Jihad final

JIHADAND THEISLAMIC

LAW OF WAR

the royal aal al-bayt institute for islamic thought2009 • jordan

contents

Overview v

1. Does jihadmean “holywar”? 1

2. What is the role of non-violent jihad? 4

3. DoMuslims go towar against othersmerely because they are non-Muslim? 9

4. What are theFiveBasicRightsof Islamic law, andhowdo they relate towar? 11

5. Whatdoes theQur’an say about jihadandfighting? 13

6. WhendoMuslimsmake treaties? 16

7. What is thedistinctionbetweenpre-emption and aggression? 21

8. What is thedifferencebetween “TheAbodeof Islam” and “TheAbodeofWar”? 24

9. Is forced conversion an Islamic teaching? 27

10. What is the “sword verse”? 31

11. What are thebasic rules of combat as laiddown in Islam’s authoritative texts? 35

12. What is the status of non-Muslimsunder Islamic rule? 37

13. What is the jizyah, or poll-tax,onnon-Muslims? 43

14. Doesorthodox Islamsanction rebellionagainst political authority? 47

15. Howdoes the Islamic lawofwar cometobe violated? 53

Conclusion 64

FurtherReading 69

Notes 71

contents

overview

what is the Islamic law of war and peace? This crucialquestionunderlies all discussionof jihad, perhaps themostmisrepresented of ideas in the West’s understanding ofIslam. “Holywar”,1 “a faith spread by the sword”,2 “Islamo-fascism”,3 “infidel”,4andmanyof theothercatchphrases sopopular in the uninformed debate on this topic only servetomuddle the issue. It is thereforeuseful, andeven impera-tive, toexplainwhat jihad is,what itmeans toMuslims, andhow it relates to theconcrete issuesofwar andpeace. Sinceone cannot hope to understand a law by studying theactions of those who break it, we will not discuss here theactions of individuals, but focus on the very sources ofIslamic law itself as they relate to jihad,war, andpeace.Actsofviolenceandsituationsofpeacecanonlybe judged, fromthe point of view of Islam and the Shari‘ah (Islamic law), onhow fully they accord with the principles set down by theQur’an, theteachingsof theProphet, andtheprecedentsetby the traditionof religious scholars throughthecenturies.

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Naked assertions by individuals who claim to speak in thename of Islamwithout a foundation in these authoritativesources and principles must be examined in light of thosevery sources andprinciples, andnot accepted at face value.What follows is anattempt todescribe themost importantissues surrounding the Islamic lawofwar andpeace, and tolay out the mainstream, traditional Islamic position,comprisedof threeessential principles:

•Non-combatants arenot legitimate targets.

• The religionof apersonorpersons innowayconstitutes a cause forwar against them.

•Aggression isprohibited, but theuseof forceis justified in self-defense, forprotectionofsovereignty, and indefenseof all innocentpeople.

Wewill expandupon theseprinciples inwhat follows.

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1

does jihadmean “holywar”?

although very often the Arabic word jihad isglossedas “holywar”, ifweweretotranslate “holywar”backinto Arabic we would have al-harb al-muqaddas, a termwhich does not exist in any form in the Islamic tradition.Jihad, both linguistically and as a technical term, means“struggle”, and is etymologically related to thewordsmuja-hadah,whichalsomeansstruggleorcontention, and ijtihad,which is the effort exerted by jurists to arrive at correctjudgments in Islamic law.

“Holy war” is actually a term that comes out ofChristianity. Until its acceptance by the EmperorConstantine in the fourth century, Christianity was aminority religion that was often persecuted, and whichgrew only through preaching and missionary activity.Christians were in no position to make war, and indeedChrist’s teachings to turn the other cheek kept them fromretaliation against their persecutors in most cases.WhenChristians came to possess real military power, however,

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theywere facedwith the taskof fightingwars andof decid-ingwhen, if ever, aChristian couldfight in awar and still beconsidered a true follower of Christ.Augustine was one ofthe earliest of Church thinkers to address this question indetail, discussing it under the general rubric of “just war”.Bothhe andhismentorAmbroseofMilandescribed situa-tions inwhich justicewould compel aChristians to takeuparms, but without forgetting that war should only be seenas anecessary evil and that it shouldbe stoppedoncepeaceis achieved. Such ideas were later elaborated upon by suchfigures asThomasAquinas andHugoGrotius.

It was with the rise of the papal states and ultimatelywith the declaration of the Crusades that the concept of“holy war” came to be an important term. It is noteworthythat the earliest “holy wars” were often wars by Christiansagainst otherChristians, in the sense that theprotagonistssaw themselves as carryingout thewill ofGod.However, itwaswith the “takingof the cross”by theChristianwarriorssent by PopeUrban in the eleventh century that “just war”became “holy war” in its fullest sense. It was only with theauthorization of the Pope that a knight could adopt thesymbol of the cross. “Holy war”, as a term, thus has its ori-gins inChristianity, not Islam.

This gradual transition fromtotalpacifismto justwar toholywardidnotoccur inIslam.Thenonviolentperiod last-edonlyuntil theProphetemigratedtoMedina, afterwhich

jihad and the islamic law of war

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the community was forced to ponder the conduct of war.The early history of Islam, unlike that of Christianity, wasmarked by overwhelming military and political success.However, rather than stampapermanentlywarlikecharac-teronIslam, thevery fact thatMuslims received revelationand guidance from the Prophet on matters of war estab-lished a set of rules and legal precedent that set clear andunmistakableboundaries.AsChristianscameto learnafterthey had gained political power, in a world full of evil andhuman passions war was inevitable, and even followers ofChrist’s teachingof turning theother cheekwere forced toformulate a concept of “just war”. They lacked, however,the advantage of a clear and binding precedent that notonly provide that jus ad bellum, or the conditions underwhich a just war could bewaged, but jus in bellum, the ruleson how the fighting itself is carried out. This is preciselywhat theQur’an, the life and teachings of theProphet, andthe actions of the early community gave to Islamic law.

The term “holy war” is thus inaccurate and unhelpful,implying that for Muslims war has a kind of supernaturaland unreasoned quality removed from the exigencies ofthe world. On the contrary, Islamic law treats war as asometimes necessary evil, whose conduct is constrainedby concrete goals of justice and fairness in this world. Ifwarfare has any worth (and indeed, those martyred whilefighting justly in the way ofGod are promised Paradise), it

question 1

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comes fromwhat is fought for, not from the fighting itself.Jurists of Islamic law never ask whether war is “holy”.Rather, they determine, based on Islamic teaching, if it isright and just. An unjust attack by a group of Muslimsacting outside of the law might be called war, but it is notjihad in the eyes of traditional Islam. Moreover, as theverses of the Qur’an and sayings of the Prophet below willshow, jihad is also a name for a spiritual struggle or taking aprincipled stand in adifficult situation.

Thus, not allwar is jihad, andnot all jihad iswar.

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what is the roleof non-violent jihad?

the history of the Muslim community under theProphet is normally divided into two periods, the MeccanandtheMedinan.Qur’anicchapters andverses arenormal-ly classified accordingly, depending on when the verse wasrevealed. The Muslim hijri calendar begins with the emi-gration (hijrah) of the Prophet and his Companions fromMecca toMedina, where they established the first Islamicpolitical entity. The Meccan period begins with theProphet’s first revelation from the archangel Gabriel, and


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ends thirteenyears laterwith thehijrah,while theMedinanperiod begins with hijrah and ends ten years later with theProphet’s death in632of the commonera.

In theMeccan period theMuslimswere aminority reli-giouscommunityamongst theprimarilypolytheisticpaganArabs, andpossessednopoliticalpowerorprotectionasidefromthatwhichwasprovidedbytheir familialbonds.Theydid not constitute a formal organization, but rather were aself-selected group of individuals who were bound to eachother spiritually, andwhowereoften verbally andphysical-ly abused for theirpractices andtheirbelief in theoneGod.During thisperiod theProphetwasneither judgenor ruler,but guide and teacher, andbrought news of the true natureof things, especially as it concernedtheonenessofGodandthe inevitableDayof Judgment.Thecommandsandprohi-bitionsduring theseyearswereof a spiritualnature, suchasperforming prayer and keeping away from unclean things,and there was no earthly punishment for going againstthem.

Once the Prophet and Companions emigrated toMedina, the Prophet took on the power to govern politi-cally over the Muslims and non-Muslims of Medina. Hebecame both a spiritual and temporal leader, and as suchbecame responsible for both the spiritual and materialneeds of the people, whereas in theMeccan period his pri-marymission was to be a bringer of glad-tidings and awarner

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(the Holy Qur’an, Al-Fatir, 35:24). These material needsincluded the defense and maintenance of the new Islamicstate, by force of arms if necessary.While the Muslims inthe Meccan period were expressly forbidden to take uparms against their persecutors, in theMedinanperiod theyaregivenpermissiontofight their enemiesmilitarily, aswillbe discussedbelow.

Some have speculated that theMuslim community wasnot permitted to take up arms in the Meccan periodbecause they were weak and outnumbered, but this is toforget that they were outnumbered three to one at theBattle of Badr, which took place in the Medinan period.Moreover, this explanation contradicts Qur’anic versessuch as, If there are ten steadfast among you, theywill defeat twohundred, and one hundred among youwill defeat one thousand ofthosewhodisbelieve, for they are a peoplewhodo not understand.(Al-Anfal 8:65)Or,Howmanya small party has defeated a larg-er party by God’s leave! God is with the steadfast. (Al-Baqarah2:249)

Still,wefindthat in thisperiodofnon-violent stead-fast-ness, under the frequently violent persecution of theMeccan pagans to the new religion, the Muslims are com-manded to carry out struggle, or jihad: Do not obey thedisbelievers, and struggleagainst themwith itagreat struggle (Al-Furqan 25:52).Then indeed your Lord—for thosewho emigratedafter they were put through tribulation, then struggled andwere


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patient—indeed your Lord, after that, is forgiving, merciful (Al-Nahl 16: 110). Verse 25:52 is universally considered to beMeccan by traditional exegetes of the Qur’an,5 and Ibn‘Abbas pointed out that struggle …with itmeans to struggleusing theQur’an, that is, with the truth contained thereinagainst the false beliefs of the pagans. Verse 16:110 isthought by some to be Medinan, but the majority ofexegetesconsider theemigrationmentionedtorefer to theflight of some of the Muslim community to seek asylumwith theKing ofAbyssinia, which occurred in theMeccanperiod.

TheProphet himself praisednon-violent jihad.He said,“The best struggle (jihad) is to speak the truth before atyrannical ruler,”6 and, “The best struggle is to struggleagainst your soul andyourpassions in thewayofGodMostHigh.”7 Some have questioned the authenticity of thehadithwhichdescribes theProphet returning fromabattlewith theCompanions and saying, “Wehave returned fromthe lesser struggle to the greater struggle,” which is oftencitedbythoseseekingtorecover thetraditionalmeaningofjihad. If thehadith is indeed inauthentic, themeaning is stillfound intheaforementionedhadith thatplaces thestruggleagainst the soul above all other struggles. Moreover therearenumerousotherhadithwhichplace the efforts requiredin the spiritual life above the rewards of physical combat.The Prophet once said, “Shall I tell you of your best deed,

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the most pleasing to your King, the loftiest in your ranks,better than the giving of gold and silver, and better thanmeeting your enemy in battle, beheading him whilst hebeheads you?The remembranceofGod (dhikrAllah).”8

Indeed, so important is the spiritual elementof strugglethatevenwhenMuslimsarecommandedtofight theymustfirst insure that the truth does not die with those who puttheir lives at risk in battle.And the believers should not all goout to fight. Of every troop of them, a party only should go forth,that they (who are left behind)may gain sound knowledge in reli-gion, and that theymaywarn their folkwhen they return to them,so that theymay beware. (Al-Tawbah9:122)

The superior and inherent worth of spiritual struggleover armed struggle is an immutable value in Islam, butplacing the spiritual above the worldly does not eraseworldly concerns. It is universally agreed that Islamic lawcame to sanction armed struggle andwar, but this sanctioncame with a law of warwhich is binding for Muslims.Thislawofwar answers two fundamental questions:Whydowefight?Howshouldwefight?

