Kinyon - Osama bin Laden: Legitimate within Islamic Legal Thought?

8/12/2019 Kinyon - Osama bin Laden: Legitimate within Islamic Legal Thought?

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The Fletcher School Online Journal for issues related to Southwest Asia and Islamic Civilization Spring 2004, Article 4

OsamabinLaden:LegitimatewithinIslamicLegalThought?ByRebeccaKinyon

The Arab world is rife with friction

between secular reformists and Sharia

mindedtraditionalists.Thesignificanceofthis

strugglecannot

be

underestimated.

A

way

of

lifeisatstake,andtheintensityoftheconflict

has sparked a revolution against the West.

Osama bin Laden, Saudi billionaire and

mastermind behind terrorist attacks, puts a

face to this elusive, and increasinglyviolent,

backlashbeingwagedonU.S.soil.

There is a willful lack of motivation

within the United States to understand the

reasonsbehind theviolence,aspolicymakers

choose to condemn themeans of aggression

instead of understanding their roots. The

reasons behind this reaction may parallel

those regarding the spread of communism.

One theory regardingwhyGeorgeKennans

theory of containment was so heartily

adopted by administrations throughout the

Cold War, was that it did not require the

United States to modify its own actions

simplytocontaintheactionsofothernations.

The samemaybe true of terrorist networks

today. It is farmorecompellingfor reasons

ofmaintaining status quo, clear conscience,

andstraightforward

policyto

focus

upon

delegitimizingbin Laden and his followers

instead of examining their demands.

However, whether legitimate or not, bin

Laden isbeing granted authoritywithin the

Islamicworld.Noamountof rhetoricwithin

theUnitedStates canundo that fact, andno

amountofhomelandsecuritycandismantlea

paradigm in which a child is viewed as a

legitimate targetforawaragainsttheUnited

States. This article aims to understand the

contextwithin

which

Osama

bin

Laden

is

operating, concluding that our tactic of

discreditingbinLadensauthority, insteadof

understanding fromwhere it isderived and

howitissustained,willnothaltitsinfluence.

Au thor ity

Authoritycanbelegitimizedintwoways

within the Islamic tradition: through the

ulama(thescholarlyreligiousestablishment),

or through the sword. Osama bin Ladens

authority is granted through the latter. The

precedentforclaimingauthoritybythesword

is, ironically, found within the Quran.

Although subjects under Islamic states are

commanded to obey the ruler, or imam, this

dutyofobedienceisnullandvoidifrulersfail

toupholdthewordofAllah.Withinthetextit

iswritten,Ifany (rulers)do fail tojudgeby

whatAllahhas revealed, they are (nobetter

than)unbelievers.1BinLadenssupportrests

on his claim that he is a selfdeclared amir(commander),

who

is

willing

to

do

what

no

otherArab leaders aredoing. In the absence

of true leadership, he is a de factomilitary

commander,theonlyonewillingtostandup

against thewestern infidelsandoccupiers.In

Islam, there is no obligation for themilitary

leader tobeareligiousmanaswell,andbin

Laden makes no claim on being one.

Nonetheless,hisquietandassureddemeanor,

Al Nakhlah The Fletcher School Tufts University160 Packard Avenue Medford, MA 02155-7082 USA Tel: +1.617.627.3700


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Al Nakhlah2

withhandgrippingagun,inspiresaweinhis

followers, which is only heightened by his

ancestrallinethatextendstotheholycitiesof

MeccaandMedina.2

Understanding Osama bin Ladens

actionswithin

the

context

of

Islamic

legal

thoughtrestsontwomainissues.Thefirstisa

dejure question:whether or not his call forjihad is legitimate within Islamic texts,

specificallytheQuranandhadith.Thesecond

is a de facto issue, and in some ways

independent of the answer to the first issue:

whether influential leaders have condemned

him,orwhethertheyapprove.

Jihad: Struggle in the name of Allah

Prescribed

to

you

is

fighting,

though itbe hateful to you. Yet it

may happen that you will hate a

thingwhich isbetterforyou;and it

may happen that you will love a

thingwhich isworse for you.God

knowsandyoudonot3

The following three points regarding

jihadmustbeexaminedinordertodetermine

whether or not,within the Islamic tradition,

binLadenscallforjihadagainsttheWestcan

be

legitimized.

First, the validity of the jihad,

specifically, whether it is defensive or

offensive in nature. The Verses of Fighting

clearly state that when injustice has been

committed against Muslims, they are

permittedeven calledto fight. Leave is

given to thosewho are foughtbecause they

were wrongedsurely God is able to help

themwho were expelled from their

habitationswithoutright,exceptthattheysay

Our

Lord

is

God.

