between dar-al-harb (abode of war) and dar-al-Islam (abode of Islam) is presented as this issue The Arab-Israeli Confrontation of June 1967: An Arab Per- held. The Muslims also have facility of halal meat slaughter houses and so on.

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Journal of Conflict & Security Law (2005), 1 of 23 doi:10.1093/jcsl/kri017 © Oxford University Press 2005; all rights reserved. For permissions, please e-mail: THE CONCEPT OF JIHAD IN ISLAMIC INTERNATIONAL LAWShaheen Sardar Ali* and Javaid Rehman** ABSTRACTIn the post 11 September 2001 legal and politic al environment, Islam appears to have become one of the most misunderstood religions. Islam has been equated with fanati- cism, intolerance, violence and wars of aggression Œ the classical Jihad ideology is often deployed to cast doubts on the compa tibility of Islam with modern norms of international law as enunciated in the United Nations Charter. Much confusion stems from the fact that Islamic international law and Islamic laws of armed conflict have not received due attention in western legal scholarship. The concept of Jihad has argu- ably been central to many modern conflicts including that of resistance to US occupa- tion of Iraq (2003Œ2005), the struggle for self-determination in Kashmir (1947Œ2005) and the Palestinian struggle for reclai ming their land from Israel (1948Œ2005). This article seeks to provide a jurisprude ntial analysis of the concept of Jihad. Amidst controversies surrounding Jihad, the authors attempt to contextualise the con- cept and relate the discussion to contempor ary norms of International law as estab- lished by the United Nations Charter. The authors identify the conditions under which Jihad is permissible in Islamic law in the light of its various sources. The distinction between dar-al-harb (abode of war) and dar-al-Islam (abode of Islam) is presented as this issue impacts on laws of war in Islam. The significance of humanitarian principles within Islamic international law as well as in Islamic humanitarian law is highlighted. Self-exertion in peaceful and personal compliance with the dictates of Islam (constitutes) the major or superior JihadŠHadith of the Prophet Muhammad 1INTRODUCTION In the post 11 September 2001 legal and political environment, Islam appears to have become one of the most misunders tood religions. Critics of Islam argue that Islam per se is an aggressive religion, encouraging Muslims to have recourse to violence, terrorism and destruction. 1 Muslim civilisation has been castigated This article was first presen ted by Shaheen Sardar Ali at a conference organised by the late Professor Hilaire McCoubrey at the Uni versity of Hull. The authors like to dedi- cate it to his memory. * Professor of Law, University of Warwick, UK. Formerly Professor of Law, University of Peshawar, Pakistan. E-ma il:**Professor of Law, University of Ulster, No rthern Ireland. E-mail: 1 ‚Many horrific acts have been, and continue to be carried out in the name of Islam, just as they have been in the name of Christianity. But unlike Islam, Christianity does not justify

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2 of 23 Shaheen Sardar Ali and Javaid Rehman as being backward, insular, stagnant and unable to deal with demands of the twenty-first century. 2 Islam has been equated with fa naticism, intolerance, violence and wars of aggression Œ the classical Jihad ideology is often deployed to cast doubts on the compatibility of Islam with modern norms of international law as enunciated in the United Nations Charter. 3 Much confusion stems from the fact that Islamic international law and Islamic laws of armed conflict has not received due attention in western legal scholarship. 4 The concept of Jihad has arguably been central to many modern conflicts including that of resistance to US occupation of Iraq (2003Œ2005), 5 the struggle for self-determination in Kashmir (1947Œ2005) 6and the Palestinian struggle for reclaiming their land from Israel (1948Œ2005). 