In almost all cases during the career of the Prophetarmed combat and war took place with Muslims on oneside and non-Muslims on the other.These were not tribalbattles, sincemembersof thesametribeandoftenthesamefamily fought on opposite sides. Nor were they religiousbattles in the sense that Muslims fought non-Muslims for


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the mere fact of their being non-Muslims.As we shall see,Muslims fought for the protection of their basic rights: theright to life, property, honor, and most importantly theright to believe and practice their faith. Their grievancesagainst their enemieswereexpulsion fromtheirhomesandseizureof theirproperty;persecution inthe formof tortureand murder; and pressure to give up their faith in the oneGodand theProphetMuhammad.

Acursoryknowledgeof the lifeof theProphetwill showthat oneneednot go into theology to explainwhyMuslimsfought their enemies.Thefact thatMuslimswereperse-cuted, reviled, tortured, pitted against their ownfamilies, exiled, embargoed, and killed providesmorethanenough justification for their resort to force.

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domuslims gotowaragainstothersmerely because theyare non-muslims?

most scholars agree that the first verses to permitfightingwere:

Truly God defends those who believe.Truly God loves notevery disbelieving traitor. Permission is given to thosewho

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are fought because they have been wronged. Surely, God isable to give them victory—those who have been expelledfromtheirhomesunjustly onlybecause they said: “OurLordisGod.”And if itwere not thatGod repelled some people bymeans of others, thenmonasteries, churches, synagogues, andmosques, wherein the Name of God is mentioned muchwould surely have been pulled down.Verily, Godwill helpthosewhohelpHim.Truly,God is powerful andmighty—those who, if We give them power in the land, establishworship and pay the poor-due and enjoin kindness and for-bid iniquity.AndtoGodbelongs theoutcomeof [all]affairs.(Al-Hajj 22:38-41)9

It is of the greatest significance that the verses finallygiving Muslims permission to use force to defend them-selves should make mention of the houses of worship ofother religions.GodnotonlyprotectsMuslimsbyrepellingsomebymeans of others,He also protects religion as such,which is described here in terms of the places wherein thenameofGod is remembered.Aswillbemadeclearbelow, itis the not the religious identity of people whichjustifies theuseof forceagainst them,but theiraggres-sionandcrimesagainst theMuslimcommunity and, byextension,other religiouscommunitiesunderMuslimrule.


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4

whatare the five basic rights of islamiclaw, andhowdotheyrelate towar?

the question of protecting religion in war is acrucial one, for indeed he law of war in Islam is a subset ofall Islamic law (theShari‘ah), and as such itmust conformtothe principles of that encompassing law. Jurists of the(overwhelmingmajority) orthodox tradition have, in codi-fying the law, identified those fundamentals which the lawmust protect andwhichMuslims cannot violate.These areusually called “The Aims of the Law” (maqasid al-shari‘ah),but in effect they amount to the Five Basic Rights. Theyare: (1) Religion; (2) Life; (3) Mind; (4) Honor; (5) Property.Muslims have always understood the value of the outward(the restrictions andprohibitions of the law) to derive ulti-mately from its protection of the inward (the humanbeing’s relationship with God and his own true nature),hence the traditional place of religion as the first BasicRight before the law. It is one reason why the Prophetplaced the remembrance of God above all other acts. YetIslamic law, and ipso facto the law of war, must take intoaccount the otherBasicRights.TheRight toLife includessafety from murder, torture, terror, and starvation. TheRight to Mind encompasses the Islamic prohibition of

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intoxication, andmore generally can be extended to thosethings which hinder human objectivity, such as misinfor-mation, miseducation, and lying in general. The Right toHonor exists inwhat has come to be known in themodernworld as “human dignity”, which in the Islamic contextbegins from the integrity of the family (and particularly ofone’s lineage) and extends to the protection of one’s goodnameandanenvironmentofmutual respect in society.TheRight to Property protects against theft, destruction, anddispossession.

TheseFiveBasicRightsallpertaintotheconductofwar, enshrining the principle that thematerial is ultimate-ly justified in light of the spiritual, and that the spiritualmust guide the conduct of the material. In other words,morality and ethics apply to war, equally and accordingto the same principles, as they apply to economic trans-actions, marriage and sexuality, and government.Indeed, it is an abuse of good sense to suppose that a civi-lization which developed a highly sophisticated law andsystemof justice, an international systemof tradeandcred-it, peaks of art and philosophy, and major advances inscience and technology—allwithin aworld view formedbytheQur’an and the teachings of theProphet—could some-howhaveomitted to address justice, harmony, and fairnesswhen it came toquestions ofwar andpeace.


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5

whatdoes the qur’an sayabout jihad and fighting?

below are some Qur’anicversespertainingto jihadandfighting.Carehasbeentakentoquote theseat some length,as the relevant passages are often abbreviated and quotedout of context inmuch of the discussion about theQur’anand jihad.When read as awhole, the justice and fairness oftheQur’anic commands speak for themselves:

Fight in thewayofGodagainst thosewhofightagainst you,butbeginnothostilities.Lo!God lovethnotaggressors./Andslay themwhereveryoufindthem,anddrive themoutof theplaces whence they drove you out, for tribulation is worsethan slaughter.And fight not with them at the InviolablePlace ofWorshipuntil theyfirst attackyou there, but if theyattack you (there) then slay them. Such is the recompense ofdisbelievers. / But if they desist, then lo! God is Forgiving,Merciful. /Andfight themuntil tribulation is nomore, andreligion is forGod.But if theydesist, then let therebenohos-tility exceptagainstwrong-doers. /The forbiddenmonth forthe forbidden month, and forbidden things in retaliation.Andonewhoattackethyou,attackhimin likemannerasheattacked you. Observe your duty to God, and know thatGod iswith the pious. (Al-Baqarah 2:190-194)

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Warfare is ordained for you, though it is hateful unto you;but itmayhappen thatyehatea thingwhich is good foryou,and itmayhappen that ye love a thingwhich is bad for you.God knoweth, ye know not. / They question thee (OMuhammad) with regard to warfare in the sacred month.Say:Warfare therein is a great (transgression), but to turn(men) fromthewayofGod, and todisbelieve inHimand inthe Inviolable Place of Worship, and to expel His peoplethence, is a greaterwithGod; for persecution is worse thankilling.Andtheywill not cease fromfightingagainst you tillthey have made you renegades from your religion, if theycan.Andwhoso becometh a renegade and dieth in his disbe-lief: suchare theywhoseworkshave fallenboth in theworldand theHereafter.Suchare rightful owners of theFire: theywill abide therein. (Al-Baqarah 2:216-217)

God forbids you not,with regard to thosewhofight you notfor (your) religion nor drive you out of your homes, fromdealing kindly and justly with them: for God loveth thosewho are just. / God only forbids you, with regard to thosewho fight you for (your) religion, and drive you out of yourhomes, and support (others) in driving you out, from turn-ing to them(for friendshipandprotection). It is suchas turnto them (in these circumstances), that do wrong. (Al-Mumtahanah60:8-9)Tell thosewhodisbelieve that if they cease (frompersecution


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of believers) thatwhich is pastwill be forgiven them; but ifthey return (thereto) then the example of themenof oldhathalreadygone (before them, forawarning). /Andfight themuntil persecution is nomore, and religion is all forGod. Butif they cease, then lo!God is Seer ofwhat they do. (Al-Anfal8:38-39)

Read as a whole, and not selectively quoted out of con-text, these verses make it clear thatMuslims fight becausetheyhavebeenwronged; because theyhavebeenpersecut-ed, which is seen as worse than killing; because they havebeen made to renounce their religion; and because theyhave been driven out of their homes.Muslimsmust fighttheirenemiesnotbecauseofwhotheyare,butbecauseof what they have done to them and continue to do tothem.

Itmust be remembered that theProphet beganpreach-ing while still a respected and admired member of hiscommunity. It was the teachings he brought which theQuraysh saw as a threat, not the Prophet himself as aman,nor his followers as a group. He never threatened theQuraysh (other thanwarning themof theDayof Judgment)or used any kind of coercion whatsoever. The youngMuslim community began to suffer persecution under theQuraysh because Islam was seen as a threat to their ownpagan religion and to Mecca’s role as a place of pilgrimage

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(and hence to their economic prosperity). The first reac-tionsof theMuslimswere toendure, thentoflee, since theywere not yet permitted to fight back. It was only after theQuraysh had made life unbearable—by embargoing theMuslims and finally even attempting to assassinate theProphet—that the young community finally migrated toMedina. Indeed, the Muslims had exhausted all otheroptionsbefore resorting to force.

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when domuslims maketreaties?

though muslims were eventually given permission toretaliate, in Islamic law the goal of redressing grievances isnotmere revenge, but the establishment of peace. For thisreasontheQur’anoftenmakesmentionof treatiesofpeacewith non-Muslims, including the polytheists.The follow-ing verses are examples from theQur’an involving treatiesand agreements of peace with non-Muslims, again quotedat length so as to show their context:

They long that ye should disbelieve even as they disbelieve,that ye may be upon a level (with them). So choose notfriends fromthemtill they forsake theirhomes in thewayof


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God; if they turn back (to enmity) then take them and killthemwhereveryefind them,andchooseno friendnorhelperfrom among them, / Except those who seek refuge with apeople betweenwhomand you there is a covenant, or (thosewho) come unto you because their hearts forbid them tomakewar on you ormakewar on their own folk.HadGodwilled He could have given them power over you so thatassuredly theywouldhave fought you. So, if theyhold alooffromyouandwagenotwaragainst youandoffer youpeace,Godallowethyounowayagainst them. /Yewillfindotherswho desire that they should have security from you, andsecurity from their own folk. So often as they are returnedto hostility they are plunged therein. If they keep not alooffromyou nor offer you peace nor hold their hands, then takethemandkill themwherever yefind them.Against suchWehave given you clearwarrant. (Al-Nisa’4:89-91)

And if they break their pledges after their treaty (hath beenmadewithyou)andassail yourreligion, thenfight theheadsof disbelief—Lo! theyhavenobindingoaths—inorder thatthey may desist. /Will ye not fight a folk who broke theirsolemnpledges, andpurposed todrive out themessenger anddid attack you first ?What! Fear ye them ? NowGod hathmore right that ye should fear Him, if ye are believers. /Fight them! God will chastise them at your hands, andHewill lay them low and give you victory over them, andHe

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willheal thebreasts of folkwhoarebelievers. /AndHewillremove the anger of their hearts. God relenteth towardwhomHewill. God is Knowing,Wise. / Or deemed ye thatyewould be left (in peace)whenGod yet knoweth not thoseof youwho strive, choosing for familiar none saveGod andHis messenger and the believers ? God is Informed of whatye do. (Al-Tawbah9:12-16)

Those of themwithwhomthoumadest a treaty, and thenatevery opportunity theybreak their treaty, and theykeepnotduty (toGod). / If thou comest on themin thewar,dealwiththem so as to strike fear in those who are behind them, thathaply they may remember. /And if thou fearest treacheryfromany folk, then throwback to them(their treaty) fairly.Lo!God loveth not the treacherous. /And let not thosewhodisbelieve suppose that they can outstrip (God’s Purpose).Lo! they cannot escape. /Make ready for themall thou canstof (armed) force and of horses tethered, that thereby yemaydismay the enemy ofGodand your enemy, and others besidethemwhom ye know not. God knoweth them.Whatsoeverye spend in the way of God it will be repaid to you in full,and yewill not bewronged. (Al-Anfal 8:56-60)

The next verse clarifies that if they do maintain theirtreaties, then the treaties are to be honored.And if theyincline to peace, incline unto it, and trust inGod. Lo!He, evenHe,is theHearer, theKnower. (Al-Anfal 8:61)


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The principles surrounding treaties is also seen in thisverse:

Tell thosewhodisbelieve that if they cease (frompersecutionof believers) thatwhich is pastwill be forgiven them; but ifthey return (thereto) then the example of themenof oldhathalreadygone (before them, forawarning). /Andfight themuntil persecution is nomore, and religion is all forGod. Butif they cease, then lo!God is Seer ofwhat they do. (Al-Anfal8:38-39)

To command the state of non-violence through theobservanceof anestablishedtreatywithnon-Muslimpoly-theists shows that the Muslim community was willing,and indeed commanded, to live in a state of peacewiththeir neighbors even if those neighbors practiced areligionother thanIslam.WhentheMuslimsare com-mandedtofight thosewhobreaktheir treaties, it is thebreakingof the treaty that inviteswarfare, not the factthat thetreaty-breakersarepolytheists.

