Islamic Law and the Right to Armed Jihad

• Author: Fatemah Albader
• Position: Kuwait International Law School
• Pages: 571-605

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2018 e Institute for Migrant Rights Press

islaMiC laW and tHE riGHt

to arMEd JiHad

Fatemah Albader

Kuwait International Law School

E-mail: f.AlBader@kilaw.edu.kw

is paper discusses the Jus ad Bellum, the right to go to war, in Islam. In Islam,

there is a right to both defensive and oensive wars. Contrary to much of the

western thoughts that presuppose that Islam does not place limitations on the

conduct of war, however, Islamic law does establish its own version of the law of

armed conict that has come about due to an understanding that, because Islam

sanctions both oensive and defensive wars, the Muslim community must know

how to properly conduct themselves during an armed conict. In this day and

age, war is inevitable. It is a norm and not an exception. It is bound to occur,

and, thus, it should not come as a surprise that the international community has

come to an understanding that regulating the actions that occur during armed

conicts are a much safer alternative than placing an outright prohibition on

war. International humanitarian law developed in order to regulate the proce-

dures of war and provide for a just war. In this regard, what Islam has to say

about armed conict is no dierent. Yet, there is much misconception in the

world today that many of whom are interested in the study of Islam are prone to

misguidance. ere is a lack of discourse in the legal scholarship surrounding the

concept of Jihad. While Islamic law does sanction the use of force, there are lim-

itations to the use of such force, a point that is oen missed in the legal discourse.

e acts of non-state actors, such as Al-Qaeda do not reect the views of Islam,

which will be touched upon in this paper. To provide an accurate interpretation

of Islam, this paper will aim to examine the question of when the law of Islam

provides for a just war. By analyzing the various sources of Islamic law, with

emphasis on the Quran, this paper seeks to provide readers with an accurate

depiction of when Islamic law authorizes the right to go to war.

Keywords: Islamic Law, Jihad, Humanitarian Law, Shariah, Islamic Jurisprudence.

V Indonesian Journal of International & Comparative Law 571-606 (October 2018)

572

Albader

INTRODUCTION

One of the most problematic and newsworthy topics relating to Islamic

law relates to the Jus ad Bellum of armed conicts: the topic of Jihad

in Islam. In reality, Islamic humanitarian law is no dierent from in-

ternational humanitarian law. In fact, “[t]he protection of human life,

property and dignity . . . are universal Islamic doctrines that predate

[international humanitarian law].”1 Islam is built on the humane treat-

ment of all people and, thus, Islamic humanitarian law does not allow

the iniction of pain and suering to exceed that of what is required

and is necessary during times of war. us, some have argued that the

father of international law, Hugo Grotius, was inuenced by early Is-

lamic thinking in his development of international law.2 Islam has strict

regulations that the Muslim nation must adhere to during times of war

of which the consequences of disobeying such rules leads one to hell-

re, which, for a Muslim believer, is a punishment much worse than

any worldly punishment.3 us, while many like to argue that the pun-

ishment for violations of war crimes under Islamic law are too lax, they

are anything but that.

e Qur’an is founded upon the most fundamental values of which

peace and human dignity are rst and foremost. Consequently, all

human lives are sacred, and through the guiding principles of necessity

and proportionality, Islamic humanitarian law seeks to conduct the

law of armed conict as justiably as possible. Similar to international

humanitarian law, then, there are situations in which the right to take

up arms is authorized under Islamic humanitarian law, and times that

the taking up of arms is prohibited. is paper will take both a historical

and contemporary approach in examining when Islam authorizes the

right to go to war.

1. Hadia Nusrat, International Humanitarian Law and Islam, RED CROSS (Jan.

24-25, 2005), http://www.redcross.int/EN/mag/magazine2005_1/24-25.html.

2. Abigail Watson, Western and Islamic laws are not so dierent, F F

P’ (Feb. 15, 2015), http://www.futureforeignpolicy.com/western-islam-

ic-laws-not-dierent/.

3. See Abdulrashid L. Haruna et al., War and Islamic Humanitarian Law: Apprai s-

ing Warfare and Distinction as a Principle in Hostilities, 4 I’ J. H. S.

S. 225, 232 (2014).

573

Islamic Law and the Right to Armed Jihad

Albader

Accordingly, this paper consists of four parts. Part I is broken into two

parts. Part A provides a basic introduction to the law of armed conict

and Part B provides a basic understanding as to the signicance of the

Qur’an and other Islamic sources of law. Aer laying the foundation,

Part II examines the various verses of the Qur’an that attempt to assess

whether there are circumstances, under Islam, that provides for a right

to go to war. Part III assesses the various scholarly thoughts that have

interpreted the dierent verses of the Qur’an. Part III also explains why

various scholars have arrived at dierent opinions as to the question

under discussion, resulting in a variety of misconceptions based on the

right to go to war under Islam. Finally, Part IV concludes the discussion

with a summary as to when it is truly lawful to take up arms under the

Qur’an, putting to rest any misconceptions that have existed thus far.

PART I. FOUNDATIONAL BASIS

Because no arguments can be made without examining the sources

that bind the law of armed conict, it is important to spend a short

time discussing (1) the history of the law of armed conict and its con-

nection to other sources of religion other than Islam, and (2) Islamic

shari’a law, which consists of two primary sources that binds all Mus-

lims: the Qur’an and the Sunnah (the teachings of the Prophet (peace

be upon him)). Aer an understanding of how both sources of law

work in practice, the discussion can focus on the question that is to be

answered today: whether the Qur’an authorizes armed conicts in any

circumstances and, if so, what those circumstances are.

A. e Law of Armed Conict

Marcus Cicero once said, “In times of war, the law falls silent.”4 While

this may have been true before, the saying no longer stands. is is

because international humanitarian law, aer coming to a realization

that war is inevitable, now regulates when it is lawful to take up arms.5

4. J   V, A  A  P  C

 A 3 (2015).

5. International humanitarian law also regulates the Jus in Bello of war, that is,