Islamic Studies 49:2 (2010) pp.

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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
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 nonexistence 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.”

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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

1999). there are a number of different traditions. Small wonder. 1: 71.. 47–65. temporary or local. admittedly transitory. It is not possible. al-Musta╖f┐ min ‘Ilm al-U╖┴l (Beirut: D┐r I╒y┐’ al-Tur┐th al-‘Arab┘. that certain minor laws. to reconstruct from these verses a single Islamic ethic of war and peace. they were allowed to give the final blow to the enemies. Those who hold that there is abrogation call it naskh ╔imn┘ (implied abrogation). being superseded or abrogated by certain other laws. each of which draws selectively on the Qur’┐n to establish legitimacy for its view of war and peace. 1952). Ab┴ Bakr Mu╒ammad b. but . unless it becomes absolutely impossible to resolve the apparent conflict between them. Imran Ahsan Khan Nyazee.10 What it simply means is that initially Muslims were not allowed to take up arms against their oppressors.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. therefore. lasting and essential… It must be.” See. clearly understood that the doctrine of abrogation applies to ‘law’ only… Beliefs. It took about 23 years to finish and complete the Legislation. The famous exegete of the Qur’┐n. If the apparent conflict is resolved. Islamic Jurisprudence (Islamabad: Islamic Research Institute. moral precepts and spiritual verities — none of these is at all subject to abrogation or repeal. permanent and universal. Mu╒ammad al-Ghaz┐l┘. Firestone proposes to look at these verses collectively. Ab┴ Ja‘far Mu╒ammad Ibn Jar┘r al-║abar┘ (d. however.). principles of law. 11 One may refer here in this regard to the work of Bassam Tibi (b. Bassam Tibi. 2: 266. At times. See also. 1970). severely criticised it. which is why the later revelations were more severe and strict in tone. then. 1: 107–128. 2000). Tafs┘r al-Qur’┐n (Karachi: D┐r al-Ish┐‘at. Professor of international relations at the George-August University in Göttingen. Tamh┘d al-Fu╖┴l f┘ ’l-U╖┴l (Lahore: Maktabah Madaniyyah. were replaced by certain other laws. “War and Peace in Islam. Professor of Medieval Jewish and Islamic Studies at the Hebrew Union College in Los Angeles. the argument for abrogation will automatically lose ground.THE SCOPE OF SELF-DEFENCE 159 While it is an undeniable fact that the rules about jihad were revealed gradually. See. Reuven Firestone.” See. Instead. they contradict one another. 1991). narratives. while later they were allowed to fight against them. See. it in no way suggests that the later revelations abrogated the earlier ones. 10 It is pertinent to note that the verses of the ninth chapter do not explicitly abrogate the earlier verses. 1944). 176. The course of Qur’┐nic Revelation has been avowedly gradual. 317–24. Now.” in Islamic Political Ethics. 1981). which means that they could not resolve the apparent conflict between these verses. This approach of looking into different sets of verses in isolation has many flaws which is why Reuven Firestone (b. exhortations. Ab┘ Sahl alSarakhs┘. and enacted by the same lawgiver. Ab┴ ╓┐mid Mu╒ammad b. The conclusion he draws is very important: that emphasis on peace and harmony is found not only in the Makkan verses. 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. For a scholarly exposition of the doctrine of abrogation in Islamic Law see. articles of faith. especially during the course of the promulgation of that law. J┐mi‘ al-Bay┐n ‘an Ta’w┘l └y al-Qur’┐n (Beirut: D┐r al-Kutub al-‘Arabiyyah. d. Jihad: The Origins of Holy War in Islam (New York: Oxford University Press. 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. 2: 53–86. n.. 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.

. 2002).’ The theory of ‘coherence’ (na╘m) in the Qur’┐n gives a different perspective and. Mustansir Mir. offers a more convincing interpretation. Tadabbur-i-Qur’┐n (Lahore: F┐r┐n Foundation. this final verdict was not only meant to destroy the belligerent capability of the opponents. The Muslim Conduct of State (Lahore: Sheikh Muhammad Ashraf.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. 67–97. 13 Mushtaq. Thus. 153. 1945). it is pertinent to note that even when Muslims were allowed to initiate a military campaign it was. See. but also it was a declaration of the final judgment of God upon them. as we have shown elsewhere. For details about the coherence theory. . “The Notions of D┐r al-╓arb and D┐r al-Isl┐m.160 MUHAMMAD MUSHTAQ AHMAD However. a continuation of the previous hostilities. See also. ibid. Muslims were able to be push back the war to the enemy strong holds. 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.’ he gives little weight to the internal evidence of the chapters in which these verses are found. 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. see.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. 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. God destroys his opponents and assigns to His Messenger the duty to make the true religion prevail in that territory. Hence. However. 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. while he analyzes the literature about ‘abrogation’ as well as ‘occasions of revelation. “The Notions of D┐r al-╓arb and D┐r al-Isl┐m. there is a fundamental drawback in his methodology for ascertaining the dating of the verses. Mawl┐n┐ Am┘n A╒san I╖l┐╒┘. 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.” 29–36. After the Messenger migrates from his home territory along with his followers. Mushtaq. In the final stage. in fact. Thus. While Firestone’s proposal of reading all the relevant verses together is very significant. 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. 1987). after the conquest of Makkah the final verdict about the opponents was declared in the ninth chapter. preface.” 29–36. 12 Muhammad Hamidullah. the opponents are destroyed by also in the verses of the late Mad┘nan period see. Hence.

He further divides the worldly purposes into four types: the preservation of nafs (life). See also. the preservation of ‘aql (intellect). Muslims cannot claim to have the right to punish nonMuslims for not embracing Islam or for not submitting to the Muslim rule. They cannot be extended to nonMuslims of the later generations. They are also called ta╒s┘n┐t It may be noted here that the rules mentioned in the ninth chapter of the Qur’┐n are timespecific as well as space-specific. J┐v╚d A╒mad Gh┐mid┘. 186–87 14 . although the primary purposes would not be lost without them.17 When all types are taken together we have five basic purposes of law.” Hamdard Islamicus 25 (2002). rather. According to Ab┴ ╓┐mid Mu╒ammad b. See. As opposed to this.THE SCOPE OF SELF-DEFENCE 161 natural calamities if the followers of the Messenger happen to be only a few in number. 17 Al-Ghaz┐l┘. 1971). Am┘n A╒san I╖l┐╒┘. Hence. Only Messenger had this right because only he could claim to have established the ultimate truth beyond every shadow of doubt.14 Despite this. the illustrious jurist-cum-philosopher. 2001). These ╔ar┴r┐t are followed by ╒┐j┐t (secondary purposes). 3: 540–41 and 560. war was imposed on it by the opponents. if there is a sizeable number of that Messenger’s followers. Then comes the third category called tawassu‘ (ease) and tays┘r (facility) in the law. they become an instrument of Divine punishment that afflicts the opponents of the Messenger.16 Before analyzing their argument. Today. the Muslim community did not initiate armed conflict. 201–04. 15 This solves the problem of the apparent analytical inconsistency referred to above. They were applicable only to the immediate addressees of the Messenger of God in and around the Arabian Peninsula. 69. Ibid. “The Protection of Women and Children in Islamic International Law: A Critique of John Kelsay. which are additional purposes required by the primary purposes.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). thus. 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. 16 Muhammad Munir. the preservation of nasl (progeny). and the preservation of m┐l (wealth). we deem it necessary to briefly explain the structure of the maq┐╖id. 505/1111). 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. as noted above. for more details. Tadabbur-i-Qur’┐n. which are also called ╔ar┴r┐t (primary purposes). “Q┐n┴n-i Da‘wat” in M┘z┐n (Lahore: D┐r al-Ishr┐q. Mu╒ammad al-Ghaz┐l┘ (d. 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. they are asked to fight their opponents and.

