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A SOCIO-LEGAL ANALYSIS OF THE CONCEPT OF JIHAD

Published online by Cambridge University Press:  14 May 2010

Onder Bakircioglu
Onder Bakircioglu
Affiliation:
Lecturer in Law, Queen's University Belfast.
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Abstract

Since many offensive and defensive wars or acts of terrorism, such as the atrocities of 11 September in the United States and the July 2005 bombings in London, are committed under the banner of Islam and the duty of jihad, it is important to shed some light upon the Islamic laws of war in general, and the controversial concept of jihad in particular. This article traces the origins of, and rationale for, the use of force within the Islamic tradition, and assesses the meaning and evolution of the contentious concept of jihad within its historical context. Following an analysis of the opposing doctrinal views on the potential implications of jihad, the study argues that the concept of jihad should not be interpreted literally, but be adjusted in accordance with new historical and international conditions, and conducted by peaceful means, rather than by the sword.

Type
Article
Information
International & Comparative Law Quarterly , Volume 59 , Issue 2 , April 2010 , pp. 413 - 440
Copyright
Copyright © 2010 British Institute of International and Comparative Law

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References

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2 The institution of the caliphate was abolished in 1924 by the People's Republican Party in Turkey, which, by departing from the theocratic Ottoman legacy, aimed to reshape Turkey and its institutions according to a secular system inspired by the West. See KH Karpat, ‘Modern Turkey,’ in PM Holt et al, Cambridge History of Islam (Cambridge University Press, Cambridge, 1992) 527, 533.

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9 Hassan (n 7) 66.

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12 The permissibility of exercising discretion through creative thinking (in the absence of guidance in the primary sources) was encouraged by the Prophet himself. According to a well-known hadith, when Muhammad appointed Muadh ibn Jabal as a judge in Yemen, he posed a question about the dynamics of decision-making in accordance with Islamic principles: ‘Through which will you judge?’—‘Through the book of God,’ answered Muadh. ‘And if you find nothing in the Book of God?’—‘I shall judge according to the tradition [sunnah] of God's messenger’—‘And if you find nothing in the Messenger's tradition?’ ‘I shall not fail to make an effort [ajtahidu] to reach an opinion.’ It is reported that this response pleased the Prophet. See ibid 1–5; T Ramadan, The Messenger: The Meanings of the Life of Muhammad (Penguin Books, London, 2007) 199.

13 JL Esposito, Islam: The Straight Path (Oxford University Press, Oxford, 1994) 195.

14 See B Lewis and BE Churchill, Islam: The Religion and the People (Wharton School Publishing, New Jersey, 2008) 29; Bennoune, K, ‘As-Salamu Alaykum? Humanitarian Law in Islamic Jurisprudence’ (1994) 15 Michigan Journal of International Law 605Google Scholar, 613.

15 Abdal-Haqq (n 11) 21.

16 HA Haleem et al (eds), The Crescent and the Cross (Macmillan Press Ltd, London, 1998) 62; Esposito (n 13) 196.

17 See I Abdal-Haqq (n 11) 1, 21.

18 See MA Faksh, The Future of Islam in the Middle East: Fundamentalism in Egypt, Algeria, and Saudi Arabia (Praeger Publishers, Westport, 1997) 42; SS Ali, Gender and Human Rights in Islam and International Law (Kluwer Law International, London, 2000) 23.

19 See Mohammad, N, ‘The Doctrine of Jihad: An Introduction’ (1985) 3 Journal of Law and Religion 2CrossRefGoogle Scholar, 381, 382.

20 S Bar, The Fatwas of Radical Islam and the Duty to Jihad (Rowman & Littlefield Publishers, Oxford, 2006) 1–2.

21 D Little, ‘“Holy War” Appeals and Western Christianity: A Reconsideration of Bainton's Approach’ in J Kelsay and JT Johnson (eds), Just War and Jihad: Historical and Theoretical Perspectives on War and Peace in Western and Islamic Traditions (Greenwood Press, New York, 1991) 121.

22 Islam clearly differs from the early Christian attitude on the question of pacifism. For early Christians, participation in war had to be avoided, because military service was deemed contrary to the peaceful spirit of the Gospel that condemned killing and commanded non-resistance to the evildoer. See Lewis (n 14) 2; DS Bachrach, Religion and the Conduct of War (The Boydell Press, Woodbridge, 2003) 24.

