the scope of self-defense

Islamic Studies 49:2 (2010) pp. 155–194 155

The Scope of Self-defence: A Comparative Study of Islamic and Modern International Law

MUHAMMAD MUSHTAQ AHMAD*

Abstract Muslim scholars working on the doctrine of jih┐d in the post-colonial period have generally found it difficult to reconcile the concept of nation-state with the notion of the ummah (global community of Muslims). This dilemma has caused analytical inconsistency in the work of some of these scholars because even when they talk of the so-called “defensive” jih┐d, they include in it many instances of wars which are certainly beyond the scope of a nation-state’s right to self-defence. Providing military aid to Muslims facing persecution in foreign territories is one such example as the contemporary international legal order does not consider it an instance of self-defence. However, some parallels to this idea can be found in the notions of “protection of nationals and interests abroad,” “collective self-defence” and “humanitarian intervention.” The present paper analyzes in some detail the scope of self-defence in Islamic law by considering the work of three eminent Muslim scholars of the twentieth century, namely, Sayyid Ab┴ ’l-A‘l┐ Mawd┴d┘, Muhammad Hamidullah and Wahbah al-Zu╒ayl┘. It concludes that the scope of self-defence in Islamic law is wider than that of self-defence in international law because in Islamic law this concept is not confined to the defence of the state’s territory alone; rather, it also includes defence of the global Muslim community as well as of the value-system of Islam.

Scholars working on the Islamic doctrine of jihad [jih┐d] in the contemporary world have generally assumed that the earlier Muslim jurists (fuqah┐’) envisaged an unending war between Muslims and non-Muslims that would end

* The author wishes to acknowledge the contribution of Dr Zafar Ishaq Ansari and an anonymous reviewer whose critical comments helped in improving the structure and format of the paper. Discussions with several colleagues, particularly Professor Imran Ahsan Khan Nyazee, Abdurrahman Saaleh, Sadia Tabassum, Ahmad Khalid and Pir Khizar Hayat also greatly influenced the views of the author. It goes without saying that the author remains solely responsible for the content of the paper.

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only when Muslims would dominate the whole world. The division of the world by the fuqah┐’ into the “domain of Islam” (d┐r al-Isl┐m) and the “domain of war” (d┐r al-╒arb) is often cited as a conclusive proof for that assumption.1 In an earlier essay, we have shown that according to an overwhelming majority of the fuqah┐’, the cause for the obligation of jihad is to respond to war against Islam or Muslims (mu╒┐rabah) and not to forcefully convert non-Muslims or to dominate the world.2 We have also elaborated that the division of the world into d┐r al-Isl┐m and d┐r al-╒arb was based on the principle of territorial jurisdiction of the courts of the Islamic state and that it had no direct and causal link with the so-called “theory of perpetual war” between Muslims and non-Muslims.3 Most of the modern Muslim scholars tend to reject the notion of “offensive” jihad and forcefully assert that jihad is only for the purpose of defence.4 However, little effort is made to elaborate

1 The work of Majid Khadduri is the basic source for the Western scholars who have accepted these theories as established facts. See, Majid Khadduri, War and Peace in the Law of Islam (Baltimore: John Hopkins, 1955); idem, The Islamic Law of Nations: Shaybani’s Siyar (Baltimore: John Hopkins, 1966). In the contemporary world, Bernard Lewis is one the foremost proponents of these theories. See, Bernard Lewis, The Political Language of Islam (Karachi: Oxford University Press, 1987); idem, The Crisis of Islam: Holy War and Unholy Terror (London: Weidenfeld and Nicholson, 2003). The influence of Khadduri’s work on other scholars working in the field, even on those who rejected his theories, can be gauged from the fact that more than three decades after the first edition of Khadduri’s work, many renowned scholars still deem it a translation of Shayb┐n┘’s al-Siyar al-Kab┘r. See, for instance, Sohail H. Hashmi, “Interpreting the Islamic Ethics of War and Peace” in Sohail H. Hashmi, ed., Islamic Political Ethics: Civil Society, Pluralism and Conflict (Princeton: Princeton University Press, 2002), 216. Khaled Abou El-Fadl goes to the extreme of raising doubts on the authenticity of the commentary of al-Siyar al-Kab┘r written by Ab┴ Bakr Mu╒ammad b. Ab┘ Sahl al-Sarakhs┘, a great ╓anaf┘ jurist of the fifth/eleventh century, because the text of the book does not conform to the one edited and translated by Khadduri. See, Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001), 144–45. The fact, as conclusively proved by Mahmood Ahmad Ghazi (d. 2010), is that what Khadduri published as Shaybani’s Siyar only contains chapters on Siyar, Khar┐j and ‘Ushr from Shayb┐n┘’s Kit┐b al-A╖l which is a different work from his al-Siyar al-Kab┘r on which Sarakhs┘ dictated a detailed five-volume commentary. Sarakhs┘ also dictated commentary on another important book of Shayb┐n┘ on the issue, namely, al-Siyar al-╗agh┘r. The text of this work of Shayb┐n┘ is preserved in al-K┐f┘ f┘ Fur┴‘ al-╓anafiyyah of al-╓┐kim al-Shah┘d al-Mirwaz┘, while the text of Sarakhs┘’s commentary is found in volume 10 of his commentary on al-K┐f┘, namely, al-Mabs┴═. Ghazi edited the Arabic text of al-Siyar al-╗agh┘r and translated it into English under the title of The Shorter Book on Muslim International Law (Islamabad: Islamic Research Institute, 1998). 2 Muhammad Mushtaq Ahmad, “The Notions of D┐r al-╓arb and D┐r al-Isl┐m in Islamic Jurisprudence with Special Reference to the ╓anaf┘ School,” Islamic Studies, 47: 1 (2008), 5–37. 3 Ibid. 4 See, for instance, Shibl┘ Nu‘m┐n┘, S┘rat al-Nab┘ (Karachi: D┐r al-Ish┐‘at, 1983), 1: 328–53; Ab┴ ’l-Kal┐m └z┐d, Tarjum┐n al-Qur’┐n (Lahore: Shaykh Ghul┐m ‘Al┘, n. d.), 2: 112–23; Martin Lings, Muhammad: His Life Based on the Earliest Sources (Lahore: Suhail Academy, 1994), 135 ff.

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the scope of the doctrine of defence in Islamic law and to compare it with the scope of self-defence in the contemporary international legal regime. In this paper we will first examine the modern Muslim discourse on “defensive” and “offensive” jihad in Islamic law. Then we will present an analysis of the rules of international law regarding the scope of the right of self-defence of states. After that, we will examine the views of three eminent Muslim scholars — Sayyid Ab┴ ’l-A‘l┐ Mawd┴d┘ (d.1979), Muhammad Hamidullah (d. 2002) and Wahbah al-Zu╒ayli (b. 1932) so as to ascertain the scope of this doctrine and to find out whether it is compatible with the notion of self-defence in the contemporary international law.

“Defensive” and “Offensive” Jihad : The Modern Muslim Discourse

In the modern Muslim discourse, jihad has generally been divided into “defensive” and “offensive” categories5 and most of the modern Muslim scholars have rejected the notion of offensive jihad. They, however, talk in general and abstract terms about defensive jihad without elaborating the scope of defence. In this paper we will analyze this discourse to find out how the modern scholars arrived at the conclusion that jihad was only for the purpose of defence, meaning thereby the defence of the territory of the Islamic state. Generally speaking, the proponents of the defensive jihad theory put forward the following two-fold argument:

1. That there are many verses of the Qur’┐n and traditions of the Prophet (peace be on him), which restrict the obligation of jihad to situations of persecution and transgression by the opponents;6 and

See for a detailed exposition of the theory of defensive jihad, Muhammad Munir, “Public International Law and Islamic International Law: Identical Expressions of World Order,” Islamabad Law Review, 1:2 (2003), 389–98. 5 The classical fuqah┐’ did not divide jihad into the two categories of “defensive” and “offensive.” Rather, in their own peculiar way, they analyzed the underlying cause (‘illah) of the obligation of jihad and most of them concluded that its underlying cause is mu╒┐rabah (war against Islam or Muslims). As the existence and non-existence of the ‘illah indicates the existence and non-existence of the rule respectively, they also concluded that Muslims can fight only against those non-Muslims who commit mu╒┐rabah. They knew that for combating mu╒┐rabah sometimes it becomes necessary to strike them first. That is why for them the division of jihad into defensive and offensive categories was of little, if any, significance. It was more important for them to ascertain the situations, which were covered by the broader notion of mu╒┐rabah. See for details, Muhammad Mushtaq Ahmad, Jihad, Muz┐╒amat awr Bagh┐wat: Isl┐m┘ Shar┘‘at awr Bayn al-Aqw┐m┘ Q┐n┴n k┘ R┤shn┘ m╚╞ (Gujranwala: al-Shar┘‘ah Academy, 2008), 204–215. 6 We may quote Munir here: “Qur’┐nic verses on qit┐l (literally meaning fight, combat) are mostly misunderstood, misinterpreted and quoted out of context… These verses do not make wars to be offensive in nature and … wars waged by Muslims were always defensive or were fought because of attacks or breaches of covenants from the idolaters or other non-Muslims.”


2. that the wars fought by the Prophet (peace be on him) were of a defensive nature.7

The verse that is most often quoted to establish the defensive nature of the doctrine of jihad is found in the second chapter of the Qur’┐n: “Fight in the way of Allah those who fight you but do not transgress limits; for Allah does not love transgressors.” (Qur’┐n, 2: 190)8 Another verse in the same chapter says: “Thus, if someone has attacked you, attack him just as he attacked you, and fear Allah and remain conscious that Allah is with those who guard against violating the bounds set by Him.” (Qur’┐n, 2: 194) However, in the opinion of the exponents of the theory of offensive jihad, these verses have been abrogated by the later verses, particularly those found in the ninth chapter of the Qur’┐n:

But when the sacred months expire slay those who associate others with Allah in His Divinity wherever you find them, and seize them, and besiege them, and lie in wait for them. But if they repent and establish the prayer and pay Zak┐h, leave them alone. Surely, Allah is All-Forgiving, Ever-Merciful. (Qur’┐n, 9: 5)

Those who do not believe in Allah and the Last Day — even though they were given the scriptures, and who do not hold as unlawful that which Allah and His Messenger have declared to be unlawful, and who do not follow the true religion — fight against them until they pay tribute out of their hand and are utterly subdued.9 (Qur’┐n, 9: 29)

(Munir, “Public International Law and Islamic International Law,” 374–75). Regarding the Qur’┐nic verses on war, Munir gives the suggestion that all these verses should be “read in their context” instead of “quoting half a verse from the holy Qur’┐n and issuing legal verdicts about jihad.” (Ibid., 378). His conclusion is that “the ‘sword verses’ [of Chapter 9 of the Qur’┐n] do not mention reason(s) for waging war. Thus ‘sword verses’ are absolute (mu═laq), while ‘peace verses’ [of Chapter 2 of the Qur’┐n] are conditional (muqayyad). Therefore, absolute verses have to be given the meaning of the conditional verses. The Qur’┐n does not mention the reason for resort to war in the ‘sword verses,’ because it is mentioned in the ‘peace verses.’ Therefore, the latter should prevail over the former. By doing this, ‘sword verses’ will be applied whenever the conditions mentioned in ‘peace verses’ are met.” Ibid. 7 After analysing the factual circumstances of each major encounter of the Prohpet (peace be on him) with his enemies, Munir concludes: “War in Islam was defensive and not offensive. Never was it waged for the conversion by force of unbelievers but was for the defence of the Islamic state and Islam itself. Moreover, wars in Islam were fought only when necessary, without any other alternative and as a last resort. Thus, if there is no necessity there shall be no war.” (Ibid., 397). 8 Translation of all the verses are from the abridged version of Tafh┘m al-Qur’┐n of Sayyid Ab┴ ’l A‘l┐ Mawd┴d┘ translated and edited by Zafar Ishaq Ansari. Towards Understanding the Qur’┐n (Leicester: The Islamic Foundation, 2006). Minor changes have been made on the basis of my understanding of the original. 9 ‘Abd al-M┐jid Dary┐b┐d┘ (d. 1977), a famous Indian scholar of the twentieth century, explains


