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JOURNAL OF ISLAM, LAW AND JUDICIARY
VOLUME 1, ISSUE 2
2015, PP- 26-41
ISSN 2411-4936
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The Double Edge Meaning of ‘Fight in the Way of
Allah Those Who Fight You’: Exploring the Jus
ad Bellum and Jus in Bello Implications
Abdulrashid Lawan Haruna1
Abstract: The article examines the rubrics that emerge from the
Quranic provision where Allah the Almighty says ‘[f]ight in the
way of Allah those ‘who fight you’ (Quran al-Baqarah 2:190). The
article discloses that the verse has addressed the two significant
segments of Islamic law of warfare that attract attention,
particularly from the western scholars. Firstly, it analyses the
implication and effect of the verse concerning the jus ad bellum
(law regulating the legality or otherwise of a war) aspect of Islamic
law of warfare. It posits that the verse has demonstrated the nature
of the obligation and permission to engage in defensive war without
prejudice to war of aggression. Secondly, the article analyses the
jus in bello (law regulating conduct of belligerents in hostilities)
implication of the verse and it postulates that the verse has
established the obligatory nature of civilian immunity in time of
armed conflicts. It further reveals that civilian protection during
armed conflicts is a paramount and significant aspect of Islamic law
of warfare which Muslims are obliged to observe. In order to
critically evaluate the crux of the verse, other relevant verses of the
Quran, ahadith of the Prophet (PBUH) and commands of the rightly
guided caliphs are put in perspective with a view to giving effective
understanding of the two aspect of the law (jus ad bellum and jus ad
bello). The article recommended that in the light of the modern
trend in international relations, it is only a defensive war sanctioned
by al-Baqarah 2:190 that is practicable and that protection of
civilians and civilian objects in time of armed conflicts which
emerged from the verse should be considered as a religious
obligation upon the Muslims.
1
PhD. Researcher, Ahmad Ibrahim Kulliyyah of Law (AIKOL), International Islamic
University Malaysia (IIUM); Lecturer, Faculty of Law University of Maiduguri, Nigeria;
Email: [email protected]
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JOURNAL OF ISLAM, LAW AND JUDICIARY: 1(2), 2015
Key words: Defensive; Civilians Protection; Principle of
Distinction; Armed Conflict; Islamic Law
Introduction
The authority for the permission to engage in defensive war and the
obligation to distinguish combatants from civilians in a war is
rooted in the provision of the Quran al-Baqarah where Allah says:
‘Fight in the way of Allah those who fight you but do not
transgress. Indeed, Allah does not like transgressors.’1 The exegesis
of this verse discloses that the phrase ‘fight in the way of Allah
those who fight’ is capable of carrying two accurate but different
meanings. Firstly, it is a justification for fighting a defensive war as
it permits fighting only when you are fought (jus ad bellum aspect
of the phrase). Secondly, it refers to permission to fight the
combatants who fight you and not those who do not fight you as
well as to avoid transgression of the limits set by Allah (jus in bello
aspect of the phrase). The latter meaning shows that Muslim
soldiers are only allowed to fight combatants alone, while civilians
and civilian objects should not be made the objects of attacks.
The verse further shows that Islamic law of warfare unlike
its conventional counterpart did not actually separate between jus
ad bellum (law regulating the legality or illegality of engaging in
war) and jus in bello (law regulating the actual conduct of
belligerents in war) in its ideals of warfare regulation.2 Islamic law
emphasises that a war should be just and the means of prosecuting
it must also be in line with the regulations set by the law.3 In
essence, a war need not only be justum, but it equally has to be
pium which means it has to be in line with the legally prescribed
rubrics of the religion.4
It is important to mention that there are contending views
concerning whether the saying of the Almighty Allah: ‘Fight in the
way of Allah those who fight you but do not transgress. Indeed,
Allah does not like transgressors’ has been abrogated by other
verses of the Quran. According to one view, the verse has been
abrogated by the provisions of verses 5 and 36 of surah at-Tawba.
Where Allah says: “And when the sacred months have passed, then
kill the polytheists wherever you find them and capture them and
1
Quran al-Baqarah 2:190
‘Siyar (Islamic International Law) A Teaching and Learning Manual’ Javaid Rehman,
(2011) UKCLE, at 59
3
Ibid; ‘The Challenge of Fragmentation of International Humanitarian Law Regarding the
Protection of Civilians-An Islamic Perspective’ Anicée Van Engeland-Nourai,
<http://www.springer.com/law/international/book/978-90-6704-312-0 > viewed on 12
October 2013
4
‘“Non-Combatants” in Muslim Legal Thought’ Ella Landau-Tasseron, Series No. 1, Paper
No.3 (December2006) Center on Islam, Democracy, and the Future of the Muslim World,
Hudson Institute, at 1enter on Islam,
2
MEANING OF ‘FIGHT IN THE WAY OF ALLAH’ /HARUNA
28
besiege them and sit in wait for them at every place of ambush. But
if they should repent, establish prayer, and give zakkah, let them
[go] on their way. Indeed, Allah is Forgiving and Merciful.”1 The
second verse where Allah says: “… And fight against the
disbelievers collectively as they fight against you collectively. And
know that Allah is with the righteous [who fear Him].” 2 While
according to the other view, the verse has not been abrogated by the
aforementioned verses. Accordingly, the provisions of verse 5 and
36 of at-Tawba refer to fighting the infidels who have breached
their pact with the Muslim state. The majority of scholars believed
that the provision of al-Baqarah 2 verse 190 has not been
abrogated.3 This paper equally reiterates that the verse has not been
abrogated and it stands to establish two significant principles of
Islamic law of warfare.
