Muslim-majority States are party to the Refugees Convention172 and in
cases even States not party have been generous in hosting a large number
of refugees, asylum seekers and displaced persons over the years.173 Bin
Laden did not claim Convention refugee status; he migrated 'internally'
from what he described as the oppression of Saudi Arabia, to the Sudan,
Afghanistan and then probably to Pakistan.174 In general, some temporary
economic migration appears to take place between Muslim States but
widespread poverty in some States and the general lack of freedom even in
wealthy Muslim States makes political emigration by Muslims to other
Muslim lands unlikely. Migration from Muslim lands to non-Muslims
lands for both political and economic reasons, however, seems significant,
169 170 171 172 173 174
Although (ibid, 176), states the proposition in slight different terms (ie as the 'land of the polytheists' and not as dar al-harb) it characterised as appears here (and without altering its substantive meaning) for consistency.
The concept of a 'minority situation' refers to a contemporary context where Muslims make up a numerical minority and live in a system in which persons other than Muslims make up those in power. Muslims rulers in the past have been rulers even when Muslims were in the minority.
Article 1 A(2) Convention relating to the Status of Refugees, Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950,
<http://w w w .unhcr.org/protect/PROTECTION/3b73bOd63.pdf>. [Accessed 17 July 2007],
For example, Pakistan has hosted about 2 million Afghan refugees. Iran has hosted a similar number of Afghans as well as several hundred thousands Iraqi Kurds and Arabs. In these cases although unclear, it is unlikely that individual refugee determinations were made. It is also unlikely that the legal basis on which asylum- seekers were declared refugees was on the grounds of religious persecution. This 'internal' (ie within the umma) migration is not dissimilar to Ayatollah Khomeini's migration from Iran to Turkey and then to Iraq. Ayatollah Khomeini was however expelled from Iraq and only then did he seek asylum in France, which is permitted in the Shi'i Schools. For bin Laden however, a follower of the Shafi'i or Hanbali Schools, migration outside the umma is not permitted.
Chapter 2 —69
despite the reluctance of some Schools to favour it, and w ould be higher but for the barriers to immigration in the industrialised non-Muslim States.
Given the levels of corruption, the inability to effect peaceful change, the absence of the freedom openly and safely to debate political or religious differences and issues and oppression generally experienced in many Muslim States, means that only either quiescence or rebellion against oppression become the almost inevitable remaining alternatives to
migration, a scenario arguably borne out in practice. Where possible, Islamists sometimes seek to replace governments through both political and revolutionary means.175 On the other hand, al-Qa'eda, which in its view, having failed to effect peaceful change (on the Arabian Peninsula),176 and other such as Le Front Islamique du Salut (FIS) in Algeria or Hamas in the Occupied Territories177 have all escalated the struggle to include the use of force.178 Al-Qa'eda and other groups under its umbrella have also declared
djihad against non-Muslims fighting in Muslim lands,179 and have in some instances extended this call to fighting in non-Muslim lands which prima facie appears to be within the bounds of reciprocity, but, more
problematically, have declared civilians (including women, children and Muslims) as 'legitimate' targets.180
Some of these 'djihadist' Islamist groups and individuals have been proscribed as terrorist organisations inter alia by the UN181 and this
175 176 177 178 179 180 181
Leyla Sahin v Turkey (2004) ECHR 44774/98. Parti Islam in Malaysia is another example of a political party attempting to implement Islamic norms via democratic mechanisms.
Abdul Bari Atwan, The Secret History ofal-Qa'ida (2006), 45.
Indonesia has recently escaped this foreign intervention and has been able to evolve as a free State. Some reasons could be because Indonesian Islam is perceived as being 'moderate' or alternatively Indonesia is too big and complex to control other than by proxy as was arguably done the case of Indonesia under President Suharto.
From an al-Qa'eda’s perspective the nexus with the West is created by the extensive Western support received by the Saudi State.
Abdul Bari Atwan, The Secret History ofal-Qa'ida (2006), 54. It is however, unclear whether Al-Qa'eda (their subsidiaries or the groups they have inspired
domestically in either the UK or Spain.) have attempted political activity with an aim of effecting change. Al-Qa'eda are more likely to assert that the attacks in the US, UK, Spain etc were in response to those countries' involvement in Muslim States.
Ibid, 223.
C h a p te r 2 —70
characterisation coupled with the mantra of 'not negotiating with terrorists/ militates against peaceful or even any meaningful or constructive
engagement.182 Absent other constructive alternatives or the possibility of a clear military victory for one side or the other, this approach is a recipe for continued violence. The question to be examined in some detail in chapter 5, is whether these Islamist non-State groups can, and notwithstanding the characterisation of some as 'terrorists', nonetheless be recognised as legitimate rebels under the shari'a.183
The next step then is to identify both legitimate means of djihad as well as the unlawful means of armed conflict. How the individual use of force falls within this spectrum on a case-by-case basis preferably should be examined by a judicial body competent to do this, an issue examined in chapter 7.
M eth od ology — Conduct of H o stilities
It is now convenient to examine the lead up to and the conduct of hostilities in two parts: ius ad bellum (considered next) and ius in hello (dealt with in the next chapter). The examination of ius ad bellum includes a treatment of the necessary pre-conditions legitimately to declare hostilities. Chapter 3, which considers the ius in hello also identifies the conditions under which these decisions can be effected, which hostilities may continue and when hostilities may cease. There is also a further question of who has legal
<h ttp ://w w w .ag.gov.au/agd/W W W /rw pattach.nsf/V A P / (153683DB7E984D232 14BD871B2AC75E8)~Attachment+A+-+AG_s.PDF/$file/Attachment+A+- +AG_s.PDF>. [5 May 2006],
The US-Coalition must however at some point in time look to other avenues to solve these disputes that are causing huge loss of life. The ABC Radio National presenter Ms Elizabeth Jackson Correspondent's Report Sunday 18 November 2007, interviewed Professor Hugh White on the situation in Iraq, states at her web page:
One of Australia's top defence experts says the United States-led coalition can't win in Iraq or Afghanistan. Professor Hugh White says the coalition will eventually abandon Afghanistan. By contrast he says, the US can't succeed in Iraq, but now it can't escape from the tragedy America has created in the vital Gulf region.
<http://w w w .abc.net.au/correspondents/default.htm > [Accessed 19 November 2007);
On the other hand Professor William Maley, the director of the Asia Pacific College of Diplomacy at the Australian National University in Canberra disagreed with Professor W hite's conclusion vis-ä-vis Afghanistan: ABC Radio AM Programme 24 December 2007 with Ms. Alexandra Kirk
<http://w w w .abc.net.au/am /content/2007/s2126477.htm > [Accessed 24 December 2007],
See n 147, 64. 183
C hapter 2 —71
authority to declare (the commencement of) hostilities and to identify the conditions that govern the making of such declarations. As a part of this overall examination, it will also be necessary to identify the means whereby hostilities may be conducted that are intra vires, or at least not ultra vires, matters that are discussed in chapter 4.
C hapter 2 —72