20 See. Al-Sh┐═ib┘. 231–267. tr. M┴s┐ alSh┐═ib┘ (d. the purpose of jihad is defence of the d┘n from all external threats. 1975). a renowned scholar of classical Islamic law and jurisprudence. MA: Harvard University Press. Jurisprudence: The Philosophy and Method of the Law (Cambridge. 22 See for a refinement of the theory of maq┐╖id al-Shar┘‘ah and its relevance for contemporary issues. In other words. 2: 8.20 It is also worth considering that these values are preserved and protected in each society and are considered aims of justice in Western law. the maintenance of equality and freedom.22 These maq┐╖id have two aspects. ta╒╖┘l is the securing of benefit (manfa‘ah) and ibq┐’ is the repelling of harm (ma╔arrah). Thus.18 These purposes have been determined from the texts through induction (istiqr┐’) and that is the reason why they are considered definitive (qa═‘┘). progeny and intellect are placed in the middle. in Islamic law the value of religion is placed at the top and that of wealth is placed at the bottom. As we shall see below. See also: Ghaz┐l┘. Defence or protection of the d┘n is not equivalent to the defence of state. This seems quite convincing. The positive aspect in the words of the famous Andalusian jurist Ab┴ Is╒┐q Ibr┐h┘m b. VA: The International Institute of Islamic Thought. From the negative aspect. 2005). Examples include the building of civilization. 790/1388) is “what affirms its elements and establishes its foundations.21 However. Nancy Roberts (Herndon. security. 1974). Theories of Islamic Law: The Methodology of Ijtih┐d (Islamabad: Islamic Research Institute. However. jihad is prescribed for defending the d┘n. 2: 7. 18 19 . 1984). 196. points out that moving beyond the maq┐╖id leads to the area of weaker attributes. positive (ta╒╖┘l or securing of the interest) and negative (ibq┐’ or preservation of the interest). al-Muw┐faq┐t fi U╖┴l al-Shar┘‘ah (Cairo: al-Maktabah al-Tij┐riyyah. Something more than that is involved. most of the Muslim scholars are of the opinion that providing support to Muslims who are subjected to persecution Ibid. Imam al-Sh┐═ib┘’s Theory of the Higher Objectives and Intents of Islamic Law. there is a somewhat complicated problem. Imran Ahsan Khan Nyazee. In other words.19 Imran Ahsan Khan Nyazee (b.162 MUHAMMAD MUSHTAQ AHMAD (complementary values). ╓┐j┐t and ta╒s┘n┐t are meant to defend and protect ╔ar┴r┐t.” The negative is “what expels actual or expected disharmony. the interests of the d┘n are secured by the creation of conditions that facilitate worship and establish the other essential pillars of Islam. Islamic Jurisprudence. 1945). Nyazee. 203–204. A╒mad al-Rays┴n┘. See. the ashb┐h or the probable (╘ann┘) purposes. Jaw┐hir al-Qur’┐n (Beirut: D┐r al-Fikr.”23 Thus. the difference lies in the priority order of these values. or of the Islamic state for that matter. 1994). while the values of life. 32–35. for a detailed analysis of Sh┐═ib┘’s theory. 21 Edgar Bodenheimer. 23 Al-Muw┐faq┐t.

International Law (Cambridge: Cambridge 24 . 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. 25 For a comparison between the notions of just war and jihad. For this purpose. it seems almost certainly beyond the scope of a state’s right to self-defence. particularly St. In pre-modern Europe.THE SCOPE OF SELF-DEFENCE 163 in a non-Muslim state is an integral part of the defence of the d┘n. the situation falls within the meaning of defence of the d┘n calling for military action in some severe cases. eds. Hence. the whole paradigm of self-defence was changed.26 This treaty formally announced the death As we shall see later. 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. 2007). see. Hence. and as such it was almost similar to that in Islamic law. John Kelsay. Malcolm N. 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.” as expounded by the Christian scholars. 1991). we will first present an analysis of the rules of international law regarding the scope of the right of self-defence of states. we will examine the modern Muslim debate on this issue to ascertain the scope of defence in Islamic law. 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. 26 For a good introduction to the development and history of the modern nation-state system and international law. Arguing the Just War in Islam (Cambridge: Harvard University Press.25 With the emergence of the modern nation-state system. it may not come within the scope of a state’s right to self-defence. 1998).24 Similarly. Just War and Jihad (Westport: Greenwood. see. Shaw. After that. See also. the notion of defence was derived from the doctrine of “just war. However. Still. however. John Kelsay and James Turner Johnson. Michael Akehurst. 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. Augustine of Hippo (d. 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. many Muslim scholars have opined that if a state does not allow Muslims to peacefully propagate their religion and imposes various restrictions on them. even the doctrine of protection of nationals abroad does not fully cover this situation. Modern Introduction to International Law (New York: Routledge. 9–32. 430).

For a detailed analysis of the relationship between customary and treaty law. they do show a strong evidence of customary international law. . 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.164 MUHAMMAD MUSHTAQ AHMAD of the Holy Roman Empire. Geoffrey Treasure.30 The United Nations Organization was established in the aftermath of the Second World War in 1945. 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. 2003).. while customary rules are deemed binding on all states. which is also called the Kellogg-Briand Pact. However. Declaration of the Principles of International Law GA/Res/2625 (XXV) (1970). other states also acceded to it.31 While the General Assembly resolutions may not be binding on states. 27 See. The Making of Modern Europe 1648– 1780 (New York: Routledge. It was for the first time in 1928 when the Pact of Paris formally prohibited war. sometimes the treaty rules may overlap the customary rules. It was also accepted that initiating a war was the “sovereign right” of states. 1984 ICJ Rep 392. 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). International Law. Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States GA/Res/2131 (XX) (1965). 2003).” 31 These resolutions include. Later. 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.28 The former denoted the conduct of the sovereign states. two major sources of international law were accepted: custom and treaty. Thus. As a necessary corollary of the doctrine of sovereignty. 11–18. while the latter was a formal expression of the consent of the sovereign states.” This general prohibition is reaffirmed by a number of resolutions of the UN General Assembly. Thus. or in any other manner inconsistent with the Purposes of the United Nations. 68–101. See also. Thus. Shaw.32 University Press. many of the customary rules have been codified in the form of treaties and many treaty provisions have become part of the customary law. no war was considered illegal. 29 Ibid. 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. inter alia. 32 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA). see.27 International law — also called “the law of nations” — was developed by the new sovereign nation-states. The new system was based on the doctrine of the sovereignty of the nation-states.29 As such. was initially concluded between the United States of America and France. which is binding on all states. Akehurst. 30 This Pact. International Law. Its Charter put a general ban not only on war but also on the threat or use of force. 11–41. and renounce it as an instrument of national policy in their relations with one another. 1013–1017.

J. “Who Killed Article 2 (4)?” American Journal of International Law. Oxford University Press.” American Journal of International Law. 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 Charter of the United Nations. J. Collective use of force under the authority of the UN Security Council.” Similarly. 1983).THE SCOPE OF SELF-DEFENCE 165 The Charter explicitly mentions just three exceptions to this general prohibition: 1. 1945. 81 (1987). 36 Martin Dixon. Some states have claimed a few other exceptions as well. “The Nicaragua Judgment and the Future of the Law of Force and Self-defence.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. See also. for it would not be “against the territorial integrity or political independence of a state. One is the so-called “permissive” and the other “restrictive” school. L. 64 (1970). 65 (1971).. Hargrove. Dixon. Article 51. Franck. 33 34 .” American Journal of International Law. Articles 39–51. 1991). says: “Indeed. 2. 2000). 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. Henkin. Ibid. 3. 1017–1022. “The Reports of the Death of Article 2 (4) Are Greatly Exaggerated. D.34 and action against ex-enemy states. International Law.. 544. Article 107. 35 Ibid. 820. See also: Shaw: International Law. 37 For an authoritative analysis of international law relating to the use of force. Thus.” Textbook on International Law (London: Blackstone. 809. Cases and Materials on International Law (London: Sweet & Maxwell. 294. 296–99. 135. but these are not universally accepted. a contemporary scholar of international law.33 force used in individual or collective self-defence against an ongoing armed attack. which led to interpreting the ban on the use of force and exceptions thereto in two different ways.36 There have emerged two schools on the issue. see: Ian Brownlie. 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. which have been explicitly mentioned in the Charter. there are only two exceptions now. Harris. Hence. One of the reasons for disagreement on this issue is the contentious relationship between the preCharter and post-Charter law.35 The last exception was related to the Second World War and is now obsolete. T. International Law and the Use of Force by States (Oxford.

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.” It is quite strange. D. The foremost reason for this disagreement is the conflict of their views regarding the relationship of the preCharter and post-Charter law. is that threat and use of force is prohibited in all forms except where explicitly allowed by the Charter. “The Nicaragua Judgment and the Future of the Law of Force and Self-defense. Dixon. the states resorting to force have relied on alleged exception to the general principle prohibiting armed force rather than interpreting it narrowly. 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. both the restrictive and permissive schools agree that the use of force in self-defence is a valid exception from this prohibition. “Self-defence and the Security Council: What Does Article 51 Require?” International Comparative Law Quarterly.166 MUHAMMAD MUSHTAQ AHMAD United Nations. 2 (4) were inserted in preliminary drafts in order to strengthen the obligation not to use force rather than to weaken 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. 299–304. the general purposes of the Charter. While these exceptions might be widely drawn. 81 (1987). Grieg. As Dixon puts it. Example of the latter is NATO’s action against Serbia for “humanitarian purposes. on the other hand. 2 (4). 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. the exponents of the permissive school argue that the Charter has preserved the pre-Charter customary right of self- A classical example of the former is the “swift surgical strike” of the Israeli commandos in 1976 at the Entebbe airport. A detailed analysis of this issue is beyond the scope of this paper. according to this school. 135.. 40 See. 298. Furthermore. Suffice it to say that the drafting history of Article 2 (4).” American Journal of International Law. In all other cases . according to this school. disagree on the scope of the right of self-defence. only Israel after the Entebbe raid has relied primarily on the permissive view of Art. 366. Moreover.”38 The restrictive school.” International Law. 848–68. Harris. These schools. which lasted only for 30 minutes. Uganda. this is very different from claiming that the primary obligation is itself inherently flexible. 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.” International Law.. and the arguments presented by the states actually using force support the restrictive interpretation of the provision. however. J. Hargrove. although there have been many examples of the use of force in the last 50 years. 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. it may go too far. International Law.40 Thus.39 It is worth noting here that despite their differences on the nature of the prohibition of the use of force. however. for details. 299. Cases and Materials. Moreover. The net effect. 38 . 40 (1991).

states had been forwarding the justification of self-defence long before that and.”41 Further. Ibid. pre-emptive strikes were considered legal. an American ship. while those of the restrictive school deny this claim. 848. Jennings. In other words. several rules were developed for the right of self-defence in the form of customary international law. the armed forces “did nothing unreasonable or excessive. We will first discuss the scope of the customary right of self-defence. thus. “The Caroline and the Mcleod Cases. since the act justified by the necessity of self-defence must be limited by that necessity and kept clearly within it. Thus. See also. 82. the threat was so overwhelming that it could not be averted by other alternative means. 3. 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.THE SCOPE OF SELF-DEFENCE 167 defence. Force was used against an immediate threat. R. after entering the United States. leaving no choice of means and no moment for deliberation. under customary international law the use of force in self-defence was justified if the following conditions were fulfilled: 1. while it was berthed in an American port and then sent her over the Niagara Falls. self-defence was not confined to situations of armed attack only. The US officials caught some of the persons involved in the incident. overwhelming. 2. Cases and Materials. Finally.” American Journal of International Law. British military forces caught The Caroline. a state could claim self-defence if her 41 42 Harris. and force used was proportionate to the threat faced. Scholars generally agree that The Caroline incident clearly defined this right. . However. he pointed out that it had to be established that.”42 This statement defines the scope of the customary right of self-defence and mentions the essential conditions for the exercise of this right. instant. If these conditions were fulfilled. Y. In 1837. 32 (1938). the then US Secretary of State Daniel Webster indicated that Great Britain had to show “a necessity of self-defence. 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. Moreover. When the British attempted to release one of these persons. force could be used even before the actual armed attack by the adverse party.