The Prophet made several important treaties with thenon-Muslim communities aroundMedina, and thesewereofmorethanonekind.Perhaps thebestknownis thetreatyof Hudaybiyah, where the Muslim community made atrucewith theQuraysh tribe allowing theMuslimcommu-nity tomakeapilgrimage toMecca the following year.Thistreaty was noteworthy for its pragmatism: the Prophet

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made certain concessions in favor of a greater good.Thoughtheyhadsetout tomakeapeacefulpilgrimagedur-ing the holy months where fighting was forbidden, theyweremetontheroadbytheQurayshandultimatelydidnotreach Mecca that year as part of the treaty terms.Moreover, the Quraysh even demanded that the Prophetremove the divine Name al-Rahman and the title of“Messenger of God” from the treaty, which the Prophetagreed to despite the dismay of prominent companionssuch as ‘Ali ibnAbiTalib, and even as staunch a Muslim as‘Umar ibn al-Khattab bristled atwhat he saw at the time ashumiliating terms.Yet theQur’an referred toHudaybiyahin these terms: VerilyWe have given thee a clear victory (Al-Fath 48:1). Although the Muslims did not achieve theirimmediate aims of pilgrimage, the treaty of Hudaybiyahcreated an environment of free travel and peace whichserved to strengthen the Muslim community’s position inArabia.

Thus Muslims sought peace with non-Muslims, and inno case is the reason for Muslim armed struggle againstnon-Muslims themere fact of their religious identity.As ismadeclear in thepassages fromtheQur’ancitedabove, thereason for armed struggle is a state ofwar (haraba) originat-ing in the concrete actions taken by the non-Muslims toharm the Muslim community, not their state of disbeliev-ing inGod (kufr) or of belonging to another religion.As the


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example of the Prophet shows,Muslims canmake treatieswith their enemies, even if they are polytheists, and theyare expected byGod to keep to their treaties. If hostilitiesresume with treaty-breakers, it is not because the treaty-breakers arenon-Muslimbutbecause theyhave re-entereda state of hostility.This in fact occurred on more than oneoccasion, notably the treaty of Hudaybiyah, which wasmeant to last ten years but which was rendered void byMeccans’ actions against theMuslimcommunity.

In short, in Islam treaties are not predicated ontheologyorreligious identity.Rather, like treatiesany-where, they rely on the two parties faithfully adheringto the terms. As in all transactions in Islamic law, such asbuying and selling, and even marriage, the religion of thepersonmaking a treaty has no legal bearing on the force ofthe treaty. An agreement with a Muslim is no more orless binding than an agreement with a non-Muslim,whether it is a rental contractor theUNCharter.

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what is the distinction betweenpre-emptionandaggression?

some have sought support for the idea Muslims can

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kill disbelievers for their disbelief in the Prophet’s hadithduring the al-Ahzab campaign, “Now we campaign againstthem but are not campaigned against by them. We aregoing to them.”10Asimilar type of support is sought in thebattle of Khaybar, where the Muslims mounted a surpriseattack against the Jews there, or at the battle of Mu’tah,whereMuslims attacked theByzantines.

If one restricted themeaning of hostility to shots beingfired, then these examplesmight show thatMuslims claimthe right to unprovoked attack against others by reason oftheir being non-Muslims.However, an enemy need not bestorming the gates in order to pose a grave and imminentdanger.Anenemycanhave the intent tocauseharm,or canbeplanning tocauseharm,orcanbeconspiringwithotherswho are already causingharm.

Indeed while there were several cases in which theMuslims “campaigned when they were not campaignedagainst”, there were nevertheless reasons why this cannotbe considered aggression but rather pre-emptionagainst a clear danger coupled with an intention offuture aggression. In the case of Banu Mustalaq, it cameto the Prophet’s attention that they were conspiringagainst the Muslims. In the case of Khaybar, the Prophetlearned that Banu Khaybar had made a secret agreementwithBanuGhatafan to unite against them. Inorder to pre-empt this action, the Prophet staged a surprise attack. In


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the case of the attack atMu’tah, tribes to the north (whichwere under theprotectionof theByzantines) showed theirhostility against the Muslims by taking the egregious stepof killing the Prophet’s emissary. In the Tabuk campaignMuslims set out based on information that the Byzantineswerepreparing to attack.

There exists a saying inArabic, “When the Byzantinesare not campaigned against, they campaign.” This sayingshould remindus that themodernconceptsofpre-emptivewarandaggressionmustbeunderstood intheirpropercon-text.Until the twentiethcentury,warwasanacceptedrightof all states. Indeed, in 1928 the Kellogg-Briand pact wasthe first major systematic attempt to renounce war as aninstrument of national policy. Over the course of the 20thcentury the Kellogg-Briand Pact was followed by theNurembergPrinciples, theCharter of theUnitedNations,and theGenevaConventions, all of which laid the founda-tion for current international law. These agreementsconstitute binding treaties between the signatories.Theymakemilitaryaggressionbetweenstates illegal, andamongother things forbid the acquisition of territory by war,definewarcrimesduringtheconductofwar, andgovernthetreatment of prisoners, civilians, and combatants.

Such questions were already an important part ofIslamic law for more than a thousand years. Though thecontent of the law was different—reflecting a different

question 7

23

international environment—the effort to regulate rela-tions between states was well-established in Islam longbefore the treaties of the 20th century. Indeed, whileIslamic lawflowed fromprinciples laid down in theQur’anand the life of theProphet as part of a larger ethical law, theinternational treaties of the 20th century were, it must besaid, fueled largely by the horror of the twoworldwars andthe fear of having such episodes repeated.

8

what is the difference between “theabode of islam” and “the abode of war”?

from the point of view of Islamic law, anyMuslim sig-natory to the Charter of the UN and the GenevaConventions is just as bound to abide by them as theProphetwas to abideby the treatieshe completedwith thepaganQurayshandwithother tribesofArabiaandbeyond.The military encounters between political entities in thepast cannot be judged by the same standards that we judgesuch encounters today, because in the absenceof an explic-it renunciation of international agreements all nations areinade facto treatywithallothers, thoughthesituation isnotusually framed in those terms. The classical laws of jihad


24

assumed—correctly—that thedefaultpositionbetweenstateswas a state ofwar, hence the nameDar al-Harb, orAbode of War, which is usually set in contrast to Dar al-Islam or the Abode of Islam. This has been widelyunderstoodtomeanthatMuslimsconsiderthemselvesobligated to wage war on all non-Muslim lands untilthey become part ofDar al-Islam, but this is not at allthe case. The label “the abode of war” signifies that theland in question is not in treaty with theMuslims and thathostilities can break out at any time. Recall that war wasuniversally acknowledged as something states did to getwhat they wanted; there was no idea of violating interna-tional laworofbecominga “rogue” state.Fromthepointofview of current international law, all states were in a senseroguestatesbecause therewasnomechanismforenforcingor even defining the rules of war, aside from customarypractices such as the receiving of emissaries.

Thus the explicit rules of the Islamic law of jihad werenot imposedfromwithout, ashasbeenthecase for states inthe twentieth century, but were realized from within.Thestate of affairs in 7th centuryArabia and the surroundingareas made this “state of war” the rule rather than theexception.Unless anexplicit treatywasmadebetween twogroups—in the case of Arabia, these fundamental unitswereusually tribes—thenonecouldexpectanattackatanytime. The Qur’an reflects the awareness of the early

question 8

25

Muslimcommunity totheirweakanduncertainposition inthis hostile state of affairs:

Do they not see thatWe established a safe havenwhile peo-ple all around them were being snatched away?(Al-‘Ankabut 29:67)

Andrememberwhenyouwerea small,marginalizedgroupin the land, living in fear that the people would snatch youaway… (Al-Anfal 8:26)

They say, “If we follow the guidance with you we shall besnatched fromour land.” (Al-Qasas 28:57)

Muslims are described asThose whom the people warned,“Surely all the people have lined up against you so fear them.” (Al‘Imran 3:173)

TheSurahof theQurayshalso testifies to therisksof liv-ing on theArabianpeninsula:

For the comforting of the Quraysh, the comforting of thewinter and summer caravans. Let them, then, worship theLord of this House,Who banished their hunger with foodand their fearwith security (al-Quraysh 106:1-4)

The separationof theworld into theAbodeof IslamandtheAbode ofWar reflects the reality, brutal and unavoid-able, that the world was not always governed by the


26

universal treaties of today.The termsDar al-Islam andDaral-Harb are not terms from the Qur’an or from theteachings of the Prophet, but grew out of the work ofjurists coming to terms with the new international profileof Islam.As such, they also coined terms such as dar al-sulh (“abodeof reconciliation”) anddar al-‘ahd (“abodeof treaty”), referring to those lands not ruled by IslambutwithwhichtheIslamicstatehadsomesortofpeaceagreement. Such designations were common from theAbbasidperiodall thewaythroughtotheOttomanEmpirein the 20th century.

From the point of view of Islamic law, the gradual adop-tion and advancement ofmoral principles in internationallaw is awelcome development, and brings theworld closerto theQur’anic ideal of non-aggression and peaceful coex-istence.And if they incline to peace, incline unto it, and trust inGod. Lo!He, evenHe, is theHearer, theKnower. (Al-Anfal 8:61)This idealization of peace is also echoed in the Prophet’scommand, “Do not be hopeful of meeting the enemy, andaskGod forwell-being.”11

9

is forced conversionan islamic teaching?

some texts exist which would, if misunderstood,

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seem to contradict the spirit of the Qur’anic verses andhadithmentioned above regarding the role of one’s religioninwar.One of these is the hadithwhich reads, “I have beencommandedtofight thepeopleuntil theybearwitness thatthere is no divinity but God and Muhammad is God’sMessenger, perform the Prayer, and pay the Alms.Whentheyhavedone this, their blood andproperty are safe fromme, except by the right of Islam and their reckoning withGod.”12

Threemain questions are raised. First, who are the peo-ple whom the Prophet is commanded to fight? Second,what is thedefiningcharacteristicof thesepeople suchthatthey are subject to theProphet’s fighting them?Third, andless obviously, is this hadith universal in its temporal scope,or is it limited to a specific time and situation?

