Jus ad bellum in Islamic law
INTRODUCTION:
Allah almighty awarded every creature with a sense to defend himself, as a snake throws his poison to kill the enemy; if it wants to hunt the snack, the same ability and nature is granted to humans by Allah almighty, we call it Jihad, so that Muslims will protect themselves.
A question arises, why to go to war?
Jihad: why?
We Muslims believe that jihad is the factor by virtue of which Omar the second caliph expanded the caliphate of Muslims to almost the entire world and gained respect. We also believe that today Muslims face the humiliation and contempt; is because they ignored jihad in order to protect their religion and identity as Muslims.
Allah almighty said in a verse addressing the Muslims: “و اعدوا لهم ما استطعتم من قوة و من رباط الخيل ترهبون به عدو الله و عدوكم", and prepare yourselves as much as you can with power in order to put the enemy of Allah and yours in fear...” did Muslims accept the command of Allah almighty? Did they prepare themselves as to put the enemy in fear? No, that’s why two Muslims countries were just put in pocket by the USA and UK in two successive years.
Jihad being the command of Allah almighty required certain prerequisites and rules of commencing, ending and how to act during jihad. In other words, why to go to war? And how to go to war?
As a result you will see that both the question becomes sometimes related, so let’s start with the question: WHY TO GO TO WAR?
الإسلام مستمد من السلام ، فالله هو السلام ، والجنة هي دار السلام ، وتحية الإسلام السلام ، وتحية الله والملائكة لأهل الجنة هي السلام: { سَلَامٌ عَلَيْكُمْ بِمَا صَبَرْتُمْ فَنِعْمَ عُقْبَى الدَّارِ } [ الرعد: 24 ] والمسلمون مطالبون بتعميم السلام ، ومحاربة الإرهاب غير المشروع لقوله تعالى: { يَاأَيُّهَا الَّذِينَ آمَنُوا ادْخُلُوا فِي السِّلْمِ كَافَّةً } [ البقرة: 208 ] ؛ وقوله سبحانه: { وَإِنْ جَنَحُوا لِلسَّلْمِ فَاجْنَحْ لَهَا وَتَوَكَّلْ عَلَى اللَّهِ } [ الأنفال: 61 ] وقوله عز وجل: { وَلَا تَقُولُوا لِمَنْ أَلْقَى إِلَيْكُمُ السَّلَامَ لَسْتَ مُؤْمِنًا } [ النساء: 94 ] .
والأصل " القاعدة العامة " في علاقات المسلمين بغيرهم هو السلم لا الحرب ، والباعث على القتال هو العدوان ، وإقرار الحرب مع النهي عن الاعتداء إنما هو للضرورة ودفع العدوان ومقاومة الغاصبين والمحتلين وطردهم من ديار المسلمين والمستضعفين والمظلومين ، لقوله تعالى: { وَقَاتِلُوا فِي سَبِيلِ اللَّهِ الَّذِينَ يُقَاتِلُونَكُمْ وَلَا تَعْتَدُوا إِنَّ اللَّهَ لَا يُحِبُّ الْمُعْتَدِينَ } [ البقرة: 190 ]
Islam is derived from Salam “peace”, so Allah is Salam, paradise is the house of peace, regards of Islam is Salam, regards of angels and Allah for the residents of paradise is Salam, Muslims are asked to advertise Salam and fight the illegal terrorism. The basis is the general principle that the relations of Muslims are based on peace and not war, and the cause of war is the aggression from non-Muslims, the affirmation of war despite the forbiddings of aggression is because of necessity and the prevention of aggression, and withstanding the aggressors and occupants from the Muslim states.., because Allah almighty said: { وَقَاتِلُوا فِي سَبِيلِ اللَّهِ الَّذِينَ يُقَاتِلُونَكُمْ وَلَا تَعْتَدُوا إِنَّ اللَّهَ لَا يُحِبُّ الْمُعْتَدِينَ }
Some of the Shafi’is and Hanbalis considered the cause of jihad, or why to go to war as Kufr. Primarily they base their opinion on the texts of the Qura’an and Sunnah that prescribe qital (war) as a punishment for the opponents of the holy prophet (May Allah’s blessings be upon him). On the other hand, majority of the jurists w[ere] of the opinion that the cause of jihad is muharabah (aggression). They also base their opinion on the texts of the holy Qur’an and Sunnah. They also say that if kufr were the cause of qital then non Muslims women, children, aged people as well as priests and monks would not have been given immunity from attacks during war.
In my opinion the position taken by the majority of the jurists is in accordance with the essence of Islam. Islam being an Arabic word; is derived from Salam which means peace. So an inference could be made even from the name of the religion we follow that the continuity of a war for 12 months in a year will damage the claim of being a religion of Salam (peace).
The misconception primarily is the result of a tradition which is usually presented as a prove for continued jihad امرت ان اقاتل الناس حتى يقولوا لا اله الا الله as a clarification it is necessary to say that, this tradition is not a general because of the "ال" attached with "الناس" which makes it for specialization or ال التبعيض so the tradition is about the infidels of Mecca. Why they are killed till they become Muslims? The answer could be found in another tradition of the holy prophet PBUH "لا يجتمع دينان فى جزيرة العرب" followers of two religions cant live in Arabian Peninsula, therefore the infidels of Mecca had to become Muslims.
