Conclusion
The treatment of the classical Muslim jurists of these two specific forms of terrorist acts during the first two centuries of the history of Islam is utterly archaic, highly contextual and methodological.
Nonetheless, the current acts of terrorism perpetrated by Muslims, on the one hand, and the greatest number of non-international armed conflicts at present taking place in the Muslim world bring to mind this classical Islamic juristic treatment. It is interesting to find out, on the levels of scholarly and juristic examination, that the current different legitimate and illegitimate forms of the force by Muslims at present can be identified and regulated, and punishment for only certain forms of illegitimate force can be inflicted under classical Islamic law. It is disappointing, however, at least on the level of the practice, that despite the fact that Islamic law in this area is not incorporated into the legal systems in the majority of the Muslim world, classical Islamic juristic rulings are at present cherry-picked to justify acts of terrorism and indiscriminate killings by Muslim terrorists. Moreover, on the other hand, Islamic law is also abused by the governments in the Muslim world in the sense that not a single government in the Muslim world has granted, or apparently will grant, the protected status for armed rebels provided under classical Islamic law. However, the classical Muslim jurists’ greatest achievement in this area of non-international armed conflict is that they developed a remarkably progressive law that regulates the recourse to armed rebellion which, in the words ofJohn Kelsay ‘prefigured (by nearly a thousand years) Lieber’s conclusion that participation in a rebellion does not, in and of itself, make one a criminal’.19This chapter has shown that classical Muslim jurists successfully developed a legal framework that identifies and sets the punishments for the crime of hiraba, but they failed to develop the punishments for the khawarij who commit the same acts of terrorism, a lacuna this chapter attempts to address.
In conclusion, Islamic law can make a great contribution to both national and international criminal justice: Islamic law can diminish the use of illegitimate use of force, humanize non-international armed conflicts, and as a consequence alleviate the suffering of the victims. But the reality on the ground shows that non-state actors and criminal terrorist Muslims are the ones who mainly use or abuse Islamic law to justify their respective use of organized force or violent terrorist acts. Islamic law cannot contribute to criminal justice unless it is institutionally utilized: a conclusion that is reached in the West, at least in some scholarly and professional circles. Indeed, there is an opinion in the West that Islamic law can or should be utilized, at least, to counter terrorism, humanize armed conflicts involving Muslims, and contribute particularly to international criminal justice. But this contribution, practically speaking, is not possible in the face of such schizophrenic or at best dual legal systems in the majority of the Muslim world, where, apart from Islamic family law, many areas of Islamic law including the above classical juristic discussions and deliberations would be unheard of for many Muslim jurists. Bearing in mind the lip service to Islamic law paid by the many Muslim countries whose constitutions dictate that Islam is the religion of the state and/or Islamic law is a source or the source of legislation, peaceful and violent Islamists appear to champion the case of Islamic law. Therefore, in the case of the Islamists who zealously, emotionally, sometimes insanely and/or brutally attempt to unilaterally, and outside of the state institutions, apply their respective understandings of Islamic law, it becomes imperative that Islam can and must contribute to the ongoing process of the Islamization of societies. Apart from political ideologies and the conflicting ongoing processes of Islamization or the de-Islamization of the societies in Muslim majority countries, Islamic law at least for purely pragmatic considerations will be revisited by both the Muslim and the Western worlds.Notes
1 Translations of the Qur’anic texts in this chapter are mine.
2 For this discussion, see Ahmed Al-Dawoody, ‘International Terrorism and the Jurisdiction of Islamic Law’, International Criminal Law Review 15(3) (Spring 2015): 571.
3 See Ahmed Al-Dawoody, The Islamic Law of War: Justifications and Regulations, Palgrave Series in Islamic Theology, Law, and History 2 (New York: Palgrave Macmillan, 2011), 171.
4 The Islamic Fiqh Council, ‘Makkah Declaration on Terrorist Explosions and Threats: Causes, Consequences, Legal Opinions and Means of Protection’, The Islamic Fiqh Council Journal, 17 (2004): 34.
5 See Muhammad ibn Ahmad al-Ansari al-Qurtubi, Al-Jami' li-Ahkam al-Qur'an, vol. 6 (Cairo: Dar al-Sha'b, n.d.), 157. See also Sherman A. Jackson, ‘Domestic Terrorism in the Islamic Legal Tradition’, The Muslim World 91(3—4) (September 2001), 299ff.
6 See Muhammad ibn Ahmad ibn Abi Sahl al-Sarakhsi, Kitab al-Mabsut, vol. 9 (Beirut: Dar al- Ma'rifa, n.d.), 197ff.; Jackson, ‘Domestic Terrorism in the Islamic Legal Tradition’, 297.
7 See, for example, Mustafa al-Suyuti al-Rahaybani, Matalib Uli al-Nuhafi Sharh Ghaya al-Muntaha, vol. 6 (Damascus: Al-Maktab al-Islami, 1961), 251; Mansur ibn Yunus ibn Idris al-Buhuti, Sharh Muntaha al-Iradat al-Musamma Daq'iq Uli al-Nuha li-Sharh al-Muntaha, vol. 3, 2nd edn (Beirut: 'Alam al-Kutub, 1996), 381.
