and remains so until a sufficient number of people, that is, when the number of Muslim soldiers is half that of an evenly matched opposing army,272 have volunteered to satisfy a particular exigency. After this, it appears that there is no religious obligation on any individual to join the djihad though he may do is if he is able and wishes to do so, motivated by a duty to serve God and is
cognisant of the huge reward for this effort. If an insufficient number of people volunteer then every eligible Muslim male is in breach of his Covenant obligation. In cases, if the strength and size of the enemy army are unknown, then the Qur'anic limits of 8:65 may (unlike the
interpretation above) be read in a less literal manner.273
The smaller size of the Muslim army also forces not only the leaders but also individuals to consider all the alternative options to war very carefully. In a very practical sense, however, even when the other shari'a
conditions for fighting are otherwise satisfied, fighting only becomes binding when the Muslims are 'strong enough7 to fig h t274 This criterion is arguably based not only on the number of fighting men (noting that Muslims 'w ho have no armour' 273 are exempt from fighting) but on
whether they have access to weapons comparable to those possessed by the enemy. Contemporary Muslims are militarily much weaker than the US- Coalition or even other middle powers and therefore, even where
migration is not possible for oppressed Muslims,276 objectively, fighting is not mandatory. 272 273 274 275 276 See n 156, 66.
See text accompanying n 156, 66.
Qur'an 2:233; Majid Khadduri, The Islamic Conception of justice (1984), 168. Qur'an 9:92.
Qur'an 4:97 requires Muslims to move away from oppression and is discussed below.
This may not be practical however, given the extent of brutalisation in pogroms such as zakhistki in Chechnya, and other atrocities carried out against Muslim civilian populations: L Ali Khan, A Theory of International Terrorism : Understanding Islamic Militancy (2006), 28. While nothing turns on this point, while some Muslims forcefully point out to injustices faced by Muslims at the hands of others, and while there is Prophetic commands to the contrary: Muhammad Al-Mughirah al-Bukhari,
Chapter 2 —88
The present hostilities in Iraq and Afghanistan, perhaps through a causally linked series of events, arguably resulted from the original Islamist attacks on the US Embassies in East Africa (which al-Qa'eda have not denied) and on the US mainland (although the US's own instrumental use of these attacks for its own political ends is also noted) and consequently have brought more foreign troops into Muslim lands. Since in this context al-Qa'eda arguably provoked the US into invasion,277 it too m ust share blame and liability for the ensuing carnage. On the other hand, it can be argued that previous Western interventions in the Arab world are also a clear factor in the several conflicts, including in the Yemen and Somalia and therefore are also culpable.
Armed djihad and the individual
The question in the case of confronting a much superior military force then becomes: whether there is a countervailing requirement on Muslims to examine 'm eans' of warfare that will help to equalise the significant
military imbalance, such as the 'asymmetric warfare' means adopted by al- Qa'eda and other Islamists. However, while djihad can not be abandoned for mild inconveniences, it cannot on the other hand continue when fighting is criminal, unjust or results in humiliation or in fitna. Between these extremes, in determining whether fighting is 'necessary', there is a grey area urgently needing the attention of jurists as well as the broader Muslim community.
Al-Qa'eda's solution to the problem appears to be by elevating the duty of armed djihad to a mandatory individual duty, next only to the requirement of 'belief in God' . 278 In elevating the armed djihad to this position of pre-eminence in the Islamic faith, al-Qa'eda appears to attem pt to negate the legal 'limit' that armed djihad is not always individually
The Translations of the Meaning ofSahih al-Bukhari vol 3 (1976), 373; Izzeddin Ibrahim and Denys Johnson-Davies, Forty Hadith Qndsi (1991), 82., there is much less attention paid by Muslims as a whole to injustices committed by Muslims against both Muslims and non-Muslims.
Al-Qa'eda has arguably has admitted that it miscalculated the strength of the American response in Afghanistan to the attacks on its own interests, although the language in which this 'admission' is made is unclear,: Bruce Lawrence (ed)
Messages to the World: The Statements of Osama Bin Laden (2005), 150. The word 'provoked' is used in its ordinary sense and not as a legal term of art.
Chapter 2 —89
binding on all Muslims. Al-Qa'eda's position is not supported by this paper. It is not in line with the precedent of the Prophet or his Companions, and it is unlikely that such a fundamental matter would have eluded the Prophet and successive generations for over 1,400 years.
Al-Qa'eda has also adopted practical 'm eans' of counteracting Western technology by brutally and cruelly attacking soft targets. Even if tire 'effectiveness' of these means is conceded, this is clearly not the only
shari'a criterion and must fail on moral and legal criteria. Al-Qa'eda's position and means are unlikely ever to be accepted by Muslim consensus because the elevation of djihad to this new position appears to be usurping the rights of God and the Prophet, and the means of fighting adopted inherently are arbitrary and cruel.
In legitimately fighting injustice, a Covenant obligation (of fighting tire 'near' oppressor or enemy) takes precedence.279 The broader obligation then for an individual Muslim can be characterised in the following terms.