Jihad: Challenges to International and Domestic Law

by Edited by M. Cherif Bassiouni , Amna Guellali

• ISBN13: 9789067043120
• ISBN10: 9067043125
• Format: Hardcover
• Publisher: T.M.C. Asser Press

Summary

Since the attacks on the World Trade Center in September 2001, Jihad has become the symbol of the confrontation between Muslims and the West. The concept of Jihad has been central to many modern conflicts, including that of resistance to US occupation of Iraq and the Palestinian struggle for self-determination. According to the most popular view, Jihad ideology represents a religiously sanctioned aggressive war to propagate or defend faith. However, the meaning of Jihad is not as straightforward as proponents of the clash of civilizations would like it to be. The aim of this book is thus to clarify the meanings of Jihad and the manipulation of its sense since the rise of political Islam during the 1960s. It aims also at understanding the relationship between Jihad, Islam and national and international law.

Author Biography

Professor M. Cherif Bassiouni, is Distinguished Research Professor of Law Emeritus, and President Emeritus, International Human Rights Law Institute, DePaul University College of Law, Chicago, Illinois. He has served the United Nations in various capacities, all in the field of humanitarian law, international criminal law and human rights law. Amna Guellali is a Senior Researcher at the department of international humanitarian and criminal law of the T.M.C. Asser Instituut, The Hague, the Netherlands.