Aminority position holds that this hadith points to thefact that although in thebeginning theMuslimswere com-manded to spread the truth of Islampeacefully, at a certainpoint this command was abrogated and from that pointforward Muslims were commanded to fight non-Muslimsuntil they accepted Islam. Abrogation (naskh) means thatthe legally binding status of aQur’anic verse is supersededby the legally binding authority of a verse that is revealedlater. For example, one verse of the Qur’an prohibitsMuslims fromprayingwhile intoxicated,while a later verseabrogates this verse by promulgating an absolute prohibi-


28

tion on the consumption of alcohol. At issue here iswhether a previous command to preach peacefully is can-celled by a later command tofight people until they acceptIslam.

Among theverseswhich refer topreaching the truths inthe Qur’an and inviting non-Muslims to Islam are the fol-lowing:

Remind them, for thou art but a remembrancer, /Thou artnotatall awarder over them. /Butwhoso is averse anddis-believeth, / God will punish him with direst punishment.(Al-Ghashiyah 88:21-23).

But if they are averse,We have not sent thee as a warderover them.Thine is only to convey (themessage). (Al-Shura42:48).

WhetherWe let thee see something of that whichWe havepromised them, or make thee die (before its happening),thine is but conveyance (of themessage).Ours the reckoning.(Al-Ra‘d 13:40).

Obey God and obey the messenger, and beware! But if yeturnaway, thenknowthat thedutyofOurmessenger is onlyplain conveyance (of themessage). (Al-Ma’idah 5:92).

Some of these verses are Medinan, which means thatthey were revealed after permission was given to the

question 9

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Muslimcommunity tostruggle through forceofarms.This makes it clear that the preaching of Islam is a

question of allowing the truth to reach the ears ofthose who have yet to hear it, not of forcing others toaccept it. Indeed, to force another to accept a truth inhis heart is impossible, as acknowledged clearly in theQur’anicverseThere is no compulsion in religion.The rightwayhas become distinct from error (Al-Baqarah 2:256). This versewas revealed inMedina andwas in factdirectedatMuslimswho wanted to convert their children from Judaism orChristianity toIslam.13

As theQur’an is so clear that theProphet’s only respon-sibility as regards bringing others to the truth is only topreach it to them, to bring the good news of Paradise, andtowarnofHell,weare leftwiththehadithwhichclaimsthatthe Prophet has been commanded to fight until “the peo-ple” accept the oneness ofGod, theMessengerhoodof theProphet, perform the canonical Prayer, and pay theAlms,all ofwhich is tantamount to their becomingMuslims.

The majority of the scholars of Qur’anic exegesis andlaw hold that the command to preach peacefully and tonever coerce a person in his choice of religion was neverabrogated and continued to hold sway through the end oftheProphet’s life andbeyond.Amongst thismajority thereare twomainpositions. Somehold that thepeople referredto in the verse are theArabian idol-worshippers, while all


30

others fall intoaseparatecategoryaddressedbysuchversesas There is no compulsion in religion and God forbids you not,withregard to thosewhofightyounot for (your) religionnordriveyou out of your homes, from dealing kindly and justly with them(Al-Mumtahanah 60:8). A second group of scholars holdsthat thecommandenshrined inThere is no compulsion in reli-gion is universal and applies to everyone, be theyidol-worshippers or Jews or Christians. In both cases theonly possible scope for “the people” is limited to thosewithwhom the Prophet was engaged in conflict at thetime. The majority of scholars thus do not consider that“thepeople” in this hadith refers to all people everywhere.

10

what is the “swordverse”?

one source of somecontroversy is theso-called“swordverse”,which reads:

When the sacred months have passed, kill the polytheistswherever you find them, capture them and besiege them,and lie inwait for themat everyambush.But if they repent,and perform the Prayer and giveAlms, then let themalone.IndeedGod is forgiving,merciful. (Al-Tawbah9:5)

question 10

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There is no disagreement that indeed this verse com-mands theMuslims tokill thepolytheists, but thequestionremains as towhether they are tobekilledbecause theyaredisbelievers or because of their enmity towards theMuslims.Are they to be fought because they are hostile totheMuslims or because they reject Islam?The secondpartof theverse,whichnames repentanceandtheperformanceof thePrayer and the givingof alms as a conditionbywhichthe polytheists can save themselves from the Muslims,would seem to indicate that it is their unbelief, not theirhostility, which is themotivation forMuslims to kill them.However, the next verse reads, If any of the polytheists seeksasylum from you, grant him asylum until he hears the Word ofGod.Then convey him to his place of safety.That is because theyare a people who do not know (Al-Tawbah 9:6). This secondversecommandsMuslims to receiveapolytheist ifhe seeksasylum, to preach the truth to him, and then to safely lethimgo. It setsnocondition thathe should repentoracceptIslam. It is not a condition for the asylum seeker’s safereturn that he become aMuslim. Indeed, these two versespresentnotonebut twopossibilities for thenon-Muslimtoescape armed conflict with the Muslim community: thefirst is to accept Islam, as mentioned in the first verse, andthe second is to seek asylum with the Muslims, as men-tioned in the second verse.14

Some have tried, creatively and erroneously, to assert


32

that the second verse is abrogatedby thefirst, but this is anabuse of the principles of abrogation, and twists verses oftheQur’an tomeanwhatwewant them tomean. In fact, itwould be impossible for 9:5 to call for fighting against oth-ers solelybasedontheirbeliefwithout it abrogatingnolessthan 140other verses calling for peacewith thosewhodo not fight against Muslims, even if they are pagans.Indeed, it would have to abrogate the verse immediately fol-lowing it, 9:6.The verseThere is no coercion in religion is not acommand,buta statementof fact,of thesamegrammaticalform as “There is no god but God.” Recall that this verse,according to one account, was revealed in the context ofpeople over whose religious preferences the Muslims hadno control—children of theirs who were among an exiledtribe. It is a descriptionofwhat religion is in relation to thehuman will. In Qur’anic exegesis, only commands can beabrogated, not truths. Thus by definition there is no waythat “There is no coercion in religion” (a statement, orkhabar) can become “Let there be coercion in religion” (acommand,oramr). In fact, amongthe fourSunni schoolsofjurisprudence only one, the Shafi‘i school, contains theview that a person’s belief can be a reason for fightingagainst them.This view, however, is mitigated by the factthat an opposite view, in agreement with the majority, isalso attributed to Shafi‘i.

Moreover, it is also important to note that two similar-

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sounding but distinct words are used in theQur’anic versewhich saysKill the polytheists wherever you find them and thehadithwhich reads, “I have been commanded to fight withthepeopleuntil…”In theArabic, the twoverbs inquestionareqatala,whichmeans tofight,kill, ormurder, andqaatala,whichmeans to fight, to combat, or to contendwith some-thing. The resulting verbal nouns are qatl for qatala andqitaal for qaatala. Qatl means killing, while qitaal meanscombat. Saahat al-qitaal, for example, means “battlefield”.The difference is crucial and is sadly sometimes ignored.This is a case which demonstrates the importance of mas-teringArabic before decidingonmatters of Islamic law.

The Prophet did not say, “I will kill/slay/murder thepolytheistsuntil…”Hesaid, “Iwillfightwiththem/com-bat them/contendwith them…”Qatl is an actionwhich,both linguistically and practically, requires only one agent.Qitaal implies two agents, each contending with or resist-ing the other.Theuseof qitaal implies a state ofmutualhostility, or, from the Prophet’s point of view, of aresponse to thepolytheists’ hostility.

Misunderstanding concerning such texts as thesecan be corrected easily by referring to the traditionallaw.It isonethingtohunt forquoteswhichserveapre-determinedpurpose, and quite another to understanda text in its proper context and in light of the traditionthat has dwelt upon it for over 1400 years. Such prob-


34

lems become compounded through mistranslationand, in somecases, deliberatemisinformation.

11

whatare the basic rules of combatas laiddown in islam’s authoritative texts?

the fundamental rules of combat are not academ-ic extractions cleverly derived from history, but areexplicitly laid out in Islam’s authoritative texts:

Fight in thewayofGodagainst thosewhofightagainst you,but beginnot hostilities.Lo!God lovethnot aggressors. (Al-Baqarah 2:190)

When the Prophet dispatched his armies he would say,“Go in the name ofGod. Fight in the way ofGod [against]the oneswhodisbelieve inGod.Donot act brutally.Donoexceed the proper bounds. Do not mutilate. Do not killchildren or hermits.”15 Once, after a battle, the Prophetpassedby awomanwhohadbeen slain,whereuponhe said,“She is not one who would have fought.” Thereupon, helooked at the men and said to one of them, “Run afterKhalid ibnal-Walid [andtellhim] thathemustnot slaychil-dren, serfs, orwomen.”16Inanotherhadith theProphet says

question 11

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clearly, “Do not kill weak old men, small children, orwomen.”17

AbuBakr al-Siddiq, the first Caliph, gave these instruc-tions tohis armies:

I instructyou intenmatters:Donotkillwomen,chil-dren, the old, or the infirm; do not cut downfruit-bearing trees; do not destroy any town; do notkill sheeporcamelsexcept for thepurposesofeating;do not burn date-trees or submerge them; do notsteal fromthebooty anddonotbe cowardly.18

Hasan al-Basri, one of the most important and influen-tial of the second generation of Muslims, described thefollowing as violations of the rules ofwar:

… mutilation (muthla), [imposing] thirst (ghulul), thekilling of women, children, and the old (shuyukh)—theoneswhohaveno judgment for themselves (la ra’ylahum), and no fighters among them; [the killing of]monks and hermits, the burning of trees, and thekilling of animals for other than the welfare [of eat-ing].19

Theprincipleshereareclear.TheIslamic lawofwarpro-hibits naked aggression, the harming of non-combatants,excessive cruelty even in the case of combatants, and even


36

addresses the rights of animals and the natural environ-ment.

12

what is the status of non-muslimsunder islamic rule?

an integral part of any law ofwar is the law of peace.It has already been established that themere fact of a peo-ple being non-Muslim cannot constitute a legallysanctioned reason to go to war with them, and it thus fol-lows that there must be a legally sanctioned way of livingtogether with peoples who are non-Muslim. Mention hasalready been made of the possibility and legitimacy oftreaties with non-Muslims, even with pagans who are notenemies and are not planning hostilities.Treaties can obvi-ously also be made with the People of the Book—a termusually understood to be Jews and Christians but which inpractice has applied to other religious traditions withwhich Islam has come into contact, such as Buddhism,Hinduism, andZoroastrianism.

InIslamic lawthePeopleof theBookwho liveunder thepolitical rule ofMuslims are called ahl al-dhimmah, literally“people of protection”, or often simply dhimmi (“protectedperson”).The doctrine of dhimmah is a natural out-growth

question 12

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of the verse,God forbids you not,with regard to thosewho fightyou not for (your) religion nor drive you out of your homes, fromdealingkindlyand justlywith them: forGod loveth thosewhoarejust. (Al-Mumtahanah60:8)

As was mentioned above, that area where Muslims aresovereign andwhere Islamprovides the law for the rulers isreferred to asDar al-Islam, usually translated as theAbodeof Islam, but sometimes left untranslated or referred to,rarely, as Islamdom, to parallel the term Christendom. Infact, often when the term “Islam” is used inWestern writ-ings, popular and scholarly, what is being referred to is infactDar al-Islam, which is the political entity and not thereligion itself. Indeed, a population need not be majorityMuslim in order for it to beDar al-Islam, and a populationmay bemostlyMuslimwithout the area they inhabit beingapart ofDaral-Islam.

