Justification for jihad

The history of the interaction, and more specifically the fighting incidents that took place, between the Muslims and their enemies during Prophet Muhammad’s lifetime and the Quranic texts addressing this subject form the basis upon which Muslims derive the Islamic justifications and regulations for going to war.

Classical Islamic jurists considerably succeeded in developing the Islamic regulations for going to war, while paying little attention to the question of the justifications for going to war because a state of hostility was the norm in their pattern of international relations unless a peace treaty was bilaterally concluded. Moreover, early Islamic history shows that the advent of Islam created a wave of hostility and aggression against the believers in Islam because it endangered the religio-socio-political power of the Arab idolaters. The Prophet’s following words indicating rejection of the Meccans’ temptations to give up the call for the religion of Islam is quite revealing: ‘By God, if they [the Meccan idolaters] put the sun in my right hand and the moon in my left so that I abandon this matter [the religion of Islam], I will not until God establishes it or I perish’ (emphasis added). Muslims were unable to practise their religion freely during the Meccan period and, by way of example, they were unable for the first 13 years of the advent of Islam to build a mosque in Islam’s birthplace, Mecca. Only after the flight to Medina did Muslims manage to build a mosque and establish their religion. The flight to Medina was an attempt to survive persecution and, no less importantly, practise/establish the religion of Islam. The first permission to engage in fighting was given to the Muslims following their flight from Mecca to Medina in the following Quranic text:

Permission to [engage in fighting] is given to those against whom war is waged because they have been wronged; verily God is able to give them victory.

Those who have been expelled from their homes unjustly and only for saying: God is our Lord; had not God permitted people to defend themselves against [the aggression of] others, monasteries, churches, synagogues and mosques, wherein the name of God is oft-mentioned, would be pulled down; certainly God will support those who support Him; indeed God is AllStrong, All-Mighty.²

This text clearly indicates that jihad is justified in cases of religious persecution, not only the physical attacks directed against the individual followers of the above religions, but also against the establishment of these religions since the above houses of worship are mentioned as symbols of the establishment of the respective religions they belong to. Other text³ asks the Muslims to go to war to rescue the oppressed weak Muslim minority who were also subjected to oppression because of their religious beliefs. Furthermore, the controversially interpreted concept offitna is given as a justification for going to war in many Quranic texts.⁴ Fitna is interpreted by some exegetes and jurists as torture and religious persecution of Muslims to force them to apostatize from Islam, while it is interpreted by some as unbelief in God. These two interpretations diametrically change jihad from a defensive just war to prevent religious persecution, according to the first interpretation, to an offensive holy war to force unbelievers in God to accept Islam, according to the second.

But the exegetical theory of abrogation which means that a Quranic ruling abrogates its previous ruling(s) caused a trend among Muslim jurists to unwarrantedly adopt a rather purely methodological approach to the determination of the Quranic justifications for war. Utilizing the principle of abrogation, this trend argues that since the Quranic texts 9:5 and 9:29 are the last revelations on the subject of the justifications for going to war in Islam, this trend advocates that the Quranic text 9:5 indicates that polytheists are to be fought until they become Muslims, while the Quranic text 9:29 indicates that the people of the book are to be fought if they reject Islam and the payment of jizya (tax levied to exempt eligible males from conscription).

This sharp mathematical theory ignores the totality of the Quranic message and contradicts the practise of the Prophet and the succeeding Muslims generations. But the majority maintains, as expressed specifically in the words of modern Muslim scholars, that jihad is a defensive war to defend: 1) the occupation of the Muslim territories; 2) fitna (persecution) of Muslims;⁵ and 3) the prevention of preaching Islam. Preventing the proselytization of Islam as a justification for going to war is quite revealing because it indicates the unique and central place of establishing and practising the religion of Islam in the Islamic just war tradition. It is worth adding here that classical Muslim jurists divided jihad into two categories: jihad al-daf (defensive war) and jihad al-talab (military campaigns to convey the message of Islam in non-Muslim territories). Apart from jihad al-daf‘, the interesting question here is how Muslim scholars justified the jihad al-talab and will it be permitted for Muslims to resort to this type ofjihad in the present time. Since Islam is a message for all humanity and Muslims are required to preach it to the rest of the world, the early Islamic state resorted to jihad al- talab or what is described in Islamic history as the futuhat (militarized missionary campaigns) because preaching Islam was not permitted in the non-Muslim territories at that time. It is worth adding here that the decision to initiate a jihad al-talab is left to the caliph and must be conducted under his command. But at present, anyone can preach Islam in or to any part of the world even without having to physically be present in such territories. In addition to the fact that the modern world recognizes the right of freedom of religion and freedom of expression, Muslims can preach Islam via the internet or other media of mass communication.

According to Islamic law, any act taken under duress is null and void and hence accepting Islam under duress is not valid⁶ and, by the same token, apostatizing from Islam under duress is pardonable.⁷ Hence, in the jihad al-talab, Muslims are obliged to start with introducing the religion of Islam to the non-Muslim territories and if they reject it, then they are to pay the jizya to the Islamic state in return for the protection it guaranteed to such territories.