Again, it is a privilege of Arabic language that its every verb has some special characteristics. Muqatala “مقاتلة (war) is derived from the verb-class of mufa’ala مفاعلة and the characiristics of this class is that it is used for a two-party acts. Like مشاجرة، مناقشة، مصافحة، مكالمه، etc. all of the named acts take place between two or more parties. The same is with مقاتلة it must be between two or more parties, when Allah almighty said وقاتلوا فى سبيل الله الذين يقاتلونكم و لا تعتدوا and fight with those who fight with you and don’t exaggerate, It is inferred that Muslims will fight those who fight them and will not commence the war, it is the basis of Islamic jus ad bellum.
The second part of the verse elaborates the modern rule jus in Bello when it says “and don’t exaggerate”, Ibn-u-Abbas said don’t kill non-combatants, in other words the women, elders, children, POWs and priests. So according to the verse the Muslims should not go to war accept in when they are to defend themselves and must also follow the rules in the war so should not kill the prohibited categories. When it is known that qital is only for those who can fight, we can easily say that cause of jihad is not mere Kufr. Because of it was kufr, women were the best option to be killed first in order to stop the kafir generations from taking birth, then the children and then the combatants. Second argument for denying the cause to be mere kufr, is that when the prophet said about a dead woman "ما كانت هذه لتقاتل" she was not supposed to fight, he impliedly meant to say that because she cant fight, she must not be killed. Therefore when we are prohibited from killing women and children means Kufr is not the cause but it is the war or Muqatala.
Going a bit forward, POWs are not supposed to be killed, and those who fed them are appreciated by Allah almighty when he said "و يطعمون الطعام على حبه مسكينا و يتيما و اسيرا" and they fed poor, orphans and POWs on their own will. If kufr was the cause of jihad, why Allah almighty appreciated them for feeding them?
Islamic state must be according to all Muslim jurists a welfare state, just imagine if a state is busy with non-Muslim states for 12 months a year in wars, could the inhabitant Muslims see a bright peaceful day? Could they have time for their education? Would they be able to enjoy modern health facilities? So, if we use the minor and major premises in order to get a result, it will come wrong, Islam is a welfare state (with all the modern facilities)+ Muslim state must fight war with all non-Muslims= ? Islam is religion of peace or war? You see, we face a major problem.
As a result of the discussion we should understand that our relations with non-Muslims are normally peaceful but if any aggression takes place.
Now, let’s discuss the verses of the holy Qur’an regarding jihad.
As a matter of fact the verses in the holy Qura’n are of two types:
Absolute verses which command the continuous war with non-Muslims and demand killing them.
Conditional verses which relates the war with another situations, such as aggression against the Muslims and their religion.
To talk expressly, in tauba Allah almighty said: “فَاقْتُلُوا الْمُشْرِكِينَ حَيْثُ وَجَدْتُمُوهُمْ وَخُذُوهُمْ وَاحْصُرُوهُمْ وَاقْعُدُوا لَهُمْ كُلَّ مَرْصَدٍ" and kill the infidels wherever you found them…, then said “قَاتِلُوهُمْ يُعَذِّبْهُمُ اللَّهُ بِأَيْدِيكُمْ” and a lot more.
But certain other verses are such from which it could be inferred that all the non-Muslims are not liable to be killed. Allah almighty said “لَا يَنْهَاكُمُ اللَّهُ عَنِ الَّذِينَ لَمْ يُقَاتِلُوكُمْ فِي الدِّينِ وَلَمْ يُخْرِجُوكُمْ مِنْ دِيَارِكُمْ أَنْ تَبَرُّوهُمْ وَتُقْسِطُوا إِلَيْهِمْ"
A tradition reported by Abdullah bin Abi Aufa, لَا تَتَمَنَّوْا لِقَاءَ الْعَدُوِّ وَسَلُوا اللَّهَ الْعَافِيَةَ فَإِذَا لَقِيتُمُوهُمْ فَاصْبِرُوا وَاعْلَمُوا أَنَّ الْجَنَّةَ تَحْتَ ظِلَالِ السُّيُوفِ" “and don’t desire to see your enemy and pray for peace from Allah…”
You can realize the difference between the verses, if we say that Muslims are asked to fight the non-Muslims; we would have left the other verses un-applicable. And according to the juristic principle اعمال الدليلين اولى من اهمالهما او اهمال احدهما to apply two texts is better then to leave them both or any one of them. Therefore it is desirous to say: we will fight the non-Muslims when they fight us or commit any aggression or they compel Muslims to convert from Islam, otherwise our relations are based on peace. More than this principle we have another, حمل المطلق على المقيد which will lead to application of both the texts. According to this principle we have to apply the conditional text and impliedly we would have acted on the absolute one. So when one text said kill them all, another said kill them if they kill you, we will act on the later one, therefore we would have acted on both, we will kill them (the first text) if they kill us( the second text).
If we apply the principle to the attacks on the world trade Centre and pentagon in 2001, we can say that the attack on pentagon-if committed by Muslims, the issue is under discussion and seems that it is a fabricated, well planned case against Muslims- are justified being an attack on a military base. However the attack on WTC could not be justified:
The passengers in the plans were non-combatants, un-armed women and children.
WTC was a civilian targets with shares of Muslims in the businesses, so the attack is not in accordance with injunctions. However the argument of Osama bin Laden that WTC was helping US army engage in wars with Muslims, seems irrational, because is very remote connection. Even in time of the holy prophet non-combatants did not exist. The women gave birth to combatants, they grew them up, they fed the combatants, and the elders in homes advised the combatants to go to war although they are not in war now, then why prophet said don’t kill them. The POWs are not allowed to be killed, Osama bin laden will order their killing, because they were just fighting, if they were not injured they would have continued fighting.
To conclude:
Our relations with non-Muslims are based on peace, we are not allowed to fight them but if they commit any aggression.
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