SELF-DEFENSE IN ISLAMIC AND INTERNATIONAL LAW

Vol. 18 No. 9 (September, 2008) pp.792-797

SELF-DEFENSE IN ISLAMIC AND INTERNATIONAL LAW: ASSESSING AL-QAEDA AND THE INVASION OF IRAQ, by Niaz A. Shah. New York: Palgrave Macmillan, 2008. 208pp. Hardcover. $74.95. ISBN: 9780230606180.

Reviewed by Charles Robert Davidson, Department of Political Science, American University in Cairo. Email: cdavidson [at] aucegypt.edu.

Well before the events of September 11, 2001 would spawn an almost overwhelming fascination with all things Islamic – particularly insofar as they were deemed to relate to terrorism – the language of Islamic law had begun to seep into general discourse. After al-Qaeda’s 1996 “Declaration of War against the Americans Occupying the Land of the Two Holy Places,” and the 1998 World Islamic Front pronouncement (signed by Osama bin Laden and Ayman al-Zawahiri, among others), was issued, declaring “jihad against Jews and Crusaders,” notions of so-called “holy wars” and Islam’s supposed division of the world into implacably hostile zones of dar al-Islam and dar al-Harb began to pervade discussions in the mainstream press and to capture increased scholarly attention. In the aftermath of September 11, the trend took on an altogether new magnitude with previously obscure Islamic legal terminology becoming firmly embedded in the popular lexicon. Journalists and jurists, pundits and professors all mined Islamic doctrine and adopted the idiom of Islamic jurisprudence employed by the militant Islamist groups in an attempt to explain what seemed inexplicable to much of the public. (Of course, these terms had already been in widespread usage throughout the Islamic world, particularly amongst the more radical Islamist movements that emerged after the 1967 war with Israel (See e.g., Khatab 2006, at 194-211). Analysts of all stripes engaged in often convoluted and tortured interpretive analyses of the tenets of Islam to demonstrate whether they comport with prevailing legal norms, particularly with regard to the use of force. At the heart of this contentious and on-going debate lies the hotly contested legal concept of jihad.

Contending Views

Jihad has come to serve as a polemical lightning rod. Those who seek to depict Islam as an inherently violent religion often point to the notion of jihad as dispositive proof that Islam is an expansionist religion driven by a pitiless and inexorable blood-thirst. Islamic law, they contend, plainly exhorts believers to propagate and protect the Islamic faith through the means of aggressive war. The word and deed of militant Islamist groups (who are often labeled “jihadists”) buttresses this essentialist view of Islam. Others take a contrasting position, advancing the view of the inherently peaceful nature of Islam, noting the resort to force is generally proscribed save in exceptional and unavoidable instances (See Ali and Rehman 2005, at 330-333). Adherents of this view contend that jihad has little to do with the wanton violence perpetrated by al-Qaeda and other radical groups, but is rather an inherently peaceful injunction, a call for [*793] “self-exertion in peaceful and personal compliance with the dictates of Islam” (An-Na’im 1990, at 145).

It is clear from his work, SELF-DEFENSE IN ISLAMIC AND INTERNATIONAL LAW: ASSESSING AL-QAEDA AND THE INVASION OF IRAQ, that Niaz A. Shah subscribes to the latter perspective on the relationship of jihad to the use of force. Shah sets out to provide a legal analysis of the principle of self-defense under both Islamic and international law. Specifically, Shah seeks to analyze the legal sufficiency of claims of jihad made by al-Qaeda as expressed in its 1996 declaration as well claims of self-defense made by the US and its allies with regard to the 2003 invasion of Iraq. In each instance, Shah concludes that the arguments made by both parties fail to satisfy the requisites found within either Islamic law or international law. The author’s ultimate goal in decrying the misuse of doctrines of self-defense, whatever their origin, is an admirably lofty one. Shah aims to show the fundamental conceptual convergence of Islamic and international law on the question of self-defense, and “by showing this legal compatibility, the trust of Muslims and non-Muslims [sic] worlds may be restored on both systems” (p.2).

Jihad as Self-defense in Islamic Law

Shah sets forth his view on the concept of self-defense in Islamic law by examining the concept of jihad in its “defensive” and “offensive” forms. According to the author, the Qur’an itself permits the “necessary and proportionate use of force in self-defense” (p.14), which characterizes the defensive – and according to Shah – proper theory of jihad. This outlook is contrasted with that taken by others who call for a more aggressive approach, exhorting Muslims to propagate the Islamic faith using peaceful methods, but in the event of hindrance, authorizing the resort to violence. This latter perspective represents the “offensive” theory of jihad, famously propounded by influential Islamist ideologues such as Maududi and Qutb, which Shah argues is based on a faulty, selective reading and misinterpretation of the relevant legal provisions.