The permissive school asserts that the use of the word “inherent” in Article 51 means that the pre-Charter customary right had remained intact. There is an even more serious controversy about the implications of the reference to occurrence of attack in Article 51. It further contends that Article 51 was never meant to provide a comprehensive definition of the right of self-defence. Green Hackworth. It was the USA. debated the scope of the prohibition under Article 2 (4). 848–68. “Use of Force for the Right of Self-determination in International Law and Shar┘‘ah: A Comparative Study” (LLM thesis. Legal See. therefore. Dixon. 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. 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. necessary to ascertain if the customary right of self-defence survived the UN Charter.44 It is. Cases and Materials. 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. 2006). there are several examples of states resorting to the use of force on the plea that they had the customary right of self-defence. 48–61. Harris.43 Although no state. the restrictive school claims that the word “inherent” merely means that the right of self-defence is an inalienable right of states. for details. 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. The travaux preparatoires of the San Francisco Conference suggest that there was a heated debate on the wording of Article 51. property and rights guaranteed under international law — would face actual or threatened attack.” this leads the restrictive school to assert that the Article has qualified the customary right of self-defence. International Islamic University. until the Security Council has taken measures necessary to maintain international peace and security.168 MUHAMMAD MUSHTAQ AHMAD interests abroad — such as nationals. As Article 51 uses the phrase “armed attack. except Israel after the Entebbe incident. 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. 43 . 299–308. which insisted that the phrase “if an armed attack occurs” must be put in Article 51. International Law. this Article has been interpreted differently by the permissive and the restrictive schools.” Like Article 2 (4) of the UN Charter. 44 Thus. As opposed to this. Muhammad Mushtaq Ahmad. See also. territory.

warned that making self-defence conditional upon the occurrence of an armed attack “greatly qualified the right of self-defence. if ever. arguing for the right of pre-emptive self-defence Louis Rene Beres and Yoash Tsiddon-Chatto say: “Indeed. Governor Harold Stassen. the stipulation of ‘occurrence’ has caused more concern in the contemporary world. Pre-emptive Self-defence in the Post-UN Charter Law Anticipatory self-defence was legal under the pre-Charter customary international law. 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. the Deputy Head of the US delegation. Center for International Studies.”46 Another member of the US delegation Mr Gates posed a question regarding the freedom of USA.” See. 4 (2000).htm> (Last visited: December 1. 47 Ibid.”47 Indeed. Even later. the US President George W.”45 However. Director. Franck. another classical writer on international law.” Emmerich de Vattel. 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. New York City Law School. We will discuss this issue in some detail.48 This issue became more important after the declaration of the so-called “Bush Doctrine. asserted: “The safest plan is to prevent evil. 2009). 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. “When. We did not want to exercise the right of self-defence before an armed attack had occurred. Similarly.” <http://www.org/m_online/jun97/beres1. and asserted that it was her right to do so. 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. “In Support of Anticipatory Self-defence: Israel. in case a fleet had started from abroad against an American republic but had not yet attacked.THE SCOPE OF SELF-DEFENCE 169 Adviser of the US State Department. Franck. Thomas M.” In September 2002. 48 Ibid. this right is especially compelling today. 46 Ibid. refused to yield. he argued that “this was intentional and sound. A nation has the right to resist the 45 . where that is possible. the so-called “father of international law.49 All those who still believe in the legitimacy of this right Thomas M. 368. May States Deploy Military Force Without Prior Security Council Authorization?” Singapore Journal of International Law. 49 Hugo Grotius.free man. under this provision. 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.” declared it lawful “to kill him who is preparing to kill. Osiraq and International Law.

It may even anticipate the other’s design. “International Law and the Pre-emptive Use of Force against Iraq.51 In other words.” Denver Journal of International Law and Policy.” As is obvious.” (See David M.. and to use force . 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.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.” Franck. 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. For all practical purposes. and perhaps fatal. that states would enter into the arrangement necessary to give the Council an effective policing capability. 27 (1999). Article 43 provided for agreement between the UN and its members. could not materialize because of the Cold War between the super powers. 2009). Two important factors generally cited in this regard are the Cold War politics and the emergence of sophisticated weapons of mass destruction (WMD). Since that system has failed. as quoted in Guy Roberts. Hence. Article 39 authorizes the Security Council “to determine the existence of any threat to the peace. our conclusion is that reference to the pre-Charter law can be of little help. “Military Force without Prior Security Council Authorization?. it is the Charter that now governs the law relating to the use of force. however. 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. that the Security Council could be expected to make speedy and objective decision as to when collective measures were necessary.” (Statement by Sir Humphrey Waldock. <http://stuff. Franck says: “This noble plan for replacing state self-help with collective security failed because it was based on two wrong assumptions: first.170 MUHAMMAD MUSHTAQ AHMAD base their argument on this customary notion of self-defence. However. Thus.edu/contrib/wikileaks-crs/wikileaks-crs-reports/RS21314. blow.edu/afs/sipb. For this purpose.. 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. This. 51 Under the original scheme. 2002). lest it should run the risk of becoming itself the aggressor. “The Counter-proliferation Self-help Paradigm: A Legal Regime for Enforcing the Norm Prohibiting the Proliferation of Weapons of Mass Destruction. Second.” Congressional Research Service Report for Congress (September 23. . 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..pdf> (Last visited: December 1. not to act upon vague and doubtful suspicions. breach of the peace. being careful. the injury another seeks to inflict upon it. against the aggressor.mit.. the system of Collective Security has been working without Article 43. 513.” 362. Ackerman.. states should be given the right of anticipatory self-defence. mit. In this case. 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. however. or act of aggression.

369. available in exceptional circumstances. On the other hand.THE SCOPE OF SELF-DEFENCE 171 authority to determine the necessity of pre-emptive strike lies with the Security Council. 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. although states sometimes do resort to such strikes on the basis of the doctrine of necessity. While this may be true. 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. 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. . that exceptional situation should be the relatively objective and relatively easily established scenario of an armed attack against state territory. Moreover. 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. After examining the scope of self-defence in the international law as developed in the last three centuries.” Ibid. As is obvious. 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. states cannot take the risk of delaying the attack till the issue is determined by the Security Council. This argument only proves that sometimes pre-emptive strikes become necessary. in their subjective assessment. The Charter. however. allows the UN Security Council to strike pre-emptively if and when it determines a threat to international peace. 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. they feel that a threat to their security exists that can only be averted by pre-emptive strike. it does not prove that such pre-emptive strikes are allowed by the Charter. 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. 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.” International Law. 302. if states are given this license it will most probably be abused. 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..

In this regard. but has behaved in an unbearable manner. According to these scholars. particularly in the post-United Nations Charter law. Mawd┴d┘’s views should have been examined before those of Hamidullah and Zu╒ayl┘. The Muslim Conduct of State. 153–61. there are various situations.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. and idealistic wars. considers the following as “lawful wars”: 54 1. The continuation of an existing war. 5. he considers the attack by the Prophet on the Jewish tribes of Khaybar as “an instance of nipping war in the bud. 57 Ibid. and the final part on neutrality has five chapters. 153 and 182. discussion on peaceful relations are covered in six chapters. peace. These situations show that the scope of self-defence in Islamic law is much wider than that found in international law.”57 It means that he also believes in some sort of pre-emptive self-defence. Hamidullah.56 He divides “defensive” wars into two sub-categories: depending upon whether the enemy “(a) has invaded the Muslim territory. 54 . the third part devoted to hostile relations is the longest part as it contains twenty-six chapters. 3. Hamidullah divided his work into four major parts: introduction. Hamidullah’s notion of defence is more in consonance with the notion of defence in the contemporary international legal regime. Hence. we disregarded the historical sequence. he quotes the examples of wars of Ban┴ ’l-Mu╖═aliq. sympathetic wars. 4.. secondly. Muhammad Hamidullah and Wahbah al-Zu╒ayl┘. Thus. hostility and neutrality. The introductory part contains eleven chapters. one of the pioneers in the field of Islamic international law in modern times. Khaybar and ╓unayn. 58 Ibid. comparatively speaking. 56 Ibid. which legitimately form part of self-defence. 182. but we preferred to examine Mawd┴d┘’s views after analyzing the standpoints of the other two scholars for two reasons: firstly. for the sake of better understanding. The discussion on “lawful wars” is found in the third part of the book on hostile relations.”58 Similarly.172 MUHAMMAD MUSHTAQ AHMAD perceive this problem..” In this regard. or (b) has not actually invaded. 2. punitive wars. 59 Ibid. much wider than that of Hamidullah and Zu╒ayl┘. Mawd┴d┘’s notion of defence is. defensive wars. one of which is “preventive war. 154.59 In the strict historical order. we will analyze the views of three eminent scholars Sayyid Ab┴ ’l-A‘l┐ Mawd┴d┘. he also explicitly mentions that declaration of war is not necessary in certain cases. 55 See..

