Islamic Jihadism and the Laws of War
In my position as the International Committee of the Red Cross (ICRC) regional legal coordinator in the Middle East and North Africa for the last ten years, I’ve had the sad privilege to witness the ugly wars between various States and the Islamic jihadist groups that have spread across the region. All parties to these conflicts bear responsibility for the most heinous crimes. Some commit them in the name of religion while others claim to promote national security. In all cases, innocent civilians are unfortunately paying the highest price.
On the one hand, jihadist groups often cite Islamic law interpretations and argumentations to justify their combat-related actions against States while they completely deny, reject, and distrust traditional international law rules. On the other hand, some States drift away from international law rules to justify their so-called “counterterrorism” measures to halt these groups from expanding on their territories. In these wars, the internationally recognized laws of war that were originally created to protect those who do not or no longer participate in hostilities are equally and constantly being challenged by the two sides—jihadist groups and States—to justify their combat actions. This is a shocking reality that international lawyers and policymakers find themselves incapable and astonishingly helpless to deal with.
I started writing my book on Islamic jihadism and the laws of war in August 2014, only two months after the great city of Mosul in Iraq fell under the control of ISIS, and one month after ISIS declared itself as the only existing “Islamic Caliphate.” This moment exemplified the rapid rise and threat that “Islamic jihadism” posed vis-à-vis current international relations and international law systems. It also demonstrated the limited success—not to call it failure—of the anti-terror campaigns led by the United States and others to stop the increasing expansion of this emerging global phenomenon. This left me with an unanswered hard-hitting question, that I tried to answer in my book. What role can political and humanitarian actors play to preserve and restore the world’s peace and security?
International Law
Since the end of the Second World War, international law has been the key instrument for addressing global conundrums of this kind. Nevertheless, in this particular context, I argue in my book that international law cannot solve this problem alone. International law is predominantly perceived by jihadists—and among mainstream Muslims in the Islamic world—as a Western tool chiefly created by Western powers and used by Western-dominated bodies to enforce an absolute Western imperial agenda.
I also argue that it is evident that no enforcement regime can cope with massive and persistent violations through only coercive mechanisms. Any legal system must assume a high level of voluntary compliance if it is to have the will and ability to enforce its rules in the exceptional cases where that is necessary. My book therefore attempts to promote voluntary compliance among jihadist groups in order to better implement international law principles and values. This voluntary compliance cannot be reached without a genuine interaction between international law and the internal law of the jihadist groups, namely Islamic law. Indeed, Islamic law has played and continues to play a crucial role in the cultural, political, and legal affairs of those groups, who cite exclusively Islamic law arguments to justify their combat-related actions on a daily basis.
Islamic Law and the Evolution of Jihad
The book first discusses the concept and sources of Islamic law, revealing that it is mostly a product of rational intellectual thinking that has developed in different cultural environments throughout hundreds of years. It also highlights the historical and contextual evolution of the notion of jihad from the “Medinan ideal” State of Prophet Muhammad to the now collapsed “State” of Abu Bakr Al Baghdadi. Drawing on various sociopolitical considerations, the book attempts to demonstrate how every Islamic State or group has used or misused the notion of jihad throughout Islamic history.
This leads to the obvious conclusion that the notion of jihad has always evolved in reaction to a new sociopolitical reality that pushes the Islamic State or a group to seek one form of jihad or another. Those new sociopolitical realities—for example the rapid decline of the Islamic empire in the 19th century, colonialism in the 20th century, the anti-Soviet jihad in the 1970s–80s and the global “war on terror” in 2001—were most impactful turning points generating paradigm shifts in the notion of jihad.
The Islamic Jus Ad Bellum and Jus in Bello
The book then tackles the Islamic laws of war (jus ad bellum and jus in bello) from an international law perspective. The rationale behind using such a comparative approach is to shed light on the commonalities and differences between these two legal paradigms (international and Islamic laws) as they are the principal norms regulating the wars of, and against, “Islamic jihadism” in our contemporary world.
On the jus ad bellum side of this comparative study, the book argues that the two bodies of law, generally speaking, agree on the principles of the maintenance of peace and the prohibition on the use of force or military jihad in international relations between States and within one State. They further share the same exception regarding the use of force in self-defense—if an actual armed attack has taken place or to avert a threat of imminent attacks—and they adopt similar criteria for a permissive exercise of this right, namely immediacy, necessity, and proportionality. Additionally, the book thoroughly evaluates the positions and debates of Muslim jurists vis-à-vis the notion of offensive jihad, highlighting the risk of adopting any interpretation that supports such a theory.
Regarding the jus in bello, the book argues that the two bodies of law share the aim of protecting those who do not or no longer directly participate in hostilities and by restricting the rights of parties to the conflict to use particular means and methods of warfare.
The book also emphasizes the fact that the two bodies of law apply only in armed conflicts, with distinctive sets of rules devoted to international and non-international armed conflicts. However, their classification methodologies and underlying motivations vary a great deal. On the one hand, international law draws on sovereignty and territorial based interests (Statehood) to justify its classification of conflicts. While, on the other, Islamic law conflict classification is determined by community-based interests (Muslim-hood). Accordingly, each body of law has its own criteria to determine the typology of the armed conflicts. Nonetheless, the substantial rules related to the protection of the victims of armed conflict are quite similar, including the protection of civilians, civilian objects, wounded, sick, medical personnel, the prohibition of mutilation, and the treatment of prisoners of war and detainees. However, there is significant disagreement between Muslim jurists on the rules related to the termination of captivity.