While it is an undeniable fact that the rules about jihad were revealed gradually, which is why the later revelations were more severe and strict in tone, it in no way suggests that the later revelations abrogated the earlier ones.10 What it simply means is that initially Muslims were not allowed to take up arms against their oppressors, while later they were allowed to fight against them. When as a result of several encounters Muslims were able to destroy the force of the enemies they acquired a position where the initiative was in their hands. Now, they were allowed to give the final blow to the enemies.11

the doctrine of abrogation in Islamic law in the following manner: “There is nothing to be ashamed of in the doctrine of certain laws, temporary or local, being superseded or abrogated by certain other laws, permanent and universal, and enacted by the same lawgiver, especially during the course of the promulgation of that law. The course of Qur’┐nic Revelation has been avowedly gradual. It took about 23 years to finish and complete the Legislation. Small wonder, then, that certain minor laws, admittedly transitory, were replaced by certain other laws, lasting and essential… It must be, however, clearly understood that the doctrine of abrogation applies to ‘law’ only… Beliefs, articles of faith, principles of law, narratives, exhortations, moral precepts and spiritual verities — none of these is at all subject to abrogation or repeal. See, Tafs┘r al-Qur’┐n (Karachi: D┐r al-Ish┐‘at, 1991), 1: 71. For a scholarly exposition of the doctrine of abrogation in Islamic Law see, Imran Ahsan Khan Nyazee, Islamic Jurisprudence (Islamabad: Islamic Research Institute, 2000), 317–24. See also, Ab┴ Bakr Mu╒ammad b. Ab┘ Sahl al-Sarakhs┘, Tamh┘d al-Fu╖┴l f┘ ’l-U╖┴l (Lahore: Maktabah Madaniyyah, 1981), 2: 53–86; Ab┴ ╓┐mid Mu╒ammad b. Mu╒ammad al-Ghaz┐l┘, al-Musta╖f┐ min ‘Ilm al-U╖┴l (Beirut: D┐r I╒y┐’ al-Tur┐th al-‘Arab┘, n. d.), 1: 107–128. 10 It is pertinent to note that the verses of the ninth chapter do not explicitly abrogate the earlier verses. Those who hold that there is abrogation call it naskh ╔imn┘ (implied abrogation), which means that they could not resolve the apparent conflict between these verses. If the apparent conflict is resolved, the argument for abrogation will automatically lose ground. The famous exegete of the Qur’┐n, Ab┴ Ja‘far Mu╒ammad Ibn Jar┘r al-║abar┘ (d. 310/922) states: “It is not permissible to declare that any of the laws given by Allah or His Prophet has been abrogated by another law, unless it becomes absolutely impossible to resolve the apparent conflict between them.” See, J┐mi‘ al-Bay┐n ‘an Ta’w┘l └y al-Qur’┐n (Beirut: D┐r al-Kutub al-‘Arabiyyah, 1970), 2: 266. 11 One may refer here in this regard to the work of Bassam Tibi (b. 1944), Professor of international relations at the George-August University in Göttingen, who sees “contradiction” in the verses of the Qur’┐n on the issue of war and peace because the various sets of verses were related to some particular events: “Qur’┐nic traditions of war are based on verses related to particular events. At times, they contradict one another. It is not possible, therefore, to reconstruct from these verses a single Islamic ethic of war and peace... Instead, there are a number of different traditions, each of which draws selectively on the Qur’┐n to establish legitimacy for its view of war and peace.” See, Bassam Tibi, “War and Peace in Islam,” in Islamic Political Ethics, 176. This approach of looking into different sets of verses in isolation has many flaws which is why Reuven Firestone (b. 1952), Professor of Medieval Jewish and Islamic Studies at the Hebrew Union College in Los Angeles, severely criticised it. See, Reuven Firestone, Jihad: The Origins of Holy War in Islam (New York: Oxford University Press, 1999), 47–65. Firestone proposes to look at these verses collectively. The conclusion he draws is very important: that emphasis on peace and harmony is found not only in the Makkan verses, but


However, it is pertinent to note that even when Muslims were allowed to initiate a military campaign it was, in fact, a continuation of the previous hostilities.12 War was imposed on the Islamic state of Mad┘nah from the very beginning and Muslims had to resist the enemy’s onslaughts and were forced to fight a series of wars. In the final stage, Muslims were able to be push back the war to the enemy strong holds. Thus, after the conquest of Makkah the final verdict about the opponents was declared in the ninth chapter. This new stance appears to be offensive in the sense that the non-Muslim opponents were no more in a position to launch a fresh campaign. However, at the same time it was defensive in the sense that it was a continuation of the earlier hostilities which had been initiated by the enemies. Another point worth noting is that according to the Muslim theology there was an element of Divine punishment in the wars of the Prophet (peace be on him) for his opponents as far as his immediate addressees were concerned. Hence, this final verdict was not only meant to destroy the belligerent capability of the opponents, but also it was a declaration of the final judgment of God upon them. We have explained it elsewhere that according to Muslim scholars a Messenger of God establishes the truth of his message so conclusively that there remains no justifiable basis for his direct addressees to doubt Divine provenance of his mission.13 As God alone knows who among the opponents of a Messenger indeed actually rejects his message because he fails to bring himself to accept its truth, the Messenger keeps on preaching his message until God Himself reveals to him this reality and commands him to move out of his habitat to some other place. After the Messenger migrates from his home territory along with his followers, God destroys his opponents and assigns to His Messenger the duty to make the true religion prevail in that territory. Hence, the opponents are destroyed by

also in the verses of the late Mad┘nan period see, ibid., 67–97. While Firestone’s proposal of reading all the relevant verses together is very significant, there is a fundamental drawback in his methodology for ascertaining the dating of the verses. Thus, while he analyzes the literature about ‘abrogation’ as well as ‘occasions of revelation,’ he gives little weight to the internal evidence of the chapters in which these verses are found. This is because of the generally accepted theory that the verses of a chapter do not have a common theme and common ‘occasion of revelation.’ The theory of ‘coherence’ (na╘m) in the Qur’┐n gives a different perspective and, as we have shown elsewhere, offers a more convincing interpretation. See, Mushtaq, “The Notions of D┐r al-╓arb and D┐r al-Isl┐m,” 29–36. For details about the coherence theory, see, Mawl┐n┐ Am┘n A╒san I╖l┐╒┘, Tadabbur-i-Qur’┐n (Lahore: F┐r┐n Foundation, 2002), preface. See also, Mustansir Mir, Coherence in the Qur’┐n: A Study of I╖l┐╒┘’s Concept of Na╘m in Tadabbur-i-Qur’┐n (Indianapolis: The American Trust Publications, 1987). 12 Muhammad Hamidullah, The Muslim Conduct of State (Lahore: Sheikh Muhammad Ashraf, 1945), 153. 13 Mushtaq, “The Notions of D┐r al-╓arb and D┐r al-Isl┐m,” 29–36.


natural calamities if the followers of the Messenger happen to be only a few in number. As opposed to this, if there is a sizeable number of that Messenger’s followers, they are asked to fight their opponents and, thus, they become an instrument of Divine punishment that afflicts the opponents of the Messenger.14 Despite this, the Muslim community did not initiate armed conflict; rather, as noted above, war was imposed on it by the opponents. Hence, the Prophet’s wars were at one and the same time defensive wars in response to the enemy’s hostilities as well as a Divine punishment of those who knowingly rejected the truth.15

Jihad and the Purposes of Islamic Law (Maq┐╖id al-Shar┘‘ah)

Some scholars argue for the defensive nature of jihad on the grounds of the theory of maq┐╖id al-Shar┘‘ah (purposes of the Shar┘‘ah).16 Before analyzing their argument, we deem it necessary to briefly explain the structure of the maq┐╖id. According to Ab┴ ╓┐mid Mu╒ammad b. Mu╒ammad al-Ghaz┐l┘ (d. 505/1111), the illustrious jurist-cum-philosopher, the purposes of the Shar┘‘ah are of two types: the d┘n┘ or the purposes of the Hereafter and the dunyaw┘ or the purposes pertaining to this world. He further divides the worldly purposes into four types: the preservation of nafs (life), the preservation of nasl (progeny), the preservation of ‘aql (intellect), and the preservation of m┐l (wealth).17 When all types are taken together we have five basic purposes of law, which are also called ╔ar┴r┐t (primary purposes). These ╔ar┴r┐t are followed by ╒┐j┐t (secondary purposes), which are additional purposes required by the primary purposes, although the primary purposes would not be lost without them. Then comes the third category called tawassu‘ (ease) and tays┘r (facility) in the law. They are also called ta╒s┘n┐t

14 It may be noted here that the rules mentioned in the ninth chapter of the Qur’┐n are time-specific as well as space-specific. They were applicable only to the immediate addressees of the Messenger of God in and around the Arabian Peninsula. They cannot be extended to non-Muslims of the later generations. Today, Muslims cannot claim to have the right to punish non-Muslims for not embracing Islam or for not submitting to the Muslim rule. Only Messenger had this right because only he could claim to have established the ultimate truth beyond every shadow of doubt. Ibid. See, for more details, Am┘n A╒san I╖l┐╒┘, Tadabbur-i-Qur’┐n, 3: 540–41 and 560. See also, J┐v╚d A╒mad Gh┐mid┘, “Q┐n┴n-i Da‘wat” in M┘z┐n (Lahore: D┐r al-Ishr┐q, 2001), 201–04. 15 This solves the problem of the apparent analytical inconsistency referred to above. 16 Muhammad Munir, “The Protection of Women and Children in Islamic International Law: A Critique of John Kelsay,” Hamdard Islamicus 25 (2002), 69. 17 Al-Ghaz┐l┘, Shif┐’ al-Ghal┘l f┘ Bay┐n al-Shabah wa ’l-Mukh┘l wa Mas┐lik al-Ta‘l┘l (Baghdad: D┐r al-Kutub al-‘Ilmiyyah, 1971), 186–87


(complementary values). ╓┐j┐t and ta╒s┘n┐t are meant to defend and protect ╔ar┴r┐t.18 These purposes have been determined from the texts through induction (istiqr┐’) and that is the reason why they are considered definitive (qa═‘┘).19 Imran Ahsan Khan Nyazee (b. 1945), a renowned scholar of classical Islamic law and jurisprudence, points out that moving beyond the maq┐╖id leads to the area of weaker attributes, the ashb┐h or the probable (╘ann┘) purposes. Examples include the building of civilization, security, the maintenance of equality and freedom.20 It is also worth considering that these values are preserved and protected in each society and are considered aims of justice in Western law.21 However, the difference lies in the priority order of these values. Thus, in Islamic law the value of religion is placed at the top and that of wealth is placed at the bottom, while the values of life, progeny and intellect are placed in the middle.22 These maq┐╖id have two aspects, positive (ta╒╖┘l or securing of the interest) and negative (ibq┐’ or preservation of the interest). The positive aspect in the words of the famous Andalusian jurist Ab┴ Is╒┐q Ibr┐h┘m b. M┴s┐ al-Sh┐═ib┘ (d. 790/1388) is “what affirms its elements and establishes its foundations.” The negative is “what expels actual or expected disharmony.”23 Thus, the interests of the d┘n are secured by the creation of conditions that facilitate worship and establish the other essential pillars of Islam. From the negative aspect, jihad is prescribed for defending the d┘n. In other words, the purpose of jihad is defence of the d┘n from all external threats. This seems quite convincing. However, there is a somewhat complicated problem. Defence or protection of the d┘n is not equivalent to the defence of state, or of the Islamic state for that matter. Something more than that is involved. As we shall see below, most of the Muslim scholars are of the opinion that providing support to Muslims who are subjected to persecution

18 Ibid. 19 Al-Sh┐═ib┘, al-Muw┐faq┐t fi U╖┴l al-Shar┘‘ah (Cairo: al-Maktabah al-Tij┐riyyah, 1975), 2: 7. See, for a detailed analysis of Sh┐═ib┘’s theory, A╒mad al-Rays┴n┘, Imam al-Sh┐═ib┘’s Theory of the Higher Objectives and Intents of Islamic Law, tr. Nancy Roberts (Herndon, VA: The International Institute of Islamic Thought, 2005). 20 See, Nyazee, Islamic Jurisprudence, 203–204. 21 Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law (Cambridge, MA: Harvard University Press, 1974), 196. 22 See for a refinement of the theory of maq┐╖id al-Shar┘‘ah and its relevance for contemporary issues, Imran Ahsan Khan Nyazee, Theories of Islamic Law: The Methodology of Ijtih┐d (Islamabad: Islamic Research Institute, 1994), 231–267. 23 Al-Muw┐faq┐t, 2: 8. See also: Ghaz┐l┘, Jaw┐hir al-Qur’┐n (Beirut: D┐r al-Fikr, 1984), 32–35. In other words, ta╒╖┘l is the securing of benefit (manfa‘ah) and ibq┐’ is the repelling of harm (ma╔arrah).


in a non-Muslim state is an integral part of the defence of the d┘n. Still, it may not come within the scope of a state’s right to self-defence.24 Similarly, many Muslim scholars have opined that if a state does not allow Muslims to peacefully propagate their religion and imposes various restrictions on them, the situation falls within the meaning of defence of the d┘n calling for military action in some severe cases. However, it seems almost certainly beyond the scope of a state’s right to self-defence. Hence, it is necessary to ascertain the scope of the right of self-defence of the Islamic state and to compare it with the notion of self-defence in the contemporary international legal regime. It is only then that one will be in a position to accept or reject the theory that the Islamic doctrine of jihad is confined to defence only. For this purpose, we will first present an analysis of the rules of international law regarding the scope of the right of self-defence of states. After that, we will examine the modern Muslim debate on this issue to ascertain the scope of defence in Islamic law. This will be followed by an analysis of the various doctrines of the contemporary international legal regime which are generally cited for accommodating the wider Islamic doctrine of defence. In pre-modern Europe, the notion of defence was derived from the doctrine of “just war,” as expounded by the Christian scholars, particularly St. Augustine of Hippo (d. 430), and as such it was almost similar to that in Islamic law.25 With the emergence of the modern nation-state system, however, the whole paradigm of self-defence was changed. It is beyond the scope of the present paper to go into details of how this paradigm shift took place in the West and as to why the Muslim world still finds it difficult to come to terms with it. Hence, we will concentrate on the scope of self-defence in the international law as developed by the modern nation-states in Europe and as modified by the Charter of the United Nations Organization.