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. 156. the famous contemporary Syrian jurist.. (Emphasis added). The former can be designated as “civil wars” or “internal conflicts”65 and as such included in the meaning of defence. Ibid. the ruler decides that their ma╖la╒ah (interest) requires so. As far as the “punitive wars” are concerned.” 389–98. However. legally speaking. if on the basis of strategic factors. he uses the phrase “idealistic wars” to denote wars fought for uprooting “godlessness and association with God in His Divinity.THE SCOPE OF SELF-DEFENCE 173 By “sympathetic wars” Hamidullah understands providing military support to Muslims who are target of tyranny and persecution in foreign lands. rebels and those who refuse to pay zak┐h as well as those who committed a breach of the treaty of peace. Rather. Some of the critical reviews on that edition prompted the author to clarify his position on the issue of defensive jihad.. 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. In discussing the ratio of jihad in Islam. violation of a peace treaty is equivalent to an act of aggression. “Public International Law and Islamic International Law. 65 The Muslim Conduct of State. 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. Muslims must do so without committing any transgression or injustice. The latter category of wars. Zu╒ayl┘. many of them also consider “sympathetic wars” as part of defensive wars. as these two acts are prohibited by the general 60 61 . I did not mean that it was confined to defence only. according to a majority of the modern Muslim scholars it is only “idealistic wars. Thus. 157.” which cannot be included in the scope of self-defence.66 He argues that jihad can never be termed as Ibid. these can be further divided into two sub-categories: (1) wars against hypocrites. 155.”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. war tactics and determination of the overall planning of war against the enemy.. rebels and those who refuse to pay zak┐h. for instance. 64 That is why most of them consider expeditions of the Prophet (peace be on him) against Makkans as instances of self-defence. 66 The first edition of the book └th┐r al-╓arb appeared in 1963. Thus. 178–87. I believe that sometimes first strike becomes permissible for Muslims. 63 Ibid.”61 Finally. can also be included within the meaning of defence because. and (2) wars against those states which committed breach of the treaty of peace with the Islamic state.”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. apostates.64 As we shall see below. as we shall see below. Munir. apostates.60 while he gives the title of “punitive wars” to those wars which were fought “against hypocrites. See. 62 Ibid.

We also hear references to ‘rogue states’ harassing ‘human rights activists. └th┐r al-╓arb f┘ ’l-Fiqh al-Isl┐m┘ (Damascus: D┐r al-Fikr. 124–25. 13. freedom and democracy’ — are deemed so important that governments are toppled and states are occupied in order to promote these values. 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.’ This so-called . launched a series of invasions under the notion of ‘regime change’ in various parts of the globe for ‘promoting democracy. the US President from 1980 to 1988. Mushtaq.” 7–22. This situation may both be termed as that of “defence” as well as of “offence.’ His successor George Bush. In the contemporary international legal regime. If this has been the case. while jihad is for ensuring justice and the rule of law. the objective of jihad must be to achieve a higher humane goal. 68 └th┐r al-╓arb.’ or denying ‘equal rights’ to minorities or women. 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.S. Furthermore. However. transgression and injustice. lasting justice and positive and real peace. Ronald Reagan. 70 Ibid. This may seem strange today because of the paradigm shift referred to above.”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. other ‘values’ — such as the values of ‘human rights.71 principles of Islam. pronounced a ‘relentless’ war. 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.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. 71 Ibid.. Likewise U. the US President from 1989 to 1992. invaded Panama in 1989 to kidnap the ‘undemocratic’ and ‘criminal’ General Noriega. even ‘crusade. 93.’ against ‘terrorism. 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. 13. “The Notions of D┐r al-╓arb and D┐r al-Isl┐m... Israel considers her attack on Arabs as defence of her interests. 128. 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. 1981). His son George Walker Bush. When a non-Muslim state transgresses over preachers of Islam or denies the right to preach Islam or persecutes those who embrace Islam.” for this term carries the meaning of illegality. Moreover. 69 Ibid. Zu╒ayl┘ enumerates the following three situations: 1.174 MUHAMMAD MUSHTAQ AHMAD “offensive. the US President from 2000 to 2008. He also invaded Iraq in 1991 to ‘liberate’ Kuwait. See for details.” Wahbah al-Zu╒ayl┘.

’ These should not be deemed as isolated instances or imperialistic doctrines of the super powers. 91 and 13. 91. he admits that in certain cases “pre-emptive” strike becomes necessary. Mawd┴d┘ also believed that the division of defensive and offensive wars could not be accurately applied to the Islamic doctrine of jihad. the International Court of Justice affirmed the right of the states to self-defence against indirect aggression. In a nutshell. which forms one of the bases for the UN Security Council authorising the use of force against a state.. 74 Ibid. Today. supporting Muslims who are target of tyranny and oppression in foreign territories on humanitarian grounds. because of the paradigm shift. 72 └th┐r al-╓arb..’ The whole world has been divided into ‘us’ and ‘them’ and values are also designated as ‘ours’ and ‘theirs. 94. the threat to ‘international’ peace seems a valid basis for waging war. As opposed to this.” although he does consider these to be lawful wars. promoting democracy or preserving international peace). .THE SCOPE OF SELF-DEFENCE 175 2. 3.76 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. Zu╒ayl┘ does not accept the paradigm shift from Muslims/nonMuslims to nationals/non-nationals. In other words. 125.75 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. 93. It is neither offensive and destructive nor confined to mere defence of the territory and interests of the state. Zu╒ayl┘ asserts: The Islamic doctrine of jihad has its own peculiar nature.74 Moreover. The term “indirect aggression” is used for a state’s providing military support to a secessionist movement in another state. 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. 73 Ibid. In the famous case of Nicaragua v USA.72 and cases of actual attack on the Islamic state. 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.. 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. This is because we also have the notion of ‘threat to international peace’ in the UN Charter. 76 Ibid. 75 └th┐r al-╓arb.73 Zu╒ayl┘ also supports the right of self-defence in case of “indirect” aggression against the Islamic state or Muslims. That is why he classified jihad into defensive (mud┐fi‘┐nah) and “reformative” (mu╖li╒┐nah).

85 and Ibid. Mawd┴d┘ separately mentions providing military support to a persecuted Muslim community in a foreign territory.83 removing hurdles that prevent the propagation of Islam. Al-Jih┐d f┘ ’l-Isl┐m. We will. 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. Mawd┴d┘’s concept of defence. statehood and recognition in Islamic law. Retaliation of tyranny and persecution..77 There are several situations which he includes either in the scope of fitnah or that of fas┐d. 119–120. 5. 1974). 77–80. al-Jih┐d f┘ ’l-Isl┐m (Lahore: Id┐rah Tarjum┐n al-Qur’┐n. according to Mawd┴d┘. The other three classes of enemy persons are: non-Muslim belligerents. 80 See. includes removal of hurdles from the way of the propagation of Islam. but it seems that he includes this in “idealistic wars. 105–17.”82 Hence. punitive action against those who have committed a breach of peace treaty. therefore. 84 Zu╒ayl┘ does not refer to the issue of rebellion in his work. 4.81 Hamidullah does not explicitly mention this. those who are subject to persecution raise arms against their oppressors. 82 Ibid. apostates.84 ensuring internal security and peace by fighting against those who cause deterioration in the law and order situation. confine our analysis to Mawd┴d┘’s notion of defensive wars. Like Zu╒ayl┘. Mawd┴d┘ also includes “sympathetic wars” in self-defence. following are the instances of defensive wars: 1. combating rebellion.79 As such these instances are beyond the scope of the present paper. 178–87. 83 That is to say. like that of Zu╒ayl┘. 3.” Mawd┴d┘ explicitly includes in “defensive wars” what Hamidullah calls as “punitive wars. “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. 63–66. which prescribe a specific Divine punishment for the opponents of the Prophet (peace be on him) from among his immediate addressees.176 MUHAMMAD MUSHTAQ AHMAD fitnah (persecution) and fas┐d (corruption) in the world. 77 78 . Ibid. Moreover. 78 These situations cannot be considered instances of defensive wars by any stretch of meaning.. 2.80 Moreover. highwaymen and pirates. it is not compatible with the ratio of war in Islam being mu╒┐rabah (aggression). 81 Ibid. 62–63 and 66–77. 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. while Hamidullah mentions rebels as one of the four classes of “enemy persons” The Muslim Conduct of State.” Ab┴ ’l-A‘l┐ Mawd┴d┘. 104–05... 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 indepth analysis of this issue in a separate study dealing with personality.