Drawing largely upon the Qur’an, Shah explicates the permissible grounds for use of force, its duration, and limitations on the right of self-defense. Shah does a creditable job in making his arguments that the Qur’an delimits with some clarity the parameters of defensive use of force. His careful textual analysis allows him to declare, for instance, that Islamic law requires (much like public international law) that the limiting requirements of necessity and proportionality be fulfilled (p.17). After sketching the parameters of what he deems the permissible use of jihad in self-defense, he broaches the issue of who has lawful warrant to declare and wage jihad. Citing verse 4:59 of the Qur’an (“O ye who believe! Obey Allah and obey the Messenger and those charged with authority among you.”), Shah contends that only those in power have the authority to wage (defensive) jihad. This point is persuasively argued and is indeed supported by hadith and the writings of jurists, although not cited in the text.

Far less clear and persuasive is Shah’s claim that the decision to declare jihad is a question of public safety consigned to [*794] those in authority, so long as “the public trusts and believes that the government is Islamic.” If, however, “the government loses support and is considered un-Islamic, then those who have the trust and support of the public can take decisions on public safety after being put in a position of authority according to Islamic law” (p. 22). Shah then asserts that, where several pre-conditions are met (an attack on a Muslim land, a ruler “on the side of the invader, “and “a well-founded fear that the ruler will not protect the lives and properties of Muslims”) and there is consensus among “Muslim leaders,” jihad may be lawfully declared in defense of Muslims. Shah cites no authority for this proposition. He blithely states that this declaration of jihad by a non-state actor is in compliance with the principles of self-defense and self-determination in the U.N. Charter and Article 1 of the International Covenant of Civil and Political Rights. In support of this argument, Shah cites Frantz Fanon’s THE WRETCHED OF THE EARTH. He then goes on to make the seemingly inconsistent and oddly worded argument that pursuant to Art. 51, the right of self-defense is “available to states only, but in a case where the head of state works against the interest of his country, the consensus declaration of war by other Muslim leaders should be taken as a legitimate substitute” (p.23). Lacking greater specificity, this argument falls flat.

Shah concludes this segment with an analysis of the notion of offensive jihad, arguing that its proponents such as Sayyid Qutb, for instance, have selectively read key verses out of their broader context. While certainly not condoning the notion of “offensive” jihad, Shah suggests that the writings of Qutb and Mawdudi (and ostensibly others as well) advocating this type of jihad can be understood by reference to the sociopolitical contexts in which they were writing. He writes that Mawdudi, Qutb, and even the 14th century jurist ibn Taymiyyah’s “extreme” views on jihad were born of perceived situational necessity: a desire to get rid of foreign overlords (in the case of Mawdudi who wrote during the British occupation of the Indian subcontinent), un-Islamic government, (in the case of Qutb, who opposed the Nasser regime), and invading hordes (in the case of Ibn Taymiyyiah who wrote under threat of a Tatar invasion of Central Asia). There is no doubt that sociopolitical realities inform all writing, and it is crucial to foreground context, yet it does seem slightly inconsistent with Shah’s views on the fundamental doctrinal incompatibility of offensive jihad to suggest that the context might in some way justify its usage.

Shah builds upon his earlier arguments regarding defensive jihad to demonstrate that the 1996 and 1998 declarations of jihad by al-Qaeda failed to meet the prerequisites of Islamic law, namely the requirement that jihad be declared by a governing authority, and that civilians not be targeted in warfare. Shah argues that at the time of these declarations, no Muslim country was under attack nor was any attack deemed imminent, and that where Muslims were persecuted (Kashmir, Palestine, Chechnya, for instance), “[they], at the same time, were able to inflict harm on their persecutors”(p.57). Thus, according to his reasoning addressed above, no grounds existed for the lawful declaration of jihad by a non-state actor [*795] like al-Qaeda. Regarding Saudi Arabia, a focal point for the ire of al-Qaeda, Shah notes that the declaration of jihad against the Saudi regime is unjustified since “the government claims to be applying Sharia law,” and since “there are no serious internal disturbances or radical opposition groups against the government.” He goes on to note, somewhat oddly, that “people seem to live normal lives, as would be expected in that region”(p.58).