23 As Hashmi notes, Muhammad regarded warfare as a necessary evil, which was only to be fought when other peaceful alternatives failed. SH Hashmi, ‘Interpreting the Islamic Ethics of War and Peace’ in T Nardin (ed), The Ethics of War and Peace: Religious and Secular Perspectives (Princeton University Press, New Jersey, 1996) 146–152.

24 Muhammad not only concluded agreements with some neighbouring Jewish and pagan tribes, but also with the polytheistic clan of Quraysh. See T Ramadan, Western Muslims and the Future of Islam (Oxford University Press, Oxford, 2004) 92.

25 For instance, while in Mecca, Muhammad was granted protection by his uncle Abu Talib, who never pronounced the profession of Islamic faith. See Ramadan (n 12) 68.

26 For examples, see H Zawati, Is Jihad a Just War: War, Peace, and Human Rights under Islamic and Public International Law (The Edwin Mellen Press, New York, 2001) 1–5.

27 Most Muslims believe that the pure form of Islam had been experienced during the rule of Muhammad and the four righteous caliphs (elected from the Prophet's closest companions: Abu Bakr, Umar, Uthman and Ali). Later caliphs are believed to be driven by self-interest by making caliphate a hereditary office and introducing governments directed towards worldly objectives. See further A Hourani, A History of the Arab Peoples (Faber and Faber Limited, London, 2005) 22–37.

28 See AA Engineer, ‘Islam and Secularism’ in JJ Donohue and JL Esposito, Islam in Transition: Muslim Perspectives (2nd edn, Oxford University Press, Oxford, 2007) 136, 137–138. On the rapidity of Islamic expansion see Hourani (n 27) 22 ff; VJ Parry, ‘Warfare’ in Holt (n 2) 834 ff.

29 See AZ Yamanai, ‘Humanitarian International Law in Islam: A General Outlook’ in Ramadan (n 11) 65, 71 ff; Bennoune (n 14) 614 ff.

30 See JT Johnson, ‘Introduction’ in JT Johnson and J Kelsay (eds), Cross, Crescent, and Sword (Greenwood Press, London, 1990) xvi.

31 See further Kelsay, J, ‘Religion, Morality, and the Governance of War: The Case of Classical Islam’ (1990) 18 Journal of Religious Ethics 123Google Scholar, 123 ff; Elshtain, JB, ‘Just War and Humanitarian Intervention’ (2001) 17 American University International Law Review 1, 5–6.Google Scholar; Bennoune (n 14) 605–623; S Augustine, The City of God, MDD Dods (trans) (Random House Inc, New York, 1950) 693–694; T Aquinas, Summa Theologiae, Vol 35, TR Heath (trans), (Blackfriars, London, 1972) 81–85; FH Russell, The Just War in the Middle Ages (Cambridge University Press, Cambridge, 1975) 16 ff.

32 See Kelsay (n 31) 124.

33 See Haleem (n 16) 113; Johnson (n 30) xvi.

34 See Yamanai (n 29) 74.

35 See MR Amstutz, International Ethics: Concepts, Theories, and Cases in Global Politics (Rowman & Littlefield Publishers, Oxford, 2005) 111.

36 This study relies upon the authoritative scholar Yusuf Ali's translation of the Qur'an. For a comparison of different translations of the Qur'an see the following website: http://www.uah.edu/msa/quran.html.

37 M Ayoub, The Qur'an and Its Interpreters (State University of New York Press, Albany, 1992) 369. Some sources indicate that the Prophet vowed to mutilate thirty enemy corpses, not seventy. See Ramadan (n 12) 125.

38 See Ayoub (n 37) 369; Ramadan (n 12) 125; AY Ali, The Meaning of the Holy Qur'an (11th edn, Amana Publications, Maryland, 2008) 670.

39 ibid; also see Lewis (n 14) 151; Zawati (n 26) 109.

40 Green, LC, ‘Cicero and Clausewitz or Quincy Wright: The Interplay of Law and War’ (1999) 9 Journal of Legal Studies 59Google Scholar, 69.

41 YH Aboul-Enein and S Zuhur Islamic Rulings on Warfare (Strategic Studies Institute, Carlisle Barracks, 2004) 21; Haleem (n 16) 131.