7This article seeks to provide a jurisprudential analysis of the concept of Jihad and locate it in the wider framework of Islamic international law known as as-siyar. Amidst controversies surrounding Jihad, the authors attempt to contextual- ise the concept, identify conditions under which Jihad is permissible in Islamic law and relate the discu ssion to contemporary norms of international law as estab- lished by the United Nations Charter. The distinction between dar-al-harb (abode of war) and dar-al-Islam (abode of Islam) is presented as this issue impacts on laws the use of all forms of violence. Islam does™. P Sookhdeo, ‚A Religion that sanctions violence™, Daily Telegraph, 17 September 2001, 22. For a detailed analysis, see J. Rehman, Islamic State Practices, International Law a nd the Threat from Terrorism: A Critique of the ‚Clash of Civilizations™ in the New World Order (2005). 2‚We must be aware of the superiority of our civilization, a system that has guaranteed well-being, respect for human rights Œ and in contrast with Islamic countries Œ respect for religious and political rights. Islamic civilization is stuck where it was fourteen hun- dred years ago™. Italian Prime Minister, Si lvio Berlusconi, comments made in Berlin, 26September 2001. These comments have been cited extensively: see A. Palmer, ‚Is the West Really Best™, Sunday Telegraph , 30 September 2001, 14; A. Osburn, ‚On the Brink of War: ReactionŒScorn Poured on Berlusconi ViewsŒEuropean and Muslim Leaders Express Disgust™, The Guardian , 28 September 2001, 4; and ‚EU deplores fiDangerousfl Islam Jibe™, BBC News , 9 October 2004, available at . 3J.L. Esposito, The Islamic Threat: Myth or Reality? (1992) 5; and A. Cassese, Terrorism, Politics and Law: The Achille Lauro Affair (1989) 1. 4See M.A. Boisard, ‚On the Probable Influence of Islam on Western Public and Interna- tional Law™, (1980) 11 International Journal of Middle East Studies 429; T. Landscheidt, Der Einfluß des Islam auf die Entwicklung der Temperamenta Belli im europäischen Völkerrecht (1955), unpublished dissertation, Göttingen; M.C. Bassiouni, ‚Protection of Diplomats Under Islam ic Law™, (1980) 74 AJIL 609; and for a rare, though useful con- temporary European perspective on Islam, see S. Ferrari and A. Bradney (eds.), Islamand European Legal Systems (2000). 5See D. McGoldrick, From ‚9-11™ to the ‚Iraq War 2003™: International Law in an Age of Complexity (2004). 6A. Lamb, Kashmir: A Disputed Legacy, 1846-1990 (1991); A. Azmi, Kashmir: An Unpar- alleled Curfew (1990); and T. Ataöv, Kashmir and Neighbours: Tale, Terror, Truce (2001). 7See I. Abu-Lughod (ed.), The Arab-Israeli Confrontation of June 1967: An Arab Per- spective (1996); W. Laqueur, The Road to War, 1967: The Origins of the Arab-Israel Conflict (1968); A. Cassese, Self-Determination of Peoples: A Legal Reappraisal (1995); N. Guyatt, The Absence of Peace: Understanding the Israeli-Palestinian Conflict (1998); and C. Bell, Peace Agreements and Human Rights (2000).

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Concept of Jihad3 of 23 of war in Islam. The signific ance of humanitarian principles within Islamic interna- tional law as well as in Islamic humanitarian law is also highlighted. The article is divided into five secti ons. After these introductory comments, section II analyses the nature of Islamic international law ( as-siyar). Section III examines the meaning of Jihad and evaluates its application within modern international law. The discussion establishes the existence of two divergent views on the nature of Jihad. While reviewing these divergent views, the authors adopt a third and arguably, more context ualised and realistic approach towards the subject. Section IV examines principl es of Islamic humanitarian law, and sec- tion V provides some concluding observations. 2THE NATURE OF ISLAMIC INTERNATIONAL LAW (AS-SIYAR )Within western legal literature, there co ntinues to remain a substantial debate over the acceptance of international law as a distinct field of law and its relation- ship with domestic laws. 8 Islamic international law, known as as-siyar, is in this sense substantially different from its western counterpart. First, as-siyar has been recognised as an integral part of Islamic law and Islamic jurisprudence. 9 Second, as-siyar grew into a fully functional body of the Sharia10 several centuries in advance of any similar developments in the western world. 