LAW OF WAR AND PEACE
Causes and Conduct of Jihad and
Non-State Islamic Actors under Islamic Law
Prof. Dr. Muhammad Munir
Jihad as a topic has attracted tremendous attention from authors of all backgrounds, especially after the events of 9/11. The concept has been fiercely discussed not only by experts of Islamic law but by policy-makers, media organizations, journalists, and the interested citizenry. With some exceptions, literature on jihad in most cases suggests that the phenomenon has been misunderstood and distorted. On the other hand, the self-declared global as well as local jihadi organizations, or non-State Islamic actors, have abused the doctrine of jihad and have declared war against their Muslim rulers and their Western allies. It seems that in a way, authors who have presented a distorted interpretation of jihad seem to have accepted the interpretation and distortion of this doctrine as put forth
by the non-State Islamic actors. Both sides have blurred the doctrine of jihad, because of which its proper understanding has suffered, and the philosophy, it seems, has been the real victim in the discussion and arguments about it, between the two sides. Consequently, a common man’s perception of Islam is to judge it to a large extent
through his view of actions of the non-State Islamic actors rather than by the principles of Islamic law, which is
either never brought forth or only referred to tangentially. It is in this background that this work attempts to explain,
based on original and classical works of Islamic law, the real causes of war in Islam; relations between Muslim and
non-Muslim communities; the authority, which under Islamic law, has the power to declare jihad on behalf of a Muslim state; the authority under Islamic law which would be responsible for conduct of war, its cessation, or
conduct of peaceful relations, in case a Muslim state was faced with either hostile intent or clear and direct aggression from any direction; what should be the fate of enemy’s non-combatants as well as prisoners of war
(POWs); what acts are specifically prohibited in war under Islamic law; and how non-state Islamic actors have
misinterpreted the principles of Islamic law to their advantage. Since Muslim states usually do not follow the rules of Islamic jus in bello and thereby there is no code to consider in academic studies, and the only code that is relevant in our discussion is the L┐’i╒ah of the Taliban, a document issued on 29 May 2010, by the Taliban in Afghanistan,6 as it is the most important document by a non-State Islamic actor of our times.
This work discusses the above issues by using the original sources of Islamic law, i.e., the Qur’ān, the Sunnah of the Prophet Muhammad (peace be upon him), and Ijma‘ (refers to the consensus among the shaba, the Companions of the Prophet). It is the conduct of the Prophet (peace be upon him) and his rightly-guided Caliphs (successors) that provide the answers to many issues discussed in this work because that has precedential value for Muslims. Classical treatises of Muslim fuqaha (jurists) have been consulted and their interpretation of the original sources as well as the secondary sources of Islamic law, plus their own opinions based on their ijtihad have been analyzed, and preference given to some opinions over others. It is expected that the readers of this work would have sufficient knowledge of Islamic law and its sources, in general. Various sources that have been cited for this work should help the future researchers to dig deeper into certain topics and unfold newer aspects of topics of their choice.
This work has been divided into ten chapters. Chapter One explains the origin, history, nature, and sources of Siyar. It also explains whether Siyar is a source of International Law or not. Chapter Two discusses the causes of war in Islam, the so-called division of the world into Dar al-harb and Dar al-harb; and, the basis of relations between Muslim and non-Muslim states. Chapter Three is about whether jihad can be declared by the head of a Muslim state or a jihadi organization within a Muslim state. It discusses thoroughly, the claims of various jihadi groups in Pakistan regarding jihad. Chapter Four is about the law of treaties in Islam, particularly, as it relates to the important issues of war and peace. Chapter Five is about who should not be targeted and killed in war, which especially includes women and children, the old, the infirm, and all other civilians. It mentions the exceptional circumstances in which they could be the targets for attack. Chapter Six discusses the treatment of the prisoners of war, their rights and how can their captivity be terminated; can they be executed, enslaved, or ransomed, and other related issues. Chapter Seven is about the various acts that were specifically prohibited by the Prophet (peace be upon him) and his successors, in wars. It also discusses the issues of war crimes and genocide from an Islamic perspective. Chapter Eight explains whether a suicide attack is a new method of waging war or an act of perfidy. It evaluates the arguments of those who either support or are responsible for supervising such suicide attacks, to find out whether their actions are permissible in Islamic law or not. Chapter Nine analyzes terrorism from an Islamic perspective and discusses the issue whether the recent anti-terrorism legislation in Muslim states is compatible with Islamic law or not. Chapter Ten evaluates the La’ihah of the Taliban in Afghanistan to find out the Islamicity of the various rules and regulations that they claim to be based on Islamic law.
The present book is meant to inform the readers what classical books contain and how that information and knowledge can be applied to new situations such as the actions of the non-State Islamic actors, terrorism, and the La’ihah for of the Taliban in Afghanistan – the idea being that the primary texts are not always as easily accessible to the general reader as they should be. However, this book is distinctly not meant as a substitute for a thorough perusal of those primary texts: the author’s best hope and assumption is that readers will go to the primary texts first, and will return to them again after obtaining whatever guidance they can get from these pages. Additionally, there are a number of places in the text where I go beyond a mere reporting of the issue, and try to add my own views to the discussion at hand.