42 IM Shirazi, War, Peace and Non-Violence: An Islamic Perspective (Fountain Books, London, 2001) 109.

43 Aboul-Enein (n 41) 26; Zawati (n 26) 31–32.

44 See Bennoune (n 14) 623.

45 See Ramadan (n 12) 179; Yamanai (n 29) 74.

46 See M Khadduri, The Islamic Law of Nations: Shaybani's Siyar (The John Hopkins Press, Baltimore, 1966) 5; also see Bennoune (n 14) 624.

47 G Eaton, Islam and the Destiny of Man (State University of New York Press, Albany, 1985) 17 (emphasis added); also see Ali, SS and Rehman, J, ‘The Concept of Jihad in Islamic International Law’ (2005) 10 Journal of Conflict & Security Law 3, 321, 332CrossRefGoogle Scholar.

48 Although Islamic tradition accepts booty as a legitimate reward, it forbids Muslims to be motivated by it. See Lewis (n 14) 151.

49 According to a hadith, when ‘[a] man came to the Prophet and asked, “A man fights for war booty; another fights for fame and a third fights for showing off; which of them fights in Allah's Cause?” The Prophet said, “He who fights that Allah's Word, Islam, should be superior, fights in Allah's Cause.”’ Hadith Reported by al-Bukhari, Hadith of Bukhari (Hadith 4: 65).

50 See Khadduri (n 46) 10.

51 In contrast to Sunni scholars, Shi'i jurists explicitly distinguish between defensive jihad and jihad that is undertaken against unbelievers for the cause of God. According to this school of thought, the latter type of jihad entails the presence of a divinely appointed leader (the Imam), as opposed to an ordinary Muslim authority, to ensure that jihad against unbelievers is undertaken strictly for the cause of God. See further AA Sachedina, ‘The Development of Jihad in Islamic Revelation and History’ in Johnson (n 30) 36, 41 ff.

52 This element is considered to be based on the following Qur'anic verse: ‘And spend of your substance in the cause of God, and make not your own hands contribute to (your) destruction; but do good; for God loveth those who do good’ (Q. 2: 195). See Ali (n 38) 78.

53 While the Qur'an advises Muslims to be ready for war (when necessary), it also notes that ‘... if the enemy incline towards peace, do thou (also) incline towards peace and trust in God: for He is One that heareth and knoweth (all things)’ (Q. 8: 60–61).

54 J Kelsay, Islam and War: A Study in Comparative Ethics (Westminster/John Knox Press, Louisville, 1993) 36; S Mahmoudi, ‘The Islamic Perception of the Use of Force in the Contemporary World’ (2005) 7 Journal of the History of International Law 1, 55, 59.

55 See GF Nafziger and MW Walton, Islam at War: A History (Greenwood Publishing Group, Westport, 2003) 207–208; Mohammad (n 19) 384.

56 See Bar (n 20) 4. Max Weber, with respect to internal ambiguities within religious rulings, argues that ‘[n]either religion nor men are open books. They have been historical rather than logical or even psychological constructions without contradiction. Often they have borne within themselves a series of motives, each of which, if separately and consistently followed through, would have stood in the way of the others or run against them head-on. In religious matters “consistency” has been the exception and not the rule.’ HH Gerth and CW Mills (eds), From Max Weber: Essays in Sociology (Routledge, London, 2001) 291; Kelsay (n 54) 43.

57 See G Kepel, Jihad: The Trail of Political Islam (IB Tauris & Co Ltd, London, 2006) 23–43; DW Simon, ‘US Foreign Policy and the World of Islam’ (1995) 3 Willamette Bulletin of International Law & Policy 1, 69, 70.

58 See Euben, RL, ‘Killing (for) Politics: Jihad, Martyrdom, and Political Action’ (2002) 30 Political Theory 1CrossRefGoogle Scholar, 4, 12.

59 See I S M Al-Qazwini, ‘Just War: An Islamic Perspective’ (2004) 9 Nexus 79, 83; NA Shah, Self-Defense in Islamic and International Law: Assessing Al-Qaeda and the Invasion of Iraq (Palgrave Macmillan, New York, 2008) 17 ff.

60 See Jackson, S, ‘Jihad and the Modern World’ in Donohue (n 28) 408; Z Baran, ‘Fighting the War of Ideas’ (2005) 84 Foreign Affairs 6Google Scholar, 68, 73.

61 FM Donner, ‘The Sources of Islamic Conceptions of War’ in Kelsay (n 21) 46.

62 See SK Mirza, ‘An Exegesis on Jihad In Islam’, in KE Shienbaum and J Hasan (eds), Beyond Jihad: Critical Voices from Inside Islam (Academica Press, Bethesda, 2006) 77.