11 Majid Khadduri explains it thus: 8See M.N. Shaw, International Law (2004) 120Œ174; and D. Feldman, ‚Monism, Dualism and Constitutional Legitimacy™, (1999) 20 Australian YIL 105. 9See K. Bennoune, ‚As-Salamu Alaykum? Humanitarian Law in Islamic Jurisprudence™, (1994) 15 Michigan Journal of International Law 605, 611. For sources of as-siyar, see H. Kruse, The Foundations of Islamic International Law (1956) 4 n.42; S.G. Vasey- Fitzgerald, ‚Nature and Sources of the Sharia ™, in M. Khadduri and H.J. Liebesny (ed.), Law in the Middle East (1955) 72; A. Rahim, Muhammadan Jurisprudence (1995); J.Schacht, Origins of Muhammadan Jurisprudence (1959); J. Schacht, An Introduction to Islamic Law (1964); N.J. Coulson, A History of Islamic Law (1964); and A.A.A. Fyzee, Outlines of Muhammadan Law (4th edn., 1974). 10Principles of Islamic law. We like to make the point here that we believe Sharia to be based on sources of Islamic law, including the Quran and Hadith, but a human endeavour, guided and inspired by the religious text in Islam. Most write rs on Islamic law equate Sharia with the Divine Will, a position from which we consciously distance ourselves. 11One of the reasons fo r early development of as-siyar since the eighth century AD may well have been the conviction in Muslim theology that the Islamic nation was one entity, the Ummah , and so laws to cover various nationalities in this communitas islam- ica , were necessary. The various schools of Islamic juristic thought thus set about to deduce rules of international law from the sources of Islamic law. The Hanafi school of juristic thought was particularly active, a nd two of Abu Hanifa™s (founder of the Hanafi school of thought) followers came to be known as ‚fathers™ of the Islamic law of nations. Abu Yusuf authored the Kitab al Kharaj and al-Radd Ala Siyar al-Awai , and al-Shaybani wrote his famous al-Siyar al-Kabir translated by Majid Khadduri as The Islamic Law ofNations (1966). These works date back to the second and third century of hijra ,theIslamic calendar (eighth and ninth centur y of the Christian cale ndar). For a discussion

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4 of 23 Shaheen Sardar Ali and Javaid Rehman [T]he siyar, if taken to mean the Islamic law of nations, is but a chapter in the Islamic corpus juris , binding upon all who believed in Islam as well as upon those who sought to protect their interests in accordance with Islamic justice.12Hamidullah defines it as ‚[t]hat part of the law and custom of the land and treaty obligations which a Muslim de facto or de jure State observes in its deal- ings with other de facto or de jure States™.13The sources of as-siyar are the same as those of Islamic law. There is a general consensus among writers on the subject that Islamic law is derived from four main sources and a number of subsidiary sources: the Quran , the Sunna , Ijma and Qiyasand ijtihad . Hamidullah, however, has a more extended list of sources. These include 1.The Quran;2.The Sunna or traditions of the Prophet Muhammad; 3.The Practices of the early Caliphs; 4.The Practice of other Muslim rulers not repudiated by the juris- consults;5.Opinions of celebrated Muslim jurists: (a)consensus of opinion ( ijma)(b)individual opinions ( Qiyas )6.Arbitral Awards; 7.Treaties, Pacts and other Conventions; 8.Official instructions to commanders, admirals, ambassadors and other State officials; 9.Internal legislation for conduct regarding foreigners and foreign relations; 10.Customs and usage. The Quran is the primary source of Islamic law since it is, in the view of Muslims, the very word of God. The Quran consists of revelations made by God to the Prophet Muhammad over a period of approximately 23 years. The Quran consists of 114 of the history of the codification of Islamic international law, see M. Hamidullah, Muslim Conduct of State: Being a Treaties on Siyar, that is Islamic Notion of Public International Law, Consisting of the Laws of Peace, War and Neutrality, Together with precedents from Orthodox Practices and Prec edent by a Historical and General Intro- duction (1977) 61Œ72. 12M. Khadduri, The Islamic Law of Nations: Shaybanis Sïyar (1966) 6. 13Hamidullah, op. cit. , fn. 11, p. 3.