Nature of the Prohibition of the Use of Force in International Law: Conflicting Opinions

The origins of the modern nation-state system are traced to the conclusion of the Treaty of Westphalia in 1648.26 This treaty formally announced the death

24 As we shall see later, even the doctrine of protection of nationals abroad does not fully cover this situation. 25 For a comparison between the notions of just war and jihad, see, John Kelsay and James Turner Johnson, eds. Just War and Jihad (Westport: Greenwood, 1991). See also, John Kelsay, Arguing the Just War in Islam (Cambridge: Harvard University Press, 2007). 26 For a good introduction to the development and history of the modern nation-state system and international law, see, Michael Akehurst, Modern Introduction to International Law (New York: Routledge, 1998), 9–32; Malcolm N. Shaw, International Law (Cambridge: Cambridge


of the Holy Roman Empire. The new system was based on the doctrine of the sovereignty of the nation-states.27 International law — also called “the law of nations” — was developed by the new sovereign nation-states. As a necessary corollary of the doctrine of sovereignty, two major sources of international law were accepted: custom and treaty.28 The former denoted the conduct of the sovereign states, while the latter was a formal expression of the consent of the sovereign states. It was also accepted that initiating a war was the “sovereign right” of states.29 As such, no war was considered illegal. It was for the first time in 1928 when the Pact of Paris formally prohibited war.30 The United Nations Organization was established in the aftermath of the Second World War in 1945. Its Charter put a general ban not only on war but also on the threat or use of force. Thus, Article 2 (4) of the Charter says: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” This general prohibition is reaffirmed by a number of resolutions of the UN General Assembly.31 While the General Assembly resolutions may not be binding on states, they do show a strong evidence of customary international law, which is binding on all states. Thus, the International Court of Justice in the Nicaragua v USA declared that this general prohibition on the use of force exists not only in the Charter but also in the customary international law.32

University Press, 2003), 11–41. See also, Geoffrey Treasure, The Making of Modern Europe 1648–1780 (New York: Routledge, 2003). 27 See, Akehurst, International Law, 11–18. 28 A major difference between treaty rules and customary rules is that the provisions of a treaty are binding only on states party to that treaty, while customary rules are deemed binding on all states. However, sometimes the treaty rules may overlap the customary rules. Thus, many of the customary rules have been codified in the form of treaties and many treaty provisions have become part of the customary law. For a detailed analysis of the relationship between customary and treaty law, see, Shaw, International Law, 68–101. 29 Ibid., 1013–1017. 30 This Pact, which is also called the Kellogg-Briand Pact, was initially concluded between the United States of America and France. Later, other states also acceded to it. Article 1 of this Pact reads: “The high contracting parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.” 31 These resolutions include, inter alia, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States GA/Res/2131 (XX) (1965), Declaration of the Principles of International Law GA/Res/2625 (XXV) (1970), Definition of Aggression GA/Res/3314 (XXIX) (1974) and Resolution on Enhancing the Effectiveness of the Prohibition of the Use of Force GA/Res/42/22 (1987). 32 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA), 1984 ICJ Rep 392.


The Charter explicitly mentions just three exceptions to this general prohibition:

1. Collective use of force under the authority of the UN Security Council;33

2. force used in individual or collective self-defence against an ongoing armed attack;34 and

3. action against ex-enemy states.35 The last exception was related to the Second World War and is now obsolete. Hence, there are only two exceptions now, which have been explicitly mentioned in the Charter. Some states have claimed a few other exceptions as well, but these are not universally accepted. One of the reasons for disagreement on this issue is the contentious relationship between the pre-Charter and post-Charter law.36 There have emerged two schools on the issue, which led to interpreting the ban on the use of force and exceptions thereto in two different ways. One is the so-called “permissive” and the other “restrictive” school.37 The permissive school interprets Article 2 (4) of the Charter quite literally and contends that the pre-Charter customary law has not been abrogated altogether. Thus, it asserts that the threat or use of force is not unlawful if it does not result in the loss or permanent occupation of the territory and if it does not compromise the target state’s ability to take independent decisions, for it would not be “against the territorial integrity or political independence of a state.” Similarly, this school contends that the use of force for achieving and promoting the purposes of the UN is not unlawful because it is not “in any other manner inconsistent with the Purposes of the

33 Charter of the United Nations, 1945, Articles 39–51. 34 Ibid., Article 51. 35 Ibid., Article 107. 36 Martin Dixon, a contemporary scholar of international law, says: “Indeed, perhaps the most difficult question of all is the extent to which pre-1945 rules still affect the scope of a state’s right and obligations under current international law.” Textbook on International Law (London: Blackstone, 2000), 294; See also, D. J. Harris, Cases and Materials on International Law (London: Sweet & Maxwell, 1991), 820. 37 For an authoritative analysis of international law relating to the use of force, see: Ian Brownlie, International Law and the Use of Force by States (Oxford, Oxford University Press, 1983). See also: Shaw: International Law, 1017–1022; Dixon, International Law, 296–99; T. Franck, “Who Killed Article 2 (4)?” American Journal of International Law, 64 (1970), 809; L. Henkin, “The Reports of the Death of Article 2 (4) Are Greatly Exaggerated,” American Journal of International Law, 65 (1971), 544; J. Hargrove, “The Nicaragua Judgment and the Future of the Law of Force and Self-defence,” American Journal of International Law, 81 (1987), 135.


United Nations.”38 The restrictive school, on the other hand, claims that the phrase “against the territorial integrity or political independence of a state” was meant to denote the totality of a state and that it does not provide a loophole for action against the state. Moreover, according to this school, the phrase “in any other manner inconsistent with the Purposes of the United Nations” was meant to ensure that force could never be used against non-state entities such as colonies and protectorates. The net effect, according to this school, is that threat and use of force is prohibited in all forms except where explicitly allowed by the Charter. A detailed analysis of this issue is beyond the scope of this paper. Suffice it to say that the drafting history of Article 2 (4), the general purposes of the Charter, and the arguments presented by the states actually using force support the restrictive interpretation of the provision.39 It is worth noting here that despite their differences on the nature of the prohibition of the use of force, both the restrictive and permissive schools agree that the use of force in self-defence is a valid exception from this prohibition. These schools, however, disagree on the scope of the right of self-defence. The foremost reason for this disagreement is the conflict of their views regarding the relationship of the pre-Charter and post-Charter law.40 Thus, the exponents of the permissive school argue that the Charter has preserved the pre-Charter customary right of self-

38 A classical example of the former is the “swift surgical strike” of the Israeli commandos in 1976 at the Entebbe airport, Uganda, which lasted only for 30 minutes. Example of the latter is NATO’s action against Serbia for “humanitarian purposes.” It is quite strange, however, that the permissive school does admit that the prohibition contained in Article 2 (4) is something more than the mere prohibition of ‘war’ contained in the pre-Charter treaties. As Dixon puts it, “[t]his in itself is enough to persuade proponents of the restrictive view that such an interpretation of Article 2 (4) should not be adopted. Moreover, in so far as the permissive interpretation places the distinction between lawful and unlawful force on the subjective intention or aim of the acting state, it may go too far.” International Law, 298. 39 We may again quote Dixon here: “An analysis of the travaux preparatoires of the San Francisco Conference which gave birth to the Charter confirms that the disputed phrases in Art. 2 (4) were inserted in preliminary drafts in order to strengthen the obligation not to use force rather than to weaken it. Furthermore, although there have been many examples of the use of force in the last 50 years, only Israel after the Entebbe raid has relied primarily on the permissive view of Art. 2 (4). In all other cases ... the states resorting to force have relied on alleged exception to the general principle prohibiting armed force rather than interpreting it narrowly. While these exceptions might be widely drawn, this is very different from claiming that the primary obligation is itself inherently flexible.” International Law, 299. 40 See, for details, Dixon, International Law, 299–304; Harris, Cases and Materials, 848–68; D. Grieg, “Self-defence and the Security Council: What Does Article 51 Require?” International Comparative Law Quarterly, 40 (1991), 366; J. Hargrove, “The Nicaragua Judgment and the Future of the Law of Force and Self-defense,” American Journal of International Law, 81 (1987), 135.


defence, while those of the restrictive school deny this claim. We will first discuss the scope of the customary right of self-defence.

Scope of the Right of Self-defence in Customary International Law

We have noted above that international law did not prohibit war until the conclusion of the Pact of Paris in 1928. However, states had been forwarding the justification of self-defence long before that and, thus, several rules were developed for the right of self-defence in the form of customary international law. Scholars generally agree that The Caroline incident clearly defined this right. In 1837, British military forces caught The Caroline, an American ship, while it was berthed in an American port and then sent her over the Niagara Falls. The US officials caught some of the persons involved in the incident. When the British attempted to release one of these persons, the then US Secretary of State Daniel Webster indicated that Great Britain had to show “a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation.”41 Further, he pointed out that it had to be established that, after entering the United States, the armed forces “did nothing unreasonable or excessive; since the act justified by the necessity of self-defence must be limited by that necessity and kept clearly within it.”42 This statement defines the scope of the customary right of self-defence and mentions the essential conditions for the exercise of this right. Thus, under customary international law the use of force in self-defence was justified if the following conditions were fulfilled:

1. Force was used against an immediate threat;

2. the threat was so overwhelming that it could not be averted by other alternative means; and

3. force used was proportionate to the threat faced. If these conditions were fulfilled, force could be used even before the actual armed attack by the adverse party. In other words, pre-emptive strikes were considered legal. Moreover, self-defence was not confined to situations of armed attack only. It was available even in response to economic aggression and the kind of propaganda that would cause an instant and overwhelming necessity for forceful action. Finally, a state could claim self-defence if her

41 Harris, Cases and Materials, 848. 42 Ibid. See also, R. Y. Jennings, “The Caroline and the Mcleod Cases,” American Journal of International Law, 32 (1938), 82.


interests abroad — such as nationals, territory, property and rights guaranteed under international law — would face actual or threatened attack.43 Although no state, except Israel after the Entebbe incident, debated the scope of the prohibition under Article 2 (4), there are several examples of states resorting to the use of force on the plea that they had the customary right of self-defence.44 It is, therefore, necessary to ascertain if the customary right of self-defence survived the UN Charter.

Scope of the Right of Self-defence in the UN Charter

According to Article 51 of the UN Charter: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” Like Article 2 (4) of the UN Charter, this Article has been interpreted differently by the permissive and the restrictive schools. The permissive school asserts that the use of the word “inherent” in Article 51 means that the pre-Charter customary right had remained intact. It further contends that Article 51 was never meant to provide a comprehensive definition of the right of self-defence. It is sometimes also argued that Article 51 did not say that the right of self-defence is available only if an armed attack occurs. As opposed to this, the restrictive school claims that the word “inherent” merely means that the right of self-defence is an inalienable right of states. It also contends that Article 2 (4) has put a comprehensive ban on the threat and use of force and reading it with Article 51 leads to the conclusion that the only right of self-defence available now is that found in Article 51. As Article 51 uses the phrase “armed attack,” this leads the restrictive school to assert that the Article has qualified the customary right of self-defence, which entitled a state to use force even in cases of non-violent attack on her interests such as economic aggression or destructive anti-government propaganda. There is an even more serious controversy about the implications of the reference to occurrence of attack in Article 51. The travaux preparatoires of the San Francisco Conference suggest that there was a heated debate on the wording of Article 51. It was the USA, which insisted that the phrase “if an armed attack occurs” must be put in Article 51. Green Hackworth, Legal

43 See, for details, Harris, Cases and Materials, 848–68; Dixon, International Law, 299–308. See also, Muhammad Mushtaq Ahmad, “Use of Force for the Right of Self-determination in International Law and Shar┘‘ah: A Comparative Study” (LLM thesis, International Islamic University, 2006), 48–61. 44 Thus, the destruction of Iraqi nuclear reactor by Israel in 1981 and the recent US invasion and occupation of Iraq in 2003 have been ‘justified’ under the guise of customary self-defence.


Adviser of the US State Department, warned that making self-defence conditional upon the occurrence of an armed attack “greatly qualified the right of self-defence.”45 However, Governor Harold Stassen, the Deputy Head of the US delegation, refused to yield. Even later, he argued that “this was intentional and sound. We did not want to exercise the right of self-defence before an armed attack had occurred.”46 Another member of the US delegation Mr Gates posed a question regarding the freedom of USA, under this provision, in case a fleet had started from abroad against an American republic but had not yet attacked. Stassen replied that “we could not under this provision attack the fleet but we could send a fleet of our own and be ready in case an attack came.”47 Indeed, the stipulation of ‘occurrence’ has caused more concern in the contemporary world. Thomas M. Franck, Director, Center for International Studies, New York City Law School, asserts:

It had been asserted that the emergence of ‘new age’ weaponry makes it illogical to require states to sit still until after an ‘armed attack’ against them has occurred. Where state is small and the potential attacker powerful or equipped with a ‘first strike capability’ there is vissimilitude to the claim that article 51 should be interpreted to allow anticipatory self-defence.48

This issue became more important after the declaration of the so-called “Bush Doctrine.” In September 2002, the US President George W. Bush in his speech at the UN General Assembly made it quite clear that USA would use force in anticipation of any threat from any quarter, and asserted that it was her right to do so. We will discuss this issue in some detail.