63 See Rehman (5) 839.

64 M Khadduri, War and Peace in the Law of Islam (John Hopkins Press, Baltimore, 1955) 55–56 (emphasis added); also see Rehman (4) 52.

65 See J Whalen, F, ‘In Search of Jihad: Toward a Policy of Constructive Islamic Engagement’ (1998) 5 Brown Journal of World Affairs 1Google Scholar, 279, 282; Parvin, M and Sommer, M, ‘Dar al-Islam: The Evolution of Muslim Territoriality and Its Implications for Conflict Resolution in the Middle East’ (1980) 11 International Journal of Middle East Studies 1, 1, 4Google Scholar.

66 See Z Sardar, The Future of Muslim Civilisation (Croom Helm, London, 1979) 193; JL Esposito, Unholy War: Terror in the Name of Islam (Oxford University Press, New York, 2003) 28.

67 Donner (n 61) 47. Firestone notes that because the Qur'an's message on warfare is spread out throughout the text, “it is difficult to know whether a verse is supposed to be read in relation to the verses among which it is currently situated or whether it should be read independently.” R Firestone, Jihad: The Origin of Holy War in Islam (Oxford University Press, New York, 1999) 47.

68 Some scholars maintain that Islam would probably not have survived if military jihad had not been employed in defending and spreading the faith ‘at a time when violent force was the law.’ See AA An-Na'im, Toward and Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse University Press, New York, 1996) 158.

69 ibid AA An-Na'im 142.

70 Esposito (n 66) 29.

71 GR Hawting, The Idea of Idolatry and the Emergence of Islam: From Polemic to History (Cambridge University Press, Cambridge, 1999) 1–2.

72 See Esposito (n 66) 30.

73 See Mohammad (n 19) 385; Mirza (n 62) 78.

74 Among others, the injunctions to nonviolence in Q. 2: 109, Q. 2: 256, Q. 22: 78, Q. 25: 52, Q. 109: 1-6 belong to this period.

75 Esposito (n 66) 31.

76 See Esposito (n 13) 8–9; WM Watt, Muhammad: Prophet and Statesman (Oxford University Press, Oxford, 1964) 94 ff.

77 Silverman, AL, ‘Just War, Jihad, and Terrorism: A Comparison of Western and Islamic Norms for the Use of Political Violence’ (2002) 44 Journal of Church & State 1, 73, 78CrossRefGoogle Scholar.

78 Also see (Q. 22: 40).

79 Examples of these verses, containing such injunctions as fight them only ‘until there is no more tumult or oppression,’ ‘do not transgress limits,’ or ‘fear God, and know that God is with those who restrain themselves,’ can be found at Q. 2: 190, Q. 2: 191, Q. 2: 192, Q. 2: 193, Q. 2: 194.

80 Said, J, ‘Law, Religion and the Prophetic Method of Social Change’ (2001) 15 Journal of Law and Religion 2Google Scholar, 83, 140; Mohammad (n 19) 387.

81 As Hitti notes, ‘hitherto … [Islam] had been a religion within a state; in al Madinah (Medina), after Badr, it passed into something more than a state religion –it itself became the state.’ PK Hitti, History of the Arabs: From the Earliest Times to the Present (Macmillan, London, 1956) 116–117.

82 See Abo-Kazleh, M, ‘Rethinking International Relations Theory in Islam: Toward a More Adequate Approach’ (2006) 5 Turkish Journal of International Relations 4, 41, 44Google Scholar.

83 Haleem (n 16) 113.

84 Drawing on an analogy between the ancient Roman and Islamic customs of warfare, Khadduri notes that ‘[l]ike the jus fetiale of ancient Rome, which required that a set of rules must be followed so that war would be lawful, the jihad was regarded as lawful only if it were proceeded by an invitation to adopt Islam. If the enemy refused (or if they were People of the Book and refused to pay the poll tax), fighting would become lawful for the Muslims.’ Khadduri (n 46) 95.

85 Mirza (n 62) 77. The duty of waging war against the pagans was, among others, stipulated in the following verses: Q. 9: 36, Q. 47: 4, Q. 9:5.

86 Rehman (n 4) 57–58.

87 El-Ayouty, Y, ‘International Terrorism under the Law’ (1999) 5 ILSA Journal of International & Comparative Law 2, 485, 490Google Scholar.