Therefore, it is against this background that the article starts
by discussing the concept of war in Islamic law of warfare so that it
will serve as a general background for our discussion. The article
discusses the jus ad bellum perspective of the Quranic verse that
forms part of the crux of our paper. It further attempts to rationalize
and juxtapose the jus ad bellum aspect of the verse vis-à-vis the
modern trend in international relations. The article goes further to
consider the jus in bello perspective of the verse which is believed
to be the basis for the obligation to distinguish between combatants
and non-combatants in course of fighting. It ends with conclusion
and recommendations.
The Background of War in Islamic law of Warfare
The term ‘war’ has been used synonymously with the Arabic word
‘Jihād’ in Islamic law. The etymology of the term ‘Jihād’ is derived
from the Arabic verb ‘jāhada’ which can be described as exertion
of effort or striving hard to achieve a particular objective.4 Striving
hard to achieve a goal can be done by either act of commission or
omission, or both, which can also be a spiritual or moral duty,
rather than just a mere commitment to act military expedition.5 The
Prophet (PBUH) has stated in several ahadith different acts that
constitute Jihad within the Islamic jurisprudence. For instance,
speaking the truth in the sight of a traitor is described as one of the
1
Quran at-Tawba 9 Verse 5
Quran at-Tawba 9 Verse 36
3
‘The Protection of Civilians in War: The Non-Combatant Immunity in Islamic Law’
Muhammad Munir, (September 2011), at 6
<http://works.bepress.com/muhammad_munir/13> viewed on 12 April 2013
4
‘Jihad in Islam’, Mohammed Ahmad, (October-December 2004), The Light, at 13;
‘Martyrdom, Suicide, and the Islamic Law of War: A Short Legal History’, Bernard K.
Freamon, vol. 27 (2003) Fordham International Law Journal, at 301
5
‘Interpreting the Islam Jihad: Malitarism Versus Muslim Pacifism’ R. Paul Churchill,
(March 1991) The Acorn, at 20; ‘Women in Jihad: A Question of Honour, Pride and SelfDefence’ Magdalena Martinez Almira, vol. 1, No. 1 (2011) World Journal of Islamic History
and Civilization, at 27
2
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JOURNAL OF ISLAM, LAW AND JUDICIARY: 1(2), 2015
greatest Jihad. The Prophet is reported to have said the “best form
of Jihad is to speak the truth in the face of an oppressive ruler.”1 In
another hadith, the Prophet (PBUH) has stated four categories of
Jihad that a Muslim can perform- by faith in his heart, by
“preaching and proselytizing with his tongue,” by “good deeds with
his hands” and by “confronting unbelievers or enemies with the
sword” and the latter is considered the inferior Jihad.2 Thus, selfexertion of an individual during peaceful period against evil deeds
and his personal endeavor to comply with the injunctions of Islam
constitute one of the major or superior forms of Jihad.3 Therefore,
from the context of Islamic Jurisprudence, Jihad is defined as
“exertion of one’s power to the utmost of one’s capacity.”4
However, when one considers Jihad from a violent
perspective, one will realized that Jihad is fundamental to the
Muslim perception of the division of the world into dar Islam
(abode of Islam) and dar al harb (abode of war).5 Accordingly, dar
al Islam is considered as a nation that has Islamic norms and
practice in place, and it is administered based on Islamic law and
customs.6 On the other hand, dar al harb is simply referring to a
state that is not practicing Islam and is not control by dictates of
Islamic law.7 Thus, the dar al harb is a state which is considered to
be in a state of permanent war with dar al Islam, consequently,
Muslims must strive hard to conquer and make it part of dar al
Islam.8 In the words of Heck, it has to be done to the extent of
“privileging Islam over other religions and the interests of Muslims
over non-Muslims within the socio-political order.”9
It is significant to understand that the division of the world
into dar al Islam and dar al harb by the scholars was not
dissociated with the international relations that were practiced in
Arabia, where relations were determined by war as the instrument
1
‘The Concept of Jihad in Islamic International Law’ Shaheen Sardar Ali and Javaid
Rehman, (2005) Journal of Conflict & Security Law, at 10; See Governance of the Jurist
(Velayat-e Faqeeh) Imam Khomeini, Translated by Hamid Algar, Tehran: The Institute for
Compilation and Publication of Imam Khomeini’s Works, n.d., at 66
2
Sahih Bukhari, Book 2, vol. 52, Hadith 248
3
Abu Dawud, (Kitab al-Jihad) Book 14, Hadith 2498
4
‘As-Salamu Alaykum? Humanitarian Law in Islamic Jurisprudence’ Karima Bennoune, 15
(Winter 1994) Mich. J. Int'l L. at 615; Is Jihād a Just War? War,Peace, and Human Rights
Under Islamic and Public International Law, Hilmi M. Zawati, Lewiston: Edwin Mellen
Press, 2001) at 13
5
‘A Reviewed of Is Jihād a Just War? War, Peace and Human Rights under Islamic and
Public International Law by Hilmi M. Zawati’ M. Cherif Bassiouni, vol. 96, No. 4, (Oct.,
2002), The American Journal of International Law, at 1001
6
Ibid
7
Islamic Diplomatic Law and International Diplomatic Law: A Quest for Compatibility,
Muhammad-Basheer Adisa Ismail, Ph.D. Thesis: University of Hull, 2012, at 325-328
8
Ibid
9
‘Jihad Revisited’ Paul L. Heck, vol.32, No. 1 (2004) Journal of Religious Ethics, at 96
MEANING OF ‘FIGHT IN THE WAY OF ALLAH’ /HARUNA
30
of international relations.1 During that period, Arabia and its