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Concept of Jihad5 of 23 chapters or sura (plural suras ), of greatly varying length and diverse subject mat- ter. The chapters are further divided into verses or ayat (plural ayaat). Of the 6666 verses, about 70 are addresse d to the conduct of hostilities. 14The second source of Islamic law is the Sunna or traditions of the Prophet Muhammad. The Sunna consists of compilation of the Prophet Muhammad™s actions, sayings and opinions during his lifetime. The general belief of Muslims is that the Quran and Sunna form the two primary sources of Islamic law. Sunna ,however, does not rank as high as the Quran but is considered an important source in the interpretation of Quranic verses. The memorisation and transmis- sion of the Sunna in a literary form is characterised as hadith. The term hadithwith a meaning ‚occurring, taking plac e™ represents the ‚report™ of Prophet Muhammad™s Sunna.15 The Sunna is preserved and communicated to succeeding generations through the means of hadiths.16The third source of Islamic law is ijma, or agreement of jurists among the fol- lowers of the Prophet Muhammad in a particular age on a question of law. 17Farooq Hassan contends that although thir d in the hierarchy of sources of law, ijma forms the major portion of Islamic jurisprudence. 18 Ijma , as a source of law, is supported by the Quran and Sunna.19 The fourth source of Islamic law is qiyas,translated as analogical deduction. Analogy can only be employed, if no guid- ance is available on the point under discussion in any of the other three sources of law.20 Another source of law is ijtihad, which literally means striving, exerting. Abdur Rahim defines it thus: As a term of jurisprudence it means the application by a lawyer of all his faculties to the consideration of the authorities of the law (that is, the 14See appendix in J. Busuttil, ‚Humanitarian Law in Islam™, (1991) 30 The Military Law and Law of War Review 113. 15C.G. Weeramantry, Islamic Jurisprudence: An International Perspective (1988) 34. 16A Hadith consists of two parts, Isnad and Matin . Isnad refers to the link, the source or the chain of narrators of the Hadith . Hence a Hadith in its Isnad would report the person who acted as transmitters. The Matin contains the substance of the Prophets™ sayings, deeds or actions. See, F.M. Denny, An Introduction to Islam (1994) 160Œ161; and S.H. Al-M usawi,Manhajul-Fiqhil-Islami, A Course in the Islamic Jurisprudence (1997) 21Œ22. 17Rahim, op. cit. , fn. 9, p. 97. 18F. Hassan, ‚The Sources of Islamic Law™, (1982) 76 Proceedings of the American Society of International Law 67. 19See Rehman, op. cit. , fn. 1, p. 14. 20According to a well-recited Hadith , the role Qiyas was confirmed at the time when Prophet Muhammad (while sending Mu ‚adh b. Jalal to Yemen to take the position of a qadi ) asked him the following question: ‚How will you decide when a question arises?™ He replied, ‚According to the Book of Allah™ Œ ‚And if you do not find the answer in the Book of Allah?™ Œ ‚Then according to the Sunna of the Messenger of Allah™ Œ ‚And if you do not find the answer either in the Sunna or in the Book?™ Œ ‚Then I shall come to a decision according to my own opinion without hesitation™, then the Messenger of Allah slapped Mu ‚adh on the chest with his hand saying: ‚Praise be to Allah who has led the Messenger of Allah to an answer that pleases him™. ‚Kiyas™, in H.A.R. Gibb and J.H. Kramers (eds.), Shorter Encyclopaedia of Islam (1953) 267.

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6 of 23 Shaheen Sardar Ali and Javaid Rehman Quran , the Hadith and ijma) with a view to find out what in all probability the law is (that is, in a matter which is not covered by the express words of such texts and has not been determined by ijma).21The more conservative body of Islamic scholars deny this as an independent source and believe that the ‚doors of ijtihad are closed™, meaning therefore that the age of independent legal reasoning in Islamic jurisprudence is over. 22 But many modern day scholars of Islamic law argue that the doors of ijtihad are always open.232.1Understanding the Scope and Content of Islamic International Law There are a range of misconceptions r egarding the meaning, content and scope of as-Siyar. The first of these relate to a belief that the totality of Islamic law, as expressed in the two primary sources ( Quran and Sunna) represent the ultimate expression of the Divine Will 24 and that no further refinement is permissible or indeed possible in the two established s ources. Other Islamic jurists however dis- agree and emphasise the need for continual review and development of Islamic law. According to one leading scholar Gamal Badr, a definition of as-siyar should not lose sight of the historical fr amework of Islam. Studies based on a sin- gle source in the classical literature or on sources pertaining to a single period are bound to be descriptive of Islam as it wa s at a certain point in time, not of the living and developing Islamic view of international law and relations. 