8 See, for example, Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2006), 337; 'Abd al-'Aziz ibn 'Abdullah ibn Muhammad Al al-Shaykh, ‘Al-Irhab: Asbabuh wa-Wasa’il al-‘Ilaj', The Islamic Fiqh Council Journal 17 (2004): 38ff.; Dawoody, The Islamic Law of War, 174—6.
9 See Dawoody, The Islamic Law of War, 177—83.
10 See Sulayman ibn Salih ibn ‘Abd al-‘Aziz al-Ghusn, ‘Al-Khawarij: Nash’atuhum, Musammahum, Alqabuhum, Firaquhum', MajalaJami‘at al-Imam 48 (2010): 85—145; Usama Sulayman, ‘Al-Khawarij bayn al-Madi wa-l-Hadir', Al-Tawhid, 404: 57.
11 Al-Ghusn, ‘Al-Khawarij', 103.
12 Abou El Fadl, Rebellion and Violence in Islamic Law, 171.
13 Ibid., 52. See also Al-Ghusn, ‘Al-Khawarij', 109—15.
14 Al-Dawoody, The Islamic Law of War, 164. See also Abou El Fadl, Rebellion and Violence in Islamic Law, 153; ‘Ala al-Din al-Kasani, BadaT al-SanaTfi Tartib al-SharaT, vol. 7, 2nd edn (Beirut: Dar al-Kitab al-‘Arabi, 1982), 141; Muhammad al-Khatib al-Shirbini, Al-Iqna fi Hall al-Faz Abi Shu- ja', vol 2, ed. by Maktab al-Buhuth wa-l-Dirasat (Beirut: Dar al-Fikr, 1994), 549; ‘Abd al-Qadir
‘Awda, Al-Tashri' al-Jinai al-Islami: Muqarana bi-l-Qanun al-Wad’i, vol. 2 (Beirut: Dar al-Kitab al- ‘Arabi, n.d.), 695.
15 Abou El Fadl, Rebellion and Violence in Islamic Law, 248.
16 Ibid., 152.
17 Ibid., 56.
18 Geneva Convention (III) Relative to the Treatment of Prisoners of War, of 12 August 1949, Article 4A(2).
19 John Kelsay, Islam and War: A Study in Comparative Ethics (Louisville, KY: Westminster/John Knox, 1993), 93.
Selected bibliography and further reading
Abou El Fadl, Khaled. Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2006).
Al-Dawoody, Ahmed. The Islamic Law of War: Justifications and Regulations. Palgrave Series in Islamic Theology, Law, and History 2 (New York: Palgrave Macmillan, 2011).
Al-Dawoody, Ahmed. ‘International Terrorism and the Jurisdiction of Islamic Law'. International Criminal Law Review 15(3) (Spring 2015): 565—86.
‘Awdah, ‘Abd al-Qadir. Al-Tashri' al-Jinai al-Islami: Muqarana bi-l-Qanun al-Wad‘i, vol. 2 (Beirut: Dar al-Kitab al-‘Arabi, n.d.).
Buhuti, Mansur b. Yunus b. Idris al-. Sharh Muntaha al-Iradat al-Musamma Daqaiq Uli al-Nuha li-Sharh al-Muntaha, vol. 3, 2nd edn (Beirut: ‘Alam al-Kutub, 1996).
Jackson, Sherman A. ‘Domestic Terrorism in the Islamic Legal Tradition'. The Muslim World 91(3—4) (September 2001): 293—310.
Kasani, ‘Ala’ al-Din al-, BadaT al-SanaTfi Tartib al-SharaT, 2nd edn (Beirut: Dar al-Kitab al-‘Arabi, 1982).
Kelsay, John. Islam and War: A Study in Comparative Ethics (Louisville, KY: Westminster/John Knox, 1993).
Qurtubi, Muhammad b. Ahmad al-Ansari al-. Al-Jami‘ li-Ahkam al-Quran, vol. 6 (Cairo: Dar al-Sha‘b, n.d.).
Rahaybani, Mustafa al-Suyuti al-. Matalib Uli al-Nuha fi Sharh Ghaya al-Muntaha, vol. 6 (Damascus: Al-Maktab al-Islami, 1961).
Sarakhsi, Muhammad b. Ahmad b. Abi Sahl al-. Kitab al-Mabsut, vol. 9 (Beirut: Dar al-Ma‘rifa, n.d.). Shaykh, ‘Abd al-‘Aziz b. ‘Abdullah b. Muhammad al-. ‘Al-Irhab: Asbabuh wa-Wasa’il al-‘Ilaj'. The Islamic Fiqh Council Journal 17 (2004): 25—49.
Shirbini, Muhammad al-Khatib al-. Al-Iqna' fi Hall al-Faz Abi Shuja, ed. Maktab al-Buhuth wa-l- Dirasat, vol. 2 (Beirut: Dar al-Fikr, 1994).
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