surroundings were concerned with the ‘state of war’ that existed
between the various clans and tribes which was the true reflection
of the then realities of brutal Arabian Peninsula.2 This was
illustrated in several provisions of the Quran. For instance, Allah
says “[a]nd remember when you were a small, marginalized group
in the land, living in fear that the people would snatch you away
…”3 and the other verse says “[i]f we follow the guidance with you
we shall be snatched from our land.”4 Likewise, in another verse
Allah says “[d]o they not see that We established a safe haven
while people all around them were being snatched away?”5
Therefore, at the earlier stage of Islam, Arabia was characterized by
clannish violence and nations were threatened with high risk of
invasion as a result of the ‘state of war’ that existed among nations.
In addition, the description dar al harb in the modern
context can simply mean that a particular state that does not have
treaty relation with Muslim countries.6 This does not connote that
hostilities may erupt at any time between the two nations, as there
is opportunity for initiating and negotiating treaty relation with such
a country.7 Meanwhile, for states that have a treaty relation with
Muslim countries and they are not dar al Islam, such states are
recognised as abode of treaty (dar al ahd) or abode of
reconciliation (dar al sulh).8 This means that notwithstanding the
1
Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law,
Abdullahi Ahmad An-Na’im, Syracuse: Syracuse Universitsy Press, 1996, at 142; ‘Islam, the
Law of War, and the U.S. Soldier’ Manuel E. F. Supervielle, vol. 21 (2005 )AM. U. INT'L L.
REV, at 205
2
‘Jihad and the Modern World’ Sherman A. Jackson, vol.7, No. 1 (2002) Journal of Islamic
Law and Culture, at 12. It is important to point out that Islam is a religion of peace and has
accorded high respect for sanctity of human life. No life should be taken except with just
cause, Allah says: ‘[….]And do not kill the soul which Allah has forbidden [to be killed]
except by [legal] right [….]’ Quran al-An’am 6: 151. Any person who intentionally kills a
human being without justification is as good as he killed the whole ummah. In Surah alMa’ida Allah says: ‘[….] whoever kills a soul unless for a soul228 or for corruption [done] in
the land229 – it is as if he had slain mankind entirely. And whoever saves one230 – it is as if
he had saved mankind entirely. And Our messengers had certainly come to them with clear
proofs. Then indeed many of them, [even] after that, throughout the land, were
transgressors.’ Quran al-Ma’ida 5:32
3
Quran Al-Anfal 8:26
4
Quran al-Qasas 28:57. Other verses of the Quran further refer to the insecurity and threat,
and the danger involved in staying in Arabian Peninsula in those days. Quran says: ‘Let
them, then, worship the Lord of this House, Who banished their hunger with food and their
fear with security’, Quran al-Quraysh 106:2-4. In yet another verse, Quran says: ‘Surely all
the people have lined up against you so fear them.’ Quran al ‘Imran 3:173)
5
Quran al-‘Ankabut 29:67
6
‘Islam and the Modern Law of Nations’ Majid Khadduri, vol.50 (1956) The American
Journal of International Law, at 360; Brek Batley, ‘The Justifications for Jihad, War and
Revolution in Islam’ (June 2003) Working Paper No. 375 , Canberra, at 3-4; Jihad and the
Islamic Law of War, The Royal Aal al-Bayt Institute for Islamic Thought, Jordan: The Royal
Aal al-Bayt Institute for Islamic Thought, 2007, at 26 (hereinafter ‘Institute for Islamic
Thought’)
7
Ibid; Human Rights in Islamic Law, Ibrahim Abdullah Al-Marzouqi, n.p, 2005, at 107-108
8
Jihad and the Islamic Law of War, Institute for Islamic Thought, at 26
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fact that a country is not govern by Islamic law, it can still be in
friendly relationship with a Muslim nation provided that the
relationship is bounded by a treaty.1
The Jus ad bellum Perspective
From the foregoing discussion above, it necessarily follows that
Jihad can be waged in form of violent Jihad which can take the
form of defence of an Islamic state territory or it can equally be
waged for the purpose of propagating the religion of Islam (war of
aggression).2 However, the verse which is the subject of our
discussion states as follows: ‘Fight in the way of Allah those who
fight you’. This has been interpreted to mean a justification for
fighting a defensive war as it permits fighting only when you are
fought (jus ad bellum aspect of the phrase). Muslim jurists such as
Maliki, Hanafi and Hambali are of the view that Jihad can only be
waged in the defence of an Islamic state against an invasion or
against persecution of Muslims that based on their eligious belief.3
The jurists supported their opinion with the Quranic provision
‘[f]ight in the way of Allah those who fight you but do not
transgress. Indeed, Allah does not like transgressors.”4
In order to further establish the jus ad bellum character of
the verse, particularly with respect to defensive war, the Jurists
have elicited their argument by citing Quranic verses where Allah
says “[a]nd what is [the matter] with you that you fight not in the
cause of Allah and [for] the oppressed among men, women, and
children….”5 and “[p]ermission [to fight] has been given to those
who are being fought, because they were wronged.”6 In addition,
they go further to buttress that Allah says:
“Fight them until there is no [more] fitnah and [until]
religion [i.e., worship] is [acknowledged to be] for Allah.
