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Is Jihäd a Just War? War, Peace and Human Rights Under Islamic and Public International Law. By Hilmi M. Zawati. Lewiston NY: Edwin Mellen Press, 2001. Pp. xii, 218. $109.95.

Published online by Cambridge University Press:  27 February 2017

M. Cherif Bassiouni
M. Cherif Bassiouni*
Affiliation:
DePaul University College of Law
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Type
Recent Books on International Law
Information
American Journal of International Law , Volume 96 , Issue 4 , October 2002 , pp. 1000 - 1005
Copyright
Copyright © American Society of International Law 2002

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References

1 Jihād’s warlike aspect is the counterpart of Christianity’s ‘just war” concept and Roman law’s concept of bellum justum.

2 From the Qur’ān: “Whoever strives (Jahada), he only strives for [his] own self” (Q.29:6); “To strive for Allah [is] true striving (Jihād)” (Q.22:78). See also Q.29:69; Q.22:78.

3 [Author’s Note: Shari’a refers to the body of law that identifies the norms of Islam that are applicable to Muslims, and by Muslims to non-Muslims. See Cherif Bassiouni, M. & Gamal, M. Badr, The Shari’ah: Sources, Interpretation, and Rule-Making, 1 UCLA J. Islamic & Near E.L. 135 (2002)Google Scholar.]

4 Such detractors include Lewis, Bernard (The Political Language of Islam (1988)CrossRefGoogle Scholar), Miller, Judith (God Has Ninety- Nine Names (1996))Google Scholar, Kramer, Martin (Political Islam (1980))Google Scholar, Viorst, Milton (Sand Castles: The Arabs in Search of the Modem World (1994))Google Scholar, Peretz, Martin (in The New Republic), and Morton Zuckerman (in The Atlantic). For a critique of these and other writers, see Edward Said, Covering Islam (1997)Google Scholar.

5 For a description of this genre of literature, see Said, Edward, Orientalism (1979)Google Scholar.

6 The first authority was Iham Malik (d. 796). See Malik ibn Anas: The First Formulation of Islamic Law (Aisha Aburrahinan Bewky trans., 1989). He was followed by the most noted legal authority, Muhammad al-Shayhani (d. 804), whose Kitab al-Siyyar codified the laws and customs of war in accordance to Shari’ā. His work was translated by Majjid Khaddury in The Islamic Law of Nations: Shaybani’s Siyyar (1966). See also Taqī al-Dīn ibn Taymiyyah (d. 1328), Al-Siyasa al-Shariyya Fi Islah Al-RA ‘I wa al ra ‘iyya (Governance according to God’s Law in reforming both the ruler and his flock). Ibn Taymiyyah is considered to be an early fundamentalist who started the movement “ al salef al saleh” (the righteous path). For a contemporary critique, see Cherif Bassiouni, M., A Search for Islamic Criminal justice: An Emerging Trend in Muslim States, in The Islamic Impulse 244 (Stowaser, B. ed., 1983)Google Scholar, reprinted in New Perspectives on Islam and Politics in The Middle East 249 (Stowaser, B. ed., 1987)Google Scholar.

7 See Hamidullah, Muhammad, Muslim Conduct of State (6th rev. ed. 1973)Google Scholar; Shaltut, Mahmud, Al-Qur’ān wa l Qital (1948)Google Scholar (The Qur’ān and war): ‘Abdullah Mustafa El-Maraghi, al-Jihād (1950). This shortcoming is also apparent in the works of contemporary fundamentalist Muslim writers such as Abū’l Alā’al-Mawdūdī (d. 1976).

8 For a succinct, yet comprehensive, survey, see Peters, Rudolph, Jihād in Classical and Modern Islam (1996)Google Scholar.