Table of Contents

Foreword	p. V
Acknowledgements	p. VII
Summary of Contents	p. IX
Glossary of Arabic words and system of transliteration	p. XVII
List of Abbreviations	p. XIX
Introduction The Editors	p. 1
Jihad, its meaning, scope and purpose in the Islamic tradition
Evolving Approaches to Jihad: From Self-Defense to Revolutionary and Regime-Change Political Violence	p. 11
Abstract	p. 11
Introduction	p. 11
The Arabic Language and the Meanings of Jihad	p. 14
Evolving Meaning	p. 15
Doctrinal Emphasis on the Armed Struggle Aspect of Jihad	p. 23
The Conditions and Limits of Jihad	p. 27
Jihad, in Contemporary Political Doctrine and Practice	p. 28
Conclusion	p. 33
Jihad and the Interpretation of the Quran: Contextualising Islamic Tradition	p. 39
Abstract	p. 39
Introductory Remarks	p. 39
Definition and Scope of Jihad	p. 41
A review of the Source Evidence	p. 42
Types of Jihad	p. 48
Salient Shari'a Positions	p. 49
Other Manifestations of Jihad	p. 50
Suicide and Suicide Bombing	p. 51
Conclusion	p. 57
Understanding the Discourses on Jihad in Islam Through Classical and Modern Narratives	p. 59
Abstract	p. 59
Introduction	p. 59
Jihad as Part of Orthodox Sunni Doctrines	p. 62
The normative and methodological framework of Sunni doctrines	p. 62
Historical sketches of jihad in Islamic narratives	p. 66
The Classical Doctrines of Jihad	p. 69
Presentation of the classical doctrines	p. 69
Conditions for the waging of Jihad	p. 72
Contemporary Interpretations of Jihad	p. 74
Modernist visions of Islam and jihad	p. 75
Fundamentalist vision of Islam and jihad	p. 73
Political theology of al-Qaeda	p. 81
The opinion of the contemporary religious establishment on jihad	p. 83
Conclusion	p. 85
The Pitfalls of Jihad as an Individual Duty (Fard 'Ayn)	p. 87
Abstract	p. 87
Classical Concept of Jihad as Fard 'Ayn	p. 87
Jihad as an Individual Duty in the Modern Era	p. 90
	p. 91
	p. 93
Jihad as an Individual Duty in a Transnational Agenda	p. 97
Jihad as an Individual Duty: From Transnational to Global	p. 100
	p. 102
Jihad as an Individual Duty: Successes and Failures	p. 104
Resurrecting Siyar Through Fatwas? (Re)Constructing Islamic International Law in a Post (Iraq) Invasion World	p. 107
Abstract	p. 107
Introduction	p. 108
Contextualising Siyar, Jihad and Fatwas in the Islamic Legal Tradition and the Contemporary World: An Analytical Overview	p. 109
The Nature of Siyar and Jihad within the Islamic Legal Tradition	p. 115
Fatwas as an Interpretative Vehicle of Siyar and Jihad: An Exploratory Overview in Light of 'Internet Fatwas' on the Iraq War and Muslim Responses to the Invasion	p. 121
Siyar, Jihad, Fatwas and International law: Past, Present and Future in a Globalised World	p. 129
Jihad,jus ad bellum and jus in bello
The Challenge of Fragmentation of International Humanitarian Law Regarding the Protection of Civilians: An Islamic Perspective	p. 139
Abstract	p. 139
Introduction	p. 139
Sources of Islamic Humanitarian Law	p. 141
The role of Islamic law in shaping humanitarian standards	p. 141
Humanitarian law and sacred legal sources	p. 143
Islam as a religion of peace setting up war laws and humanitarian standards	p. 144
The Notion and Protection of Civilians in Islamic Humanitarian law	p. 145
The distinction between combatants and civilians	p. 145
Muslim intellectuals and the distinction between civilians and combatants	p. 146
The debate about permissible killings	p. 148
The Challenge of Weapons of Mass Destruction (WMD) and the Protection of Civilians	p. 153
A new challenge	p. 153
The will to resort to the use of WMD	p. 155
Terrorism	p. 157
The deliberate targeting of civilians	p. 157
The mobilization against distorted interpretations of Islam to justify the killings of civilians	p. 159
Suicide Attacks	p. 160
What legitimacy for suicide attacks? The debate in Islam regarding suicide attacks	p. 160
Justifications of suicide attacks	p. 161
What Solutions to these Distorted Warmongering Interpretations of Islam?	p. 161
The propagation of other interpretations in the field as a key	p. 161
New conduct of hostilities: How to deal with reality?	p. 163
The need for a New Islam: The Hermeneutics of the Shari'a	p. 164
Conclusion	p. 165
Jus in Bello: Civilians' Fundamental Rights Under Islamic and Public International Law	p. 167
Abstract	p. 167
Introduction	p. 168
Right to Life, the Prohibition of Torture and Inhuman Treatment	p. 170
Right to Respect of Religious Beliefs, Customs and Traditions	p. 177
Judicial Rights	p. 181
The principle of punishment according to individual responsibility	p. 181
The principle of proportional crime and punishment	p. 184
The right to protection from retroactive law	p. 186
Concluding Remarks	p. 189
Does the Impact of Jihad Ideology and Action Require a Transformation in the Legal Rules on Targeting?	p. 191
Abstract	p. 191
Introduction	p. 191
Review of the Legal Rules of IHL on Targeting	p. 192
Comparison Between the Relevant Rules on Conduct of Hostilities of IHL, Just War Doctrines and Jihad Ideology	p. 197
Conduct of Hostilities in Asymmetric Warfare	p. 199
Jihad Ideology or Asymmetric Conflicts Do Not Require a Transformation in the Rules on Targeting	p. 204
Self-Defence Arguments in the Jihad Concept and their Counterparts in Western International Law	p. 209
Abstract	p. 209
Introduction	p. 209
International Law and Islamic Law	p. 210
Self-Defence in the Western and Islamic Traditions	p. 212
Self-defence in Western international law	p. 212
Self-defence and the concept of jihad	p. 215
Self-Defence Arguments in the Quran and their Western Counterparts	p. 216
The basic formulation of self-defence	p. 216
The limits of self-defence	p. 218
Moderation	p. 218
When should defence stop	p. 219
Anticipatory self-defence	p. 220
Jihad as Self-Defence and Modern State Practice	p. 222
Jihad and non-state groups	p. 223
Islamic states and jihad	p. 224
Conclusion	p. 226
Jihad and domestic law
Jihad and Counter-Jihad: Western European Legal Responses to Islamic Militancy	p. 229
Abstract	p. 229
Introduction: The European Context	p. 229
Fighting the Enemy: Setting the Legal Framework	p. 230
New Battlefields	p. 232
Countering Jihad (1): De-Radicalization and Integration	p. 235
Countering Jihad (2): Protection	p. 238
Jihadi Ideology: Defending Islam	p. 241
Counter-Effects of the Counter-Strategies	p. 244
Securitization	p. 244
Religionization	p. 245
Legalization	p. 245
Conclusion: Jihad and Counter-Jihad	p. 246
Why Continue Counterterrorism Policies If They Are Hurting?	p. 249
Abstract	p. 249
Introduction	p. 249
Why Is It So Difficult to Counter Terrorism?	p. 250
The Overly Broad Approach in Dutch Counterradicalisation	p. 258
Effectiveness	p. 265
Conclusion	p. 273
Index	p. 275
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