Pre-emptive Self-defence in the Post-UN Charter Law

Anticipatory self-defence was legal under the pre-Charter customary international law.49 All those who still believe in the legitimacy of this right

45 Thomas M. Franck, “When, if ever, May States Deploy Military Force Without Prior Security Council Authorization?” Singapore Journal of International Law, 4 (2000), 368. 46 Ibid. 47 Ibid. 48 Ibid. Similarly, arguing for the right of pre-emptive self-defence Louis Rene Beres and Yoash Tsiddon-Chatto say: “Indeed, this right is especially compelling today, when — in an age of mass destruction weaponry — failing to preempt may bring about annihilation or create a world of international political/criminal extortion by renegade states or terrorist groups.” See, “In Support of Anticipatory Self-defence: Israel, Osiraq and International Law,” <http://www.free man.org/m_online/jun97/beres1.htm> (Last visited: December 1, 2009). 49 Hugo Grotius, the so-called “father of international law,” declared it lawful “to kill him who is preparing to kill.” Emmerich de Vattel, another classical writer on international law, asserted: “The safest plan is to prevent evil, where that is possible. A nation has the right to resist the


base their argument on this customary notion of self-defence. However, our conclusion is that reference to the pre-Charter law can be of little help. For all practical purposes, it is the Charter that now governs the law relating to the use of force. Some scholars argue that because of several factors there has emerged a new custom that now allows anticipatory self-defence even if it was not initially allowed under the Charter. Two important factors generally cited in this regard are the Cold War politics and the emergence of sophisticated weapons of mass destruction (WMD).50 It is said that because of the Cold War the original scheme of collective security envisaged by the Charter could not be enforced and states had to rely on their own to cope with threats to their security.51 In other words, the Charter denied anticipatory self-defence because there was a system of collective security which could help in case of any threat to the peace or international security. Since that system has failed, states should be given the right of anticipatory self-defence. It is true that the UN Charter also recognizes the fact that there may be circumstances in which pre-emptive use of force becomes necessary. Thus, Article 39 authorizes the Security Council “to determine the existence of any threat to the peace, breach of the peace, or act of aggression.” As is obvious, in case of a “threat to the peace” if the Security Council authorizes the use of force it will be a perfect example of pre-emptive strike. In this case, the

injury another seeks to inflict upon it, and to use force ... against the aggressor. It may even anticipate the other’s design, being careful, however, not to act upon vague and doubtful suspicions, lest it should run the risk of becoming itself the aggressor.” (See David M. Ackerman, “International Law and the Pre-emptive Use of Force against Iraq,” Congressional Research Service Report for Congress (September 23, 2002). <http://stuff.mit.edu/afs/sipb. mit.edu/contrib/wikileaks-crs/wikileaks-crs-reports/RS21314.pdf> (Last visited: December 1, 2009). 50 “It would be a travesty of the purposes of the Charter to compel a defending state to allow its assailant to deliver the first, and perhaps fatal, blow....” (Statement by Sir Humphrey Waldock, as quoted in Guy Roberts, “The Counter-proliferation Self-help Paradigm: A Legal Regime for Enforcing the Norm Prohibiting the Proliferation of Weapons of Mass Destruction,” Denver Journal of International Law and Policy, 27 (1999), 513. 51 Under the original scheme, the UN was to have its own forces for which all the member states were to provide some of their troops that would work under the UN command. For this purpose, Article 43 provided for agreement between the UN and its members. This, however, could not materialize because of the Cold War between the super powers. Hence, the system of Collective Security has been working without Article 43. Franck says: “This noble plan for replacing state self-help with collective security failed because it was based on two wrong assumptions: first, that the Security Council could be expected to make speedy and objective decision as to when collective measures were necessary. Second, that states would enter into the arrangement necessary to give the Council an effective policing capability.” Franck, “Military Force without Prior Security Council Authorization?,” 362.


authority to determine the necessity of pre-emptive strike lies with the Security Council. What about a state unilaterally using force in anticipatory self-defence due to an imminent threat? The proponents of pre-emptive strikes assert that in such a situation, states cannot take the risk of delaying the attack till the issue is determined by the Security Council. While this may be true, it does not prove that such pre-emptive strikes are allowed by the Charter. This argument only proves that sometimes pre-emptive strikes become necessary. It is also true that the system of collective security as envisaged by the Charter did not work but it cannot be taken as allowing states to use force unilaterally when, in their subjective assessment, they feel that a threat to their security exists that can only be averted by pre-emptive strike. As is obvious, if states are given this license it will most probably be abused. 52 Is it not an irony that the justification for pre-emptive strike is forwarded by the states having WMD’s and that weaker states have always preferred a restrictive interpretation of Article 51 of the Charter?53 Our conclusion is that the UN Charter does not allow states to use force in pre-emptive self-defence, although states sometimes do resort to such strikes on the basis of the doctrine of necessity. The Charter, however, allows the UN Security Council to strike pre-emptively if and when it determines a threat to international peace. After examining the scope of self-defence in the international law as developed in the last three centuries, we are now in a better position to analyze the modern Muslim debate on the scope of self-defence in Islamic law and to compare it with the notion of self-defence in the contemporary international legal regime.

The Scope of Self-Defence in Islamic Law: Views of Three Eminent Muslim Scholars

Let us now consider how some of the most accredited Muslim scholars

52 The real dilemma in the words of Thomas Franck is: “On the one hand, it is evident that any adaptation of the Charter’s absolute prohibitions on the unilateral or initiatory use of armed force would be nullified if each state were free to determine for itself whether a perceived danger of attack warrants anticipatory action. On the other hand, it is an irrational — and ineffectual — law that seeks to prohibit a state from protecting its very survival until the threat to it has eventuated.” Ibid., 369. 53 Dixon says: “It is undeniable that the policy arguments which favour a wider right reflect powerful states’ desire to preserve their freedom of action, especially as international law is such an imperfect system…Contrary to this is the interpretation of states who do not have the military capacity to use force to ‘protect’ their rights…They believe that self-defence should be an exceptional right, available in exceptional circumstances. Moreover, that exceptional situation should be the relatively objective and relatively easily established scenario of an armed attack against state territory.” International Law, 302.


perceive this problem. According to these scholars, there are various situations, which legitimately form part of self-defence. These situations show that the scope of self-defence in Islamic law is much wider than that found in international law, particularly in the post-United Nations Charter law. In this regard, we will analyze the views of three eminent scholars Sayyid Ab┴ ’l-A‘l┐ Mawd┴d┘, Muhammad Hamidullah and Wahbah al-Zu╒ayl┘. Hamidullah, one of the pioneers in the field of Islamic international law in modern times, considers the following as “lawful wars”: 54

1. The continuation of an existing war; 2. defensive wars; 3. sympathetic wars; 4. punitive wars; and 5. idealistic wars.55

Hamidullah is of the opinion that most of the wars of the Prophet (peace be on him) against the Makkans formed part of the first category.56 He divides “defensive” wars into two sub-categories: depending upon whether the enemy “(a) has invaded the Muslim territory, or (b) has not actually invaded, but has behaved in an unbearable manner.”57 It means that he also believes in some sort of pre-emptive self-defence. Thus, he considers the attack by the Prophet on the Jewish tribes of Khaybar as “an instance of nipping war in the bud.”58 Similarly, he also explicitly mentions that declaration of war is not necessary in certain cases, one of which is “preventive war.” In this regard, he quotes the examples of wars of Ban┴ ’l-Mu╖═aliq, Khaybar and ╓unayn.59

54 In the strict historical order, Mawd┴d┘’s views should have been examined before those of Hamidullah and Zu╒ayl┘, but we preferred to examine Mawd┴d┘’s views after analyzing the standpoints of the other two scholars for two reasons: firstly, Hamidullah’s notion of defence is more in consonance with the notion of defence in the contemporary international legal regime; secondly, Mawd┴d┘’s notion of defence is, comparatively speaking, much wider than that of Hamidullah and Zu╒ayl┘. Hence, for the sake of better understanding, we disregarded the historical sequence. 55 See, The Muslim Conduct of State, 153–61. Hamidullah divided his work into four major parts: introduction, peace, hostility and neutrality. The introductory part contains eleven chapters; discussion on peaceful relations are covered in six chapters; the third part devoted to hostile relations is the longest part as it contains twenty-six chapters; and the final part on neutrality has five chapters. The discussion on “lawful wars” is found in the third part of the book on hostile relations. 56 Ibid., 153 and 182. 57 Ibid., 154. 58 Ibid. 59 Ibid., 182.


By “sympathetic wars” Hamidullah understands providing military support to Muslims who are target of tyranny and persecution in foreign lands,60 while he gives the title of “punitive wars” to those wars which were fought “against hypocrites, apostates, rebels and those who refuse to pay zak┐h as well as those who committed a breach of the treaty of peace.”61 Finally, he uses the phrase “idealistic wars” to denote wars fought for uprooting “godlessness and association with God in His Divinity.”62 Hamidullah is of the opinion that: “No one is to be forced to embrace Islamic faith… yet Islamic rule is to be established by all means.”63 It may be pointed out here that what Hamidullah calls as “continuation of an existing war” is included by most of the Muslim scholars in self-defence.64 As we shall see below, many of them also consider “sympathetic wars” as part of defensive wars. As far as the “punitive wars” are concerned, these can be further divided into two sub-categories: (1) wars against hypocrites, apostates, rebels and those who refuse to pay zak┐h; and (2) wars against those states which committed breach of the treaty of peace with the Islamic state. The former can be designated as “civil wars” or “internal conflicts”65 and as such included in the meaning of defence. The latter category of wars, as we shall see below, can also be included within the meaning of defence because, legally speaking, violation of a peace treaty is equivalent to an act of aggression. Thus, according to a majority of the modern Muslim scholars it is only “idealistic wars,” which cannot be included in the scope of self-defence. Zu╒ayl┘, the famous contemporary Syrian jurist, is of the opinion that the division of offensive and defensive wars does not fit in the framework of the Shar┘‘ah for many reasons.66 He argues that jihad can never be termed as 60 Ibid., 155. 61 Ibid., 156. 62 Ibid. 63 Ibid., 157. (Emphasis added). 64 That is why most of them consider expeditions of the Prophet (peace be on him) against Makkans as instances of self-defence. See, for instance, Munir, “Public International Law and Islamic International Law,” 389–98. 65 The Muslim Conduct of State, 178–87. 66 The first edition of the book └th┐r al-╓arb appeared in 1963. Some of the critical reviews on that edition prompted the author to clarify his position on the issue of defensive jihad. Thus, he wrote in the preface to the second edition: “Let me clarify the confusion found in the minds of some of the readers of the book. In discussing the ratio of jihad in Islam, I did not mean that it was confined to defence only. Rather, I believe that sometimes first strike becomes permissible for Muslims, if on the basis of strategic factors, war tactics and determination of the overall planning of war against the enemy, the ruler decides that their ma╖la╒ah (interest) requires so. This explains the real motives behind the wars and conquests of Muslims in the past and this may guide them in the contemporary world as well. However, Muslims must do so without committing any transgression or injustice, as these two acts are prohibited by the general


“offensive,” for this term carries the meaning of illegality, transgression and injustice, while jihad is for ensuring justice and the rule of law. Furthermore, he says that Islam does not believe in geographical and territorial limitations67 and that is why Muslims are obliged to defend their territory and state as well as Islamic da‘wah (preaching) and fellow Muslims everywhere in the world.68 He further asserts that the division of wars into defensive and offensive ones is based on subjective standards because for the protection of their interests sometimes states deem it necessary to strike first before the threat from the opponents eventuates. This situation may both be termed as that of “defence” as well as of “offence.”69 Zu╒ayl┘ concludes his arguments saying:

Some states in the contemporary world consider their unjust offensive attack on Egypt in 1956 as defence of their interests. Israel considers her attack on Arabs as defence of her interests. Likewise U.S. considers her blockade of Cuba and intervention in the Dominican Republic as well as her illegal and brutal attack on Vietnam as defence of her interests. If this has been the case, it is proper for us to declare that war in Islamic law is confined only to situations of self-defence!70

While talking in concrete terms about the scope of self-defence, Zu╒ayl┘ enumerates the following three situations:

1. When a non-Muslim state transgresses over preachers of Islam or denies the right to preach Islam or persecutes those who embrace Islam;71

principles of Islam. Moreover, the objective of jihad must be to achieve a higher humane goal, lasting justice and positive and real peace.” Wahbah al-Zu╒ayl┘, └th┐r al-╓arb f┘ ’l-Fiqh al-Isl┐m┘ (Damascus: D┐r al-Fikr, 1981), 13. 67 This statement in its generality does not seem correct because Islamic law as expounded by the ╓anaf┘ jurists does recognize the concept of territorial jurisdiction. See for details, Mushtaq, “The Notions of D┐r al-╓arb and D┐r al-Isl┐m,” 7–22. 68 └th┐r al-╓arb, 124–25. 69 Ibid., 13. 70 Ibid., 128. 71 Ibid., 93. This may seem strange today because of the paradigm shift referred to above. In the contemporary international legal regime, states do not express the right to use force against other states on the basis of denial of the right to preach a particular religion. However, other ‘values’ — such as the values of ‘human rights, freedom and democracy’ — are deemed so important that governments are toppled and states are occupied in order to promote these values. We also hear references to ‘rogue states’ harassing ‘human rights activists,’ or denying ‘equal rights’ to minorities or women. Ronald Reagan, the US President from 1980 to 1988, launched a series of invasions under the notion of ‘regime change’ in various parts of the globe for ‘promoting democracy.’ His successor George Bush, the US President from 1989 to 1992, invaded Panama in 1989 to kidnap the ‘undemocratic’ and ‘criminal’ General Noriega. He also invaded Iraq in 1991 to ‘liberate’ Kuwait. His son George Walker Bush, the US President from 2000 to 2008, pronounced a ‘relentless’ war, even ‘crusade,’ against ‘terrorism.’ This so-called


2. supporting Muslims who are target of tyranny and oppression in foreign territories on humanitarian grounds;72 and

3. cases of actual attack on the Islamic state.73 Zu╒ayl┘ also supports the right of self-defence in case of “indirect” aggression against the Islamic state or Muslims.74 Moreover, he admits that in certain cases “pre-emptive” strike becomes necessary.75 It is evident from the foregoing that Hamidullah’s concept of defence is confined only to defence of state and that is why he does not include “sympathetic wars” as part of “defensive wars,” although he does consider these to be lawful wars. As opposed to this, Zu╒ayl┘ asserts:

The Islamic doctrine of jihad has its own peculiar nature. It is neither offensive and destructive nor confined to mere defence of the territory and interests of the state. In a nutshell, it is a tool in the hand of the Muslim ruler for the protection of the preaching of Islam or for the defence of Muslims.76

This clearly shows that Zu╒ayl┘’s concept of defence encompasses defence of the ummah (the global Muslim community) and even defence of the d┘n. In other words, Zu╒ayl┘ does not accept the paradigm shift from Muslims/non-Muslims to nationals/non-nationals. Mawd┴d┘ also believed that the division of defensive and offensive wars could not be accurately applied to the Islamic doctrine of jihad. That is why he classified jihad into defensive (mud┐fi‘┐nah) and “reformative” (mu╖li╒┐nah). Mawd┴d┘ deems “reformative” jihad as a war for the purpose of combating

‘global’ war on terror is deemed to be a war that knows no ‘frontiers.’ The whole world has been divided into ‘us’ and ‘them’ and values are also designated as ‘ours’ and ‘theirs.’ These should not be deemed as isolated instances or imperialistic doctrines of the super powers. This is because we also have the notion of ‘threat to international peace’ in the UN Charter, which forms one of the bases for the UN Security Council authorising the use of force against a state. Today, because of the paradigm shift, the threat to ‘international’ peace seems a valid basis for waging war. In the same way, it can be argued that it is justified to wage war against a state which obstructs the preaching of Islam (read, promoting democracy or preserving international peace). 72 └th┐r al-╓arb, 93. 73 Ibid., 94. 74 Ibid., 91 and 13. The term “indirect aggression” is used for a state’s providing military support to a secessionist movement in another state. In the famous case of Nicaragua v USA, the International Court of Justice affirmed the right of the states to self-defence against indirect aggression. 75 └th┐r al-╓arb, 91. 76 Ibid., 125.


fitnah (persecution) and fas┐d (corruption) in the world.77 There are several situations which he includes either in the scope of fitnah or that of fas┐d. 78 These situations cannot be considered instances of defensive wars by any stretch of meaning.79 As such these instances are beyond the scope of the present paper. We will, therefore, confine our analysis to Mawd┴d┘’s notion of defensive wars. Like Zu╒ayl┘, Mawd┴d┘ also includes “sympathetic wars” in self-defence.80 Moreover, Mawd┴d┘’s concept of defence, like that of Zu╒ayl┘, includes removal of hurdles from the way of the propagation of Islam.81 Hamidullah does not explicitly mention this, but it seems that he includes this in “idealistic wars.” Mawd┴d┘ explicitly includes in “defensive wars” what Hamidullah calls as “punitive wars.”82 Hence, according to Mawd┴d┘, following are the instances of defensive wars:

1. Retaliation of tyranny and persecution;83 2. removing hurdles that prevent the propagation of Islam; 3. punitive action against those who have committed a breach of peace treaty; 4. combating rebellion;84 5. ensuring internal security and peace by fighting against those who cause

deterioration in the law and order situation;85 and

77 Ibid., 104–05. 78 Ibid., 105–17. 79 Mawd┴d┘ asserts that the root cause of these various forms of fitnah and fas┐d is the existence of infidel states and that for the purpose of eliminating fitnah and fas┐d, “the most important work is to abolish all the corrupt governments and establish in their place a government which embodies the moral virtues in principle as well as in practice.” Ab┴ ’l-A‘l┐ Mawd┴d┘, al-Jih┐d f┘ ’l-Isl┐m (Lahore: Id┐rah Tarjum┐n al-Qur’┐n, 1974), 119–120. Does this mean that Islamic law does not recognise the right of non-Muslims to have their own independent political entities even when they do not want to wage war against Muslims? We propose to undertake an in-depth analysis of this issue in a separate study dealing with personality, statehood and recognition in Islamic law. Suffice it to say here that this assertion is primarily based on the time-specific and space-specific texts of the Qur’┐n and the Sunnah, which prescribe a specific Divine punishment for the opponents of the Prophet (peace be on him) from among his immediate addressees. Moreover, it is not compatible with the ratio of war in Islam being mu╒┐rabah (aggression). 80 See, Al-Jih┐d f┘ ’l-Isl┐m, 77–80. 81 Ibid., 63–66. 82 Ibid., 62–63 and 66–77. 83 That is to say, those who are subject to persecution raise arms against their oppressors. Mawd┴d┘ separately mentions providing military support to a persecuted Muslim community in a foreign territory. 84 Zu╒ayl┘ does not refer to the issue of rebellion in his work, while Hamidullah mentions rebels as one of the four classes of “enemy persons” The Muslim Conduct of State, 178–87. The other three classes of enemy persons are: non-Muslim belligerents, apostates, highwaymen and pirates.


6. supporting Muslims in foreign territories when they are targets of tyranny and persecution.

Furthermore, Mawd┴d┘ also believes in the legality of pre-emptive self-defence.86 Among these various instances of wars, which Mawd┴d┘ and Zu╒ayl┘ include in defence, we will now turn to the most important, and perhaps the most contentious, category, namely, providing support to Muslims who face persecution in foreign territories. We noted above that although Hamidullah does not include it in defence, he deems it to be an instance of lawful wars.87 The issue that will be examined now is whether such use of force can be deemed lawful under the contemporary international legal regime.

Supporting Muslims in Foreign Territories

Muslim jurists generally disapproved of Muslims permanent residence outside d┐r al-Isl┐m.88 However, many of these jurists appreciated the fact that perma-nent residence outside d┐r al-Isl┐m may at times become recommended or even

85 In other words, Mawd┴d┘’s notion of defensive jihad includes the law enforcing operations against criminals and bandits. This leads to overlapping and confusion between the spheres of criminal law and the law of war. Hamidullah mentions rebels separately from “highwaymen and pirates” who are dealt with under criminal law. The Muslim Conduct of State, 188–89. This is more in consonance with the approach of the fuqah┐’ who, on the one hand, distinguished rebels from bandits and, on the other, the scope of jihad from that of the ╒ud┴d. See for a good analysis of this issue: Sadia Tabassum, “Combatants, Not Bandits: The Status of Rebels in Islamic Law,” International Review of the Red Cross, 93: 881 (March 2011), 1–19. It may be noted here that the contemporary international legal regime also does not deem the law enforcing operations as instances of “armed conflict.” As such, the law of armed conflict is not applied to such operations, while rebellion is deemed a “non-international” armed conflict and some part of the law of war is applied to it. 86 Al-Jih┐d f┘ ’l-Isl┐m, 61 ff. 87 The reason is obvious: Mawd┴d┘’s notion of defence, like that of Zu╒ayli, encompasses defence of the ummah as well as defence of the d┘n, while Hamidullah’s concept of defence is confined to defence of state in accordance with the norms of the contemporary international legal regime. 88 Khaled Abou El Fadl has accumulated some very interesting instances from the Islamic legal literature on the issues relating to Muslims living in non-Muslim territories. See Khaled Abou El Fadl, “Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries,” Islamic Law and Society, 1: 2 (1994), 141–187. On the issue of Muslims’ residence under non-Muslim rule, an important verdict of the great seventh/thirteenth century jurist Ibn Taymiyyah is often quoted but Yahya Michot concludes that in modern times this verdict has generally been misinterpreted. See, for the English translation of the text of the verdict and a detailed scholarly analysis of the issue, Yahya Michot, Muslims under Non-Muslim Rule: Ibn Taymiyya (London: Interface Publications, 2006).


obligatory.89 Thus, these jurists had to answer the legal questions pertaining to the interaction of these Muslims with their host state.90 The most important issue for our purpose is the obligation of the Muslims of d┐r al-Isl┐m towards these people. The jurists generally agree that if Muslims are persecuted91 in a non-Muslim state, it becomes obligatory upon the Muslims of d┐r al-Isl┐m to provide them with moral, diplomatic and material support as well as sanctuary.92 Sometimes it becomes obligatory to provide military support to 89 Abou El Fadl, “Islamic Law and Muslim Minorities,” 143–164. 90 Abou El Fadl focuses on three issues: (1) the legal and moral justification of Muslims residing temporarily or permanently in non-Muslim territories; (2) the relationship of these Muslims to d┐r al-Isl┐m; and (3) the duties these Muslims owe to Islamic law and to the legal system of the host state. He gives valuable details of the juristic discourse on the doctrines of hijrah (migration), am┐n (safe conduct) and ‘i╖mah (legal protection). However, he does not analyse the issue that concerns us here: the obligation of the Islamic state to these Muslims if and when they face persecution in foreign territories. 91 The word fitnah and its derivatives (such as khashyata an yuftana f┘ d┘nih: ‘fearing that he might be enticed away of his religion’; idh┐ lam yakh┐f┴ al-fitnah f┘ ’l-d┘n: ‘when they do not fear enticement away from the religion’) generally occur in these passages of the jurists. See, for instance, Mu╒ammad b. Idr┘s al-Sh┐fi‘┘, al-Umm (Beirut, D┐r al-Ma‘rifah, n. d.), 4: 161. Combating such persecution is specifically mentioned as the purpose of jihad in the Qur’┐n. “Fight against them until persecution (fitnah) ends and the way prescribed by Allah prevails. But if they desist, then know that hostility is directed only against the wrong-doers.” (Qur’┐n 2: 193). Mawd┴d┘ explains the term fitnah in the following words: “Fitnah is a wider term, which encompasses several moral crimes… Figuratively, it means anything that tests human beings, and that is why wealth and offsprings have been called ftinah. Ups and downs in the life of a nation are also termed as ftinah because they test them… It means that fitnah actually means test, be it through the things that a person likes or through fear of damage and troubles. If this test is from God, then it is perfectly right because He is the Creator of human beings and He has the right to test His creatures. The purpose of this test is to spiritually develop them. However, if this test is by a human being it is absolutely unjust because … the purpose of this test is to put restrictions on the freedom of conscience. In this last sense of the word fitnah it is almost a synonym of the English word “persecution,” although the former is much wider in its scope.” Al-Jih┐d f┘ ’l-Isl┐m, 106. 92 For details about different kinds of support to oppressed people in foreign territories see, Bard E. O’Neill, Insurgency and Terrorism: Inside Modern Revolutionary Warfare (New York: Brassey’s, 1990), 111–24. Moral support denotes private and public statements that “indicate sympathy” for those under persecution in general terms. There may be emphasis on grievances, which justify recourse to violence. Moral support may be in the form of attacking the oppressors for denying political rights. It may take the form of praising the courage of the insurgents. Ibid., 114. Diplomatic or political support goes a step further insofar as it is marked by “explicit and active backing” for those resisting persecution in diplomatic arena.” Ibid., 115. Material support consists of tangible resources that are either used on behalf of the insurgents or given to them directly. It is not confined to military-related resources. Non-military material support includes financing, providing basic necessities and supply or use of radio stations as well as political, ideological and administrative training. Ibid., 116. Sanctuary also plays a very important role in insurgency. Professor Bernard Fall, an authority on liberation struggles and insurgencies, observes: “In brutal fact, the success or failure of all rebellions after World War II


those under persecution, and it will not be sufficient to provide mere moral or diplomatic support. The Qur’┐n is explicit in this regard:

How is it that you do not fight in the way of Allah and in support of the helpless — men, women and children — who pray: Our Lord, bring us out of this land whose people are oppressors and appoint for us from Yourself a protector, and appoint for us from Yourself a helper. (Qur’┐n, 4: 75)