But if they cease, then there is to be no aggression [i.e.,
assault] except against the oppressors.”7
1
‘Islamic Views on International Law’ Maurits Berger, in Culture and International Law,
edited by P. Meerts, Hague: Hague Academic Coalition, 2008, at 107-108
2
Jihad in Islamic History Doctrines and Practice, Michael Bonner, Princeton: Princeton
University Press, 2006, at 12
3
War in Islamic law; Justifications and Regulations , Ahmed Mohsen Al-Dawoody, A.M.,
Ph.D. Thesis: University of Birmingham, 2009, at 133. Sufyan al-Thawrı equally shares the
view that Jihad can only be fought in a defensive manner. See ‘The Idea of the Jihad in
Islam before the Crusades’ Roy Parviz Mottahedeh and Ridwan al-Sayyid, in The Crusades
from the Perspective of Byzantium and the Muslim World, edited by Angeliki E. Laiou and
Roy Parviz Mottahedeh, Washington: Dumbarton Oaks, 2001, at 26
4
Quran al-Baqarah 2: 190
5
Quran an-Nisa 4:75
6
Quran al-Hajj 22:39. The subsequent verse also provides that: ‘[They are] those who have
been evicted from their homes without right – only because they say, "Our Lord is Allah."
Quran al-Hajj 22:40
7
Quran al-Baqarah 2: 193
MEANING OF ‘FIGHT IN THE WAY OF ALLAH’ /HARUNA
32
Thus, from the aforementioned verses, Muslims are permitted to
fight back only those engaged in fighting them, persecuting or
oppressing them, but they should not be the aggressors.1 Based on
this assertion, it is incumbent on Muslims to defend the ummah
against oppressors which by implication covers the case of
Palestine who have been deprived of their wealth, exiled from their
homes and denied their land.2
Thus, the defensive war rubric of the phrase ‘fight in the
way of Allah those who fight you’ has enjoyed support from
various scholars and it has been supported by other verses of the
Quran. It is “arguably the only kind of war permitted by Islamic
law and is described in the classical sources as an important variety
of the religious obligation of jihad.”3 To further stress the jus ad
bellum rule that emerged from the verse, jurists have made a
counter to those who opine that aggressive war is also permitted for
the sake of propagating Islam. They assert that Islam has prohibited
compulsion in religion. The Almighty Allah says “[t]here shall be
no compulsion in [acceptance of] the religion.”4 As such, “Islam
neither justifies an aggressive war nor does it make destruction of
crops, animals, home etc., an objective of war.”5 Thus violent jihad
can only be used in defence or for the purpose of establishing peace
and justice in case of oppression.6
1
‘The Concept and Practice of Jihad in Islam’ Michael G. Knapp, vol. 33, No. 1 (Quarterly,
Spring 2003), Parameters US Army War College, at 85
2
‘Is there an Islamic Ethic of Humanitarian Intervention’ Sohail H. Hashim, in Just
Intervention edited by Anthony F. Lang, Washington: Georgetown University Press, 2003, at
69-70; Martyrdom, Suicide, and the Islamic Law of War: A Short Legal History, Bernard, at
300-301. See ‘The Psychological Asymmetry of Islamist Warfare’ Irwin J. Mansdorf and
Mordechai Kedar, vol. XV, No. 2 (SPRING 2008) Middle East Quarterly; Michael, The
Concept and Practice of Jihad in Islam, at 86
3
Martyrdom, Suicide, and the Islamic Law of War: A Short Legal History, Bernard, at 300301. See also Abul A’la Maududi, Jihad in Islam, Beirut: The Holy Quran Publishing House,
2006
4
Quran al-Baqarah 2:256. Additionally, in surah al-Kafirun 109: 1-6 clearly shows that
there is no compulsion in joining the religion of Islam. Abdullah ibn Abbas narrated that
“when the children of a woman (in pre-Islamic days) did not survive, she took a vow on
herself that if her child survives, she would convert it a Jew. When Banu an-Nadir were
expelled (from Arabia), there were some children of the Ansar (Helpers) among them. They
said: We shall not leave our children. So Allah the Exalted revealed; "Let there be no
compulsion in religion. Truth stands out clear from error.” Abu Dawud, (Kitab al-Jihad)
Book 14, Hadith 2676. Another hadith narrated by Abu Huraira stipulates that the Prophet
(PBUH) states that ‘I have been ordered to fight against the people until they say: There is no
God but God’. The interpretation given to the people referred to by the Prophet in the hadith
was said to mean only Arab idolaters while Maliki said refers to only Quraysh. Sahih
Bukhari, Book 4, vol. 52, Hadith No. 196. Additionally, Quran al-Kafirun 109: 1-6 clearly
shows that there is no compulsion in joining a religion.