9 The complete record of the Sunna was compiled by Ishaq ibn Yassar 136 years after the death of the Prophet in 11 A.H. (A.H. refers to Anno Hajra). 1 A.H. corresponds to the year 622 C.E., which is the year of the Prophet’s flight from Mecca to Medina. The most reliable sources of the Sunna are Muhammad ibn Isma’il ibn Ibrahim Al-Mughira Al-Ja’fi Al-Bukhari, Sahih Al-Bukhari (Iman al-Nawawi ed., 1924), which contains 7,275 confirmed hadith, and Muslim ibn Haijaj Al-Qushayri, Sahih Muslim (Abdul Hamid Siddiqui trans., n.d.). Bukhari and Muslim, who were contemporaries, died in A.H. 257 and A.H. 261, respectively, and their works have endured the passage of time. Bukhari notes that there is agreement concerning the 7, 275 hadith contained in his sahih, but that, because of Repetition and overlaps, there are actually only 2,762 separate hadith. Al-Bukhari, supra. At that time, there were 200,000 alleged hadithm circulation. The debate over what hadith are sahih, meaning true, is as extensive as the one over the interpretation of each hadith. The reconciliation of inconsistent and contradictory hadith is another complex issue; it is best addressed in Abd Allah ibn Muslim ibn Qutayba, Ta’wil Mukhtalafat Al-Hadith (Interpretation of differences in the hadith) (1936). For an analytical study on the technique of Sunna interpretation, see Abu Ali Farisi, Jawahir Al-Usul, fi ilm Hadith Al-Rasul (1969).

10 From the first Revelation upon Prophet Muhammad, to his death.

11 These practices were deemed authoritative.

12 It should be noted that the Qur’ān has several explicit verses prohibiting compulsion in religious conversion. The Muslim’s duty/right is freedom of religion, including freedom to propagate it. Only when that is prohibited by non-Muslims can there be a call for jihād. Nevertheless, it should be noted that early interpretations of die right to propagate were basically equivalent to “convert or submit,” which was a form of compulsion. There was, however, the exception of the people of the Book, if they paid jizya or if they had a treaty with the Muslim nation. The following hadith of the Prophet refers to his orders to commanders of any armies or of any expedition:

When you meet your heathen enemies, summon them to three things. Accept whatsoever they agree to, and refrain then from fighting them. Summon them to become Muslims. If they agree, accept their conversion. In that case, summon them to move from their territory to the abode of the immigrants [Medina]. If they refuse that, let them know that then they are like the Muslim Bedouins, and that they share only in the booty, when they fight together with the [other] Muslims. If they refuse conversion, then ask them to pay jizya. If they agree, accept their submission. But if they refuse, then ask God for assistance and fight them

. . . .

Later, Abu al-Walīd Muhammad ibn Muhammad ibn Rushd (d. 1198) (Averroes) was more inclined toward the spirituality of jihād And argued that Islam’s expansion was intended to be by peaceful means. Fatāwā ibn Ruski (Mukhtar ibn Tahir al-Tabibi ed., 1978).

13 There were also instances where it was extended to others, such as to Zoroastrian clerics and their temples.

14 See Bassiouni & Badr, supra note 3; Wael, B. Hadar, A History of Islamic Legal Theories (1997)Google Scholar.

15 Notwithstanding these divergences, almost all doctrines focused more on jihād’s warlike aspects than on its societal and spiritual aspects.

16 It also has appendices (from pages 113 to 164) that contain translations of five significant treaties in the history of Islam and two contemporary Islamic human rights declarations. Presumably, the author wants to show that there is no substantial contradiction between Islam and contemporary human rights.

17 The book is an adaptation of the author’s doctoral dissertation at McGill University School of Law, whose dean wrote a short preface.

18 See, in contrast, the comprehensive approach of Peters, supra note 8.

19 See supra note 4.

20 See Samuel, P. Huntington, The Ciash of Civilizations and the Remaking of World Order (1998)Google Scholar; cf. Esposito, John, The Islamic Threat: Myth or Reality (1992)Google Scholar.

21 The author refers to it as a doctrine, but there are many different doctrines of jihād, depending upon the Madhahib, the doctrinal schools of thought (there are four major schools for the Sunni, and three major schools for the Shi ‘a). See Peters, supra note 8, and his bibliography. See also Bassiouni & Badr, supra note 3, for the schools of interpretation, and Wael B. Hallaq, A History of Islamic Legal Theories (1997).

22 These exceptions illustrate the proposition that resort to war under the concept of jihād has legal and political limits that are dictated by considerations other than epistemological. While there are many examples during Islam’s fifteen centuries of pragmatic considerations and political reasons for which the various ruling régimes have gone to war or refrained from it, these examples evidence the use of the concept of jihād for political purposes and for exhorting the Muslim masses to war. See also Bassiouni & Badr, supra note 3, at 178 (“Chronology of Major Dates in the History of the Islamic State(s)”).