4

Moreover,

the

Quran

adds, Whosoever commits aggression

against you, do you commit aggression

againsthim likeashehascommittedagainst

you;andfearyouGod,andknowthatGodis

with the godfearing.5Thus,jihad is clearly

legitimized as a defensive war. However,

there are contradictory statements regarding

whether jihad can be an offensive war, for

exampleasatoolofconversion.Althoughitis

not explicitly described as such within the

text, some scholarsclaim that in thequest to

reachdaralIlsam(theultimateMuslimrealm

inwhichallmenare reunifiedunder Islam),

there is an implied order from God for

Muslims to fight against unbelievers.6

However, thereare scholarswhoclaimjihad

is strictly a defensive war by pointing to

versesstating,Lettherebenocompulsionin

religion.7

This point may or may not be moot,

however, asbin Laden claims hisjihad is a

defensive one.When askedhow hejustified

the killing of innocent men in the light of

Islamicteachings,

he

answered:

This is a major point in

jurisprudence. In my view, if an

enemy occupies aMuslim territory

andusescommonpeopleashuman

shields,thenitispermittedtoattack

that enemyAmerica and its allies

are massacring us in Palestine,

Chechnya, Kashmir and Iraq. The

Muslims have the right to attack

America in reprisal. The Islamic

Shariat says Muslims should not

live in the land of the infidel for

long.8

The secondpoint considersjihads rules

of engagement. Scholars agree that the

obligation to fight in the jihad applies to

healthyadult freemenwhohave themeans

attheirdisposaltogotowar,andtherestof

societycanstaybehind.Similarly,therulesof

engagement state that all adult, ablebodied,

unbelieving males may be killed, but it is

forbidden to slay women and children,

provided that they are not fighting. This is

basedon the fact that theProphetprohibited

the slaughter ofwomen and children,when

hesaidofawomanwhohadbeenslain,She

wasnotonewhowouldhavefought.9

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Spring 2004, Article 4 3

Given these rules, one may claim that

even if bin Ladensjihad truly is defensive

and therefore legitimate in Islam, he has

violated rules of engagement through the

killing of innocent citizens. This point is

critical. Western policymakers refuse to

acknowledgehisdemands, andvalidate that

policythroughfocusingupontheillegitimacy

of his warfare. However, if there are

interpretationsofIslamiclawthatvalidatehis

methods, then U.S. policy is only a valiant

effort to reaffirmourownvalues, sacrificing

increasedunderstandingandsecurity.

Influentialmuftishaveissuedstatements

condemning the tacticsused in911, suchas

SheikYusufQaradawi ofEgypt.His rulings

andopinions are among themost respected,

butalso

the

most

enigmatic.

He

is

viewed

as

an extremist for his statements sanctioning

thesuicidebombingsinIsrael,butisaliberal

inhisbeliefthatIsraelandaPalestinianstate

can coexist, and in his fatwa sanctioning

womenas candidates inBahrainsmunicipal

elections. The complexity of his opinions

draws critics, frustratedby their inability to

characterizehim;anddrawslargenumbersof

supporters as well, heartened by his

independence from political agendas. As

directorof

the

Institute

of

Islamic

Political

Thought in London was quoted, If Sheik

Qaradawigivesafatwa(religiousruling),that

fatwawillbeheeded tomorrow inhundreds

ofplacesaroundtheworld.10

Thus, when Qaradawi both legitimizes

terrorism inIsraelbutcondemnsterrorism in

the United States, theWestmust listen, for

Qaradawis sympathy to the United States

restsupon a fine line ofdistinctionbetween

Israel citizens and U.S. citizens. Qaradawi

writes,Islam

categorically

forbids

the

strikingof civiliansor thekillingof civilians

or the killing of thosewho do not fight.11

However,heclaims that theentiresociety in

Israelismilitary,thatnooneinitisacivilian,

perhaps due to the fact that every citizen is

required to serve military duty. Thus, he

makes a fine distinction between the two

countries, as Israelis are all combatants but

Americans can be civilians. Where U.S.

policymakersmustbeonguard,however, is

the fact that Qaradawi believes Israelis are

expelling people from their land through

statesponsoredterrorism,withthesupportof

theworld powers.WereQaradawibegin to

focusuponthecomplicityoftheUnitedStates

inIsraelspolicies,asbinLadendoes,hemay

feelfullyjustifiedinplacingAmericansinthe

realm of combatants aswell as Israelis, for

supporting their government. bin Laden

writesthefollowing,tothiseffect:

The 11 September attackswerenot

targeted at women and children.

The real targets were Americas

iconsof

military

and

economic

powerThe American people

should remember that they pay

taxestotheirgovernment,theyelect

their president, their government

manufactures arms andgives them

to Israel and Israel uses them to

massacre PalestiniansI ask the

American people to force their

governmenttogiveupantiMuslim

policies. TheAmerican people had

risenagainst

their

governments

war inVietnam.Theymustdo the

sametoday.12

Moreover, it ispossible foranargument

tobemadethatadoptsthewesternmilitarys

phrase collateral damageused to legally

justify the tensof thousandsof civilians that

have been killed in Operation Iraqi

Freedomandapplyittothecivilianskilled

in terrorist activities against U.S embassies,

theWorld Trade Center, the Pentagon, and

hijacked

airplanes.

