Islamic Law and the Right to Armed Jihad

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

This paper discusses the Jus ad Bellum, the right to go to war, in Islam. In Islam, there is a right to both defensive and offensive 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 conflict that has come about due to an understanding that, because... (see full summary)

 
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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.3us, 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,

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