25 Badr believes that the Islamic law of nations is not part of the dogma of Islam but [I]s the product of a continuing proces s of juridical speculation by author- itative jurists over the ages. The Islami c law of nations is part of the cor- pus of Islamic law just as the original jus gentium was a branch of municipal Roman law. Islamic law is a religious law only in the sense that its basic ethical grounds and some of its general principles are to be found in the Quran and the pronouncements of the Prophet Muhammad. Beyond that, the corpus of Islamic law as it developed over the ages is ‚manmade™ in the sense that it resulted from the efforts of the jurists of the various schools of law. If civil law can be described as a legislator™s law 21Rahim, op. cit. , fn. 9, p. 143 and accompanying footnotes for Arabic sources. 22Ibid., p. 147 and discussion therein. 23Ibid. Mohammad Iqbal, the famous Muslim philosopherŒpoet actively advocated ijti- had. See his famous exposition on the subject, M. Iqbal, Reconstruction of Religious Thought in Islam (1971). Also see, Hassan, op. cit. , fn. 18, p. 68. 24A.A. An-Na™im, Toward an Islamic Reformation: Ci vil Liberties, Human Rights and International Law (1990) 145; and ‚[T]here is ofte n a traditional misconception about Islamic law being wholly divine and immu table™ is present in M.A. Baderin, Interna-tional Human Rights and Islamic Law (2003) 33. 25G.M. Badr, ‚A Survey of Islamic International Law™, (1982) 76 Proceedings of the American Society of International Law 56.

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8 of 23 Shaheen Sardar Ali and Javaid Rehman and value of Jihad doctrine, there remains a continuing debate over the mean- ing, scope and purpose of the term. This section examines the two divergent the- ories advanced by scholars and jurists. 3.1As-siyar and Jihad Ideology: A Permanent State of Belligerence with all Non-Believers?According to this significantly popular interpretation, the totality of Jihad ideol- ogy represents a religiously sanctioned aggressive war to propagate or defend the faith. 29 In fact, so strong is the ordinance to use aggressive war, that as-siyar values are regarded as synonymous to those of the Jihad. One proponent of this theory is Professor Rhoda Mus hkat, who makes the point thatIslamic law enjoins Moslems to maintain a State of permanent belliger- ence with all non-believers, collectively encompassed in the dar al-harb,the domain of war. The Muslims are, therefore, under a legal obligation to reduce non-Muslim communities to Islamic rule in order to achieve Islam™s ultimate objective, namely the enforcement of God™s law (the Sharia) over the entire world. The instrument by which the Islamic state is to carry out that objective is called the jihad (popularly known as the ‚holy war™) and is always just, if waged against the infidels and the ene- mies of the faith. 30Since the state of belligerence and conflict is permanent, this view also regards as-siyar as exclusive to the Islamic laws of war. James Busuttil in advocating this position in his expose ‚Humanitarian Law in Islam™ 31 makes the point that [A] primary concern of Islam, given its impetus to conversion by the sword, is the conduct of war. Indeed , the study of the law of war, the siyar ,so encompasses the attitude of Islam to the non-Muslim world that it has taken on the connotation of Islamic international law in general. 32Busuttil™s views appear to coincide with many Islamic scholars who perceive Jihad exclusively as an instrument of aggressive war. Majid Khadduri, a prominent 29Professor Abdullahi Ahmed An-Na™im makes the observation that ‚the term can also refer to religiously sanctioned aggressive wa r to propagate or fidefendfl the faith. What is problematic about this latter sense of jiha d is that it involves direct and unregulated violent action in pursuit of political objectives, or self-help in redressing perceived injustice, at the risk of harm to innocent bystanders–™. A.A. An-Na™im ‚Upholding International Legality Against Islamic and Am erican Jihad™, in K. Booth and T. Dunne (eds.), Worlds in Collision: Terror and the Future of Global Order (2002) 162Œ172. 30R. Mushkat, ‚Is War Ever Justifiable? A Comparative Survey™, (1987) 9 Loyola of Los Angeles International and Comparative Law Journal 227. 31Busuttil, op. cit. , fn. 14, p. 113. 32Ibid.

