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WAR IN ISLAMIC LAW: JUSTIFICATIONS AND REGULATIONS By Ahmed Mohsen Al-Dawoody A thesis submitted to The University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Department of Theology and Religion School of Philosophy, Theology and Religion College of Arts and Law The University of Birmingham August 2009 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. ABSTRACT This study examines the justifications and regulations for going to war in both international and domestic armed conflicts under Islamic law. It studies the various kinds of use of force by both state and non-state actors in order to determine the nature of the Islamic law of war, specifically, whether Islamic law sanctions “holy war”, offensive war or only defensive war. It discusses international armed conflicts, i.e., war against non-Muslims, in the first four chapters: Chapters One, Two and Three treat the justifications for war in the Sīrah (biographies of the Prophet) literature, Tafsīr (exegesis) literature, and classical and modern juridical literature respectively. Chapter Four treats the Islamic regulations for war in international armed conflicts. Chapter Five is devoted to the justifications and regulations for the use of force in internal armed conflicts. It investigates the permissibility under Islamic law of resorting to the use of force to overthrow the governing regime and discusses the Islamic treatment of terrorism and the punishment of terrorists and their accomplices. It also discusses the claim that contemporary acts of domestic and international terrorism perpetrated by Muslims are motivated and justified by jihād. This study is limited to the four Sunni schools of Islamic law and also refers in some cases to the extinct Zāhirī school. It studies the writings of classical and modern Muslim jurists and scholars and compares them with the Western literature on the subject. This study finds that jihād, in the sense of international armed struggle, as the term is currently used, is a defensive war justified in cases of aggression on the Muslim nation and fitnah, i.e., the persecution of Muslims. It also finds that the core justification in Islamic law for the use of force in domestic armed conflicts, and which may give an indication to future conflicts in the Muslim world, is the violations of the rules of the sharī‛ah. The study concludes that the Islamic law of war as maintained by the majority of mainstream Muslims scholars has great potential for contributing to international peace and security in the modern world, particularly with regard to the humanization of armed conflicts and the peaceful resolution of internal conflicts. DEDICATION To my mother, my father, Hisham, Do‛a’ and Muhammad. Also dedicated to anyone interested in the subject. i ACKNOWLEDGEMENTS I would like to thank my supervisor, Dr Bustami Khir, for his continuous advice, support and encouragement throughout the various stages of this thesis. I also would like to thank the Egyptian Ministry of Higher Education for the funding that enabled me to undertake my research and the staff of the Egyptian Cultural Centre and Educational Bureau in London. All due thanks go to the following friends who read parts of this thesis: Mr Andrew Woodworth Hertig for reading an earlier version of Chapter One, Prof. Sohail H. Hashmi for looking at the proposal and Chapter One, Karem Issa for reading Chapters One and Two, and Dr Anisseh Van Engeland for reading Chapters Four and Five. My thanks also go to Carol Rowe for proofreading this thesis. Last but not least, I would like to express my great gratitude to all the members of my family and to my friends for their encouragement and support. ii TABLE OF CONTENTS DEDICATION -------------------------------------------------------------------------------- I ACKNOWLEDGEMENTS---------------------------------------------------------------- II TABLE OF CONTENTS------------------------------------------------------------------III TRANSLITERATION TABLE---------------------------------------------------------- VI INTRODUCTION ----------------------------------------------------------------------------1 1. Rationale ----------------------------------------------------------------------------------3 2. Aims of the Study ------------------------------------------------------------------------6 3. Research Questions ----------------------------------------------------------------------7 4. Scope and Limitations -------------------------------------------------------------------8 5. Literature Review ------------------------------------------------------------------------9 6. Methodology---------------------------------------------------------------------------- 17 7. Structure of the Study------------------------------------------------------------------ 19 CHAPTER ONE ---------------------------------------------------------------------------- 21 WAR DURING THE PROPHET’S LIFETIME ------------------------------------- 21 1.1 Introduction---------------------------------------------------------------------------- 21 1.2 Problems in the Study of Sīrah ----------------------------------------------------- 22 1.3 The Meccan Period ------------------------------------------------------------------- 26 1.4 The Medinan Period------------------------------------------------------------------ 34 1.5 The Prophet’s Ghazawāt------------------------------------------------------------- 38 1.5.1 Preaching and Making Peace Treaties ---------------------------------------- 41 1.5.2 Attacks on the Muslims and Series of Incidents----------------------------- 43 1.6 The Sarāyā----------------------------------------------------------------------------- 54 1.7 Building a Theory of the Prophet’s Wars------------------------------------------ 57 1.8 Conclusion----------------------------------------------------------------------------- 68 CHAPTER TWO --------------------------------------------------------------------------- 75 THE JUSTIFICATIONS OF WAR IN THE QUR’ĀN ----------------------------- 75 2.1 Introduction---------------------------------------------------------------------------- 75 2.2 The Text and Context of the Qur’ān ----------------------------------------------- 77 2.2.1 Speech-Act Theory----------------------------------------------------------------- 80 2.2.2 Others in the Eyes of Muslims------------------------------------------------- 81 2.2.3 The Order of the Qur’ān -------------------------------------------------------- 84 2.2.4 Meccan and Medinan Revelations -------------------------------------------- 86 2.3 Qur’ānic Disciplines------------------------------------------------------------------ 87 2.4 Approaching the Qur’ān ------------------------------------------------------------- 92 2.4.1 Superficial Approach------------------------------------------------------------ 93 2.4.2 Selective-Intermediary Approach --------------------------------------------- 95 2.4.3 Discipline-Based Approach ---------------------------------------------------- 96 2.5 Qur’ānic Texts on War--------------------------------------------------------------- 97 2.6 The Qur’ānic Casus Belli -----------------------------------------------------------100 2.7 Conclusion----------------------------------------------------------------------------116 iii CHAPTER THREE -----------------------------------------------------------------------121 JURIDICAL JUSTIFICATIONS FOR WAR ---------------------------------------121 3.1 Introduction---------------------------------------------------------------------------121 3.2 Sharī‛ah or Fiqh----------------------------------------------------------------------122 3.3.1 Jihād------------------------------------------------------------------------------130 3.3.2 Types of Jihād-------------------------------------------------------------------133 3.4.1 Classical and Contemporary Insider Justifications for War---------------135 3.4.2 Outsider Readings of Jihād----------------------------------------------------155 3.5 Divisions of the World --------------------------------------------------------------167 3.5.1 Dār al-Islām/Dār al-‛Adl/Dār al-Salām (house of Islam/house of justice/house of peace)----------------------------------------------------------------167 3.5.2 Dār al-Harb/Dār al-Jawr (house of war/house of injustice, oppression) -------------------------------------------------------------------------------------------169 3.5.3 Dār al-Sulh/Dār al-‛Ahd/Dār al-Muwāda‛ah (house of peace/house of covenant/house of reconciliation) ---------------------------------------------------170 3.6 Conclusion----------------------------------------------------------------------------186 CHAPTER FOUR -------------------------------------------------------------------------194 ISLAMIC INTERNATIONAL HUMANITARIAN LAW ------------------------194 4.1 Introduction---------------------------------------------------------------------------194 4.2 Non-Combatant Immunity----------------------------------------------------------201
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