5
Islam in Focus, Hammudah Abdalati, Egypt: Dar Al-Manarah, 2007, at 174
6
‘Islam and Terrorism’ Zakir Naik, at 3 <www.admireislam.com/Islam/IslamTerrorism.pdf <
viewed on 12 December 2013
33
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Jihad in the Context of Modern International Relations
Having established that defensive war enjoys support from the
provision of Quran al-Bakara verse 190 and other similar
provision, the pressing question, is how could Jihad be prosecuted
in the light of modern international relations? In response to this
pertinent question, it is practicable to assert that defensive war
against the invasion of Islamic territory is permissible within the
context of modern international relations.1 That will be in line with
the realities of the contemporary World Order where the territorial
integrity and sovereignty of states are made sacrosanct and
inviolable.2 More importantly, the United Nations (UN) Charter has
made a clear prohibition regarding interference with the sovereignty
of independent states3 and forbidden the use of force among the
member nations.4 It is significant to note that Muslim states are
parties to the UN Charter which means they consented to the
objectives of the Charter.5 As such, it can be asserted that this New
World Order has created a permanent state of peace. According to
Sherman, ‘‘state of war’ has given way in modern times to a global
‘state of peace’ that rejects the unwarranted violation of the
territorial sovereignty of all nations.’6 It follows therefore that
Muslim states around the globe are presumably in a state of peace
with all other nations and consequently, defensive Jihad can be
waged to defend Islamic territory or defence of the oppress
Muslims and not otherwise.7 In other words, Jihad of aggression
will certainly be difficult or impossible to prosecute as Muslim
nations cannot exist in seclusion of the rest of the other world.8
At this juncture, it is important to note that a critical
appraisal of the current practice by the so called super powers
regarding the treatment of the Muslim states, as well as the exercise
of veto power by the Security Council members, certainly give a
1
Article 51 (2), United Nations Charter, 1945, 1031 UNTS at 993(hereinafter ‘United
Nations Charter’)
2
Principles of International Law A Modern Approach, Mohammad Naqib Ishan Jan,
Malaysia: IIUM Press, 2011 at 403-405
3
Article 2 (1) United Nations Charter. The Charter does not expressly provides for nonintervention as it has become a customary international law principle reiterated in the
Nicaragua’s case where the International Court of Justice (ICJ) states that ‘it was never
intended that the Charter should embody written confirmation of every essential principle of
international law.’ See generally on the use of force in international, The Use of Force in
International Law, Mohammad Naqib Ishan Jan, Malaysia: MCLJ, 2011
4
Article 2 (4), United Nations Charter
5
‘Saving and Taking Life in War: Three Modern Muslim Views’ Sohail H. Hashimi vol.
LXXXIX, No. 2 (April 1999) The Muslim World, at 158
6
Jihad and the Modern World, Sherman, at 20
7
Introduction to Know Islam, Yusuf Al-Qaradawy, Lagos: Al-Waseelat Publishers, 1995, at
281
8
Article 2 (6), United Nations Charter. This Article provides that the whole United Nations
States should ensure that even states who are not members comply with the provisions of the
Charter in order to maintain international peace and security.
MEANING OF ‘FIGHT IN THE WAY OF ALLAH’ /HARUNA
34
different equation.1 For instance, recent events such as the United
States (and allied) arbitrary invasion of Iraq and Afghanistan, ‘the
1999 bombing of Sudan’, the unending threat on ‘Iran nuclear
program’ and the negative attitude of the super powers on the Israel
persisting expansion of the ‘Occupied Palestinian Territory’.2 It is
coherent to conclude that notwithstanding the existence of the UN
Charter, certain countries have shown aggression to the Muslim
world and they enjoy impunity for the aggression. Therefore, the
practice at the international level casts much doubt in the
confidence of Muslims concerning the presume state of peace
envisaged or established by the UN Charter, which more or less
merely revives the permanent ‘state of war’ in a different disguise.3
The Jus in Bello Aspect of ‘Fight in the Way of Allah Those
Who Fight You’
The saying of the Almighty Allah: ‘Fight in the way of Allah those
who fight you but do not transgress. Indeed, Allah does not like
transgressors’ has equally been given the meaning of permission to
fight the combatants who fight you and not those who do not fight
you as well as to avoid transgression of the limits set by Allah (jus
in bello aspect of the phrase).4 Thus, it establishes one of the
1
‘The United Nations Security Council: Its Veto Power and Its Reform’ Sahar Okhovat,
(December 2011) CPACS Working Paper No. 15/1, University of Sydney, at 31. Generally
on how Muslims were treated by other empires and powers, see The Politicization of Islam:
Reconstructing Identity, State, Faith, and Community in the Late Ottoman State, Kemal H.
