Jihad as Just War?
If jihad is understood as an act of defence, then it can be categorised within the realm of just war theory, in accordance with the criteria for a just war within contemporary human rights discourse.43 Those who continue to discuss jihad as an offensive matter, however, see it as a just act nonetheless.
The core of their argument is that Islam promotes just goals and that war in the name of Islam, then, can only ever be just.Al Contemporary scholars also distinguish between the position of the prophet whilst in Mecca and whilst in Medina, or the differing positions within Islam pertaining to the correct conduct in dealing with opponents. See for example, al-Khunn, Bugha and Sharbaji, al-Fiqh al-manhaji 'ala madhhab al-imam al-Shafi,i, 8/119.
42 See Rohe, Das islamische Recht, 261 f.
43 See footnote 9.
This interpretation is promoted, for example, by the contemporary scholar 'Abdallah bin Ahmad al-Qadiri, of Yemeni origin, who received his education in Medina. In his two-volume work, Jihad in the name of God. Its Essence and its Goal (al-jihad f sabιl Allah. haqiqatuhu wa ghayatuhu), he enumerates some of the goals of Islam, and how their realization legitimates jihad;
1. Islam is a religion of ihsan (beneficence). In accordance with Islam one should obey God’s commands to the best of one’s abilities and in accordance with one’s conscience. These include sa,adat (felicity), ada, al-huquq (the performance of justice), and siyanat al-nufus wa 'uqul wa amwal (the protection of life, mind, and property).[297]
2. Further, via the command to act in a manner pleasing to God, Islam gives meaning to human life: one must pursue one’s duties as requested by God, and in doing so, will find fulfilment.[298] [299] [300] [301]
3.
In addition, Islam illustrates to humans their most suitable positioning within the universe, whereby they find their cosmological and ontological placement among God, the angels, and spirits?64. Islam guarantees the equality of humans. In other cultures, people are judged based on their skin colour, lineage, or nationality, whilst in Islam all that counts, is piety, regardless of skin colour or ancestry?7
5. Islam guarantees safety and forbids all ‘aggression’ (i,tida’), regardless of whether it affects an individual or a group, a simple citizen or a ruler. Citizens are legally protected before the ruler, for the ruler is subject to the same rights as citizens. The author brings the example of qisas (retribution). The lax talionis principle of ‘an eye for an eye, a tooth for a tooth’, according to al-Qadiri, is equally valid for all, acknowledging neither rank nor name. Further, in Islam, one is sure of one’s honour ('ird). Here, the author specifically addresses legal punishments for the crimes of ‘slander’ (qadhf) or ‘adultery’ (zinaf. Individual property is also ensured in Islam. Hence there are also punishments for ‘stealing’ (sirqa) and ‘corruption’ (fasad fi- l-ard). One’s private life is untouchable, as spying (tajassus) is prohibited within Islam?8
6. Finally, the cohesion of the community is a central concern within Islam and is directly addressed in the Qur’an: “And hold firmly to the rope of Allah all together and do not become divided” (3:103).49
In summary, according to the enumeration of al-Qadiri, Islam offers a comprehensive and just concept for how to lead one’s life. It takes into account that which is visible and that which is concealed, providing regulations and guidelines for the individual, as well as for society and the state.50
Al-Qadiri attempts to elaborate upon the traditional interpretation of jihad as an instrument of war for spreading the message and rule of Islam.
He seeks to continue to write jihad into the present, to update it, using modern modes of argumentation. He thus ascribes to Islam desirable goals in the name of which to carry out jihad. He is not the only contemporary scholar to do so. Many traditional scholars employ a similar mode of argumentation. These include scholars in secular Syria, such as Mustafa Sa'id al-Khunn, Mustafa al-Bugha and 'Ali al- Sharbaji, as demonstrated in their joint work, al-Fiqh al-manhajι ‘ala madhab al-imam al-shafTi?1Regardless of whether jihad is interpreted in a defensive or offensive manner, scholars have meticulously discussed the conditions to be considered before, during, and after an act of war. Some of the main discussion points are summarised below.
Jihad is principally seen as a duty that must be carried out by every Muslim. For many scholars, the object of discussion often pertains to whether and under what conditions it is an individual obligation (fard ‘ayn; everyone is obligated) or a collective one (fard kifaya; one is only obligated if needed). Most represent the opinion however that jihad is essentially a collective obligation?2 It can become an individual duty if a) it is a case of defence, b) if the current Muslim ruler has called upon all Muslims to carry out jihad, or c) when standing directly before battle as a soldier. In these cases, there can be no turning back, and it is impermissible to flee before an impending battle?3
49 Ibid., 45f.
50 Ibid., 46ff.
51 See al-Khunn, al-Bugha and al-Sharbaji, al-Fiqh al-manhaji 'ala madhhab al-imam al-Shafi'i, 8/120 -123.
52 Ibn Qudama al-Maqdis, al-Mughni, 9/196, and al-Qadiri, al-Jihdd fi sabil Allah, 53ff. There is also an opinion that jihad is not a duty but simply a legal recommendation (mandub} within the sharia. ibid., 64ff.