At another place, the Qur’┐n qualifies this obligation with an important stipulation: that Muslims must not violate the terms of a peace treaty, if any:

And those who believed but did not migrate (to D┐r al-Isl┐m), you are under no obligation of alliance unless they migrate. And should they seek help from you in the matter of religion, it is incumbent on you to provide help unless it be against a people with whom you have a pact. (Qur’┐n, 8: 71–72. Emphasis added)

It is for this reason that Muslim scholars also discuss the implications of the peace treaty when they examine the issue of support to Muslims in foreign territories. However, it goes without saying that providing military support becomes obligatory only in extreme situations where the persecution cannot be stopped by other means because Islamic law allows the use of force as a last resort and prefers adopting pacific means for settling disputes.93 Moreover, “persecution” is the cause (sabab) of the rule of obligation, but this rule will apply to a situation only when no legal obstacle (m┐ni‘) is there and each condition (shar═) of the obligation is fulfilled. Thus, the existence of peace treaty is a legal obstacle in the presence of which no act of war can be committed against the other party. Similarly, one of the conditions of the obligation of jihad is “capability” (isti═┐‘ah).94 Hence, different situations will attract different rules and keeping in view the peculiar circumstances of each case the jurists may decide if the use of force is prohibited, abominable, disapproved, permissible, recommended, probably obligatory or definitively obligatory. Now, the question is: how can this support be accommodated in the doctrine of defence? There are two possibilities: depended entirely in whether the active sanctuary was willing and able to perform its role.” Bernard B. Fall, Street without Joy (Harrisburg: Stackpole Books, 1963), 294. 93 Ibrahim Kalin, “Islam and Peace: A Survey of the Sources of Peace in the Islamic Tradition,” Islamic Studies, 44: 3 (2005), 327–408. 94 See, for the interplay between the “primary rules” (a╒k┐m takl┘fiyyah) of obligation to prohibition and the “secondary rules” (a╒k┐m wa╔‘iyyah) of cause, condition and obstacle, Nyazee, Theories of Islamic Law, 103–107. See, for a detailed analysis of the condition of capability for the obligation of jihad, Mushtaq, Jihad, Muz┐╒amat awr Bagh┐wat, 257–69.


1. Those under persecution are considered “nationals” of d┐r al-Isl┐m which

would justify use of force on the grounds of the doctrine of “protection of nationals and interests abroad”; or

2. defence means defence of the ummah and not that of the state. We will examine both these possibilities in detail here.

Justification on the Basis of the Doctrine of Protection of Nationals and Interests Abroad

Many states have been claiming the right to defend their nationals, and even property, in foreign territories under the pre-Charter customary international law.95 For instance, in the 1956 Suez Canal crisis, France, the United Kingdom and Israel claimed that they had the right to use force against Egypt for protection of their material interests in the Suez Canal.96 The United States provided the same justification during the invasion of Grenada in 1983, the bombing of Libya in 1986 and of Baghdad in 1993. Customary international law allowed the use of force for this purpose only if the following four conditions were fulfilled:

1. The “host” state must be unable or unwilling to protect the nationals; 2. the nationals must be in serious and immediate danger of life-threatening

harm; 3. force must be the weapon of last resort; 4. the acting state may use only such force as is reasonably necessary and must

vacate the territory of the host state as soon as it is practicable.97 These are essentially the same conditions which are deemed necessary for the right of customary self-defence discussed above. The “swift surgical strike” of the Israeli commandos in 1976 at the Entebbe airport, Uganda, to rescue the passengers and kill the hijackers, is cited as an example of a state fulfilling all the conditions for protecting its nationals abroad. This whole operation lasted just 53 minutes out of which the

95 See for details, Michael Akehurst, “The Use of Force to Protect Nationals Abroad,” International Relations, 5 (1976/77), 3; Harris, Cases and Materials, 861–68; Dixon, International Law, 307–08. 96 France and UK claimed rights under the lease agreement of 1869, which was to remain in force till 1969 but was made ineffective after the Government of Egypt nationalized the Suez Canal. Israel claimed the right to protect her right of passage through the Canal. 97 Dixon, International Law, 307


assault took 30 minutes only.98 In the operation, forty-five Ugandan soldiers and all the hijackers were killed along with three hostages. Moreover, eleven Ugandan Mig-17 fighter planes were also destroyed.99 That the right to protect nationals and property abroad existed in the pre-Charter law is not disputed. What is not agreed upon, however, is whether this right still exists. Indeed, it is quite strange that the US bombing of Libya in 1986 and of Baghdad in 1993 because of the allegations of terrorist plans against US nationals are also justified under this doctrine, although they were quite different from the Entebbe incident.100 While such use of force to protect “nationals” abroad may or may not be acceptable in the contemporary international legal regime, it certainly does not solve the issue of providing military support to “Muslims” in foreign territories. This is not only because of the fundamental difference between the notions of “nationals” and “Muslims” but also because Islamic law distinguishes between the legal status of those people — both Muslims and non-Muslims — who live outside d┐r al-Isl┐m and the legal status of the residents of d┐r al-Isl┐m, as explained below. The fuqah┐’ divided non-Muslims into three categories: ╒arb┘, musta’min and dhimm┘.101 A ╒arb┘ was a non-Muslim who permanently resided outside

98 It was later named as the “Yonatan Operation” in the memory of Lieutenant Colonel Yonatan Netanyahu, the elder brother of Benjamin Netanyahu, who was the only commando who was killed in the operation. 99 See for a detailed analysis of the legal consequences of this incident, L. C. Green, “Rescue at Entebbe: Legal Aspects,” Israel Yearbook on Human Rights, 6 (1976), 312; M. N. Shaw, “Some Legal Aspects of the Entebbe Incident,” Jewish Law Annual, 1 (1978), 232. See also, Harris, Cases and Materials, 864–68. 100 Dixon says: “It is difficult to see how this ‘defence against terrorism’ can be within the rubric of protection of nationals and self-defence, even if the more traditional rescue missions are. To most objective observers this new claim looks like punitive reprisals and illustrates why the existence of any right to protect nationals with force is so controversial.” International Law, 308. 101 According to Bernard Lewis, Islamic law classifid the enemy into four categories: the unbeliever, the bandit, the rebel and the apostate. He says: “Of these four, the unbeliever is, in principle though not always in practice, by far the most important. It is against him that the jihad par excellence is waged… The unsubjugated unbeliever is by definition an enemy. He is part of the d┐r al-╒arb, “the House of War,” and is designated as ╒arb┘… He is sharply differentiated from the dhimm┘, the unbeliever who submits to Muslim rule, accepts Muslim protection, and pays the poll tax to the Muslim state… Between the ╒arb┘ and the dhimm┘, there is the musta’min, a ╒arb┘ who lives for a while in a Muslim country as a temporary visitor.” The Political Language of Islam, 77. While one can generally agree with his classification but his description of the legal status of ╒arb┘ cannot be accepted at all. In an earlier essay, we have refuted the basic premises of this claim: that the division of the world into two domains does not necessitate war; and that disbelief in Islam is not the cause of war. “The Notions of D┐r al-╓arb and D┐r al-Isl┐m, 5–37.


d┐r al-Isl┐m.102 A ╒arb┘ could enter d┐r al-Isl┐m only after taking permission or quarter (am┐n) from the Muslim authorities. In this way, his position would change to that of a musta’min. If a ╒arb┘ or musta’min would wish to become a permanent resident of d┐r al-Isl┐m and thus to get the status of dhimm┘, he was required to fulfil certain conditions. Principally, he had to conclude the treaty of dhimmah with the ruler. Sometimes, his conduct was interpreted as showing his willingness to get permanently settled in d┐r al-Isl┐m.103 People of the conquered territory were also given the status of dhimm┘s.104 A ╒arb┘ could not enjoy the protection (‘i╖mah) of Islamic law because the courts of the Islamic state lacked jurisdiction on him. A musta’min was protected by the law of the land in the same way as the rights of a dhimm┘ were protected.105 There was another class of non-Muslims called ahl al-muw┐da‘ah. They were people with whom Muslims had concluded a peace treaty (muw┐da‘ah).106 Their legal position was like that of the musta’mins and they had the same

102 This did not mean that he was deemed an “enemy” by definition, as Lewis asserts. Rather, this term is equivalent to “alien” in common law. Sometimes a ╒arb┘ could convert to mu╒┐rib in the same way as an alien can become “alien enemy.” See, Mawd┴d┘, S┴d (Lahore: Islamic Publications, 2003), 321. 103 For example, if a non-Muslim musta’min marries a non-Muslim resident of d┐r al-Isl┐m (dhimmiyyah) he does not thereby become a dhimm┘; rather, he remains a musta’min “because by this marriage, he does not thereby become a permanent resident of our d┐r. Rather, [we will presume that] he came to us for trade purposes and traders sometimes marry in places where they do not want to settle permanently (tawa══un).” Ab┴ Bakr Mu╒ammad b. Ab┘ Sahl al-Sarakhs┘, al-Mabs┴═ (Beirut: D┐r al-Kutub al-‘Ilmiyyah, 1997), 10: 91. However, if he overstays in d┐r al-Isl┐m the ruler should give him a notice to either leave the territory or accept the status of dhimm┘. If he chooses to become a dhimm┘, or does not leave the territory after the time prescribed in the notice, the ruler may impose jizyah on him thereby making him dhimm┘. This is not compulsion “because his overstay after the lapse of the time prescribed in the notice implies that he is willing to settle permanently in our d┐r.” Ibid. When a non-Muslim woman comes to d┐r al-Isl┐m with am┐n and marries a Muslim or dhimm┘, she thereby becomes dhimmiyyah because this marriage implies that she wants to permanently settle in d┐r al-Isl┐m. Ibid. 104 This was because under the prevalent legal order at that time, conquest was one of the lawful means to acquire the title of a territory and its people. It was only in the aftermath of the First World War that the international legal order outlawed this mode of acquiring territory. Hence, this rule will not apply in the contemporary legal order. 105 However, certain legal duties were imposed only on dhimm┘s and not on musta’mins. For example, the law regarding the ╒ud┴d punishments was not applicable to musta’mins, although dhimm┘s could be subjected to ╒ud┴d punishments, except the punishment for drinking wine. See, ‘Al┐’ al-D┘n Ab┴ Bakr b. Mas‘┴d al-K┐s┐n┘, Bad┐’i‘ al-╗ana’i‘ f┘ Tart┘b al-Shar┐’i‘ , eds. ‘Al┘ Mu╒ammad Mu‘awwa╔ and ‘└dil A╒mad ‘Abd al-Mawj┴d (Beirut: D┐r al-Kutub al-‘Ilmiyyah, 2003), 9:187–189, 214. 106 See for more details: Muhammad Mushtaq Ahmad, “Peace Treaties and the Conduct of Jihad” in Nedzad Basic and Anwar Hussain Siddiqui, eds., Rethinking Global Terrorism (Islamabad: International Islamic University, 2008), 133–58.


rights and obligations, although they were not required to get fresh quarter (am┐n) before entering d┐r al-Isl┐m.107 If any among them entered another non-Muslim state and Muslims captured that territory, Muslim were bound to respect his rights even there because “his position is like that of a dhimm┘ who enters a foreign territory, which later comes under the domination of Muslims.” 108 As far as Muslims are concerned, they were not required to get am┐n before entering d┐r al-Isl┐m. Hence, a Muslim was never accorded the status of the musta’min. Any Muslim at any time could come to d┐r al-Isl┐m and he could stay there indefinitely. There were no specific rules for awarding “citizenship” to Muslims. A Muslim by definition was eligible to settle in d┐r al-Isl┐m and the law of the land was applicable to him in its totality.109 This does not mean that there was no difference between the legal status of Muslims in d┐r al-Isl┐m and that of those living outside d┐r al-Isl┐m. Rather, as we have shown elsewhere,110 there were certain provisions of Islamic law, which were applicable only to those Muslims who resided in d┐r al-Isl┐m.111 Moreover, the doctrine of territorial jurisdiction, especially as expounded by the ╓anaf┘ jurists, prevented the courts of d┐r al-Isl┐m from taking cognizance of the disputes that arose outside d┐r al-Isl┐m. Even then, Muslims of d┐r al-Isl┐m were under an obligation to support Muslims under persecution outside d┐r al-Isl┐m. In other words, the municipal 107 Al-Sarakhs┘, Al-Mabs┴═, 10: 89. 108 Ibid. 109 One may compare this rule with the Law of Return in Israel. The Israeli parliament enacted this law in 1950. It lays down the fundamental principle that every Jew has a right to settle in Israel, although the Minister of Interior can refuse any such application on the basis of some stated grounds. In 1962, the Israeli Supreme Court decided an interesting case about the identification of a ‘Jew.’ Brother Daniel was a Jew by birth but during the Nazi persecution he was hidden in a Catholic convent where he was baptized and became a monk. In 1958, he was sent to a monastery in Haifa. He applied for Israeli citizenship on the basis of being a Jew. The Court declared that under the religious law of Judaism even an apostate does not cease to be a Jew. However, the Law of Return, in the opinion of the Court, was a secular law and it had to be interpreted in accordance with the intention of the Legislature. “For purposes of this specific law, the term Jew should be held to have the everyday meaning that an ordinary citizen would give to it, that is, as being inconsistent with professing the Christian faith.” Hence, Brother Daniel could not get citizenship under the Law of Return. He became a naturalized citizen. In 1970, the law was amended and a partial definition of “Jew” was incorporated in it as one who was born of a Jewish mother and had not adopted another faith. John Comay, Who’s Who in Jewish History (New York: Routledge, 1995), 90–91. 110 “The Notions of D┐r al-╓arb and D┐r al-Isl┐m,” 5–22. 111 For instance, if war breaks out between a non-Muslim state and an Islamic state, the Muslims present in that non-Muslim state have no legal obligation to support the Islamic State because, as Sarakhs┘ says, “the obligation to support is primarily upon those present in d┐r al-Isl┐m.” Al-Mabs┴═, 10: 62.


law of d┐r al-Isl┐m was not applicable to Muslims residing outside d┐r al-Isl┐m, but supporting them was a legal duty under the international law of Islam. What was the basis of this duty? We have negated the possibility of considering them as “nationals” of d┐r al-Isl┐m. Hence, there remains only one possibility, namely, that this support was based on the concept of the defence of the ummah. The problem with this solution, however, is that it runs counter to the very basis of the contemporary international legal regime based on the concept of “nation-state.” This concept is in conflict with the idea of the ummah, which in essence is a trans-national entity. How, then, can the notion of the defence of the ummah be justified today?