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Concept of Jihad9 of 23 Islamic jurist believes that Islam emerge d in the seventh century as a conquering power with world domination as its goal. 33 Its notion of international law, he argues was bound to be in keeping with its mission of proselytisation of the whole of humankind. 34 Islamic law for the conduct of state was, therefore, the law of an imperial state which would re cognise no equal status for the party (or parties) with whom it happened to negotiate or fight. 35It is contended that Khadduri and Busuttil™s views are too narrowly con- trasted; they fail to take on board the nu merous aspects of conduct of inter-state relations not covering laws of armed conflict. Those arguing for an aggressive position equate Jihad as being synonymous with the use of force 36 and some- times defined as ‚holy war™. 37 As noted above, Islamic international law per- ceives the world as being essentially divided into dar-al-Islam and dar-al-harb38,and in theory, dar-al-Islam was permanently at war with dar-al-harb . Muslimswere under a legal obligation to reduce dar-al-harb to Muslim rule and ulti- mately enforce God™s law over the entire world. 39There is evidence that this version of Jihad ideology was deployed in the expansionist phase of Islam. In the chr onicles of Islamic history, there are instances where the lines between violence pure and simple and Jihad are blurred; certainly wars and other societal conflicts of early Islamic experience by their very nature were destructive and bloody. This image of Jihad as an instru- ment of aggressive war is relished by t hose who claim fundamentally divergent 33M. Khadduri, War and Peace in the Law of Islam (1955) 51Œ54. 34M. Khadduri, ‚Islam and the Mode rn Law of Nations™, (1956) 50 AJIL 358Œ359. 35Ibid.36A.A. An-Na™im reports on the basis of the Quran and Sunna that the term qital (fight- ing) and its derivatives were used to denote the use of force in in ternational relations as opposed to the term jihad which has can be manifested in more than one forms (use of force against the enemy being only one such aspect of jihad ). See An-Na™im, loc. cit. , fn. 24.37Bennoune, op. cit. , fn. 9, p. 615. The accompanying n. 52 is particularly pertinent to our present discussion. Quoting from Y. Haddad, ‚Operation Desert Shied/Desert Storm: The Islamic Perspective™, in P. Bennis and M. Moushabeck (eds.), Beyond the Storm: A Gulf Crisis Reader (1991) 248, 256, where the author describes how misunderstanding of what jihad really means comes out in inse nsitive statements. She states ‚The associa-tion of Islam with holy war, and of Muslim s with the propagation of violence, seems to be endemic to Western awareness of Muslim faith–. When a member of the American military was interviewed on television (durin g the Gulf War of 1991) and said that if they want to get to Allah he didnt mind speeding up the process, he was–expressing an overt lack of reverence for Muslim life and Muslim faith™. 38Virtually every writer on Islamic law has considered these divisions. Dar-al-Islam cor- responds to territory under Islamic sovereignty. Its inhabitants were Muslims by birth or conversion and the people of the tolerated religions (Jews, Christians and Zoroastri- ans) who preferred to remain non-Muslims at the cost of paying a special tax. The dar-al-harb consisted of all the states and communities outside the territory of Islam. Its inhabitants were called harbis or people of the territory of war (Khadduri, op. cit. ,p.359). Also see, S. Mahmassani, ‚Internati onal Law in the Light of Islamic doctrine™, (1966) 117 RdC 201, 250Œ252. Hamidullah, op. cit. , fn. 11, Part II. 39Khadduri, op. cit. , fn. 12, p. 359.