Broadly speaking, there are two ways in which a givenpeoplemaybeconsidereddhimmis. Inonecase, thedhimmislive amongst the Muslim population and share the samestreets, markets, and neighborhoods. In the second case,the dhimmis live in a land which is separate and where theyrunmostof theirownaffairs.Therearenaturallydegrees inbetween these two categories, but these are the two general types.

In thefirstcase thedhimmis liveunder the lawsandwith-in the framework provided by the Islamic state, but with a


38

substantial amount of autonomy as regards religious andculturalmatters,oftenwiththepower toadjudicatecertaindisputes in theirownseparate systemofcourts.Thiswasanextremely common arrangement, which began from thetime of the Prophet and the first caliphs and continueduntil the dissolution of the Ottoman Empire in the 20thcentury. The protected people were not required to con-tribute to the military protection ofDar al-Islam, but theywere subject toapoll-tax specific to them,mostcommonlyknownas the jizyahbutwhichhadother names aswell.

In the secondcase, thereexists anarrangementwith theIslamic state that the dhimmi state will exist in peace withthe Islamic state andwill not help or support any enemy ofIslam.Examples of this include theProphet’s arrangementwith the people of Bahrain, who were Zoroastrians, andwith theChristiansofNajran.Under suchanarrangement,the people remain completely autonomous and run theirown affairs. They remain under the protection of theIslamic state, with no responsibility to provide active pro-tection in return.The Islamic state no right to any of theirwealth or property except for the jizyah. The following isthe textof theagreementbetweentheChristiansofNajranand theProphet:

Najran and their followers are entitled to the protec-tion of God and to the security of Muhammad the

question 12

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Prophet, theMessenger ofGod,which security shallinvolve their persons, religion, lands, possessions,including those of them who are absent as well asthosewhoarepresent, their camels,messengers, andimages [amthilah, a reference to crosses and icons].The state they previously held shall not be changed,nor shall any of their religious services or images bechanged.Noattemptshallbemadetoturnabishop,amonk from his office as a monk, nor the sexton of achurch fromhis office.20

Such agreements were commonplace in the early con-quests, such as the agreements that the Muslimcommanders made with the Christian population ofAleppo,Antioch, Ma‘arret Masrin, Hims, Qinnasrin, andBa‘labak. Upon the surrender of Damascus, the generalKhalid ibn al-Walid wrote the following to the inhabitantsof the city:

In the Name of God, the Compassionate, theMerciful. This is what Khalid ibn al-Walid wouldgrant to the inhabitants of Damascus, if he enterstherein: he promises to give them security for theirlives, property, and churches.Their city shall not bedemolished,neither shall anyMuslimbequartered intheir houses.Thereunto we give to them the pact ofGod and the protection of his Prophet, the caliphs


40

and the believers. So long as they pay the poll-tax,nothingbutgood shall befall them.21

Perhaps most famous of all is the agreement between‘Umar ibn al-Khattab and thepeople of Jerusalem:

This is the assurance of safety (aman) which the ser-vant of God ‘Umar, the Commander of the Faithful,has granted to the people of Jerusalem. He has giventhem an assurance of safety for themselves, for theirproperty, their churches, their crosses, the sick andhealthy of the city, and for all the rituals that belong totheir religion.Theirchurcheswill notbe inhabited [byMuslims]norwill theybedestroyed.Neither they,northe land on which they stand, nor their crosses, northeir property will be damaged. They will not beforcibly converted … The people of Jerusalem mustpay the poll-tax like the people of [other] cities, andtheymust expel theByzantines and the robbers…22

Such agreements also applied to other religions as well.This is the treatymadebetween theProphet’sCompanionHabib ibnMaslamah and thepeople ofDabil:

In the Name of God, the Compassionate, theMerciful.This is a treatyofHabib ibnMaslamahwiththeChristians,Magians [i.e.,Zoroastrians], and Jews

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ofDabil, including those present and those absent. Ihavegranted foryousafety foryour lives,possessions,churches,placesofworship, andcitywall.Thusyearesafe and we are bound to fulfill our covenant, so longas ye fulfill yours andpay thepoll-tax…23

The main advantage of the dhimmis over Muslimswas the guarantee of their protection without theresponsibility to actively engage in that protectionthemselves. Thus dhimmis were not required to go towar to defend the Islamic state. The main disadvan-tagewasthe jizyah, a taxwhichMuslimsdidnotpay.Dar al-Islam is an Islamic polity ruled by Muslims in

accordancewithIslamic law,where thesovereigntyandpri-macy of Muslim power is to remain undisputed, and theprotected peoples live under this arrangement in a state ofmutual agreement, with certain advantages given and oth-ers taken.Under the dhimmi arrangement a protectedpeople is subjected toMuslimpower in termsofpoliti-cal power only, while their identity, their language,their culture, and most importantly their religionremain intactandunder their control.Thismeans thataside frompaying the jizyahandobeying theoverarch-ing laws applying to people living in Dar al-Islam, theprotectedpeopleare left aloneto live their livesas theysee fit.This included the education of their children, the


42

maintenanceof their housesofworship, andevenhandlingtheir own affairs (especially matters such as marriage,divorce, and inheritance). Under Islamic rule, dhimmisenjoyedtruecultural andreligious independence, andwereinnowaycompelledtoadopt thecultureor religionof theirrulers.Despite their theologicaldifferenceswith themem-bers of other faiths, Muslims did not consider theconquered peoples to be fundamentally inferior and inneed of edification in order to be truly civilized. Militaryconquest did not entail or require the conversion of theconquered people. Islamic law provided Muslims with aready-made and legally binding way of dealing with non-Muslims without robbing them of their selfhood, theirlanguage, or their religion.

13

what is the jizyah, or poll-tax,on non-muslims?

one source of confusion is the misapplication oftheverse…until theygive thepoll-taxout ofhand,humbled (Al-Tawbah9:29).Amisunderstanding similar to theonewhichaffects the Qur’anic verses pertaining to jihad occurs overthe phrasewa hum saghirun, or “in a state of humility, low-

question 12

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ness”. That is to say, it is often thought that they pay thejizyah in a state of humility for being non-Muslims, but thestate of being non-Muslim applies only to the giving of thejizyah, whereas the state of being humbled is a result ofthe previous hostility and enmity exhibited by thegroupagainst theMuslimcommunity.

This isnot tosay that inIslamichistory somerulershavenot enforced a kind of humiliation to accompany the pay-ingof the jizyahbythedhimmicommunities,but indoingsotheygoagainst theestablishedprecedentand legalopinion.For example, Imam Nawawi, commenting on those whowould impose a humiliation along with the paying of thejizyah, said, “As for this aforementioned practice (hay’ah), Iknow of know sound support for it in this respect, and it isonlymentioned by the scholars ofKhurasan.Themajority(jumhur) of scholars say that the jizyah is to be taken withgentleness, as onewould receive a debt (dayn).The reliablycorrectopinion is that thispractice is invalidandthosewhodevised it should be refuted. It is not related that theProphet or any of the rightly-guided caliphs did any suchthing when collecting the jizyah.”24 Ibn Qudamah alsorejected this practice and noted that the Prophet and therightly-guided caliphs encouraged the jizyah to be collect-edwith gentleness andkindness.25

Ina letter that ‘Umar ibn ‘Abdal-‘Aziz sent regarding thejizyah, he gives the following instructions,


44

Looktotheprotectedpeoplearoundyouwhoareoldand weak and who are no longer able to earn a livingand pay them from the treasury of theMuslims suchas will do them good. For indeed I have learned thatthe Commander of the Believers Umar ibn al-Khattab once passed an oldmanwhowas begging atpeople’s doors.He said, “Wehavebeenunfair to you.We used to take jizyah from you when you wereyoung, thenneglected youwhen youwere old.”Thenhe said, “Pay him from the treasury of the Muslimssuch aswill dohimgood.”26

Moreover, the word jizyah itself simply derives from arootmeaning “part”, referring to the fact that it is taken as apartofthewealthoftheprotectedpeoples.Infact, theuseoftheword jizyah is not even required.The historian al-Tabarirelates that some members of the Christian communityasked‘Umaribnal-Khattabiftheycouldrefertothe jizyahassadaqah, literally “charity”,whichheagreedto.

It is also worth noting in this context that inmost casesthe jizyah takenwasactually less thanthezakat,oralms,paidby Muslims, which the dhimmis were not required to paysince the zakat is a religious requirement forMuslimsonly.

Another aspect of thedebateover the status of protect-edpeoples is thepracticeof requiringprotectedpeoples todress in some way that was recognizably distinct from

question 13

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Muslims (such as a sash around the waist which Muslimswould then not be allowed towear). In Islamic law such aruling is the prerogative of the ruler, whomay imposeit for reasons of security, order, or for other reasons,though it isnot requiredbyIslamic law. It isworthnot-ing that this practice was by no means universal andthere is no record that the Prophet himself everrequired it.

The classical law governing protected peoples wasdeveloped in a world where religious communities werealso political communities. Some have said that the pro-tected peoples were “second-class” citizens, but this is toassume that all political arrangements can be compared tothe modern nation-state and its concept of “citizenship”.Indeed,many of the forms of independence the protectedpeoples enjoyed, such as independence in education andhaving religious courts, would scarcely be possible in thecontext of the modern nation state. In fact, the laws forprotected peoples protect the very same Five Basic Rights(Religion, Life, Mind, Honor, Property) which apply forMuslims, and the rights granted to the protected peopleswere generally themost one could expect short of grantingtotal sovereignty to them, which would negate their con-nectionwithDar al-Islam in thefirst place.

Inprevious timesIslamic lawsawdominancewithinDaral-Islam as the only guarantee for these rights, but the


46

demand for obedience and deference from the protectedpeoplewas geared, not towards someegotistical exaltationof Islam, but towards a just order where everyone’s rightscould be protected without undue advantage being taken.In the modern context, there is nothing in Islamic lawwhich would precludeMuslims living as equal citizens in astate run by a democratically elected government, so longas their fundamental religious rightswereprotected.

14

does orthodox islam sanction rebellionagainst politicalauthority?

the relationship of the Muslim believer to those inpolitical power reaches back to the beginning of Islam,when the Prophet became not only the spiritual guide ofthenewcommunity but its political leader aswell.

The question that Muslims have had to wrestle withsince then concerns the legitimacy of political authority.Even though there was never a separation of “church andstate” in Islam, there has always been, since the advent ofthe Umayyad caliphate thirty years after the death of theProphet, a de facto separation of power between the ulamaor scholarly classes on the one hand, and the variouscaliphs, sultans, andkings on theother.Onemight call this

question 14

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a separation between court and mosque, between secre-taries and scholars.The connection between themwas theduty of the ruler to dispose of the affairs of state in accor-dancewithIslamic lawandnothispersonalwhim,andtodohispart inmaintaining the religion. Itwas the scholarswhodeterminedwhat that lawwas, and they functioned in vari-ous degrees of independence from the political rulersthroughoutmostofIslamichistory.That is tosay, theruleofIslamisnottheruleofGoddirectly,noreventheruleof the clerics, but the rule of law—a lawwhose form isindependentof the rulerwhose role it is tocarry itout.

