Abstract
This article focuses on the use of force under Islamic law, i.e., jus ad bellum. Islamic law allows the use of force in self-defence and in defence of those who are oppressed and unable to defend themselves. In contrast, the offensive theory of jihad is untenable. Muslim states follow the defensive theory of jihad. Islamic law also allows, under certain conditions, anticipatory self-defence. Only the head of a Muslim state (a ruler or caliph) is allowed to declare jihad. Most of the current so-called declarations of jihad have been issued by non-state actors, e.g. Al-Qaeda, who have no authority to declare jihad. These declarations thus have no validity under Islamic law and, indeed, Muslim states are fighting these armed groups. Islamic law imposes certain restrictions on the use of force in self-defence, i.e., military necessity, distinction, and proportionality. Accepting an offer of peace and humanity are also relevant conditions.
Highlights
This article investigates the use of force under Islamic law
Naturally related to this central question, are: what are the limitations on the use of force and when should the use of force end? We argue that Islamic law allows the use of force in self-defence only, and that the offensive theory of jihad is untenable
This article has established that Islamic law allows the use of force in self-defence and that the offensive theory of jihad is untenable
Summary
In Islamic tradition jus ad bellum is part of jihad. it is essential to understand the meaning of jihad, which derives from the Arabic word ‘juhd’ and literally means to ‘exert’, ‘strive’, and ‘struggle’.2 In Islamic tradition, there are two main kinds of jihad: greater or major jihad and lesser or minor jihad. In Islamic tradition, there are two main kinds of jihad: greater or major jihad and lesser or minor jihad. Greater/major jihad is a process of self-purification, whilst lesser/minor jihad signifies a struggle for self-defence – a struggle which can be carried out by tongue, pen or sword. The resolution of an international issue by intense diplomatic negotiations is a perfect example of jihad: a struggle to find a solution to a problem. The intense diplomatic efforts of Muslim states to resolve the Israeli – Palestinian conflict may be considered a perfect example of jihad. I.e., the use of force in self-defence, which is the focus of our discussion, is a last resort. The term jihad is used in the sense of using force in self-defence
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