Militant

Islamists,

in

taking on the United States military

dominance, cannot fight with the same

weapons. In the 911 attacks, airplaneswere

makeshift missiles to attack the centers of

powerwithintheUnitedStates,andcouldbe

construed as necessarily carrying their

collateral damage inside them in order to



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attacktheirtargets.Whetherornotthetargets

were legitimate,given that theywerenotall

military targets, is an argument to be

answeredinthequestionaboveofwhetherall

civilians are complicit in their governments

activities.

The third and final point to consider

regardingjihad is the distinctionbetween a

collectiveobligationtofight(fardkifaya),and

a personal, individual obligation (fard ayn).

Themomentatwhichitistransformedfroma

collective to personal obligation is at the

discretion of the sovereign ruler, and will

obligateeveryMuslimtofight.Qaradawihas

alreadystatedthatjihadagainstIsrael isfard

ayn, throughhisbelief thatwomencannow

participate in terrorism: Whenjihad is fard

ayn,such

as

when

the

enemy

invades

a

country, it is demanded from women that

they performjihad alongwithmen sideby

side.13

This underscores the point made

above, that the line distinguishing rules of

engagement between Israel and the United

States is a fine one, and indeed potentially

blurry. Were the United States support of

Israel,andotherof itspolicies in theMiddle

East, to implicate it as an invading enemy,

thentheUnitedStatesmaybecometheobjects

ofadefensive,

fard

ayn

jihad.

If this were to pass, then the United

Stateswould truly find no solace in fatwas

issued by muftis sympathetic to the West,

because enough contemporary theorists

envisageanIslamicstateinwhichtheheadof

a polity (amir)even a selfappointed one

such as bin Ladenneed no longer draw

authority from the ulama. The writings of

SayyidAbulAlaMawdudi of Pakistan, an

influential early twentieth century Islamic

journalistand

activist,

highlight

this

point.

Mawdudi simultaneously supported and

criticized the ulama in his country. He

acknowledged the importanceof the ulama,

specifically in the formulation of Pakistans

constitution,butalsofoundtheirdesire tobe

involved in statehood a burden on the

formulation of an Islamic state.Mawdudis

ideology calls for a new community of

righteousindividualstoleadthesocietytoan

Islamic revolution. This state would grant

decisionmakingpower to the amir, or head

of thepolity,withno requirement toconsult

with the ulama, which he found to be so

conservative as to have lost touchwith the

modern world.14Thus, bin Laden may be

grantedmore than enough authority for his

jihadtobewagedwithoutrestraint.

The Adversary

American policymakers have chosen to

paint Osama bin Laden as a pathological

opportunist

who

is

playing

upon

the

worst

fears of the Islamic world. Influential

journalistsperpetuate this idea, suchasNew

York Times columnist Thomas Friedman. In

his May 5, 2004 column, Friedman

condemned theArabworld fornotknowing

the difference between victories that come

from educating your population to innovate

and victories that come from a onenight

standbysuicidalmaniacslike9/11.15Indeed,

ourworst fearwouldbe thatOsamaandhis

followers

are

not

insane,

but

rather

symbolic

oftheIslamicworld;thattheyreflectdeeply

held sentiments as opposed to stirring up

latentones. If this fearproves true, then it is

nota fewpathologicalopportunists thatU.S.

policy is aiming to kill, but a deeply

compelling revolutionary idea, one that not

only resonateswithin the social fabricof the

Islamicworld,but that isjustifiedwithin its

legalfabric.

The views and opinions expressed in articles arestrictly the authors own, and donot necessarilyrepresent those ofAl Nakhlah, itsAdvisory andEditorial Boards, or the Program on SouthwestAsia and Islamic Civilization (SWAIC) at TheFletcherSchool.

1TheQuran,V:47.



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Spring 2004, Article 4 5

2Thisideaistaken

ifromaconversationwithFrankVogel,professorofIslamicLegalThoughtat

HarvardLawSchool.3TheQuran,2:216.

4Ibid,73.

5

Ibid,

74.

6InternationalLaw,OxfordEncyclopediaoftheModernIslamicWorld(1995),213.

7TheKoran,II:256.

8MuslimshavetherighttoattackAmerica,TheObserver,November11,2001.9RudolphPeters,JihadinClassicalandModernIslam,(1996),33.

10AnthonyShadid,MaverickClericisaHitonArabTV,WashingtonPost,February14,2003,

A01.11ItIsNotPermittedtoUseCivilAirplanesasInstrumentsofTerrorizingOthers,October12,

2001,.12MuslimshavetherighttoattackAmerica,TheObserver,November11,2001.

13ParticipationofWomeninMartyrdomSeekingOperations,April6,2002,

http://www.qaradawi.net.14Ibid.

15ThomasL.Friedman,CursedByOil,NewYorkTimes,May5,2004.


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