Justification on the Basis of the Doctrine of “Collective Self-defence”

Article 51 of the UN Charter allows states to enter into arrangements with each other for taking collective measures in case of attack against any of them. A majority of international lawyers, jurists, and judges is of the opinion that it is not necessary for the exercise of the right of collective self-defence that all states must be under attack. This view was expressed by a majority of the judges in the Nicaragua v USA.112 The majority judgment also mentioned the prerequisite for the exercise of this right: that the victim state must request the other state to help her. This may apparently seem unrealistic but as Dixon says, “it does prevent a third party from taking military action merely because it thinks that collective self-defence is justified.”113 This doctrine is the basis of different regional alliances, such as the NATO, the SEATO and the Warsaw Pact. As the right of collective self-defence is based on pacts between states, non-parties cannot enjoy the benefits of this arrangement. This doctrine can become a tool for the revival of the concept of defence of the ummah. From the perspective of Islamic law, however, there are two problems with this doctrine. Firstly, the right (or duty) of the defence of the ummah is not derived from a treaty between the Muslim states. Rather, the concept of the ummah itself is the basis of this right in Islamic law. Having said that, it is still a better option for the Muslim states to conclude a treaty of collective self-defence as it will save them from many complications in the 112 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA), 1984 ICJ Rep. 392. Judge Jennings of UK said in his dissenting opinion in the Nicaragua v USA that it is necessary for the exercise of the right of collective self-defence that all the participating states must individually have the right to use force in self-defence. According to this view, the Gulf War 1991 was justified as there was “attack” on the states dependent on Kuwait’s oil. There is, however, little practical difference in these views. The reason is that the majority interprets the right of self-defence narrowly while Jennings interprets it quite widely in the customary non-Article 51 sense. 113 Dixon, International Law, 303.


contemporary international legal regime. The second problem, however, is more serious. The Muslim ummah is not synonymous to Muslim states. Many Muslim communities live as minorities in non-Muslim states. If such a community faces persecution and an Islamic state wants to support it militarily, the doctrine of collective self-defence cannot justify such use of force. Can we find a justification in the doctrine of intervention on “humanitarian” grounds?114

Justification on the Basis of the Doctrine of “Humanitarian” Intervention

A state may have recourse to this plea when it uses force in the territory of another state in order to protect the human rights of individuals in that “target” state.115 Usually the individuals who are protected through such intervention are citizens of the target state and force is used in the territory of the target state without the consent of its government.116 Even the permissive school, which interprets the ban on the threat and use of force quite literally, has serious doubts about the legality of such interventions.117 However, it is equally true that if such interventions are not allowed, results would be disastrous in certain cases. A humanitarian catastrophe may also constitute a

114 The paradigm shift to which we referred earlier is also quite obvious here. Even as late as 1915, the European Allies accused the Ottomans of committing “crimes against Christianity” by allegedly committing genocide of the Armenian Christians. Later, however, the phrase was changed to “crimes against humanity.” See, Robert Fisk, The Great War for Civilisation: The Conquest of the Middle East (London: Harper and Perennial, 2005). Today, the phrase “crimes against humanity” is used as a generic term for atrocities committed, generally in peace time, against civilian population. See Article 7 of the Statute of the International Criminal Court, 1998. 115 See, for details, Ian Brownlie, “Humanitarian Intervention” in J., N. Moore, Law and Civil War in the Modern World (New York: John Hopkins, 1974); R. Lillich, “Forcible Self-help by States to Protect Human Rights,” Michigan Law Review, 82 (1984), 1620. See also, Dixon, International Law, 308–10; Harris, Cases and Materials, 872–73; and Franck, “Military Force without Prior Security Council Authorization?” 371–76. 116 Thus, Indian intervention in the former East Pakistan in 1971, Tanzania’s intervention in Uganda in 1979 and NATO’s widespread bombing of Serbia in 1998/99 were “justified” under this doctrine, although there are some other explanations as well. 117 Dixon writes: “Indeed, unless we again read Art 2 (4) very literally or assume that it has been “remodeled” by some overriding state practice, ‘humanitarian intervention’ runs directly counter to the whole purpose of Art 2(4) and many General Assembly resolutions adopted in the last 50 years. This is especially true when we realize that it is nearly always necessary to remove the offending government, or at least seriously compromise its freedom of action (as with Serbia), in order to stop the violation of human rights. Such a result would surely be against the ‘political independence’ of the ‘target’ state and it is no answer that the purposes so achieved are themselves an aim of the UN Charter.” International Law, 309.


“threat to the peace,” which is a valid basis for the collective use of force under the authority of the UN Security Council.118 Moreover, the state committing atrocities against her citizens cannot take the plea that these are her internal affairs because even the so-called internal affairs of a state can constitute a threat to international peace and consequently action under Chapter VII of the UN Charter becomes necessary. Now, if neither the system of collective security as envisaged originally by the UN Charter is working nor is the necessary authorisation from the Security Council forthcoming, should the catastrophe be allowed to happen? Conversely, if states were allowed to intervene on humanitarian grounds would it not nullify the ban on the use of force and lead to disruption in the international system?119 Has the system been remodelled because of the emergence of some new customs? While some instances of “humanitarian” intervention, such as the Indian intervention in East Pakistan in 1971 and the Tanzanian Intervention in

118 Under Chapter VII (Articles 39–51) of the UN Charter, the Security Council is given the primary responsibility of maintaining and protecting the international peace. Under Article 39, the system of collective security comes into motion in three cases: (a) when a state commits an act of aggression against; (b) when a state commits a breach of the peace; and (c) when there is a threat to the peace. Article 41 provides for the so-called soft sanctions, such as economic and arms embargo, cutting off of diplomatic ties etc. If these sanction do not work, or when the gravity of the situation demands a prompt action then Article 42 comes into action. This article provides for the collective use of force against the wrongdoer. For details, see, Dixon, International Law, 313–24; Cases and Materials, 873–907. See also: Franck, “Military Force without Prior Security Council Authorisation?” 362–66; C. Gray, “After the Cease-fire: Iraq, the Security Council and the Use of Force,” British Yearbook of International Law, 65 (1994), 135; C. Warbrick, “The Invasion of Kuwait by Iraq,” International Comparative Law Quarterly, 40 (1991), 482. 119 Kofi Annan, the Secretary General of the UN, has rightly pointed out: “To those for whom the greatest threat to the future of the international order is the use of force in the absence of a Security Council mandate, one might ask, not in the context of Kosovo but in the context of Rwanda, if, in those dark days and hours leading up to the genocide, a coalition of States has been prepared to act in defence of the Tutsi population, but did not receive prompt Council Authorisation, should such a coalition have stood aside and allowed the horror to unfold? To those for whom the Kosovo action heralded a new era when States and groups of States can take military action outside the established mechanisms for enforcing international law, one might ask: is there not a danger of such interventions undermining the imperfect, yet resilient, security system created after the second World War, and of setting dangerous precedents for future interventions without a clear criterion to decide who might invoke these precedents and in what circumstances?” 54 GOAR, 4th Plenary Meeting, 20 September 1999, A/54/PV 4, 2 as quoted in “Military Force without Prior Security Council Authorization?,” 373. N. D. White, however, indicates another possibility, namely, to get authorisation from the UN General Assembly where no member has the right to veto and where decisions are made on the basis of majority. See, for this interesting thesis, “The Legality of Bombing in the Name of Humanity,” Journal of Conflict and Security Law, 5 (2000), 27–43.


Uganda to oust Idi Amin’s regime in 1979, went with less or no condemnation, the Soviet invasion of Hungary and the US invasion of Grenada were severely condemned by the international community. Vietnam’s claim to have the right to intervene on humanitarian grounds in Cambodia in 1978 was specifically rejected by the overwhelming majority of states in the UN debates.120 Franck argues:

Perhaps the system, unselfconsciously, has been reworking the Charter text to conform to a less rigid principle and is seeking to apply this adapted version of the applicable principle on a case-by-case basis, informed by the context and the facts as much as by an abstract normative concept.121

However, this argument does not carry much weight. At the most it can be said that in certain instances of humanitarian intervention the international community retroactively gives legitimacy while others remain illegal. This simply means that humanitarian intervention is still illegal but in certain cases the international community gives legitimacy to such an intervention after the use of force. If the international community is convinced that an inevitable humanitarian catastrophe was averted by the intervention it will probably give legitimacy to it, otherwise it would not.122 However, it must be borne in mind that states are not always guided by legal principles. More often than not, they decide keeping in view their respective interests. Hence, less condemnation or silent acquiescence does not necessarily mean giving legitimacy. Franck himself admits that “[t]he UN organs have not always acted wisely.”123 Even the argument of state practice is not very convincing as mere state practice cannot become a custom and, hence, a source of law. There are certain conditions which are necessary for a practice becoming a custom, the most important of which is opinio juris, which means that states follow a certain practice not because of expediency or any other consideration but because they consider it legally binding. We conclude, then, that humanitarian intervention by a competent international organization, such as the UN, is perfectly legitimate. Unilateral intervention by a state or group of states on humanitarian grounds is, however, open to debate. What state practice shows is that it is initially illegal but international community may retroactively grant legitimacy to it in some 120 “Military Force without Prior Security Council Authorization?,” 373–74. 121 Ibid., 372. Emphasis added. 122 Franck rightly observes that in the Security Council and General Assembly “decisions are affected profoundly, if not always decisively, by the quality of the information available to those bodies.” Ibid., 375. 123 Ibid., 374. Emphasis added.


cases. Hence, the legitimacy of such interventions depends upon the assessment and judgment of the international community.

We analysed the three possible justifications in the contemporary international legal order for the Islamic doctrine of sympathetic wars. All these justifications have their own peculiar problems, but the root cause is found in the notion of nation-state and its necessary corollaries. This conclusion is further substantiated when we analyse the need of a formal declaration of war in various instances of defensive wars.

Declaration of War in Case of Sympathetic Wars

Muslim scholars agree in principle that no formal declaration of war is necessary for defensive wars.124 However, as they do not agree on what is included in defence, there are situations where some scholars consider it necessary to formally declare war, while others do not see any need for formal declaration.

Thus, Hamidullah considers it necessary for the Islamic state to formally declare war before going to the help of the oppressed Muslims in foreign territories.125 This is because, as we noted above, he does not include sympathetic wars among defensive wars. On the other hand, if non-Muslims violate a peace treaty with the Islamic state and start persecuting Muslims, Hamidullah does not see any need for formal declaration of war because the situation, in his opinion, falls in self-defence.126

Interestingly enough, both Zu╒ayl┘ and Mawd┴d┘ consider it necessary to formally declare war in situations which Hamidullah would regard as cases of sympathetic wars.127 What could be the reason for this analytical inconsistency? The only possibility is that when they talk of self-defence in general terms they have the concept of defence of the ummah or of the d┘n in their minds, but when they come to the issue of declaration of war they look at it from the perspective of the defence of the state. Thus, the issue of reconciliation between the concept of the ummah and that of the nation-state has proved to be a confusing problem for the Muslim intelligentsia. This point is further elaborated below.

124 The Muslim Conduct of State, 181; └th┐r al-╓arb, 149–51; al-Jih┐d f┘ ’l-Isl┐m, 246–47. 125 The Muslim Conduct of State, 181–82. 126 Ibid. 127 └th┐r al-╓arb, 149; Tarjum┐n al-Qur’┐n, Lahore, June 1948, 65–67. Mawd┴d┘ expresses a slightly different view in his commentary on verses 8: 56–58 of the Qur’┐n. See, Tafh┘m al-Qur’┐n (Lahore: Maktabah-i Ta‘m┘r-i Ins┐niyyat, 1978), 2: 153–55. This view can be accommodated with the views of the fuqah┐’ as explained below.