As it relates to jihad, the question arises as to when it ispermissible or even mandatory in Islamic law to take uparms against political authority. Spiritual or armed rebel-lion against the Prophet in the name of Islam would havebeenanabsurdity, ashewasGod’schosenprophetandrulerand was thus universally acknowledged by anyone whocalled himself Muslim. However, after the Prophet, legiti-macy and rebellionbecome real questions.

If a ruleropenlydeclareskufr (“unbelief”) in away that isplainandnotopentoanyreasonabledoubt, thentradition-al Islam holds that it is a duty to rise up against him. Thedeclarationofkufrmustbeclear,however.Forexample, theruler may openly deny Islam and the veracity of theProphet’s claim to being a Messenger of God. He mayopenly mock and degrade some fundamental pillar of reli-


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gion like the pilgrimage to Mecca or the fasting inRamadan.Hemayalsoact inawaythatconclusivelyproveshis kufr, such as openly worshipping an idol. Such wordsand actions, if they were not mitigated by other factors,would constitute proof for the ruler’s state of unbelief.

However, it is crucial tomakeadistinction, as tradi-tional Islam does, between apostasy, which is a denialof truth, andsinorevensimpleerror,whicha failure tolive up to it.Thus, rejecting the principle of the five dailyprayers (which are performed with some variationsamongst allMuslims) constitutes a negationof Islam itself,whilebeing too lazy topray is a sin.Mocking anddegradingthe Prophet is a rejection of Islam, but calling the mufti asilly fellow is, at worst, a sin. Prostrating before an idol inworship is a rejection of Islam, but risingwhen a respectedelder enters the room is religiously neutral or even com-mendable. In traditional Islam, the sinner is allowed torespect the law and regret his weakness; by contrast, thedisbeliever disregards the law in order to indulge his weak-ness. In any ethical system, the “should” or “ought” followsthe “is”, which is to say that the truth always precedes anddetermines moral judgment. Kufr endangers that truth,and destroys the basis for morality, while sin is a failure tolive up to that truth. Indeed, the very identification of anact as a sin is a kind of affirmation of the truth which thatsin fails to live up to.

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Having said that, traditional Islamhas recognized threeways in which a ruler may legitimately come to power: (1)throughreceiving theallegianceofahlal-hallwa’l-aqd; (2)bybeing chosen as a successor by the previous ruler; (3) or byforce,ontheconditionthat this isnot tounseata legitimateruler but rather occurs in the absence of one. Ahl al-hallwa’l-aqd literally means “people who untie and bind” orthose with the authority to contract agreements. In theIslamiccontext theyare thosewith religiousandpoliticallyauthority, namely the ulama and others who are the de factorepresentatives of the interests of thepeople.

Imam al-Nawawi said of political rulers, “As for risingupagainst themandfighting them, this is forbiddenbythe consensus of Muslims, even if they are sinfultyrants (fasiq, zalim) …The scholars have said that thereasonwhyone shouldnot separate fromhimandwhyit is forbiddentoriseagainsthimis theresulting strife,bloodletting, and corruption.”27This statement reflectsthe general consensus amongst traditional scholars, whichis basedon hadithof theProphet such as,

After me there will be rulers (a’immah, sing. imam)whowill not followmyguidanceorpracticemyWont(sunnah).Amongthemmenwill risewiththeheartsofdevils and the bodies of men.” He was asked, “Whatshould we do if we encounter that?” He said, “Listen


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and obey their command. Even if they beat you andtake yourwealth, listen andobey.”28

In another hadith he was asked, “Messenger of God,shouldwenotopposehimbythesword?”Hesaid,“No,notso long as the Prayer is established among you. If yousee something you hate in your ruler, hate his action,butdonot cease tobeobedient.”29

It becomes clear, then, that Islam does not expound autopian ideology of a perfect world order.The Islamic tra-ditionplacesparadise in thehereafter,not in thisworld, andrecognizes that it is only within men’s power to maximizethe level of justice in theworldwhilemaintaining abalancebetween the spiritual and the worldly. In a perfect world,the rulerwouldbe just,wise, andpious, andwoulddeal fair-lywithpeoplewhiledoinghispart toprotect their spiritualwelfare. However, in such cases where a choice must bemade between spiritual well-being and worldly justice,Islamchooses the former.Manmaygain theworld and loseparadise, while a man who gains paradise loses nothing intheultimate sense.Thus a tyrantwho taxes excessively andunreasonably punishes dissent, while maintaining thestructure and tradition of faith (“so long as the Prayer isestablished among you”), is superior to a ruler who makesthetrains runontimebutwhoseprogramup-roots theverypillars of faith.

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But thisperspective isnotmerelyamatterofplacing thespiritual over the material. It is also a common senseapproach which wisely acknowledges that revolutionsalmost inevitablybringaboutasum-totalof sufferingmuchgreater than the previous order which they seek to over-turn.Muslimsdonot advocate doingnothing in the face oftyranny, but rather believe that nonviolent methods ofcounsel andprotestareultimatelybetterwaysof improvingthe existing order. Indeed, Muslims are expected not toobey a ruler insofar as he commands themtogo against theShar‘iah (Islamic law), but this is not the same as rebellingagainst a ruler who himself does not completely enact theShar‘iah.Thosewho advocate the overthrowof a rulerwhodoes not rule in accordance with their view of the Shar‘iahare a tiny minority within Islamic law. They often make acompound error: first they accept only their own vision ofIslamic law, thentheyconsiderdeviation fromthisvisiontobe a sin, and then they conflate this sin with unbelief, thusmaking the ruler subject to rebellion.

Moreover, since it is impermissible takeuparms againsta rulerwho isnotanopenunbeliever, it followsthat it is alsoimpermissible and a sin from the point of view of Islamiclaw to take up arms against the various workers who carryout the wishes of the ruler—such as the army, the police,governmentofficials, etc…Even if it is shownthat theruleris an open unbeliever, it does not follow then that those


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who work in a governmental or bureaucratic structurebeneath him automatically become unbelievers whoseblood can be shed. This “unbelief by association” is oftentaken to absurd extremes, to the point where people whopay taxes are considered to be complicit in the crimes of astate. Somehave gone so far as to say that anyonewho livesin a society which does not conform to their vision ofIslamic law is guilty of kufr (unbelief), since they passivelyaccept it insteadof actively fighting against it.

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howdoes the islamic lawofwar cometo be violated?

islam is the second largest religion in the world and inhistory afterChristianity. It is also today theworld’s fastestgrowing religion, with 1.5 billion adherents all over theworld.Asof 2007ce, some 25%or soof theworld’s popula-tion in Muslim. There were, historically, three maindoctrinal and juridical branches of the religion: Sunni, Shi‘iandKhawarij. Currently (2007 ce) approximately 90% ofall Muslims are Sunni, 9% are Shi‘i, and less than 1% areIbadi. The Sunnis (which include the Sufis or Mystics) aremostly followers of the four recognized schools (Hanafi,Maliki,Shafi‘i andHanbali) of law (mathhabs) and aminority

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are Salafi/Wahhabi, who historically arose from one of thefour schools (theHanbali), but today are Sunniswho some-times follow their own interpretations outside of the ‘fourschools’. Amongst the Shi‘is, the Ja‘faris or Ithna‘ashari(‘Twelver’) are thebiggestgroup, followedbytheZaydisandthe Ismailis. The Ibadis are descended from the originalcommunity ofKhawarij, but the original radicalKhawarijdiedout andwere replacedby today’smoderate Ibadis.Aside fromIslam’s doctrinal and juridical divisions, a typical

understanding of the spectrum in Islam, even within theIslamicworld itself, places the fundamentalists onone sideand the modernists on the other.The modernists are seenas open-minded, tolerant, peace-loving, and respectful ofhuman rights. The fundamentalists are seen as fanatical,war-like, obscurantist, backwards, and tyrannical. Aboveall, fromtheWesternpointof viewthemodernists are “likeus” and hence are not threatening, while the fundamental-ists are inherently dangerous anddifferent.

In fact, a more helpful and accurate description of thespectrum of the world’s Muslims would be the followingfive categories, from extreme secularism on one end to extremesectarianismontheother.Understandingthediffer-ences is crucial to understanding jihad and the lawofwar.

Secular fundamentalists: A complete rejection ofIslam as a substantial force in guiding society. At a


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maximum, religion is a private affair, and should havenothingtosayabouthumanrelations.Islamicciviliza-tion is something to be left behind, while modernWestern civilization is to be emulated to the extentpossible.

Modernists and Modern Secularists: Islam mustadjust and change and learn the lessonsofmodernity;apologists holding that faith is valuable as a guide toethics, but Islamic teachings should “changewith thetimes”.The values of the modernWest are generallyseen as the “norm” towhich the Islamicworld shouldadjust itself.

Traditionalists: Islam is the source of meaning andguidance for the inward andoutward life. Islamic civ-ilization is a source and treasure of intellectual,spiritual, andartisticnourishment.Loyaltytothis tra-dition innowayprecludes living sensibly and justly inthetoday’sworld,and indeedthetraditionofferscon-siderable flexibility in terms of forms of governmentand is a guarantorofbasic rights.

Puritanical literalists: (Usually referred to as “reli-giousfundamentalists”or“Islamists”)BothtraditionalIslamic civilization and secular ideologies are failures.Muslims must pass over most of the civilization and

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tradition after the first century or two after theProphet.ThestatecreatedbytheProphetandhissuc-cessorswas a goldenage, andMuslimsmustduplicateit to the extent possible. Societymust be cleansed ofthoseelementswhichare“innovations” fromthepurestateof theearlyMuslimcommunity.

Takfiris: (Sometimes called “jihadists” or “militantreligious fundamentalists”).Thosewhodonot followtrue Islamic teaching (as defined by them) are nolonger actuallyMuslim and fall outside of the protec-tions of the law.Most self-identifiedMuslims and allnon-Muslims are legitimate targets of violence,because they stand in the way of a very narrowlydefined vision of Islam. Takfir means “to declareanother tobe anunbeliever/apostate”.There are nowbothSunni andShi‘iTakfiris—orrather, someTakfirisconsider themselves tobeSunnis andothers considerthemselves tobeShi‘is.

In reality the modernists and the puritanical literalists(the “fundamentalists”) represent only a small percentageof the population of the Muslim world, perhaps less than10% combined. The majority of people—90%—in theIslamic world fall within a range which should be called“traditional” and which itself encompasses a certain rangeof religiosity,butwhich isneitheracompleteaffirmationof


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thepost-religiousvalueswhichare sopowerful today,norofthereligiousextremismof the fundamentalists.The takfirisand the secular fundamentalists represent a still smallersliver of the world’s Muslim population.All told, there areno more than 150,000militant takfiris (including both the“Sunni”and“Shi‘i” strands)worldwide.Thesearethus lessthan one hundredth of 1%of all Muslims (that is, lessthan 0.01%), or less than one in every ten thousandMuslims. Secular fundamentalism also usually has littletraction with the general population and is—paradoxical-ly—limited to small rebel groups, such as the PKK inTurkey and the MEK(Mujahedin-e khalq) in Iran, and vari-ous establishment elites in a small number of Muslimcountries.