In fact, the acceptance of the payment of jizya — which is a pre-Islamic tradition — indicates the absence of hostility between the concluding members and that they have the right of the practice of their religion. Had the motive ofjihad been to force non-Muslims to accept Islam, jizya should not have been accepted from them. Although this refutes the claim that jihad is a tool to force non-Muslims to accept Islam, this still leaves the question of the nature of the jihad al-talab unsettled. That is because if the above discussion refutes the claim of the universalization of the religion of Islam, it may indicate, first, that the Islamic state aimed at the universalization of Islamic rule or, second, merely the collection of the jizya tax and other economic advantages or, third, as argued by many modern Muslim scholars whether labelled as reformers, apologetics or otherwise, at removing the oppressive Persian and Roman empires who were ruling over most of the world at the time of the Islamicfutuhat. It should be added here that this chapter focuses on the Islamic normative sources and not on the history of the Islamic state practices. However, it is very likely that many Muslim rulers waged so- called jihad in non-Muslim territories because of their ambition to annex more territories to their rule. This is especially the case in light of the fact that many of the internecine wars that took place among Muslims were motivated by the urge to rule.

It is interesting to find that the above three motives for jihad in addition to the refuted claim for the universalization of Islam by force find their proponents both from within and from outside the Islamic belief. But a quick look at the Islamic jus in bello rules (regulations on the use of force) gives some indications into, and invalidate some of the above, justifications for jihad. Fortunately, classical Muslim jurists developed detailed and comprehensive rules that regulate the recourse to war both in international armed conflicts (war against non-Muslims) and non-international armed conflicts (inter-Muslim fighting).

Their sources are mainly scriptural and regulated their primitive war situations. However, their deliberations, agreements, disagreements, and rulings understandably reflect a genuine concern for humanizing the military conflicts by not jeopardizing the lives of non-combatants and not causing unnecessary damage to enemy property while at the same time making sure that the Islamic restraints on the use of force will not prevent Muslims from winning the war. First and foremost, a full-blown non-combatant immunity developed by the classical Muslim jurists indicates that fighting is not justified against non-Muslims because of their unbelief in Islam, but because of their belligerency. The non-combatant immunity extended to the enemy clergy — provided that they do not engage in acts of hostilities — is just a case in point. Furthermore, the humane treatment provided for the non-Muslim prisoners of war and the lack of any rules that would put any kind of pressure on them to convert to Islam also disprove the claim for the universalization of Islam by force.

The Islamic restraints on the use of force also includes prohibitions on the use of indiscriminate weapons and tactics such as shooting mangonels at, or flooding, enemy fortifications, the use of poison-tipped arrows, poisoning enemy water, attacking the enemy by night, or shooting at the human shields. In all of these cases, there are different interpretations of the texts, deliberations, and negotiations among classical Muslim jurists. Some jurists permit the use of such indiscriminate weapons and tactics either because their readings of the texts lead to this permission or because their priority is winning the war and any casualty would be justified by the military necessity or as a collateral damage. Other jurists maintain the prohibition of such weapons and tactics because of their strict adherence to the texts and/or the general prohibition on jeopardizing the lives of non-combatants. These approaches led to a wide range of conflicting rulings on the restraints on the use of force and as a consequence many contemporary terrorist groups and individuals cherry-picked certain classical rulings to justify their terrorist acts against non-Muslim as well as Muslim victims.

In addition to the sanctity of the lives of enemy non-combatants, the Islamic jus in bello rules indicate the sanctity of enemy property, which must be protected during hostilities unless in case of dire military necessity. Understandably, classical Muslim jurists also differed here in identifying what constitutes dire military necessity in various war situations, but at least a general sense of protecting enemy property existed in the Islamic tradition of war. For example, the prohibition on the use of indiscriminate weapons such as those mentioned above is also based on the concern of not damaging enemy property. The instructions of the First Caliph Abu Bakr (r. 632—634) to his army leader includes: ‘do not cut down fruitbearing trees; do not destroy buildings; do not slaughter a sheep or a camel except for food; do not burn or drown palm trees’.⁸ It is interesting to add here that al-Shafi'i (d. 204/820) differentiated between lifeless and animate creatures possessed by the enemy because the latter suffers the pains and thus any suffering that is not dictated by the military necessity will be a sort of torture for which a person will be questionable before God. However, animals used by the enemy in combat, such as horses, can be killed during the fighting. Otherwise, unnecessary killings of animals or wanton destruction of enemy property falls under the heinous crime described in the Qur’an as causing destruction in the earth.⁹ Furthermore, and pragmatically speaking, the fact that defeated enemy property in pre-modern Islamic era used to be spoils of war should have alleviated the degree of damage to enemy property. To show the sanctity of enemy property, it is suffice to mention here by way of example that classical Islamic law books discussed whether it is permissible in case they are short of food that the Muslim soldiers can eat and give fodder to the animals of the Muslims’ army from the property of the enemy.¹⁰ Although the permissibility is given on the basis of military necessity, the Islamic jus in bello rules prove the inviolability of enemy property. In short, the above discussion reveals that these structured rules, which originally developed as self-imposed on the Muslims, cannot simply be motivated by the urge for economic purposes and, without a doubt, could have the greatest impact in humanizing the use of force. But the hypothesis of the universalization of rule of the Islamic state as a justification for jihad will be examined below.

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Source: Abou El Fadl Khaled, Ahmad Ahmad Atif, Hassan Said Fares (Eds.). Routledge Handbook of Islamic Law. Routledge,2019. — 466 p.. 2019

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