53 See Ibn Qudama al-Maqdisi, al-Mughni, 9/197, and al-Qadiri (1992), 72f. There is a scholarly difference in opinion concerning the third case.
Three questions in particular are disputed: isAlthough the legal literature treats jihad as an individual duty of each Muslim, comparable to ritual prayer or pilgrimage, its execution is dependent on the competence of the leader (imam) of the Muslim community.54 It is not possible for any individual to issue a call to jihad. The duties of tactical organization and strategic execution are those of the imam; others are obligated to follow his lead.55 This is in reference to, among other factors, the following hadith: “The imam is truly like a shield. With him one fights and through him one is protected. If he commands fear of God and justice, he shall be rewarded; if he espouses something else, accusation shall be levelled against him.”5®
Another topic in relation to jihad, is that the person participating in it (mujahid) must be a Muslim, male, and of age. Hence, it is forbidden for a non-Mus- lim, woman, or child to take part in jihad. s7 There have been recurring cases in the history of Islam in which a war effort was supported by non-Muslims/8 but the act is referred to as jihad only if it is carried out by a Muslim. Despite the prohibition of jihad for women, there have also been numerous historical exceptions that have witnessed the participation of women?9 Another condition for jihad is that the participants meet the necessary financial and physical requirements. Thus, if someone suffers from a disability or their family is not adequately provided for, they are not obligated to execute jihad.60 In the case of a collective obligation (insofar as there is a sufficient number of jihad-abled Muslims), it is also imperative that the parents of participants give their consent.®1 In the case of individual obligation to jihad, each male, whether father or son, is obligated to pursue his personal duty.®2
Muslims must also take into consideration certain issues as they pertain to their opponents.
On principle, people who are not involved in warring againstfleeing a battle categorically forbidden? Or is this permissible if the number of Muslim soldiers is ominously low when compared to that of the opponents? And how low should one’s fighting force be in order to permit retreat? See al-Qadin, al-Jihad fi sabil Allah, 73ff.
54 See Ibn Qudama al-Maqdisi, al-Mughni, 202.
55 See ibid.
56 For example, Muslim b. al-Hajjaj, al-Sahih, 3/1471, hadith number 1841.
57 Al-Khunn, al-Bugha and al-Sharbaji, al-Fiqh al-manhaji 'ala madhhab al-imam al-Shafi'i, 8/121 f.
58 See al-Qadiri, al-Jihad fi sabil Allah, 84 f.
59 Ibid., 88.
60 Al-Khunn, al-Bugha and al-Sharbaji, al-Fiqh al-manhaji 'ala madhhab al-imam al-Shafi'i, 8/122.
61 Ibid., 123.
62 See Q al-adiri, al-Jihdd fi sabil Allah, 91.
Muslims are not allowed to be fought.[302] In concrete terms, this means that Muslims may not wage war against the following: those to whom they have already granted asylum; those with whom they have already entered into a contractual agreement; and those whom they have taken on with an obligation to protect, the People of the Book (ahl al-dhimma).[303] It is thus forbidden for Muslims to commit a breach of contract.[304] [305] [306] [307] [308] [309] [310] [311]
In this sense also, no child or woman may be killed, insofar as they do not participate in the war effort.66 Likewise, monks, the elderly, and servants may not be killed either.67
On principle, Muslims are forbidden to pursue a scorched earth policy in war, for they are tasked with ensuring the prosperity and thriving of the earth.68 Consequently, it is not admissible to destroy the abodes or trees of the opponent; unless they are being used to protect the enemy/9 Further, there is very unambiguous warning against the defilement or burning of the bodies of the deceased/0
In addition, Muslims are obligated to treat prisoners in a considerate manner and to set them free under specific conditions/1 They must meet the defeated with dignity and demonstrate to them that the victory of Islam is not a degradation, but a blessing and benefaction/2
Conclusion
In summary, the following should be noted: within Islamic discourse, and in particular within the context of sharia/legal discourse, the term jihad is generally strongly associated with war.
The act of war, as connoted by the term jihad, has positive associations. Contrary to the expressions of harb or qital, which can, depending on the context, signify neutral, positive, or negative motivations, jihad only has good, godly, and just intentions. That is why the legal literature is filled with meticulous discussions of what must be taken into consideration, in order for jihad to be permissible, and by extension, just. Many of these conditions make up the definition of a just war, such as the treatment of prisoners of war, or the prohibition of jihad for children, the impermissibility of defiling the deceased, and of pursuing a scorched earth policy. The decisive point remains however, whether jihad is interpreted as defensive or offensive. An offensive interpretation assumes the particularistic position that there is only one legitimate authority. Nonetheless, jihad can meet many of the preconditions of a just war as they pertained in the Middle Ages.[312]An offensive understanding of jihad, however, is hardly tenable in the present. With regard to Muslim-majority nation-states today, such an interpretation appears anachronistic, in its legitimizing the attacks on other communities of belief, and in its encouragement of violent clashes within the Muslim community. If jihad is understood as an act of defence against aggression, then Muslims are able to fall back on a rich theoretical discussion of the term within Islamic legal literature, and can make significant contributions to the general discourse surrounding the just war topic today.