Declaration of War after Actual Breach of a Peace Treaty by the Other Party

In case of breach of a peace treaty by the other party, Zu╒ayl┘, like Hamidullah, does not see any need for formal declaration of war.128 However, Mawd┴d┘ considers it necessary even though he includes such a war in defensive wars. Thus, he says: “When some people violate the conditions of the treaty and adopt hostile attitude against the Islamic government [sic. read: state], Islamic law lays down that a formal ultimatum and a reasonable period for compliance with the treaty provisions must be given to them before waging war against them.”129 In the footnote to this paragraph, he says:

There is only one exception from this general principle; when the other party commits a violation of the treaty in clear terms or launches an armed attack, such as the one the non-Muslims of Makkah did [against the allies of Muslims in violation of the treaty of ╓udaybiyah]. In such a situation the Islamic government [sic. read: state] has the right to wage war, if it wants, without a formal declaration in the same manner as the Prophet (peace be on him) did at the time of the conquest of Makkah.130

To substantiate this view, Mawd┴d┘ quotes the following verse: “And if you fear treachery from any people (with whom you have a covenant), then publicly throw their covenant at them. Allah does not love the treacherous.” (Qur’┐n, 8: 58) However, the critics of this view point out that this verse does not deal with the issue of declaration of war in case of violation of a treaty; rather, it deals with a situation where the Islamic state perceives that the other party is going to violate the treaty.131 In other words, it makes declaration obligatory in case of anticipated, and not actual, breach of the treaty. This has been the opinion of majority of the fuqah┐’. The famous Sh┐fi‘┘ jurist Ya╒y┐ b. Sharaf al-Nawaw┘ (d. 676/1278) writes:

Peace treaty with the enemy is for the purpose of suspension of hostilities. Hence, both sides must abide by it… As such, when non-Muslims violate the treaty by waging war, or supporting the enemy, or killing a Muslim, or taking the property [belonging to the inhabitants of the Islamic state], the treaty is deemed terminated and their am┐n (protection) from Muslim ends.132

128 └th┐r al-╓arb, 149. 129 Al-Jih┐d f┘ ’l-Isl┐m, 246–47. 130 Ibid., 247 at FN 1. 131 Mawl┐n┐ Midr┐rull┐h Midr┐r, Qawl-i-Fay╖al (Mardan: D┐r al-Kutub, 1963), 19. 132 Al-Majm┴‘ Shar╒ al-Muhadhdhab (Beirut: D┐r al-Fikr, 1974), 21: 214.


He categorically declares that in such a case of actual breach of treaty, it is not necessary for the Islamic state to formally declare war, or termination of treaty for that matter, “because declaration is necessary in case of ambiguity.”133 Similarly, Shams al-D┘n Mu╒ammad Ibn Qayyim al-Jawziyyah (d. 751/1350), an important ╓anbal┘ jurist, says: “Some of the people say: ‘If a treaty is violated, it must be declared void.’ This is wrong for several reasons because the treaty does not remain enforceable for those who violated it and it does not require formal repudiation or declaration.”134 In fact, the issue of declaration revolves around the following verses:

(Especially) those with whom you entered into a covenant and then they broke their covenant time after time, and who do not fear Allah. So, if you meet them in war, make of them a fearsome example for those who follow them, that they may be admonished. And if you fear treachery from any people (with whom you have a covenant), then publicly throw their covenant at them. Allah does not love the treacherous. (Qur’┐n, 8: 56–58)

The first two verses deal with cases of actual breach of treaty, while the last one deals with its anticipated breach. Thus, the first two verses lay down the rule that if a party actually violates a treaty and then Muslims confront them in war they should be punished in an exemplary way.135 What if they violated the treaty but did not wage war? Should Muslims wage war against them for violating the treaty? Or is it that the violation of the treaty is deemed equivalent to the waging of war and as such there is no need for a formal declaration of war by the Islamic state? It appears that the fuqah┐’ consider violation of the treaty equivalent to the waging of war and, therefore, they see no need for formal declaration. This is further corroborated by the fact that the Prophet (peace be on him) did not formally declare termination of the treaty with Ban┴ Quray╘ah and attacked them without previous notice. The same appears to have happened in case of the conquest of Makkah. However, not every violation of every treaty is deemed equivalent to the waging of war. All the instances from the life of the Prophet (peace be on him), where a breach of the treaty was deemed equivalent to declaration of war, relate to peace treaties or pacts of non-aggression. Take the example of the Treaty of ╓udaybiyah. There existed a state of war between the Islamic state of Mad┘nah and the non-Muslims of Makkah. The treaty of ╓udaybiyah

133 Ibid. 134 A╒k┐m Ahl al-Dhimmah (Beirut: D┐r al-‘Ilm, 2002), 1: 341. 135 This appears to be the basis of the punishment of the Jews of Ban┴ Quray╘ah.


suspended this state of war for ten years. When the Makkans violated a vital condition of this peace treaty the previous state of war was restored. Hence, Muslims were not obliged to formally declare war against Makkans. Similarly, the treaty with Ban┴ Quray╘ah gave them protection from hostilities. When they violated it, they themselves initiated hostilities and, therefore, there was no need of a formal declaration of war. Again, every violation of a peace treaty is not deemed to mean declaration of war. It is the violation of the material conditions that terminates the peace treaty. We may again quote Nawaw┘ here:

Peace treaty with the enemy is for the purpose of suspension of hostilities. Hence, both sides must abide by it… As such, when non-Muslims violate the treaty by waging war, or supporting the enemy, or killing a Muslim, or taking the property [belonging to the inhabitants of the Islamic State], the treaty is deemed terminated and their am┐n (protection) from Muslims ends.136

In such cases, there is no need of a formal declaration of war or of termination of treaty “because declaration is necessary in case of ambiguity.”137 In other words, declaration is necessary for the purpose of warning the other party. If the other party itself initiated hostilities or committed an act which is deemed equivalent to the waging of war, there is no need for the Islamic state to formally declare war. That is why the Qur’┐n makes it obligatory in case of anticipated breach to formally terminate the peace treaty before waging war so as “to be on equal terms.” This also explains why it is not necessary to formally declare war before every fresh encounter in case of continuation of hostilities. This explains the legitimacy of sudden night attacks (igh┐rah) against the enemy with whom Muslims are already in a state of war. Now, what are the material conditions the violation of which is deemed equivalent to the termination of treaty or waging of war? We saw that Nawaw┘ considered the following acts as equivalent to repudiation of the peace treaty:

1. Waging war; 2. supporting the enemy; 3. killing a Muslim; and 4. taking the property [belonging to the inhabitants of the Islamic state].

The illustrious ╓anaf┘ jurist ‘Al┐’ al-D┘n Ab┴ Bakr b. Mas‘┴d al-K┐s┐n┘ (d. 587/1191) in his peculiar way has given a good analysis of the issue. He

136 Al-Majm┴‘, 21: 214. Emphasis added. 137 Ibid.


says: “Peace treaty will be either absolute [without a time limit] or for a limited period of time. Now, when absolute, it is terminated by either: express or implied repudiation. Express repudiation is explicit declaration by the two parties.” 138 He, then, explains the concept of “implied repudiation”:

Implied repudiation occurs in some situations that establish the intent of repudiation, such as when some people of d┐r al-muw┐da‘ah (the territory of peace) with the permission of their government enter d┐r al-Isl┐m and commit robbery there. This is because the permission of the government implies repudiation of the [peace] treaty. 139

He further elaborates this concept by referring to another possibility:

If they do so without the permission of their government and they lack resisting power (mana‘ah), the treaty will not be repudiated because robbery without resisting power is not enough for repudiation of the treaty… However, if they have resisting power and they come without the permission of their government and their people, then the treaty will remain in force for their government and people and not for them. 140

The principle that emerges from this analysis can be stated in this way: Any act that shows that the other party does not consider itself bound by the terms of the peace treaty is deemed equivalent to formal repudiation. Hence, when such an act is committed by, or with the permission of, the government, the treaty stands terminated. However, when a few persons commit the breach of peace treaty without the permission of their government the treaty will remain in force for people other than those who committed the breach. This leads us to the issue of involvement of the government. A few Qurayshites violated the material conditions of the peace treaty of ╓udaybiyah. The Prophet (peace be on him) sent his envoys to the leaders of the Quraysh for confirming whether they supported the culprits or not, putting forward three alternatives: pay compensation for the murdered and injured; stop giving support and patronage to the culprits; or consider that the treaty of ╓udaybiyah stands repudiated.141 The Quraysh accepted the last 138 Bad┐’i‘ al-╗ana’i‘, 9: 424. 139 Ibid. 140 Ibid., 9:425. The term mana‘ah means capability of a group of people to pose considerable resistance in case of an armed confrontation. 141 Shibl┘ Nu‘m┐n┘ , S┘rat al-Nab┘, 1: 294–95. Shibl┘ expresses his surprise that despite the importance of this incident most of the biographers of the Prophet (peace be on him) ignore it. See for a different view, Muhammad Hamidullah, The Life and Work of the Prophet of Islam, translated by Mahmood Ahmad Ghazi (Islamabad: Islamic Research Institute, 1998), 1: 209.


option. Hence, it was confirmed that the treaty stood terminated for all of them. Later, Ab┴ Sufy┐n, the leader of the Quraysh went to Mad┘nah to renew the treaty, but he was not granted audience by the Prophet (peace be on him).

Similarly, when the Jews of Ban┴ Quray╘ah supported the allied attacking forces at the time of the Battle of Trench, the Prophet (peace be on him) sent his envoys for confirmation. They openly repudiated the treaty.142 Therefore, when the allied troops returned, the Prophet (peace be on him) attacked the territory of Ban┴ Quray╘ah without a formal declaration of war. A question arises here regarding the government’s explicit envolvement in terminating a treaty? Al-K┐s┐n┘ deems it necessary. However, al-Sarakhs┘ appears to have a different view. He says that if some people having man‘ah (resisting power) go to another state they will be deemed, in the contemplation of law, to have the permission of their government because such activities cannot take place without the knowledge and complicity of the government.143 We prefer the viewpoint of al-Sarakhs┘ because al-K┐s┐n┘ himself admits that repudiation may take place either by express statement (na╖╖) or by implied behaviour (dal┐lah). We hold that this situation comes within the meaning of repudiation by dal┐lah.144 However, if these people do not have resisting power, the Islamic State must not presume that they have the permission of their government. Rather, it should have it confirmed before repudiating the treaty.

Conclusions

The doctrine of defence in Islamic law is much wider than that in the contemporary international legal regime. The primary reason is that defence in international law is confined to the protection of the sovereignty, territory, population and interests of the state, while in Islamic law it also includes defence of the global Muslim community (the ummah) as well as defence of the religion of Islam. Reconciling the concept of nation-state with the notion of the ummah has been the basic cause of confusion for Muslim scholars in the post-colonial period. As such, even when Muslim scholars deny the so-called

142 Mu╒ammad Ibn Ism┐‘┘l al-Bukh┐r┘, Al-╗a╒┘╒, Kit┐b al-Magh┐z┘, B┐b Ghazwat al-A╒z┐b; Shibl┘, S┘rat al-Nab┘, 1: 246. 143 Al-Mabs┴═, 10: 73–74. 144 It is worth noting that the preferred view (╘┐hir al-madhhab) of the ╓anaf┘ School on this issue is the one expressed by Sarakhs┘, as recorded in Hid┐yah, the most reliable text of the School. See Burh┐n al-D┘n ‘Al┘ b. Ab┘ Bakr al-Margh┘n┐n┘, al-Hid┐yah Shar╒ Bid┐yat al-Mubtad┘ (Beirut: D┐r I╒y┐’ al-Tur┐th al-‘Arab┘, n.d.), 2: 391.


offensive jihad, they validate several instances of the use of force, which cannot be accommodated in the concept of the defence of the nation-state. Giving military support to Muslims who are persecuted in foreign territories is one such example. As the explicit texts of the Qur’┐n and the conduct of the Prophet (peace be on him) definitively establish the legitimacy, and in many cases even the obligation of such support, Muslim scholars have considered it as one of the kinds of lawful wars. However, it is certainly beyond the scope of the concept of defence of the nation-state. From the perspective of the contemporary international legal regime, it constitutes intervention in other states. This led some of the Muslim scholars to assert that jihad is not confined to situations of defence only. Others, who include it in defence, face a dilemma. Although they do not consider a formal declaration of war necessary in situations of defence, yet in case of providing military support to Muslims in foreign territories they assert the need of formal declaration of war. This inconsistency can be explained by pointing out that when they call it defence they have in mind the defence of the ummah; but when they come to the issue of declaration of war, they seem to be influenced by the concept of the defence of the nation-state. The wider doctrine of the defence of the ummah may find some parallels is the contemporary notions of protection of nationals and interests abroad, collective self-defence of states and humanitarian intervention, but all these concepts have their own peculiar problems as well. Thus, while there are many points of convergence between Islamic law and the contemporary international legal regime, the inherent differences in the two legal systems must not be overlooked. As a matter of fact, differences can be resolved only when they are recognized.

the scope of self-defense

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