88 See Zawati (n 26) 4; Rehman (n 86) 70.

89 See Esposito (n 66) 68.

90 Sachedina (n 51) 43.

91 Mirza (n 62) 85, 86.

92 CJ Adams, ‘Mawdudi and the Islamic State’ in JL Esposito, Voices of Resurgent Islam (Oxford University Press, New York, 1983) 103.

93 ibid 102.

94 Translation from Mawdudi Al-Jihad fi'l-Islam, cited in SVR Nasr, Mawdudi and the Making of Islamic Revivalism (Oxford University Press, New York, 1996) 83.

95 AA Mawdudi, 1997b. ‘Jihad fi Sabilillah’ 3–9, cited in D Zeidan, The Resurgence of Religion: A Comparative Study of Selected Themes in Christian and Islamic Fundamentalist Discourses (Brill, Boston, 2003) 237. It must be noted that over the years the radical position of Mawdudi softened. In 1939, he declared that military form of jihad should be a weapon of last resort to achieve victory for Islam. See Nasr (n 94) 74.

96 JL Esposito, The Islamic Threat: Myth or Reality? (Oxford University Press, New York, 1992) 143.

97 S Qutb, Milestone (SIME E-Publishing, USA, 2005) 5; cf IM Abu-Rabi, Intellectual Origins of Islamic Resurgence in the Modern Arab World (State University of New York Press, Albany, 1996) 195.

98 ibid Qutb 52; cf YY Haddad, ‘Sayyid Qutb: Ideologue of Islamic Revival’ in Esposito (n 92) 84–87.

99 ibid Qutb 52–53.

100 He scornfully viewed such scholars as spiritually and mentally defeated ‘by the wily attacks of the Orientalists, who distort the concept of Islamic Jihad.’ ibid 55; Abu-Rabi (n 97) 193–194.

101 Qutb (n 97) 68–69; D Bukay, From Muhammad to Bin Laden: Religious and Ideological Sources of the Homicide Bombers Phenomenon (Transaction Publishers, New Jersey, 2008) 223–224.

102 See O Leaman (ed), The Qur'an: An Encyclopaedia (Routledge, New York, 2006) 5.

103 See Firestone (n 67) 49–50.

104 Abo-Kazleh (n 82) 43.

105 ‘Let there be no compulsion in religion: Truth stands out clear from Error: whoever rejects evil and believes in God hath grasped the most trustworthy hand-hold, that never breaks. And God heareth and knoweth all things’ (Q. 2: 256).

106 ‘O Prophet! strive hard against the unbelievers and the hypocrites, and be firm against them. Their abode is hell,—an evil refuge indeed.’ (Q. 9: 73).

107 ‘Fight those who believe not in Allah nor the last day, nor hold that forbidden which hath been forbidden by Allah and His Messenger, nor acknowledge the religion of truth, even if they are of the People of the Book, until they pay the jizya (poll tax) with willing submission, and feel themselves subdued’ (Q. 9: 29).

108 Y Friedmann, Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition (Cambridge University Press, New York, 2003) 102.

109 A Ali, The Spirit of Islam: A History of the Evolution and Ideals of Islam with a Life of the Prophet (Christophers, London, 1922) 214–215.

110 Some scholars assert that in the contemporary world many Muslim states have undermined Islamic principles and usurped the legal order; these states have not only failed in implementing the sharia properly, but they also responsible for creating social injustice, economic inequality, political and moral corruption. In order to eliminate such state of modern ignorance (jahiliyyah), jihad is argued to be launched first at home, thereafter expand abroad against infidelity. See Qutb (n 97) 78; also see JL Esposito, Islam and Politics (Syracuse University Press, Syracuse, 1987) 202; R L Euben, Enemy in the Mirror: Islamic Fundamentalism and the Limits of Modern Rationalism (Princeton University Press, Princeton, 1999) 60.

111 See Khadduri (n 46) 10; Donner (n 61) 47–51.

112 See An-Na'im (n 68) 150.

113 Khadduri, M, ‘Islam and the Modern Law of Nations’ (1956) 50 AJIL 2, 359CrossRefGoogle Scholar.

114 See (n 107); RC Martin, ‘The Religious Foundations of War, Peace and Statecraft in Islam’ in Kelsay (n 21) 98; B Lewis, The Arabs in History (Hutchinson's University Library, London, 1950) 93–94.