supporting Muslims in foreign territories when they are targets of tyranny and persecution. 1: 2 (1994). 61 ff. distinguished rebels from bandits and. while rebellion is deemed a “non-international” armed conflict and some part of the law of war is applied to it. Yahya Michot.88 However. 188–89. and perhaps the most contentious. like that of Zu╒ayli. while Hamidullah’s concept of defence is confined to defence of state in accordance with the norms of the contemporary international legal regime. See for a good analysis of this issue: Sadia Tabassum. namely. 141–187. See Khaled Abou El Fadl. See. .” International Review of the Red Cross. which Mawd┴d┘ and Zu╒ayl┘ include in defence. 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. for the English translation of the text of the verdict and a detailed scholarly analysis of the issue. 2006). Mawd┴d┘ also believes in the legality of pre-emptive selfdefence.” Islamic Law and Society. on the other.86 Among these various instances of wars. “Combatants.” As such. the scope of jihad from that of the ╒ud┴d. 1–19. The Muslim Conduct of State. the law of armed conflict is not applied to such operations. Hamidullah mentions rebels separately from “highwaymen and pirates” who are dealt with under criminal law. This leads to overlapping and confusion between the spheres of criminal law and the law of war. on the one hand. It may be noted here that the contemporary international legal regime also does not deem the law enforcing operations as instances of “armed conflict. category. 93: 881 (March 2011). we will now turn to the most important.THE SCOPE OF SELF-DEFENCE 177 6. Mawd┴d┘’s notion of defensive jihad includes the law enforcing operations against criminals and bandits. This is more in consonance with the approach of the fuqah┐’ who. 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. Furthermore. We noted above that although Hamidullah does not include it in defence. 86 Al-Jih┐d f┘ ’l-Isl┐m. On the issue of Muslims’ residence under non-Muslim rule. Muslims under Non-Muslim Rule: Ibn Taymiyya (London: Interface Publications. many of these jurists appreciated the fact that permanent residence outside d┐r al-Isl┐m may at times become recommended or even 85 In other words. encompasses defence of the ummah as well as defence of the d┘n. Supporting Muslims in Foreign Territories Muslim jurists generally disapproved of Muslims permanent residence outside d┐r al-Isl┐m. 87 The reason is obvious: Mawd┴d┘’s notion of defence.87 The issue that will be examined now is whether such use of force can be deemed lawful under the contemporary international legal regime. Not Bandits: The Status of Rebels in Islamic Law. “Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries. he deems it to be an instance of lawful wars. providing support to Muslims who face persecution in foreign territories.

” Ibid. Sanctuary also plays a very important role in insurgency.” 143–164. It is not confined to military-related resources. He gives valuable details of the juristic discourse on the doctrines of hijrah (migration). which justify recourse to violence. 114. However. the success or failure of all rebellions after World War II 89 90 . then it is perfectly right because He is the Creator of human beings and He has the right to test His creatures. “Islamic Law and Muslim Minorities. Mawd┴d┘ explains the term fitnah in the following words: “Fitnah is a wider term. But if they desist. Abou El Fadl focuses on three issues: (1) the legal and moral justification of Muslims residing temporarily or permanently in non-Muslim territories. D┐r al-Ma‘rifah.90 The most important issue for our purpose is the obligation of the Muslims of d┐r al-Isl┐m towards these people.” although the former is much wider in its scope. d. “Fight against them until persecution (fitnah) ends and the way prescribed by Allah prevails.178 MUHAMMAD MUSHTAQ AHMAD obligatory. Combating such persecution is specifically mentioned as the purpose of jihad in the Qur’┐n. for instance. 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.. al-Umm (Beirut. Non-military material support includes financing. It may take the form of praising the courage of the insurgents. am┐n (safe conduct) and ‘i╖mah (legal protection). Professor Bernard Fall. it becomes obligatory upon the Muslims of d┐r al-Isl┐m to provide them with moral. 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. 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. Mu╒ammad b. In this last sense of the word fitnah it is almost a synonym of the English word “persecution. 106. See. be it through the things that a person likes or through fear of damage and troubles.” Al-Jih┐d f┘ ’l-Isl┐m.92 Sometimes it becomes obligatory to provide military support to Abou El Fadl. observes: “In brutal fact. 115..89 Thus. Bard E. However.” (Qur’┐n 2: 193). providing basic necessities and supply or use of radio stations as well as political. Moral support denotes private and public statements that “indicate sympathy” for those under persecution in general terms. n. and that is why wealth and offsprings have been called ftinah. these jurists had to answer the legal questions pertaining to the interaction of these Muslims with their host state. Moral support may be in the form of attacking the oppressors for denying political rights. 4: 161. then know that hostility is directed only against the wrong-doers. diplomatic and material support as well as sanctuary. 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’. 116. which encompasses several moral crimes… Figuratively. and (3) the duties these Muslims owe to Islamic law and to the legal system of the host state. Idr┘s al-Sh┐fi‘┘. 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. If this test is from God. There may be emphasis on grievances. (2) the relationship of these Muslims to d┐r al-Isl┐m. The purpose of this test is to spiritually develop them. 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. Material support consists of tangible resources that are either used on behalf of the insurgents or given to them directly. Ibid. 111–24. ideological and administrative training. it means anything that tests human beings. O’Neill.. an authority on liberation struggles and insurgencies. Insurgency and Terrorism: Inside Modern Revolutionary Warfare (New York: Brassey’s. 1990). The jurists generally agree that if Muslims are persecuted91 in a non-Muslim state.). Ibid. 92 For details about different kinds of support to oppressed people in foreign territories see.

Nyazee. recommended. Theories of Islamic Law. 257–69. 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. 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. it is incumbent on you to provide help unless it be against a people with whom you have a pact. 294. 44: 3 (2005). 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. “persecution” is the cause (sabab) of the rule of obligation. 94 See. abominable. And should they seek help from you in the matter of religion. probably obligatory or definitively obligatory. 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.THE SCOPE OF SELF-DEFENCE 179 those under persecution. you are under no obligation of alliance unless they migrate. 103–107. Jihad. However. Similarly. 4: 75) At another place. and appoint for us from Yourself a helper. the Qur’┐n qualifies this obligation with an important stipulation: that Muslims must not violate the terms of a peace treaty. “Islam and Peace: A Survey of the Sources of Peace in the Islamic Tradition. 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. 327–408. 1963). 93 Ibrahim Kalin. Fall. and it will not be sufficient to provide mere moral or diplomatic support. 8: 71–72.94 Hence. bring us out of this land whose people are oppressors and appoint for us from Yourself a protector. condition and obstacle.” Islamic Studies. Street without Joy (Harrisburg: Stackpole Books.93 Moreover.” Bernard B. Muz┐╒amat awr Bagh┐wat. for a detailed analysis of the condition of capability for the obligation of jihad. if any: And those who believed but did not migrate (to D┐r al-Isl┐m). women and children — who pray: Our Lord. (Qur’┐n. See. 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. 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. (Qur’┐n. disapproved. permissible. Thus. Mushtaq. Now. . 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. one of the conditions of the obligation of jihad is “capability” (isti═┐‘ah).

is cited as an example of a state fulfilling all the conditions for protecting its nationals abroad. 4. 3.96 The United States provided the same justification during the invasion of Grenada in 1983. International Law. 5 (1976/77). which was to remain in force till 1969 but was made ineffective after the Government of Egypt nationalized the Suez Canal.95 For instance. 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. Dixon.180 MUHAMMAD MUSHTAQ AHMAD 1. 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. 2. The “swift surgical strike” of the Israeli commandos in 1976 at the Entebbe airport. Harris. 2. force must be the weapon of last resort. 861–68. Uganda. France. Customary international law allowed the use of force for this purpose only if the following four conditions were fulfilled: 1.” International Relations. in the 1956 Suez Canal crisis. This whole operation lasted just 53 minutes out of which the See for details. Cases and Materials. 307 95 . Michael Akehurst. in foreign territories under the pre-Charter customary international law. We will examine both these possibilities in detail here. 96 France and UK claimed rights under the lease agreement of 1869.97 These are essentially the same conditions which are deemed necessary for the right of customary self-defence discussed above. The “host” state must be unable or unwilling to protect the nationals. 97 Dixon. to rescue the passengers and kill the hijackers. 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. “The Use of Force to Protect Nationals Abroad. International Law. the nationals must be in serious and immediate danger of life-threatening harm. Israel claimed the right to protect her right of passage through the Canal. the bombing of Libya in 1986 and of Baghdad in 1993. 307–08. 3. or defence means defence of the ummah and not that of the state. 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”.