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10 of 23 Shaheen Sardar Ali and Javaid Rehman positions between the Islamic legal order and the non-Muslim world. Such a hypothesis forms the basis of apprehension, tensions and ultimately the so-called ‚clash of civilizations™. In engineerin g the now well-publicised ‚Clash™, Samuel Huntington has viewed Islam as ‚a religion of the sword–glorify[ing] military virtues™.40 In his perception, ‚[t]he Koran and other statements of Muslim beliefs contain few prohibitions on violence, and a concept of non-violence is absent from Muslim doctrine and practice™. 41Thomas Payne contrasts what he perceives as the ‚western view of what reli- gion is and ought to be, namely, a voluntary sphere where coercion has no place™42 with that of Islam. In his comparison, the [E]mphasis on non-violence is not the pattern in the Muslim culture. To the contrary, violence has been a central, accepted element, both in Muslim teaching and in the historical conduct of the religion. For over a thousand years, the religious bias in the Middle Eastern Culture has not been to discourage the use of force, but to encourage it. 433.2Jihad and Just War: A State of Self-Exertion and Passivity In contradistinction to the earlier position, a second view is frequently advanced by many jurists. According to this interpretation, the Jihad ideology is exclu- sively one of self-exertion and peaceful co-existence. Proponents of this view- point place reliance upon the literal interpretation of the meaning of Jihad as well as the primary sources of the as-siyar Œ the Quran and Hadith of Prophet Mohammed. The term Jihad comes from the Arab verb jahada, meaning to struggle or exert. 44 The Prophet Muhammad is believed to have stated that exer- tion of force in battle is a minor Jihad, whereas ‚self-exertion in peaceful and personal compliance with the dictates of Islam (constitutes) the major or supe- rior Jihad ™.45 The Prophet Muhammad is also reported to have said that the ‚best form of Jihad is to speak the truth in the face of an oppressive ruler™. 46 In Islamic jurisprudence, Jihad has been defined as ‚exertion of one™s power to the utmost of one™s capacity™.47It is contended that the advent of Isla m (especially if compared with its his- torical epoch) brought forth a peaceful revolution. Islam set peace as the perfect 40S.P. Huntington, The Clash of Civilizations and the Remaking of World Order (1996)263. 41Ibid.42J.L. Payne, Why Nations Arm (1989) 121. 43Ibid., p. 122. 44Bennoune, op. cit. , fn. 9, p. 615. 45Ibid., An-Na™im, op. cit. , fn. 24, p. 145 (citing Al-Kaya Al-Harasiy, Akhan Al-Quran 1:89 1983). 46Ibid.47Bennoune, op. cit. , fn. 9, p. 615.

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Concept of Jihad11 of 23 social and legal ideal. War was strictly regulated and limited by compulsory legal rules based on sacred texts and equitable principles. Many Muslim scholars cite Quran and Hadith texts to put forward the argument that in the Islamic tradition (unlike popularly held belief), war is an aberration and a condition which may be resorted to only under unavoidable circumstances. 48 The view advanced is that Islam™s relations with other nations Œ as originally expounded by the Prophet Muhammad Œ was based on the principle of peaceful and non-hostile relations among nations.49 The Quran states that And if they incline to peace, incline thou also to it, and trust in God. 50So do not falter, and invite to peace when ye are the uppermost. And God is with you, and He will not grudge (the reward of) your actions. 51The fact that peace is the preferred state of affairs is borne out by the following Quranic verse:And make ready for them all ye can of armed force and of horses teth- ered, that ye may dismay the enemy of God and your enemy and others besides them whom ye know not: God knoweth them. And whatsoever ye spend in the path of God, it will be repaid to you in full, and ye will not be wronged. And if they incline to peace, incline thou also to it and trust in God. Lo! He is the Hearer, the Knower. 52There is also authority in the Quran regarding avoidance of the use of force in international relations and settlement of disputes through arbitration and nego- tiation. A Quranic injunctions states ‚If two pa rties among the believers fall into a quarrel, make ye peace between them™. 53The expansion and propagation of Islam started initially by means of peaceful preaching and persuasion. Freedom of religion was applied in the- ory and practice. 54 A decade after the advent of Islam, persecution of the Prophet Muhammad and his early comp anions and followers gained momen- tum. To avoid further persecution, they fled from Makkah to Madina in 622 AD Œ an event known as Hijra (emigration) which also marks the beginning of the Islamic calendar. At Madina, although the first Muslim State was established, interference of the Makkans continued and Muslims lived under 48See Abd al-Wahhab Khallaf, Al-Siyasa al-Shariyya (1350 A.H.) 61Œ100; Sayyid Qutb, al-Adala al-Ijtimaiyya (1945) 92, 94Œ95; Hamidullah, loc. cit. , fn. 11. All these sources are cited in Khadduri, op. cit. , fn. 12, p. 293 n.40. 49For a discussion on this point, see Khadduri, op. cit. , fn. 33, p. 293. 50The Quran, verse VIII:61. 51The Quran, verse XLVII:35. 52The Quran, verse VIII:60Œ61. 53Although it may be argued here that this ve rse is confined in its application to disputes between believers. 54Mahmassani, op. cit. , fn. 38, p. 279.

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