Karpat, Oxford: Oxford University Press, 2001
2
Jihad and the Modern World, Sherman, at 24. See generally on these international politics
affecting Muslims nations: ‘Picturing America’s ‘War on Terrorism’ in Afghanistan and Iraq:
Photographic Motifs as News Frames’ Michael Griffin, vol. 5, No. 4 (2004) Journalism;
‘Troop Levels in the Afghan and Iraq Wars, FY2001-FY2012: Cost and Other Potential
Issues’ Amy Belasco, (2009) Congressional Research Service, <www.crs.gov> viewed on
25 December 2013; ‘The American Invasion of Iraq: Causes and Consequences’ Raymond
Hinnebusch, (Spring 2007) Perceptions; Sudan, Oil, and Human Rights, Human Rights
Watch, Brussels: Human Rights Watch, 2003; ‘Israel: Possible Military Strike Against Iran’s
Nuclear Facilities’ Jim Zanotti,
(September
2012) Congressional Research
Service,<www.crs.gov> viewed 20 December 2013; ‘Responding to a Nuclear Iran’
Christopher Hemmer, (Autumn 2007) Parameter US Army War College; ‘Analyzing the
Impact of Preventive Strikes Against Iran’s Nuclear Facilities’ Anthony H. Cordesman and
Abdullah Toukan, (2012) Center for Strategic and International Studies<
www.csis.org/burke/reports> viewed 20 December 2013; ‘Security Council Reform: A New
Veto for a New Century?’ Jan Wouters and Tom Ruys, (August 2005) Royal Institute for
International Relations (IRRI-KIIB) Brussels,
3
Ibid. It should be noted that the United Nations (UN) Charter has given exceptional situation
where resort to use of force may be lawful as contained in Article 51 (2) and Chapter VII of
the UN charter. However, the aforementioned cases of aggression against Muslim states have
not been within the legal framework of the exceptions envisaged in Article 51 (2) and
Chapter VII of the UN Charter.
4
According to ibn Kathir’s exegesis, Al-Basri has interpreted transgression in line with rules
of warfare. According to him, it includes scenarios of ‘mutilating the dead’, stealing from the
booty, ‘killing children’, women, and the old who do not take part in hostilities, killing
priests and residents of synagogues, burning palm trees and killing animals without just
cause. Tafseer Ibn Kathir, Abridged by a Group of Scholars Under the Supervision of AlMubarakpuri, S.S., vol.1, 1st Edition, Riyadh: Darussalam Publishers and Distributors, 2000,
at 527-8
35
JOURNAL OF ISLAM, LAW AND JUDICIARY: 1(2), 2015
significant principles of humanity in warfare, which accords
protection to civilians and civilian objects in time of armed
hostilities.1 The jus in bello rubric that emerged from the verse is
centred on the Islamic humanitarian norm that requires belligerents
to distinguish between combatants and civilians as well as between
military objectives and civilian objects in their military operations.2
This follows the sanctity Islam attached to civilians and their
objects in time of hostilities, which is rooted in the believed that
they are harmless category of persons and objects.3 Consequently,
they deserve special protection from the effects and dangers of
hostilities.
To support the jus in bello aspect of the verse, the Prophet
(PBUH) is reported to have said ‘fight in the name of Allah and by
Allah, and as to the creed of the messenger of Allah. Do not kill an
old man, nor a young child, or a woman. Do not grudge, and gather
your spoils and do good deeds and be benevolent.’4 In yet another
hadith, the Prophet saw a slain woman who was obviously not
engaged in fighting and the Prophet asked why she was killed.5 The
Prophet (PBUH) was told that it was Khalid that slain the woman
and the Prophet (PBUH) immediately ordered that women and
children should be protected. Thus, Muslim scholars deduced from
the hadith a ruling that civilians who do not engaged in fighting
must not be killed.6 In another hadith, the Prophet frowned at the
retaliation made by some Muslims against the infidels by killing
many children. The Prophet furiously said ‘why is it that some
1
‘“Non-Combatants” in Muslim Legal Thought’ Ella, at 1
‘The Double-Edged Sword: Religious Influences on International Humanitarian Law’
Carolyn Evans, vol. 6 (2005) Melbourne Journal of International Law, at 13; ‘Is War Ever
Justifiable? A Comparative Survey’ Roda Mushkat, vol. 9 (1987) Loy. L.A. Int'l & Comp. L.