Thatwhichwecall “fundamentalism”today (puritanicalliteralism) has several salient characteristics vis-à-vis tradi-tional Islam.First, puritanical literalists generally ignoreorexplicitly reject most of the classical learned tradition ofjurists and theologians, and limit themselves to their owninterpretation of theQur’an, the hadith, and the first threegenerations of Muslims, which they take as authoritative(as do all Muslims). Second, they ignore or reject most ofthe philosophy, mysticism, and artistic production ofIslamiccivilization.This results inakindofanti-intellectu-alism and in a dry literalism. Third, they view religionalmost entirely as a project of social engineering combined

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with a rigid obedientialism. Religion is thus reduced to asystem of commands and prohibitions, with an excessiveemphasis on outward conformity. Even worse, often theseideas are little more than a theological veneer for a crudeethnic chauvinism which seeks to universalize a tribal cul-ture.

Themodernists, for their part, generally share with thefundamentalists an aversion to the spiritual, artistic, andintellectual accomplishments of Islamic civilization, andhave an undiscerning “West is best” approach to Islamicreform.Yet they both readily celebrate Islam’s advances inscience in technology, and both readily accept anymoderntechnological innovation the West has to offer. Theseshared characteristics can be explained in light of the factthat both modernism and fundamentalism, in the Islamicworld, are largely responses to the lossofpower to theWestover the last twohundredyears.Thus,bothmodernismandfundamentalism blame traditional Islam for this failure,and both seek to re-establish the balance.The modernistshope to accomplish this by imitating their conquerors,while the fundamentalistshopetoemulate thesuccessesofthefirst generations ofMuslims.

The secular fundamentalists and the takfiris, at the twoextremes, areboth intrinsicallyutopian in theiroutlook, theformer striving to create a yet unseen paradise on earthwhile the latterhope toemulate aonce realizedgoldenage.


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Falling into the fatal trap of any utopian ideology, both thesecular and religious fundamentalists invert the traditionalpriorities and subjugate all values to the attainment of theutopia. Lenin’s notorious statement, “You cannotmake anomelet without breaking eggs,” enshrines the notion thatthe perfectworld—here on earth—justifies any crime, anddescribes the authoritarian approach of these twoextremes to the rest of the world. Thus, the bombing ofinnocentMuslimsby aMuslimornon-Muslim state canbejustified in the name of democracy and freedom (or inanother context the liberation of the world’s workers, orthe ascendancy of theArian race) which means that someare chosen to die so that the rest may live “in freedom”.Also, thebombingof innocentMuslimsbynon-stateactorscan be justified because they stand in the way of establish-ing an “Islamic state”, or, in a perverted twist of spirituallogic, thekillingof innocentMuslims ina terrorist attack isnot really acrimebecause theywill go toParadiseas a resultof being innocent victims in an attack justifiedby its ends.

Neither secular fundamentalists nor their religiouscounterparts can reasonably claimanultimate set of valuesbywhichtoact,despiteappearances to thecontrary.Whenone can justify any act in the name of aworldly utopia thenonehas passed into pure utilitarianism.This utilitarianismallows thesecular fundamentalist todeclare,withoutahintof irony, that freedom(the livesof some)mustbe sacrificed

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for the sakeof freedom(the libertyofothers). It also allowsthe religious fundamentalist to assert, with the sameobtuseness, that justicemustbesuspended (bytaking inno-cent life) in order to preserve justice (the protection ofinnocent life).

What does all this mean for the law of war? In Islamichistory, the lawofwar, thoughbasedon theQur’an and thelifeof theProphet,wasconstantlyadaptedtodealwithnewsituations.Was it permissible to use fire as a part of a cata-pultweapon?Whatdoesonedo incaseofcivilians insideofa citadel under attack?What constitutes the violation of atreaty? Questions such as these were always asked andanswered in the context of the greater law, which was gov-erned by immutable moral principles.This law, moreover,grew and was nurtured in an environment of spirituality,beauty, and the accumulated wisdom of the centuriesbeginning with the Prophet and continuing generationafter generation. Islamic civilization grew more experi-enced and sophisticated, and individuals lived in a worldwhere tradition was alive, and the experience (and mis-takes) of thepastwere always available to learn from.

Thoughthemodernists andpuritanical literalistsdonotnecessarily espouse the unjust use of violence (and indeed,the vast majority of modernists and “fundamentalists” areexplicitlynon-violent in theirmethods), theirbelief systemremoves the safeguards provided by centuries of tradition


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by rejecting that tradition or treating it as irrelevant.Eventhough Islamic law declares attacks against non-com-batants, forcedconversion,andnakedaggressiontobeillegal, lifewithin traditional Islamic civilization,withits integrated spirituality and nobility, would havemade themgenerallyunthinkable aswell.

ThecaseofBinLaden’s “fatwa”orderingMuslims tokillboth soldiers and civilians is illustrative of the problemsinvolved. Bin Laden is trained as a civil engineer, not anauthority in Islamic law, and it takes little investigation touncover that his interpretations of Islamic law are unin-formed and self-serving.He can only draw the conclusionshedrawsbyutterly ignoringeverythingIslamic lawhashadto say about such questions. Using Bin Laden’s takfiri cut-and-pastemethod, one canmake theQur’an and hadith sayanything at all.That every top authority on Islamic law inthe world rejects both Bin Laden’s conclusions and histemerity in declaring a “fatwa” is, lamentably, often nevermentioned in theWest.

But such condemnation is not necessarily a problem forBin Laden and his compatriots, because they never feltobligated to pay attention to traditional Islamic law in thefirstplace.Ostensibly theyclaimtobefollowingtheQur’anand the teachings of the Prophet, but their methodamounts to a cherry-picking of sources to arrive at a con-clusion that was decided beforehand. It is misleading to

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present Bin Laden, and others like him, as men steeped intheir religious traditionwho take Islam’s teachings to theirlogical conclusions. For all talk about “madrasahs”, which issimply the word for “school”, it is important to note thatthe terroristswhoclaim tofight in thenameof Islam todayarealmostentirelymeneducated inmedicine,engineering,mathematics, computer science, etc … It is striking howabsent graduates of recognized madrasahs or Islamic semi-naries (such as al-Azhar in Egypt) are among the ranks ofthe terrorists. It is notdifficult tounderstandwhy:Anyonewho is exposed to the established traditional law couldnever, with honesty and good conscience, conclude thatnon-combatants are legitimate targets, or that otherMuslims become unbelievers through mere disagreementwith a certain interpretationof Islam.

Indeed,being steeped in the traditionof Islamic lawis the best inoculation against the illegal use of force.Traditional Islamwouldnot, anddoesnot, recognize a civilengineer (BinLaden)or aphysician (Aymanal-Zawahiri) ascompetent to decide the rules of combat. Those who fol-low them do so for other reasons, or aremuchmisled as tothe orthodoxy of their leaders. Unburdened by prece-dent, whether through ignorance or disavowal, theserebelliousup-startsare free topursuetheirgoalsunre-strained by morality or justice. This is the sad legacy ofboth modernism and puritanical literalism: In seeking to


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reform Islam, they “throw the baby out with the bathwater”, losing the natural checks against aggressionandinjustice intheprocessof jettisoningthoseaspectsof the tradition they find unhelpful to their projects.Though not advocating such abuses themselves, the mod-ernists andpuritanical literalists leave thedooropen to theviolation of basic human rights at the hands of the takfirisand the secular fundamentalists. Modernism did not cre-ate Hitler, but it removed the barriers, religious andcultural, which would have made his rise an impossibility.Similarly, puritanical literalism did not create Bin Laden,but it weakened the immune system, as it were, of Islamicsociety, leaving somewithin it susceptible to thecontagionof takfirism.

Bymarginalizingtraditional,mainstreamIslam,onedoesnotwipeout thepoison.One loses theantidote.

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conclusion

as with any religion or systemof law,when it comestotheIslamic lawofwar there is agapbetweenthe ideal andits application in theworld. It ispossible to sift throughthelonghistoryofwarandpeace inIslamiccivilizationandfindexamples where political powers and even religious schol-ars have acted and espoused views which are anti-theticalto the spirit and letter of the teachings of Islam outlinedabove regarding war and peace. Indeed, it has happenedthatMuslims have created situations amounting to forcedconversion, or killed innocents in battle, or treated themembers of other religionswith contempt and cruelty.Yetthere is an important difference between the flouting ofhigh ideal and the institution of a vicious teaching. If abus-es have occurred in the application of the Islamic laws ofwar, these exist in spite of those teachings, not because ofthem. Moreover, a fair reading of Islamic history willshow that in the majority of cases the Islamic law ofwar—with its principles of justice, sparing of inno-cents, and idealization of peace—were largely held to,andveryoftentheconductofMuslimsinwarexhibitedthehighest standardsof chivalry andnobility.

Moving forward from the time of the Prophet andCompanions to the Crusades, we observe the figure ofSalah al-Din al-Ayyubi, known to the West as Saladin, a

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figure of almost proverbial gallantry in battle and kindnessin victory. The reconquest of Jerusalem by Saladin was asmemorable for its mercy as was the initial Christian con-quest for its brutality, mirroring the mercy the Prophetshowed to his enemies when he entered victorious intoMecca near the end of his life. But one need not go so farback in history to find such examples. In the colonial eraseveralMuslimresistancemovementsdistinguishedthem-selves by their high standards of conduct in theiropposition to European aggression. Among them wereImamShamil (d.1871), the “Lion ofDaghestan”, in his thir-ty year war against Russian domination, and Emir ‘Abdal-Qadir al-Jaza’iri (d.1883), in his battle against Frenchimperialism. Both men were distinguished scholars ofIslam and spiritual leaders, in addition to being almost leg-endary military commanders. Steeped in the legal andspiritual tradition of Islam, these heroes won the grudgingadmiration of their enemies. Emir ‘Abd al-Qadir, havingfought the French for somany years, risked his life defend-ing the Christians of Damascus, and made no distinctionbetween his defense of Algerian Muslims and his protec-tion of the Christians of Damascus against his fellowMuslims. For these warriors, their wise courage and sterncompassion were necessary outgrowths of the Qur’an andthe teachings of the Prophet.They would not have recog-nized the Islamic principles of combat they so steadfastly

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followed were they to witness some of the aberrations ofthemodern age.

InIslamic law,theendsdonot justifythemeans,andjustice is not predicated on creating a paradise onearth,whether that paradise is an imagined futureor arecapturedpast.TheIslamic lawofwarhasoftencometobe ignored, sadly, in thenameof a totalitarianmind-set which seeks to crush everything in its path for thesakeofachieving itsultimateends.Accordingtosuchaview, compassion, nobility, beauty, and fairness are allto be sacrificed and then somehow recaptured laterwhenthefightingends. In this respect, theutopianrebelsof today—whatever their religionor ideology—havemuchmore in commonwithLenin thanwith Saladin.

Ifwehavenotdweltonhistoricalbattlesor theminutiaeof legal discussions through the centuries it is because theprinciples are so clear, even self-evident. The rules of warand peace in Islam can be distilled into three principles: (1)Non-combatants are not legitimate targets, and aswehaveseen this notonly includeswomen, children, and the elder-ly but also animals and the natural environment. (2) Thefact of someone’s beingnon-Muslimdoesnotmake themalegitimate target of attack. The Islamic conquests werepolitical in nature, and large areas under Muslim ruleremainednon-Muslimforcenturies.Theagreementscitedabove show that the Muslims’ intention was never to con-


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vert by force. (3)Muslims are expected to live in peacewiththeir neighbors whenever possible, and must respecttreaties, but this never precludes the right to pre-emptiveor responsive self-defense. Indeed, fourteen centuries agoIslam drew a line between pre-emption and aggression,allowing the former (as in the Prophet’s campaigns atKhaybar and Mu’tah) and condemning the latter (Fight intheway ofGod against thosewho fight against you, but begin nothostilities.Lo!God lovethnotaggressors) (Al-Baqarah,2:190). Insum,Godasksneither thatMuslimsbebelligerentnor thattheybepacifist.Rather, theymust lovepeacebut resortto forcewhen thecause is just.