Moreover. M. and that disbelief in Islam is not the cause of war. It is against him that the jihad par excellence is waged… The unsubjugated unbeliever is by definition an enemy. 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 alIsl┐m and the legal status of the residents of d┐r al-Isl┐m. 99 See for a detailed analysis of the legal consequences of this incident. although they were quite different from the Entebbe incident. 6 (1976). the unbeliever who submits to Muslim rule. What is not agreed upon. While one can generally agree with his classification but his description of the legal status of ╒arb┘ cannot be accepted at all. Green. in principle though not always in practice. 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. L. as explained below. C. there is the musta’min. Shaw. 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. musta’min and dhimm┘. 312. a ╒arb┘ who lives for a while in a Muslim country as a temporary visitor.” and is designated as ╒arb┘… He is sharply differentiated from the dhimm┘. “the House of War. 864–68. 77. is whether this right still exists. 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. it certainly does not solve the issue of providing military support to “Muslims” in foreign territories. 1 (1978). eleven Ugandan Mig-17 fighter planes were also destroyed. 98 . Harris.THE SCOPE OF SELF-DEFENCE 181 assault took 30 minutes only. the elder brother of Benjamin Netanyahu. The fuqah┐’ divided non-Muslims into three categories: ╒arb┘. Cases and Materials. In an earlier essay. “The Notions of D┐r al╓arb and D┐r al-Isl┐m. 308. He is part of the d┐r al-╒arb. “Rescue at Entebbe: Legal Aspects. by far the most important. we have refuted the basic premises of this claim: that the division of the world into two domains does not necessitate war. He says: “Of these four. the unbeliever is.98 In the operation. and pays the poll tax to the Muslim state… Between the ╒arb┘ and the dhimm┘. Indeed. even if the more traditional rescue missions are.” International Law.101 A ╒arb┘ was a non-Muslim who permanently resided outside It was later named as the “Yonatan Operation” in the memory of Lieutenant Colonel Yonatan Netanyahu. who was the only commando who was killed in the operation. the bandit. 101 According to Bernard Lewis. forty-five Ugandan soldiers and all the hijackers were killed along with three hostages.” The Political Language of Islam. accepts Muslim protection.99 That the right to protect nationals and property abroad existed in the preCharter law is not disputed.” Israel Yearbook on Human Rights. N. however. 232. “Some Legal Aspects of the Entebbe Incident. Islamic law classifid the enemy into four categories: the unbeliever.100 While such use of force to protect “nationals” abroad may or may not be acceptable in the contemporary international legal regime. 5–37.” Jewish Law Annual. the rebel and the apostate. See also.

his conduct was interpreted as showing his willingness to get permanently settled in d┐r al-Isl┐m. 133–58. 2003). except the punishment for drinking wine. ‘Al┐’ al-D┘n Ab┴ Bakr b. 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. 10: 91. eds. Sometimes a ╒arb┘ could convert to mu╒┐rib in the same way as an alien can become “alien enemy. his position would change to that of a musta’min. as Lewis asserts. conquest was one of the lawful means to acquire the title of a territory and its people.104 A ╒arb┘ could not enjoy the protection (‘i╖mah) of Islamic law because the courts of the Islamic state lacked jurisdiction on him. They were people with whom Muslims had concluded a peace treaty (muw┐da‘ah).105 There was another class of non-Muslims called ahl al-muw┐da‘ah. For example. [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). rather..106 Their legal position was like that of the musta’mins and they had the same This did not mean that he was deemed an “enemy” by definition. Rather. eds. 2003). certain legal duties were imposed only on dhimm┘s and not on musta’mins. he had to conclude the treaty of dhimmah with the ruler. 106 See for more details: Muhammad Mushtaq Ahmad.” Ab┴ Bakr Mu╒ammad b. 103 For example. al-Mabs┴═ (Beirut: D┐r al-Kutub al-‘Ilmiyyah. Principally. 2008). Bad┐’i‘ al-╗ana’i‘ f┘ Tart┘b al-Shar┐’i‘ . 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. the law regarding the ╒ud┴d punishments was not applicable to musta’mins. See.” Ibid. 214. 104 This was because under the prevalent legal order at that time. 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┘. “Peace Treaties and the Conduct of Jihad” in Nedzad Basic and Anwar Hussain Siddiqui. 1997). Ibid. this rule will not apply in the contemporary legal order. 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┘. 102 . Rather.103 People of the conquered territory were also given the status of dhimm┘s. this term is equivalent to “alien” in common law. 321. Ab┘ Sahl alSarakhs┘. S┴d (Lahore: Islamic Publications.” See. 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┘. Mawd┴d┘. It was only in the aftermath of the First World War that the international legal order outlawed this mode of acquiring territory. If he chooses to become a dhimm┘. Mas‘┴d al-K┐s┐n┘.182 MUHAMMAD MUSHTAQ AHMAD d┐r al-Isl┐m. ‘Al┘ Mu╒ammad Mu‘awwa╔ and ‘└dil A╒mad ‘Abd al-Mawj┴d (Beirut: D┐r al-Kutub al-‘Ilmiyyah. although dhimm┘s could be subjected to ╒ud┴d punishments.102 A ╒arb┘ could enter d┐r al-Isl┐m only after taking permission or quarter (am┐n) from the Muslim authorities. 105 However. Rethinking Global Terrorism (Islamabad: International Islamic University. In this way. Hence. A musta’min was protected by the law of the land in the same way as the rights of a dhimm┘ were protected. Sometimes. he remains a musta’min “because by this marriage. he was required to fulfil certain conditions. However. 9:187–189. or does not leave the territory after the time prescribed in the notice. he does not thereby become a permanent resident of our d┐r.

as Sarakhs┘ says.110 there were certain provisions of Islamic law. prevented the courts of d┐r al-Isl┐m from taking cognizance of the disputes that arose outside d┐r al-Isl┐m. as we have shown elsewhere. the municipal Al-Sarakhs┘.’ 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 the opinion of the Court. although they were not required to get fresh quarter (am┐n) before entering d┐r al-Isl┐m. Brother Daniel could not get citizenship under the Law of Return. However. 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. 10: 89.” 108 As far as Muslims are concerned. “the obligation to support is primarily upon those present in d┐r al-Isl┐m. In 1958.THE SCOPE OF SELF-DEFENCE 183 rights and obligations. which later comes under the domination of Muslims. if war breaks out between a non-Muslim state and an Islamic state. Who’s Who in Jewish History (New York: Routledge. Hence.” Hence. Any Muslim at any time could come to d┐r al-Isl┐m and he could stay there indefinitely.” AlMabs┴═. 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. that is. the term Jew should be held to have the everyday meaning that an ordinary citizen would give to it. a Muslim was never accorded the status of the musta’min. they were not required to get am┐n before entering d┐r al-Isl┐m. 109 One may compare this rule with the Law of Return in Israel. as being inconsistent with professing the Christian faith. 90–91. 10: 62.107 If any among them entered another non-Muslim state and Muslims captured that territory. 107 108 . Muslims of d┐r al-Isl┐m were under an obligation to support Muslims under persecution outside d┐r al-Isl┐m. Ibid. 111 For instance. He applied for Israeli citizenship on the basis of being a Jew. 1995). Al-Mabs┴═. In 1962.” 5–22. the doctrine of territorial jurisdiction. the Muslims present in that non-Muslim state have no legal obligation to support the Islamic State because. Even then. In 1970. There were no specific rules for awarding “citizenship” to Muslims. the Law of Return. “For purposes of this specific law. John Comay. In other words. especially as expounded by the ╓anaf┘ jurists. he was sent to a monastery in Haifa. was a secular law and it had to be interpreted in accordance with the intention of the Legislature. Rather. 110 “The Notions of D┐r al-╓arb and D┐r al-Isl┐m. The Israeli parliament enacted this law in 1950. the Israeli Supreme Court decided an interesting case about the identification of a ‘Jew. Muslim were bound to respect his rights even there because “his position is like that of a dhimm┘ who enters a foreign territory. although the Minister of Interior can refuse any such application on the basis of some stated grounds. which were applicable only to those Muslims who resided in d┐r al-Isl┐m. He became a naturalized citizen. The Court declared that under the religious law of Judaism even an apostate does not cease to be a Jew.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.111 Moreover. It lays down the fundamental principle that every Jew has a right to settle in Israel.

” This concept is in conflict with the idea of the ummah. 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. namely. Firstly. the concept of the ummah itself is the basis of this right in Islamic law. International Law. jurists.184 MUHAMMAD MUSHTAQ AHMAD law of d┐r al-Isl┐m was not applicable to Muslims residing outside d┐r al-Isl┐m. the Gulf War 1991 was justified as there was “attack” on the states dependent on Kuwait’s oil. there remains only one possibility.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. 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. but supporting them was a legal duty under the international law of Islam. there are two problems with this doctrine. 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. that this support was based on the concept of the defence of the ummah. The problem with this solution. What was the basis of this duty? We have negated the possibility of considering them as “nationals” of d┐r al-Isl┐m.”113 This doctrine is the basis of different regional alliances. the SEATO and the Warsaw Pact. however. Rather. 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 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA). This may apparently seem unrealistic but as Dixon says. the right (or duty) of the defence of the ummah is not derived from a treaty between the Muslim states. 112 . however. is that it runs counter to the very basis of the contemporary international legal regime based on the concept of “nation-state. Hence. which in essence is a trans-national entity. The reason is that the majority interprets the right of self-defence narrowly while Jennings interprets it quite widely in the customary nonArticle 51 sense. 1984 ICJ Rep. From the perspective of Islamic law. 113 Dixon. non-parties cannot enjoy the benefits of this arrangement. This view was expressed by a majority of the judges in the Nicaragua v USA. 392. A majority of international lawyers. then. such as the NATO. This doctrine can become a tool for the revival of the concept of defence of the ummah. little practical difference in these views. As the right of collective self-defence is based on pacts between states. however. There is. According to this view. “it does prevent a third party from taking military action merely because it thinks that collective self-defence is justified. 303. How. Having said that.