115 B Lewis, The Middle East (Weidenfeld & Nicolson, London, 1995) 57.

116 See M Khadduri, ‘International Law’ in M Khadduri and HJ Lienbesny (eds), Law in the Middle East, (Vol 1, Middle East Institute, Washington, 1955) 355.

117 See Donner (n 61) 47–48. In this context, Lewis, in his controversial article, ‘The Roots of Muslim Rage,’ argued that ‘[i]n Islam the struggle of good and evil very soon acquired political and even military dimensions. Muhammad … was not only a prophet and a teacher, like the founders of other religions; he was also the head of a polity and of a community, a ruler and a soldier. Hence his struggle involved a state and its armed forces. If the fighters in the war for Islam … are fighting for God, it follows that their opponents are fighting against God. And since God is in principle the sovereign … then God as sovereign commands the army. The army is God's army and the enemy is God's enemy. The duty of God's soldiers is to dispatch God's enemies as quickly as possible to the place where God will chastise them—that is to say, the afterlife.’ Lewis, B, ‘The Roots of Muslim Rage’ (1990) 266 The Atlantic Monthly 3Google Scholar, 49, 49.

118 Aboul-Enein (n 41) 3.

119 Donner (n 61) 51.

120 It is to be noted that the practical abandonment of the Islamic military expansion occurred mainly from the seventeenth century onward, as the military and economic power of Islamic countries began to decline sharply before the European powers, which, during the age of imperialism, largely subjugated the Muslim world. See further A E Mayer, ‘War and Peace in the Islamic Tradition and International Law’, in Kelsay (n 21) 195–196.

121 Khadduri (n 46) 14.

122 Khadduri (n 115) 359–360.

123 Abo-Kazleh (n 82) 46.

124 See LB Ware, ‘A Radical Islamist Concept of Conflict’ in SC Pelletiere (ed), Terrorism: National Security Policy and the Home Front (Diane Publishing, US Army War College, 1995) 31–32.

125 Some jurists, in particular the Hanafi school, did not acknowledge this third division, arguing that if non-Muslim communities entered into treaty relations with Muslims, they would ipso facto become part of the dar-ul-Islam, and thus be entitled to the protection of Islam. See Khadduri, (n 46) 12–13.

126 See M Parvin and M Sommer, ‘Dar-al-Islam: The Evolution of Muslim Territoriality and Its Implications for Conflict Resolution in the Middle East’ (1980) 11 International Journal of Middle East Studies 1, 1, 21.

127 Charter of the United Nations, 24 October 1945, preamble.

128 ibid.

129 ibid.

130 See Weightman, MA, ‘Self-Defense in International Law’ (1951) 37 Virginia Law Review 1095CrossRefGoogle Scholar, 1102–1108; D Kennedy, Of War and Law (Princeton University Press, Oxford, 2006) 75–76; C Hsiung, Anarchy & Order: The Interplay of Politics and Law in International Relations (Lynne Rienner Publishers, London, 1997) 51.

131 MN Shaw, International Law (6th edn, Cambridge University Press, Cambridge, 2008) 1123. In Nicaragua v United States, the International Court of Justice (ICJ) described art 2(4) as a peremptory norm of international law from which Members cannot derogate. See Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) Judgment of 27 June 1986, ICJ 14, ¶ 190.

132 See Y Dinstein, War, Aggression and Self-Defence (4th edn, Cambridge University Press, Cambridge, 2005) 85; L Henkin, How Nations Behave (2nd edn, Columbia University Press, New York, 1979) 204–205; C Gray, International Law and the Use of Force (3rd edn, Oxford University Press, Oxford, 2008) 144–166.

133 For more on the positivist legal position, which accorded the ‘sovereign’ the unqualified right to make war see K Nabulsi, Traditions of War: Occupation, Resistance, and the Law (Oxford University Press, Oxford, 2005) 241; SC Neff, ‘A Short History of International Law’ in MD Evans, International Law (2nd edn, Oxford University Press, New York, 2006) 29–38; Anghie, A, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’ (1999) 40 Harvard International Law Journal 1Google Scholar.

134 While some commentators maintain that humanitarian intervention, an unauthorized coercive action undertaken on humanitarian grounds, may be a legitimate cause for the use of force, compatible with art 2(4) of the UN Charter, this reading of the UN Charter is generally considered controversial. See Dinstein (n 132) 90; cf Schroeder, E, ‘Kosovo Crisis: Humanitarian Imperative versus International Law’ (2004) 28 Fletcher Forum of World Affairs 181Google Scholar; J Mertus, ‘Reconsidering the Legality of Humanitarian Intervention: Lessons from Kosovo’ (2000) 41 William and Mary Law Review 1751.