Rev., at 310; ‘The Protection of Civilians in War: The Non-Combatant Immunity in Islamic
Law’ Muhammad Munir, at 6
3
Maliki Law, Being a Summary from French Translations of the Mukhtasar of Sidi Khalid,
Ruxton, F.H, Cairo: El-Nahar Press, 2004, at 74; The Royal Aal al-Bayt Institute for Islamic
Thought, The Amman Message, Jordan: The Royal Aal al-Bayt Institute for Islamic Thought,
2008, at 9
4
Al-Muwatta of Imam Malik Ibn. Anas, Translated by Aisha Abdurrahman Bewley,
Scotland :Madinah Press Inverness, 2001, Jihad, Hadith No. 11, at 174 ; Sayyid Sabiq, Fiqh
Us-Sunnah by the Doctrinal Writings of the Holy Prophet, Translated by Matraji, F.A.Z.,
Vol. IV, Beirut: Dar El Fikr, 1996, at 53; Abu Dawud, (Kitab al-Jihad) Book 14, Hadith 2608
5
Bulug Al-Maram Min Adillat Al-Ahkam, Attainment of the Objective in Conformity With
Evidence of the Legal Judgment, Aduly, M., Translated by Hibah, G.A., Lebanon: Dar AlKotob Al-Ilmiyah, 2008, at 418; Al-Muwatta of Imam Malik Ibn. Anas, Jihad, Hadith No. 9,
at 174; The Muwatta of Iman Muhammad, in the Narration of Imam Muhammad Ibn. AlHasan ash-Shaybani, Pakistan: Darul Ishaat, 2005, Hadith 867, at 381 ; Sahih Muslim, (Kitab
al-Jihad Wa’l Siyar) Book19, Hadith 4319 and 4320
6
Ibid. See ‘Humanitarianism and the Muslim World’ Masood Hyder, (2007) Journal of
Humanitarian Assistance, at 33; Masood, n. at 33; ‘Islam and the distinction between
combatants and non-combatants’ John Kelsay, in Cross,Crescent and Sword, edited by James
Turner, et al, Westport: Greenwood Press, 1990
2
MEANING OF ‘FIGHT IN THE WAY OF ALLAH’ /HARUNA
36
people are so aggressive today as to kill progeny.’1 In yet another
tradition, the Prophet (PBUH) sent some troops to Byzantine and he
warned them in the following words:
‘In avenging the injuries inflicted upon us molest not the
harmless inmates of domestic seclusion; spare the weakness
of the female sex; injure not the infants at the breast or
those who are ill in bed. Refrain from demolishing the
houses and the unresisting inhabitants; destroy not the
means of their subsistence, nor their fruit-trees and touch
not the palm.’2
Therefore, all these aforementioned ahadith of the Prophet (PBUH)
have clearly supported the Islamic position that Muslims should
only fight those who fight them and should not transgress by
fighting the non-combatants.
The general rule of jus in bello that emerged from the
provision of Quran al-Bakara verse 190 demands that civilians
should not be attacked and fighting is allowed only between
combatants has further backing from the teachings of the rightly
guided caliphs. The first Caliph, Abakar Siddiq has given out Ten
Commandments to his soldiers concerning civilian protection and
right conduct in warfare. He states as follows:
‘Stop, O people, that I may give you ten rules to keep by
heart! Do not commit treachery, nor depart from the right
path. You must not mutilate, neither kill a child or aged
man or woman. Do not destroy a palm-tree, nor burn it with
fire and do not cut any fruitful tree. You must not slay any
of the flock or the herds or the camels, save for your
subsistence. You are likely to pass by people who have
devoted their lives to monastic services; leave them to that
to which they have devoted their lives. You are likely,
likewise, to find people who will present to you meals of
many kinds. You may eat; but do not forget to mention the
name of Allah’.3
The Abu Bakr’s order was followed by the second Caliph’s caution
to his army. Umar b. al-Khatab during his reign cautioned the
commanders of the troops in positive words:
1
See ‘Islamic Law on Protection and Assistance of Civilians Affected by Armed Conflicts
and Natural Disasters, Methods and Means of Warfare, and Treatment of Prisoners of War’
Mohammed Hisham Mohammed Kamal, 4 APYIHL (2008-2011), at 249
2
Muwatta Malik, (Jihad) Book 21, Hadith 21.3.10; ‘The Prophet (Peace be on him)’s
Merciful Reforms in the Conduct of War The Prohibited Acts’ Muhammad Munir, 02: 2-3
(Winter 2009-Spring 2010), Sirah Special Issue, at 195-196
3
Khalifa
Abu
Bakr
Encounter
with
the
Tribes,
Alim
<www.alim.org/library/biography/khalifa/content/KAB/8/pdf/1> viewed 13 October 2013;
Muwatta of Imam Malik Ibn. Anas, Jihad, Hadith No. 10, at 174
37
JOURNAL OF ISLAM, LAW AND JUDICIARY: 1(2), 2015
‘Do not mutilate when you have power to do so. Do not
commit excess when you triumph. Do not kill an old man or
a woman or a minor, but try to avoid them at the time of the
encounter of the two armies, and the time of the heat of
victory, and at the time of expected attacks’.1
Umar was further reported to have replaced Kalid ibn al-Walid who
was a commander with Amr ibn al- As ‘specifically because the
latter man was less bloody and fought what the Caliph called, ‘a
lenient war’’.2 These practices of the first and second Caliphs
strongly reiterate the Islamic unequivocal position concerning
civilian protection during armed conflicts.