Lillich. “Humanitarian Intervention” in J. Moore. “Forcible Self-help by States to Protect Human Rights. unless we again read Art 2 (4) very literally or assume that it has been “remodeled” by some overriding state practice. or at least seriously compromise its freedom of action (as with Serbia). 1620. 309. against civilian population. A humanitarian catastrophe may also constitute a The paradigm shift to which we referred earlier is also quite obvious here. the doctrine of collective self-defence cannot justify such use of force. The Muslim ummah is not synonymous to Muslim states. 1998. The Great War for Civilisation: The Conquest of the Middle East (London: Harper and Perennial. 114 . Even as late as 1915. International Law. 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. 308–10. 2005). 1974).” See. Indian intervention in the former East Pakistan in 1971. 117 Dixon writes: “Indeed. 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. it is equally true that if such interventions are not allowed. “Military Force without Prior Security Council Authorization?” 371–76. Today. N. results would be disastrous in certain cases. 116 Thus. the phrase “crimes against humanity” is used as a generic term for atrocities committed. See Article 7 of the Statute of the International Criminal Court. however.” Michigan Law Review. Law and Civil War in the Modern World (New York: John Hopkins. 872–73. generally in peace time.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. Cases and Materials. is more serious. which interprets the ban on the threat and use of force quite literally. the European Allies accused the Ottomans of committing “crimes against Christianity” by allegedly committing genocide of the Armenian Christians. in order to stop the violation of human rights.THE SCOPE OF SELF-DEFENCE 185 contemporary international legal regime. however. Later. See also. 115 See. Ian Brownlie. ‘humanitarian intervention’ runs directly counter to the whole purpose of Art 2(4) and many General Assembly resolutions adopted in the last 50 years. If such a community faces persecution and an Islamic state wants to support it militarily. although there are some other explanations as well. Robert Fisk.116 Even the permissive school.. Dixon. This is especially true when we realize that it is nearly always necessary to remove the offending government. Harris. R. 82 (1984). the phrase was changed to “crimes against humanity. Many Muslim communities live as minorities in non-Muslim states. The second problem. and Franck.” International Law. for details. has serious doubts about the legality of such interventions. Tanzania’s intervention in Uganda in 1979 and NATO’s widespread bombing of Serbia in 1998/99 were “justified” under this doctrine.117 However.

A/54/PV 4. in those dark days and hours leading up to the genocide. 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. Article 41 provides for the so-called soft sanctions. such as economic and arms embargo. see. 313–24. Now. Gray.” International Comparative Law Quarterly. 20 September 1999. 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. 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. C. 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. This article provides for the collective use of force against the wrongdoer.118 Moreover. one might ask. 119 Kofi Annan. the Security Council is given the primary responsibility of maintaining and protecting the international peace. indicates another possibility.” 373. D. 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.” which is a valid basis for the collective use of force under the authority of the UN Security Council. not in the context of Kosovo but in the context of Rwanda. (b) when a state commits a breach of the peace. 873–907. the system of collective security comes into motion in three cases: (a) when a state commits an act of aggression against. one might ask: is there not a danger of such interventions undermining the imperfect. “The Legality of Bombing in the Name of Humanity.” British Yearbook of International Law. If these sanction do not work. 27–43. See. Warbrick. 2 as quoted in “Military Force without Prior Security Council Authorization?. should the catastrophe be allowed to happen? Conversely. 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.” Journal of Conflict and Security Law. 4th Plenary Meeting. C. 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. for this interesting thesis.186 MUHAMMAD MUSHTAQ AHMAD “threat to the peace. the Security Council and the Use of Force. or when the gravity of the situation demands a prompt action then Article 42 comes into action. however. Under Article 39. 65 (1994). 5 (2000). security system created after the second World War. White. 118 . 482. “After the Cease-fire: Iraq. the Secretary General of the UN. a coalition of States has been prepared to act in defence of the Tutsi population. “The Invasion of Kuwait by Iraq. International Law. 135. 40 (1991). yet resilient. namely. See also: Franck. if. N. Dixon. but did not receive prompt Council Authorisation. and (c) when there is a threat to the peace. such as the Indian intervention in East Pakistan in 1971 and the Tanzanian Intervention in Under Chapter VII (Articles 39–51) of the UN Charter. “Military Force without Prior Security Council Authorisation?” 362–66. Cases and Materials. For details. cutting off of diplomatic ties etc.

Ibid. We conclude. 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. Franck himself admits that “[t]he UN organs have not always acted wisely. informed by the context and the facts as much as by an abstract normative concept. Unilateral intervention by a state or group of states on humanitarian grounds is. otherwise it would not..THE SCOPE OF SELF-DEFENCE 187 Uganda to oust Idi Amin’s regime in 1979. the most important of which is opinio juris.122 However. went with less or no condemnation.”123 Even the argument of state practice is not very convincing as mere state practice cannot become a custom and. At the most it can be said that in certain instances of humanitarian intervention the international community retroactively gives legitimacy while others remain illegal. such as the UN..121 However. if not always decisively. 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. open to debate. is perfectly legitimate. which means that states follow a certain practice not because of expediency or any other consideration but because they consider it legally binding. Hence. by the quality of the information available to those bodies. 122 Franck rightly observes that in the Security Council and General Assembly “decisions are affected profoundly. a source of law. There are certain conditions which are necessary for a practice becoming a custom. it must be borne in mind that states are not always guided by legal principles. If the international community is convinced that an inevitable humanitarian catastrophe was averted by the intervention it will probably give legitimacy to it. 374.120 Franck argues: Perhaps the system. Emphasis added. Emphasis added. 120 121 .. More often than not.” 373–74. 372. however. the Soviet invasion of Hungary and the US invasion of Grenada were severely condemned by the international community. this argument does not carry much weight. hence. 123 Ibid. 375. less condemnation or silent acquiescence does not necessarily mean giving legitimacy. that humanitarian intervention by a competent international organization. then. What state practice shows is that it is initially illegal but international community may retroactively grant legitimacy to it in some “Military Force without Prior Security Council Authorization?. 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.” Ibid. unselfconsciously. they decide keeping in view their respective interests.

181. 124 125 . The Muslim Conduct of State. al-Jih┐d f┘ ’l-Isl┐m. All these justifications have their own peculiar problems. but the root cause is found in the notion of nation-state and its necessary corollaries. We analysed the three possible justifications in the contemporary international legal order for the Islamic doctrine of sympathetic wars. The Muslim Conduct of State.124 However. 65–67. Lahore. 149. See. 246–47. there are situations where some scholars consider it necessary to formally declare war. while others do not see any need for formal declaration. └th┐r al-╓arb. 126 Ibid. Mawd┴d┘ expresses a slightly different view in his commentary on verses 8: 56–58 of the Qur’┐n. Hamidullah does not see any need for formal declaration of war because the situation. On the other hand. falls in self-defence. 2: 153–55. 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. but when they come to the issue of declaration of war they look at it from the perspective of the defence of the state. 181–82. This point is further elaborated below. Hamidullah considers it necessary for the Islamic state to formally declare war before going to the help of the oppressed Muslims in foreign territories. as we noted above.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. Thus. Thus. as they do not agree on what is included in defence.125 This is because. Tarjum┐n al-Qur’┐n. This view can be accommodated with the views of the fuqah┐’ as explained below. if non-Muslims violate a peace treaty with the Islamic state and start persecuting Muslims. he does not include sympathetic wars among defensive wars. June 1948. in his opinion. Hence. the legitimacy of such interventions depends upon the assessment and judgment of the international community. both Zu╒ayl┘ and Mawd┴d┘ consider it necessary to formally declare war in situations which Hamidullah would regard as cases of sympathetic 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. 127 └th┐r al-╓arb. This conclusion is further substantiated when we analyse the need of a formal declaration of war in various instances of defensive wars. 1978).126 Interestingly enough. 149–51. Tafh┘m alQur’┐n (Lahore: Maktabah-i Ta‘m┘r-i Ins┐niyyat.188 MUHAMMAD MUSHTAQ AHMAD cases.

THE SCOPE OF SELF-DEFENCE 189 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. he says: “When some people violate the conditions of the treaty and adopt hostile attitude against the Islamic government [sic. it deals with a situation where the Islamic state perceives that the other party is going to violate the treaty. Al-Jih┐d f┘ ’l-Isl┐m. Mawd┴d┘ quotes the following verse: “And if you fear treachery from any people (with whom you have a covenant). 8: 58) However. the treaty is deemed terminated and their am┐n (protection) from Muslim ends. 131 Mawl┐n┐ Midr┐rull┐h Midr┐r. read: state] has the right to wage war. Qawl-i-Fay╖al (Mardan: D┐r al-Kutub.” (Qur’┐n. he says: There is only one exception from this general principle. when non-Muslims violate the treaty by waging war. it makes declaration obligatory in case of anticipated. both sides must abide by it… As such. 1963).. Thus. if it wants. In such a situation the Islamic government [sic. or taking the property [belonging to the inhabitants of the Islamic state]. when the other party commits a violation of the treaty in clear terms or launches an armed attack. then publicly throw their covenant at them. and not actual. 1974). 21: 214. This has been the opinion of majority of the fuqah┐’. 149. 247 at FN 1. 128 129 . or supporting the enemy. 246–47. like Hamidullah. Mawd┴d┘ considers it necessary even though he includes such a war in defensive wars. Zu╒ayl┘. rather. Sharaf al-Nawaw┘ (d. 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 Ibid. Hence.132 └th┐r al-╓arb. breach of the treaty. 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. Allah does not love the treacherous.128 However. such as the one the non-Muslims of Makkah did [against the allies of Muslims in violation of the treaty of ╓udaybiyah]. 19. does not see any need for formal declaration of war. read: state].130 To substantiate this view. The famous Sh┐fi‘┘ jurist Ya╒y┐ b.131 In other words. 676/1278) writes: Peace treaty with the enemy is for the purpose of suspension of hostilities. 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. 132 Al-Majm┴‘ Shar╒ al-Muhadhdhab (Beirut: D┐r al-Fikr. or killing a Muslim.”129 In the footnote to this paragraph.

