Theory of War in Islamic and Public International Law
In Is Jihad Just War? War, Peace and Human Rights under Islamic and Public International Law, (Lewiston, NY: Edwin Mellen Press, 2001) 9-47, 2015
Niaz A. Shah, ed., Islam and the Law of Armed Conflict (Cheltenham, UK: Edward Elgar, 2015) 249-287
39 Pages Posted: 15 Jul 2015
Date Written: July 10, 2015
This comparative analysis underlines the theory of war in Islamic and public international law. It argues that peace is the rule and war is the exception in the doctrine of jihād, and that no obligatory state of war exists between Muslims and the rest of the world. Nor is jihād to be waged until the world has either accepted the Islamic faith or submitted to the power of the Islamic State. Furthermore, there is no exact equivalent in Islamic legal discourse to the concept of “holy war” in Western Christendom, nor is there resemblance between the concept of jihād, as a collective religious duty, and the Christian concept of crusade. Thus, the description of jihād as “holy war” is most misleading.
It also reveals that Jihād is a defensive war launched with the aim of establishing justice, equity and protecting basic human rights. Accordingly, Islamic humanitarian law strictly lays down a number of humane rules compatible with those established by international humanitarian law governing the conduct of war and the treatment of enemy persons and property.
Moreover, since the beginning of the seventh century, Islamic international law has played a significant role in protecting the personal, economic, judicial and political rights of civilians during armed conflicts. It has introduced a human revolution, consisting of a number of human principles, as early as fourteen centuries before the drafting of the Universal Declaration of Human Rights in 1948, and eight centuries before the appearance of Grotius, the godfather of European international law. These claims have been acknowledged by a number of European scholars who have emphasized the fact that Islamic international law has made great contributions to international humanitarian law. Indeed, occasionally the substantive postulates of Islamic humanitarian law exceed the norms decreed by the Hague and the Geneva Conventions. Consequently, the principles of human rights used in international humanitarian law are not only the product of Western civilization, but also the experiences and teachings of non-European peoples, whose traditions have also made great contributions.
In sum, by carrying this inquiry to its conclusion we find that there is a unique relationship between jihād and the notion of just war. Thus, jihād should be recognized as the bellum justum of Islam, and Lewis-Huntington’s notion of “Muslim bloody borders” should be seen as inaccurate and groundless.
Keywords: Islamic Law of Nations; Doctrine of Jihad; Theory of Just War; Human Rights and Islam; International Humanitarian Law, International Human Rights Law; Belligerent Occupation; International Comparative Law.
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