This segment contains the more provocative aspect of Shah’s work in which he warns that if the US-led coalition forces do not withdraw from Muslim lands, Muslim leaders might consensually decide to declare a Quranically sanctioned jihad against them. This argument ignores the divisive political realities of contemporary intra-regional politics, as well as the complexities of Middle Eastern-Western relations. Alternatively (and slightly more plausibly), he argues that Muslim leaders might begin providing support to al-Qaeda. Again, Shah’s argument seems to ignore the deadly hostility that exists between al-Qaeda and most governments in Muslim-majority states. If, Shah argues, there is “sufficient Muslim leaders’ consensus,” an otherwise un-Islamic jihad, such as that waged by al-Qaeda, might be cured of its illegitimacy and become legal under international law (p.48). To support this, Shah simply refers the reader back to his earlier and unconvincing argument that jihad declared by consensus (what quantum of consensus is required is not addressed) comports with international law.

This chapter contains a segment on Iraq, Afghanistan and the causes of terrorism. It appears that the author seeks to debunk the myth that terrorism has any relationship whatever with Islam, a point that, though frequently heard, is likely worth reiteration. Much of the information here is widely-known, and more thoroughly discussed in the literature on terrorism and political violence. It is an interesting chapter but this excursus into the shortcomings of US policy in the Middle East – though in large part accurate – detracts from the legal argument that Shah is attempting to construct.

Self-defense under International Law and the War in Iraq

Article 51 of the U.N. Charter, addressing the right to self-defense, has been extensively analyzed in its relationship to Article 2(4) of the Charter which seems to prohibit the use of force in international relations. Shah nicely summarizes the arguments made for and against a narrow interpretation of Art. 51, and concludes, as do many scholars that Art. 51 mirrors customary international law in permitting the use of force taken in “anticipatory self-defense.” He then tackles the thornier question of preemptive self-defense, a concept that has gained considerable attention since the US-led invasion of Iraq. Here again, Shah treats the contending legal arguments with clarity and balance. This chapter will make an excellent reading for an undergraduate international law class dealing with the use of force.

Concerning the legality of the invasion of Iraq, Shah concedes that there is a divergence of opinion among international lawyers but maintains that “those who support the invasion of Iraq are either on the payroll of Anglo-American administrations or politically [*796] aligned with them” (p.121). Here again, Shah does not cite any evidence to support this sweeping claim. He then goes through the now extensively analyzed flaws in the underlying evidence leading up to the war, and challenges the “revival theory” by which it has been suggested that that U.N. Resolution 678 authorized the use of force against Iraq, without need for further Security Council authorization. This chapter, though covering material that has been extensively covered elsewhere, is clearly written and well-organized and again would be appropriate reading for an undergraduate law or political science course dealing with the use of force.

In the final segments of the book, Shah makes his claim that Islamic law and international law, though different, remain fundamentally convergent regarding the use of force in self-defense. He reiterates the point that any law, whether domestic or international, is potentially subject to abuse, and both Islamic law and international law have been misused by al-Qaeda and the Anglo-American coalition in Iraq.

Shah closes by taking to task the international legal order as a whole, which he sees as dominated by a few states to the detriment of the multitude of less powerful states. In this imbalance lie the seeds of violent conflict. Shah rather wistfully advocates that “countries that are considered the seats of power should be at the forefront of setting up the best precedents of compliance with international law” ( p.178). To emphasize his point, he makes broad critiques of the composition of international organizations, naturally pointing out the inequities that inhere in a Security Council dominated by five veto-holders, as well as the injustice of contemporary nuclear legal regime, and the pitfalls of US-UK democracy promotion schemes in the Middle East.

Conclusion

Shah makes many important and valid points in support of his argument that law, whatever its source, is malleable and subject to manipulation. Shah rightly cautions the reader to be ever mindful of gross distortion, particularly given the sanctity that law of all sorts tends to (rightfully or wrongfully enjoy). His treatment of international law pertaining to use of force is particularly strong and well argued. The portion treating the Islamic law of self-defense, although thought-provoking, was less persuasively argued, and was undermined by unsubstantiated and overbroad conclusions. On a stylistic level, the volume’s readability might have been enhanced by a more stringent edit, as phrases are occasionally awkward and unclear, but none of this detracts from the overall value of this volume, parts of which I will add to my syllabus on Public International Law.

REFERENCES:

Ali, Shaheen S., and Javaid Rehman. 2005. “The Concept of Jihad in Islamic International Law.” 10 JOURNAL OF CONFLICT AND SECURITY LAW 321-343.

An-Na’im, Abdullah A. 1990. TOWARD AN ISLAMIC REFORMATION: CIVIL LIBERTIES, HUMAN RIGHTS, AND INTERNATIONAL LAW. Syracuse: Syracuse University Press. [*797]

Fanon, Frantz. 1966. THE WRETCHED OF THE EARTH. New York: Grove Press.

Khatab, Sayed. 2006. THE POWER OF SOVEREIGNTY: THE POLITICAL AND IDEOLOGICAL PHILOSOPHY OF SAYYID QUTB. London: Routledge.

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