23 See Cherif Bassiouni, M., Evolution of International Humanitarian Law and Arms Control Agreements, In A Manual on International Humanitarian Law and Arms Control Agreements 3 (Cherif Bassiouni, M. ed., 2000)Google Scholar.

24 Among them Sheikh Mahmud Shaltut, Al-Azhar’s rector, see supra note 7, Sheikh Mustafa El-Maraghi, see supra note 7, and Sheikh Muhammad Abu Zahra, the University of Cairo’s professor of Shari ‘a and a leading expert whose many writings were published between 1950 and 1970. They followed the lead of the great contemporary reformer Sheikh Mohammed Abdou, for whom the propagation of Islam was to be by peaceful means, thus implicitly rejecting the early notion of jihād that some doctrines espoused when religious differences between peoples meant war.

25 Aly, Aly Mansour, Hudud Crimes, in The Islamic Criminal Justice System 195 (Cherif Bassiouni, M. ed., 1982)Google Scholar.

26 See Cherif Bassiouni, M., Death as a Penalty in the Shari’a, in The Death Penalty: Condemned 65 (International Commission of Jurists, 2000)Google Scholar.

27 See, e.g., Rashid, Ahmed, Jihad: The Rise of Militant Islam in Central Asia (2002)Google Scholar; Mary, Anne Weaver, A Portrait of Egypt: A Journey Through the World of Militant Islam (2000)Google Scholar.

28 See M. Bassiouni, Cherif, The Face of Terror, Chicago Tribune, October 21, 2001, §2, at 1 Google Scholar.

29 See, e.g., Cherif Bassiouni, M., Legal Controls of International Terrorism: A Policy-Oriented Perspective, 43 Harv. Int’l L. J. 83 (2002)Google Scholar.

30 For an insightful recent book that goes into the religious background of the conflict, see Rosemary, Radford Reuther & Herman, J. Reuther, The Wrath of Jonah: The Crisis Of Religious Nationalism in the Israeli-Palestinian Conflict (2002)Google Scholar.

31 Reprisals that constitute violations of international humanitarian law are prohibited. See Fritz Kalshoven & Lisbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law (3d ed. 2001). The same substantive rules did not, however, clearly exist under the Islamic law of armed conflict, although there are some constructions to the contrary. See, e.g., Khaddury, supra note 6.

32 See Balint, Jennifer, An Empirical Study of Conflict, Conflict Victimization and Legal Redress 1946-1996, in Reigning In Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference, 17-21 September 1998, at 110 (Cherif Bassiouni, M. & Christopher, C. Joyner eds., 1998)Google Scholar; States Inarmed Conflict 2000, at 28 (Sollenberg, Margaretta ed., 2001)Google Scholar; Jongman, A.J., Pioom, World Conflict & Human Rights Map 2001/2002 (2002)Google Scholar; International Institute of Strategic Studies, 2000 Chart of Armed Conflict, in The Military Balance 2000-2001 (2000).

33 See Bassiouni, Legal Controls of International Terrorism, supra note 29, at 101; Cherif Bassiouni, M., Perspectives on International Terrorism, in International Terrorism: Multiiateral Conventions 1937-2001, at 1, 15 (Cherif Bassiouni, M. ed., 2001)Google Scholar.

34 In other words, protagonists to a given conflict cannot self-define their conduct and that of their opponents to characterize one or the other as lawful or unlawful. See, e.g., Howard S. Levie, Terrorism in War: The Law of War Crimes (1993).

35 Paradoxically, countries that profess to be Islamic are the ones restricting freedom of religion, whether by people of the Book, which is prohibited by Islam, or others (in particular, the Baha’is). See Cherif Bassiouni, M., Freedom of Religion in Egypt: The Baha’is’ Case, in Criminologiay Derecho Penal al Servicio de la Persona (José Luis de la, Cuesta, Iñaki, Dendaluze, & Enrique, Echebúnia eds., 1989)Google Scholar.

36 See Bassiouni, Evolution of International Humanitarian Law and Arms Control Agreements, supra note 23.

37 Other verses also refer to the universality of humankind, notwithstanding its diversity.

38 See Zernike, Kate, Harvard Student Drops “Jihad” from Speech Title, N.Y. Times, June 1, 2002, at A10 Google Scholar.