© 2009,TheRoyalAal al-Bayt Institute for IslamicThought, Jordan

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further reading (in english)

David Dakake. “The Myth of a Militant Islam,” in Islam,Funda-mentalism, and the Betrayal ofTradition, edited by JosephLum-bard (WorldWisdom,Bloomington, Indiana, 2004), pp.3-37: Discusses the Bin Laden “fatwa”, the nature of authorityinIslam,andthe lawsofJihad.

Khaled M.Abou El Fadl.TheGreatTheft :Wrestling Islam fromthe Extremists (HarperCollins, 2005): Valuable for its discus-sionofpuritanical literalismvs. traditional law.

MohammadHashimKamali.Principles of Islamic Jurisprudence(Islamic Texts Society, 2005): One of the most complete andaccessible introductions to Islamic law. Also valuable for itsdiscussionof the“swordverse” (pp.223-225).

Reza ShahKazemi. “Recollecting the Spirit of Jihad,” in Islam,Fundamentalism, and the Betrayal of Tradition, edited by JosephLumbard (World Wisdom, Bloomington, Indiana, 2004),pp.121-142:Addresses the spiritual dimensionsof jihad and thecase of Emir ‘Abd al-Qadir’s resistance against the French andhisprotectionofSyrianChristians.

Vincenzo Oliveti. “The Myth of ‘the Myth of a ModerateIslam’”, in IslamicaMagazine, no.15 (2006).An excellent treat-mentofcommonallegationsof Islamicendemicviolence.

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Rudolph Peters. Jihad in Classical and Modern Islam: A Reader(Princeton, 1996):Asamplingof someclassical andcontempo-rary treatisespertaining to jihad.

(in arabic)

Abdullah Bin Bayyah. Al-Irhab: Al-Tashkhis wa’l-hulul: Adiscus-sionof terrorism. See also:www.binbayyah.net

Muhammad Sa‘id Ramadan al-Buti. Al-Jihad fi’l-Islam(Damas-cus: Dar al-Fikr, 2005): An excellent overalldiscussion of the issues pertaining to jihad, from an eminentscholar and recog-nized authority, including the laws of war,protected peoples, political rebellion, preaching Islam(da‘wah), treaties, and forced conversion.

Ali Jumu‘ah. Questions and Answers on Jihad in Islam (Egypt,SupremeCouncil for IslamicAffairs, n.d.).


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notes

1. Anarchival searchof theNewYorkTimes for “holywar” or“jihad” shows that this term is still a standard translationofjihad, very often taking the form“jihad, or holywar”.Oronecan enter the term“holywar” into a searchonGoogleNewsand see that it is still awidespread translationof jihad. Evensympathetic and responsible authors perpetuate theequationbetween the two, such as JuanCole,SacredSpace andHolyWar (I. B.Tauris, 2002).Thepublishingworld is full ofpro-vocative title such asPeterBergen’s,HolyWar, Inc.: Insidethe SecretWorld ofOsamabinLaden (FreePress, 2002).

2. This phrase even found itsway into a speechby thePope inSeptember 2006, albeit in the formof a quotation fromaByzantine emperor.Though thePope saidhe regretted thereaction, henever disavowed the statementnor didhe apo-logize for it.

3. This termwas evenusedbyPresidentBush (in a speechbefore theNationalEndowment forDemocracy inOctober2005), and for a timebecamepopularwith certain right-wingintellectuals andmedia talkingheads, though it fell out offavor after significant criticismas an emptypropagandaterm, havingbeenused todescribepeople and groups asdisparate as al-Qaeda, the government of Iran, andSyria.Thefirst is a stateless terrorist groupwhohate Shi‘is, the second isa Shi‘i religious state, and the third is a secular state runby anAlawi elite ruling over a Sunnimajority.The fact that onetermmean all these things signifies that it is devoidof any

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real content.Theword “fascism” evokes the idea of amalevolent globalmovement,wherein lies its power as a“buzzword”.Writing as far back as 1944,GeorgeOrwell,writing for theBritishpublic, pointedout that theword“fascist” hadbecome sonebulous andoverused it lacked anyprecisemea-ning: “Except for the relatively small number ofFascist sympathisers, almost anyEnglishpersonwouldaccept ‘bully’ as a synonymfor ‘Fascist’.That is about as nearto adefinition as thismuch-abusedwordhas come.”Littlehas changed in theuse of thisword. It is obvious that thevigilante rebels of al-Qaedahave little in commonwith themilitary-industrial-state apparatus thatwas the core of 20thcenturyEuropean fascism, possessingneither amilitary,industry, or state.

4. “Infidel” comes fromtheLatin infidelismeaningun-faithful.As a technical term in theCatholicChurch it denoted thosewhowerenot baptized, such asMuslimsor Jews.Thewordkafir literallymeans “to cover” andoriginally signified akindof ingratitude,meaning that one “coveredover” the gifts orblessings onewas given. It thus has the sense of denial andrejection.Practically speaking, it is used in away similar to“infidel”, butwithone crucial difference: by and largeMus-limsdidnot call non-Muslims kafirunless theywerepaganoratheist. Itwouldbe contradictory to call a JeworChristian akafir, since theQur’anoften calls upon themto follow theirown religionmore faithfully (5:66, 5:68). Infidel goes back atleast as far as the 11th centuryTheSong ofRoland (Chanson de


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Roland), where the “infidels” are theMuslims in theHolyLand. It also appears in theKing JamesVersion in 2Corin-thians6:15,Andwhat concord hathChristwithBelial? orwhatpart hath he that believethwith an infidel? and 2Corinthians6:14-16But if any provide not for his own, and specially for those ofhis ownhouse, he hath denied the faith, and isworse than an infidel.

This term is noteworthybecauseMuslims themselvesalmost never use theword “infidel” to translate kafir (pre-ferring “unbeliever”, “disbeliever”, “denier”), yet critics ofIslam regularly accuseMuslimsof this or that view in relationto “infidels”. For example, a contemporary convert toChris-tianity fromIslam,NonieDarwish, haswritten abook,NowTheyCallMe Infidel (SentinelHC, 2006).Has anyone actuallycalledher that specificword, or is it her own trans-lation?Theword “infidel” effectively conjures the emotional impactof this termas apart of theWest’s collectivememory,disregarding the fact that the termhas no resonance for aWesternMuslim, andmeans something significantly dif-ferent from kafir.Another bookbyAyaanHirsiAli, anotherformerMuslim, bears the title Infidel (FreePress, 2007),implying that this is the label shenowbears fromsomeun-defined groupofMuslims.Actually, as an atheist the termLatin-basedword “infidel”more strongly demarks her rela-tionshipwithChristianity thanwith Islam.

5. Oftenmisunderstandings about theQur’an canbe easilyclearedupby referring to the classical and recognizedQur’anic commentaries, such as those of al-Tabari (Jami‘ al-

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bayan ‘an ta’wil ayat al-Qur’an), Fakhr al-DinRazi (Mafatih al-Ghayb, or al-Tafsir al-Kabir), IbnKathir (Tafsir IbnKathir),al-Qur-tubi (al-Jami‘ li-ahkamal-Qur’an), al-Baydawi (Tafsir al-Baydawi), al-Zamakhshari (al-Kashshaf ‘anHaqa’iq al-Tan-zil),andmanyotherswho arewell known to the scholarlytradition, andwhich are our startingpoint.Though simplyreferring to suchworks is not sufficient in itself to arrive at aconclusive andbindingknowledgeof a particular issue, it isworthnoting thatmanyof thosewho speak about jihad andwarnever bother tomake reference to the classical commen-taries at all.

6. Al-Nasa’i, al-Sunan,Kitab al-Ba‘yah, with similar hadith in IbnMajah’sSunan,Kitab al-Fitan and in theSunanofAbuDawud,Kitab al-Mulahim.

7. NarratedbyDaylami,with a similar hadithnarratedbyTirmidhi in hisSunan,KitabFada’il al-Jihad. SeeMuham-madSa‘idRamadan al-Buti, al-Jihadfi’l-Islam (Damascus:Dar al-Fikr, 2005) p.21.

8. IbnMajah, al-Sunan,Kitab al-Adab.

9. IbnKathir relates thatmany famous early figures of Islamsuch as Ibn ‘Abbas,Mujahid,Muqatil ibnHayyan,Qataadahandothers said that this is thefirst verse revealed concerningjihad.Tafsir al-Qur’an al-‘Azim(Riyadh:Dar al-Salam, 1998),vol.3, p.103.

10. Al-Bukhari, al-Sahih,Kitab al-Maghazi.


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11. Ibid.,Kitab al-Tamanni.

12. Ibid.,Kitab al-Iman.

13. The second caliph, ‘Umar ibn al-Khattab, had aChristianservant namedAsbaq.WhenUmar invitedhim to Islam, theservant refused, towhichUmar replied, quoting theQur’an,“There is no compulsion in religion,” and then said, “Asbaq, if youwere to accept IslamIwouldhave entrusted youwith someof theMuslims’ affairs.” In another incident, ‘Umar said to anoldwomanwhohadnot accepted Islam, “BecomeMuslim,oldwoman, becomeMuslim.God sentMuhammadwith thetruth.” She replied, “I amanoldwomanwho is close todeath.”Umar said, “DearGod, bearwitness!” andhe rec-itedThere is no compulsion in religion. (Buti, p.52)

14. Once apolytheist askedAli if theywouldbekilled if oneofthemwere to come toProphetwith someneedor tohear theWordofGod.Ali replied in thenegative, andquoted9:6onasylum for thepolytheists. (Buti, p. 57quoting from al-Jami‘li-ahkamal-Qur’an, 8:76)

15. IbnKathir,Tafsir al-Qur’an al-‘Azim (Riyadh 1998) pp.308-9.Manyof the selections and translations of this section aretaken fromDavidDakake, “TheMythof aMilitant Islam,” inIslam,Fundamentalism, and theBetrayal ofTradition, editedbyJosephLumbard (WorldWisdom,Bloomington, Indiana,2004), pp.3-37.

16. See IbnTaymiyyah al-Siyasa al-Shar‘iyyahfi Islah al-Ra‘iwa’l-

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Ra‘iyyah, quoted inPeters, p.49. For a similar hadith seeBukhari 3052,Kitab al-Jihad.

17. TheSunanofAbuDawud,Kitab al-Jihad.

18. Malik’sMuwatta’,Kitab al-Jihad.

19. IbnKathir,Tafsir,Vol.1, p.308.

20. Baladhuri,Futuh al-buldan, trans. P.Hitti asOrigins of theIslamic State (NewYork:AMSPress) vol.1,p.100.

21. Ibid. 187.

22. Al-Tabari,TheHistory of al-Tabari, v.XII:TheBattle of al-Qadissiyyah and theConquest of Syria andPalestine, trans.Y.Friedmann (Albany: SUNYPress, 1985), p.191.

23. Baladhuri vol.1,p.314.

24. Rawdat al-Talibin, 10:315-16 (seeButi, p.133).

25. Al-Mughni,4:250 (seeButi, p.133).

26. SeeButi, p.134.

27. FromNawawi’s commentary upon theSahihofMuslim,12:229 (seeButi, p.149).

28. Muslim, al-Sahih,Kitab al-Imarah.

29. Ibid.,Kitab al-Imarah.


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Andpraise be toGod, theLord of theworlds

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