Similarly, in an internal war, the third Caliph Ali b. Abu
Talib has equally instructed his army in the following words:
‘If you defeat them, do not kill a man in flight, do not finish
off a wounded man, do not uncover a pudendum, or
mutilate the dead, do not rip open a curtain or enter a house
without permission, do not take any of their property, and
do not torture or harm their women even though they may
insult your leaders’.3
Therefore, it is crystal clear from the above discussion that the
established rule of civilian protection in time of war has emerged
from the jus in bello aspect of Quran al-Bakara verse 190 and has
strong support from hadith and teachings of the rightly guided
Caliphs of Islam.4
However, Ella in an article written on civilian protection
under Islamic law, the author critiques that “this principle is not
absolute, and the explicit prohibition against killing
‘noncombatants’ is conditional and significantly restricted by law.”5
1
The Prophet (Peace be on him)’s Merciful Reforms in the Conduct of War The Prohibited
Acts, Muhammad, at 206; Islamic Jihad A Legacy of Forced Conversion, Imperialism and
Slavery, M. A. Khan, U.S.A: Felibri.com, 2008; ‘The Psychological Asymmetry of Islamist
Warfare’ Irwin, at 38-39; The Clash of Civilizations and the Remaking of World Order,
Samuel P. Huntington, London: Simon & Schuster, 1996, at 263
2
‘As-Salamu Alaykum? Humanitarian Law in Islamic Jurisprudence’ Karima, at 614
3
‘Jus in bello: Civilians’ Fundamental Rights Under Islamic and Public International Law’
Hilmi M. Zawati, in Jihad and its Challenges to International and Domestic Law edited by
M. C. Bassiouni and A. Guellali, The Netherlands: Hague Academic Press, 2010, at 174; The
Prophet (Peace be on him)’s Merciful Reforms in the Conduct of War The Prohibited Acts,
Muhammad, at 202
4
‘Humanitarianism and the Muslim World’ Masood Hyder, (2007) Journal of Humanitarian
Assistance, at 33
5
‘“Non-Combatants” in Muslim Legal Thought’ Ella, at 2. Ella attempts to show that Islamic
law does not provide viable protection to ‘civilians’ in general, but it rather provides full
protection to Muslim civilians and the (dhimmis), while infidels are not provided with
immunity against attack in an active manner. In the first place, Ella supports his assertion
with the position that if a Muslim or dhimmi is killed, the murderer will be asked to pay for
the life he killed by way of punishment or compensation. Secondly, he goes further to
support his assertion with the instance of war against infidel who may be killed, while if the
MEANING OF ‘FIGHT IN THE WAY OF ALLAH’ /HARUNA
38
Of course, the rule has some limitations, as the protection afforded
to civilians and their objects is based on their harmless nature,
which therefore, they lose the immunity by taking a direct part in
hostilities.1 This exception to civilian immunity is logical and it
reflects the current practice in both treaty based IHL as well as
customary IHL.
Conclusion
The saying of the Almighty Allah ‘fight in the way of Allah those
who fight you’ is a verse that has two separate meanings addressing
two perspectives of Islamic law regime of warfare. The first aspect
of the verse is tailored towards addressing the jus ad bellum
justification for engaging in war. It has categorically sanctioned
defensive war as it only permits Muslims to fight in response to
those who started aggression against them and they should not
exceed the limits by transgressing against those who do not fight
them. The second aspect of the verse permits Muslims in time of
war to only direct their operations only against combatants (those
who fight you) and they should not exceed the limits by targeting
the non-combatants who do not participate in hostilities.
It is suggested that the defensive war permitted by the verse
al-Baqarah 2:190 is the only practicable Jihad that a Muslim state
can wage in the light of the modern trend in international law in
which a presumed state of peace has been established among
nations and use of force is only allowed in individual or collective
self-defence. It is further suggested that the rule established by jus
in bello aspect of the verse (al-Bakara 2:190) concerning civilian
protection in time of war should be respected by Muslims and
should be taken as an obligation to be observed and preserved at all
times.
war is against Muslim rebels, it is only the individuals who are in actual fighting that may be
killed. Thus, he concludes by arguing that Islamic law did not provide absolute immunity to
civilians, but it rather gives immunity to civilians in case of war against Muslim rebels
without extending the same protection to war against infidels. As a response, in the first
assertion, he failed to appreciate that the prohibition against non-combatants in Islamic law
has covered all non-combatants, provided that they do not take a direct part in hostilities. The
ahadith of the Prophet and commands of the Caliphs have made absolute prohibition in terms
of civilian protection. Any accidental killing of civilian does not call for punishment or
compensation as Ella alleged, but not knowing that the position of IHL does not equally
punish ‘soldier or commander’ for incidental killing of civilian. In Ella’s second point, he
did not appreciate the position that the prohibition against targeting civilians covers both
infidels as well as rebels, it is the same ahadith and commands of the caliphs that he refers to
them in his work are all referring to civilian immunity in absolute terms, provided that they
‘do not engage in hostilities’. Moreover, all the ahadith that reported that the Prophet frowns
at killing civilians are all cases of civilians of the infidels. See also Muhammad, The
Protection of Civilians in War: The Non-Combatant Immunity in Islamic Law.
1
The Protection of Civilians in War: The Non-Combatant Immunity in Islamic Law,
Muhammad, at 6
39
JOURNAL OF ISLAM, LAW AND JUDICIARY: 1(2), 2015
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