The book additionally highlights that the principles of distinction, proportionality, and precautions in attack are equally enshrined under Islamic law and international law. Yet, despite a relatively comprehensive legal framework provided by international law to regulate the warring parties’ rights to use particular means and methods of warfare during armed conflicts, it is evident that the Islamic jus in bello paid little attention to this subject, mostly due to the basic types of weapons used in the early stages of Islamic wars. However, some context-related means and methods of warfare have been debated among Muslim jurists, such as the legality of using suicide attacks, human shields, weapons of mass destruction, and so forth.
Contemporary Islamic Jihadism from a Counterterrorism Perspective
Having discussed these two major branches of public international law, the book turns to one of the most important, but also the most problematic, solutions that the international community established to respond to “Islamic jihadism,” namely the counterterrorism legal framework. The book focuses on the challenges that the implementation of this newly developed framework poses to pre-existing legal frameworks such as domestic laws, international humanitarian law (IHL) and international human rights law. It highlights how ambiguity regarding the term “terrorism”—as introduced by the UN General Assembly and the Security Council (UNSC)—and the absence of any concrete definition made every State interpret the term in light of its political interests. Accordingly, the term has frequently been used to stigmatize, delegitimize, and dehumanize those at whom it is directed, including legitimate political opponents. This risks blurring the line between acts that deserve triggering counterterrorism measures and acts that could be regulated by other branches of international or domestic law. However, the book does not seek to undermine the pressing need to regulate the phenomenon of terrorism that clearly disturbs States’ public order and often threatens international peace and security.
The book questions the emerging role of the UNSC in dealing with the phenomenon of terrorism, including through legally binding resolutions and the creation of the “1267 Committee,” “ISIL and Al-Qaeda Sanctions Committee,” and the Counter Terrorism Committee that have arguably acquired a quasi-judicial and legislative character. It also tackles the approach of the Organization of Islamic Cooperation (OIC)—often claimed to be the collective voice of the Muslim States—toward the phenomenon of terrorism and its position vis-à-vis the ongoing negotiations on the text of the draft UN Comprehensive Convention on International Terrorism.
Finally, the book discusses the jus ad bellum and jus in bello challenges that are posed by the contemporary fight against Islamic Jihadism. These include, on the jus ad bellum side, the use of the intervention by invitation and the “unable or unwilling” test to justify the use of force by States against ISIS. On the jus in bello side, they include the complexity of the classification of conflicts, the temporal and geographic scope of application of IHL, the applicability of IHL to non-international armed conflicts in which an organized non-State armed group party to the conflict is categorized as a terrorist organization, and the internment of “terrorists” during non-international armed conflicts.
Integrated Approach in Fostering Legal Compliance by Islamic Jihadist Groups
After tackling all these challenges and complexities, the book examines how the interaction between Islamic law and international law could foster compliance by jihadist groups. The aim is to explain some of the challenges these interactions pose while proposing that an integrated approach could help to reach the desired end. The rationale behind such an integrated approach is to create a pragmatic humanitarian legal formula, inspired by the common values of international law and Islamic law, which international lawyers and policymakers could use to bolster jihadist groups’ compliance with the laws of war and their commitment to them.
The book suggests the four main pillars of the integrated approach as practical guidelines to apply in contemporary warfare, namely: (1) approaching the Islamic jihadist groups by engaging them in a legal discussion—on Islamic law and international law—through one of the three provided forms of consent (“special agreements,” unilateral declarations, or internal codes of conduct); (2) negotiating with States with regard to granting any concessions related to criminal punishments (amnesty, combatant-like privilege, or punishment reductions); (3) finding an appropriate intermediary (the ICRC or other impartial body) that is capable of coordinating the political, logistical and technical aspects of the process; and (4) mobilizing third States that have influence on Islamic jihadists groups to encourage them to comply with the law.
Conclusion
In conclusion, the book calls on international lawyers and policy makers to become more reflexive, open-minded, humble, and ready to engage with other legal cultures in order to ultimately reach to our objectives. Sometimes, as we all know, international law must be used in different ways to prove its effectiveness. In this spirit, the book proposes that we can certainly contribute toward the response to Islamic jihadism if we manage to engage in a constructive dialogue between international law and Islamic law, including all its diverse interpretations. This dialogue would highlight the similarities between the two laws and embrace their differences, while acknowledging the likelihood that this integrated approach would not create any utopian results. Yet, one would still hope that this dialogue or the humble suggestions presented in the book may serve as a brick for other more capable scholars to build bridges between two distant communities and cultures through civil and respectful dialogues.
***
Dr. Omar Mekky is the Regional Legal Coordinator at the ICRC in the Middle East and North Africa. Judge at the Egyptian Primary Courts (on Leave).
Disclaimer: The views and opinions expressed in this post are those of the author and do not necessarily reflect the views or positions of any entities he represents.
Photo credit: Unsplash