135 See Kunz, JL, ‘Bellum Justum and Bellum Legale’ (1951) 45 AJIL 528, 532CrossRefGoogle Scholar.

136 For a detailed analysis see Mahmoudi (n 54) 68 ff.

137 For examples, see Kepel (n 57) 205 ff; J Rex, ‘Islam in the United Kingdom’ in ST Hunter (ed), Islam, Europe's Second Religion: The New Social, Cultural, and Political Landscape (Praeger, Westport, CT, 2002) 70.

138 See Rehman (n 86) 60. For instance, Saudi Arabia, which is known for its strict application of the sharia principles, in its report to the Security Council on counter-terrorism expressed its ‘resolute stance on rejecting terrorism in all its forms and manifestations,’ and its desire for ‘active cooperation and participation in and contribution to international and bilateral efforts to combat terrorism and the financing thereof.’ Report Submitted by the Government of the Kingdom of Saudi Arabia pursuant to para 6 of Security Council Resolution 1455 (2003), S/AC.37/2003/(1455)/42.

139 The OIC is an international organization, founded in September 1969, which aims to promote close co-operation among Islamic countries in economic, political, cultural and spiritual matters. See further Ali (n 18) 195–196; Ali (n 47) 343; Rehman (4) 27 ff.

140 Charter of the Organisation of the Islamic Conference (1972). Available at: http://www.oic-oci.org/is11/english/Charter-en.pdf.

141 Convention of the Organisation of the Islamic Conference on Combating International Terrorism (1990). Available at: http://www.oic-oci.org/english/convenion/terrorism_convention.htm.

142 Peace Treaty Between the State of Israel and the Arab Republic of Egypt (26 March 1979). Available at: http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/Israel-Egypt%20Peace%20Treaty.

143 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) I.C.J. Reports 2001, 40.

144 Boundary Dispute concerning the Taba Area (Egypt v Israel) 27 ILM (1988) 1421.

145 Boundary Dispute between Dubai and Sharjah (Emirate of Dubai v Emirate of Sharjah) (Arbitral Award of 19 October 1981) ILR Vol 91, 543 ff.

146 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) ICJ Rep1982, 18.

147 Western Sahara Case, Advisory Opinion, ICJ Rep 1975 12.

148 Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v UK and Libya v United States of America) ICJ Rep 1998, 115. For more on peaceful settlement of disputes in the Middle East see J Allain, International Law in the Middle East (Ashgate Publishing Limited, Aldershot, 2004) 229–262.

149 For references to the desirability of peaceful resolution of conflicts see, among others, Q. 49: 9, Q. 49: 10, Q. 8: 60–61, Q. 4: 90.

150 See Bassiouni, MC, ‘Protection of Diplomats under Islamic Law’ (1980) 74 AJIL 609, 614CrossRefGoogle Scholar.

151 For instance, in 625 he entered into a treaty with the Jewish tribes of Yatrib (Medina) and in 628 with the polytheistic Quraysh tribe, which had initially challenged Muhammad's prophethood and eventually forced the early Muslim community to emigrate to Medina. See Ramadan (n 24) 92.

152 According to a hadith, the prophet had said that ‘the Muslims are bound by their obligations, except an obligation that renders the lawful unlawful, and the unlawful lawful.’ See Bassiouni (n 150) 615.

153 See Watt (n 76) 214–220

154 Hassan (n 7) 73.

155 Donner (n 61) 31–32.

156 As the influential philosopher Jawdat Said rightly stresses, those who advocate the military use of jihad generally fail to distinguish the contexts in which war under Islam is allowed or forbidden, and to take into consideration ‘the abundance of hadith that prohibit the use of arms to the point where the Prophet orders the destruction of one's arms, even if unilaterally, and to rid one's self of one's sword.’ Said (n 80) 141.

157 It is important to note that the most significant corpus of Islamic law of nations is not found in the primary sources of the sharia; it was developed within the process of juridical speculation (conducted in line with the core Islamic principles) during the height of Islamic power. In other words, Islamic jurisprudence, has been developed over the ages and as such it is man-made. See Badr, GM, ‘A Survey of Islamic International Law’ (1982) 12 ASIL 56, 56Google Scholar.

158 Ali (n 38) 242–243.