Shams al-D┘n Mu╒ammad Ibn Qayyim al-Jawziyyah (d. it must be declared void. 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. or termination of treaty for that matter. Take the example of the Treaty of ╓udaybiyah.190 MUHAMMAD MUSHTAQ AHMAD He categorically declares that in such a case of actual breach of treaty. 135 This appears to be the basis of the punishment of the Jews of Ban┴ Quray╘ah. 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. that they may be admonished. So. an important ╓anbal┘ jurist.”133 Similarly. while the last one deals with its anticipated breach. 2002). if you meet them in war. 751/1350). (Qur’┐n. 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. Thus. says: “Some of the people say: ‘If a treaty is violated. relate to peace treaties or pacts of non-aggression. The treaty of ╓udaybiyah Ibid. not every violation of every treaty is deemed equivalent to the waging of war. A╒k┐m Ahl al-Dhimmah (Beirut: D┐r al-‘Ilm. 1: 341.’ 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. Allah does not love the treacherous. where a breach of the treaty was deemed equivalent to declaration of war. then publicly throw their covenant at them. “because declaration is necessary in case of ambiguity.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. There existed a state of war between the Islamic state of Mad┘nah and the non-Muslims of Makkah. All the instances from the life of the Prophet (peace be on him). And if you fear treachery from any people (with whom you have a covenant). they see no need for formal declaration. The same appears to have happened in case of the conquest of Makkah. 133 134 . and who do not fear Allah. it is not necessary for the Islamic state to formally declare war. 8: 56–58) The first two verses deal with cases of actual breach of treaty. therefore. make of them a fearsome example for those who follow them. However.

or killing a Muslim. the treaty with Ban┴ Quray╘ah gave them protection from hostilities. killing a Muslim. When they violated it. there is no need of a formal declaration of war or of termination of treaty “because declaration is necessary in case of ambiguity. 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. 21: 214. If the other party itself initiated hostilities or committed an act which is deemed equivalent to the waging of war. 3. We may again quote Nawaw┘ here: Peace treaty with the enemy is for the purpose of suspension of hostilities. they themselves initiated hostilities and. 587/1191) in his peculiar way has given a good analysis of the issue.”137 In other words. This explains the legitimacy of sudden night attacks (igh┐rah) against the enemy with whom Muslims are already in a state of war. or taking the property [belonging to the inhabitants of the Islamic State]. there is no need for the Islamic state to formally declare war. or supporting the enemy. every violation of a peace treaty is not deemed to mean declaration of war.THE SCOPE OF SELF-DEFENCE 191 suspended this state of war for ten years. Waging war. The illustrious ╓anaf┘ jurist ‘Al┐’ al-D┘n Ab┴ Bakr b. He 136 137 Al-Majm┴‘. declaration is necessary for the purpose of warning the other party. therefore. and taking the property [belonging to the inhabitants of the Islamic state]. . It is the violation of the material conditions that terminates the peace treaty. Similarly. Hence. Now. the treaty is deemed terminated and their am┐n (protection) from Muslims ends.” This also explains why it is not necessary to formally declare war before every fresh encounter in case of continuation of hostilities. when non-Muslims violate the treaty by waging war. Muslims were not obliged to formally declare war against Makkans. 2. 4. 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. When the Makkans violated a vital condition of this peace treaty the previous state of war was restored. supporting the enemy.136 In such cases. Mas‘┴d al-K┐s┐n┘ (d. Again. Hence. there was no need of a formal declaration of war. both sides must abide by it… As such. Ibid. Emphasis added.

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. putting forward three alternatives: pay compensation for the murdered and injured. 141 Shibl┘ Nu‘m┐n┘ . Muhammad Hamidullah. the treaty stands terminated. stop giving support and patronage to the culprits. Shibl┘ expresses his surprise that despite the importance of this incident most of the biographers of the Prophet (peace be on him) ignore it. Express repudiation is explicit declaration by the two parties. then the treaty will remain in force for their government and people and not for them. if they have resisting power and they come without the permission of their government and their people. the treaty will not be repudiated because robbery without resisting power is not enough for repudiation of the treaty… However. 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). explains the concept of “implied repudiation”: Implied repudiation occurs in some situations that establish the intent of repudiation. 9:425. The Prophet (peace be on him) sent his envoys to the leaders of the Quraysh for confirming whether they supported the culprits or not. Now. or consider that the treaty of ╓udaybiyah stands repudiated. The term mana‘ah means capability of a group of people to pose considerable resistance in case of an armed confrontation. This is because the permission of the government implies repudiation of the [peace] treaty. 9: 424. The Life and Work of the Prophet of Islam. when such an act is committed by. 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. 138 139 .192 MUHAMMAD MUSHTAQ AHMAD says: “Peace treaty will be either absolute [without a time limit] or for a limited period of time.141 The Quraysh accepted the last Bad┐’i‘ al-╗ana’i‘.. 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. S┘rat al-Nab┘.” 138 He. 1998). translated by Mahmood Ahmad Ghazi (Islamabad: Islamic Research Institute. A few Qurayshites violated the material conditions of the peace treaty of ╓udaybiyah. it is terminated by either: express or implied repudiation. 1: 209. the government. 140 Ibid. when absolute. See for a different view. Ibid. or with the permission of. However. This leads us to the issue of involvement of the government. Hence. then. 1: 294–95.

144 However. 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. Similarly.d. when the Jews of Ban┴ Quray╘ah supported the allied attacking forces at the time of the Battle of Trench. n. it should have it confirmed before repudiating the treaty. Hence. Ab┴ Sufy┐n. al-Hid┐yah Shar╒ Bid┐yat al-Mubtad┘ (Beirut: D┐r I╒y┐’ al-Tur┐th al-‘Arab┘. He says that if some people having man‘ah (resisting power) go to another state they will be deemed. The primary reason is that defence in international law is confined to the protection of the sovereignty. 2: 391. the most reliable text of the School. 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┘. in the contemplation of law. Conclusions The doctrine of defence in Islamic law is much wider than that in the contemporary international legal regime. it was confirmed that the treaty stood terminated for all of them. We hold that this situation comes within the meaning of repudiation by dal┐lah. the Prophet (peace be on him) attacked the territory of Ban┴ Quray╘ah without a formal declaration of war. As such. but he was not granted audience by the Prophet (peace be on him). al-Sarakhs┘ appears to have a different view. 10: 73–74. 143 Al-Mabs┴═. population and interests of the state. 142 . territory. Ab┘ Bakr al-Margh┘n┐n┘. the Prophet (peace be on him) sent his envoys for confirmation. S┘rat al-Nab┘. the leader of the Quraysh went to Mad┘nah to renew the treaty.142 Therefore.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).). Later. if these people do not have resisting power. when the allied troops returned. Rather. 1: 246.THE SCOPE OF SELF-DEFENCE 193 option. B┐b Ghazwat al-A╒z┐b. Shibl┘. the Islamic State must not presume that they have the permission of their government. to have the permission of their government because such activities cannot take place without the knowledge and complicity of the government. See Burh┐n al-D┘n ‘Al┘ b. even when Muslim scholars deny the so-called Mu╒ammad Ibn Ism┐‘┘l al-Bukh┐r┘. Al-╗a╒┘╒. A question arises here regarding the government’s explicit envolvement in terminating a treaty? Al-K┐s┐n┘ deems it necessary. Kit┐b al-Magh┐z┘. They openly repudiated the treaty. while in Islamic law it also includes defence of the global Muslim community (the ummah) as well as defence of the religion of Islam. as recorded in Hid┐yah. However.

   . The wider doctrine of the defence of the ummah may find some parallels is the contemporary notions of protection of nationals and interests abroad. but when they come to the issue of 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. they validate several instances of the use of force. yet in case of providing military support to Muslims in foreign territories they assert the need of formal declaration of war. face a dilemma. but all these concepts have their own peculiar problems as well. who include it in defence. Giving military support to Muslims who are persecuted in foreign territories is one such example. differences can be resolved only when they are recognized. Muslim scholars have considered it as one of the kinds of lawful wars. it is certainly beyond the scope of the concept of defence of the nation-state. collective self-defence of states and humanitarian intervention.194 MUHAMMAD MUSHTAQ AHMAD offensive jihad. while there are many points of convergence between Islamic law and the contemporary international legal regime. it constitutes intervention in other states. Others. Thus. From the perspective of the contemporary international legal regime. Although they do not consider a formal declaration of war necessary in situations of defence. However. 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. As a matter of fact. the inherent differences in the two legal systems must not be overlooked. they seem to be influenced by the concept of the defence of the nation-state. This led some of the Muslim scholars to assert that jihad is not confined to situations of defence only. which cannot be accommodated in the concept of the defence of the nation-state.