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JOURNAL OF ISLAM, LAW AND JUDICIARY VOLUME 1, ISSUE 2 2015, PP- 26-41 ISSN 2411-4936 WWW.DISCINTERNATIONAL.ORG 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] 27 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 29 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 31 JOURNAL OF ISLAM, LAW AND JUDICIARY: 1(2), 2015 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 JOURNAL OF ISLAM, LAW AND JUDICIARY: 1(2), 2015 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’. 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