Jihad: Challenges to International and Domestic Law
by Edited by M. Cherif Bassiouni , Amna GuellaliFormat: Hardcover
Publisher(s): T.M.C. Asser Press
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Summary
Since the attacks on the World Trade Center in September 2001, Jihad has become the symbol of the confrontation between Muslims and the West. The concept of Jihad has been central to many modern conflicts, including that of resistance to US occupation of Iraq and the Palestinian struggle for self-determination. According to the most popular view, Jihad ideology represents a religiously sanctioned aggressive war to propagate or defend faith. However, the meaning of Jihad is not as straightforward as proponents of the clash of civilizations would like it to be. The aim of this book is thus to clarify the meanings of Jihad and the manipulation of its sense since the rise of political Islam during the 1960s. It aims also at understanding the relationship between Jihad, Islam and national and international law.
Author Biography
Professor M. Cherif Bassiouni, is Distinguished Research Professor of Law Emeritus, and President Emeritus, International Human Rights Law Institute, DePaul University College of Law, Chicago, Illinois. He has served the United Nations in various capacities, all in the field of humanitarian law, international criminal law and human rights law. Amna Guellali is a Senior Researcher at the department of international humanitarian and criminal law of the T.M.C. Asser Instituut, The Hague, the Netherlands.
Table of Contents
| Foreword | p. V |
| Acknowledgements | p. VII |
| Summary of Contents | p. IX |
| Glossary of Arabic words and system of transliteration | p. XVII |
| List of Abbreviations | p. XIX |
| Introduction The Editors | p. 1 |
| Jihad, its meaning, scope and purpose in the Islamic tradition | |
| Evolving Approaches to Jihad: From Self-Defense to Revolutionary and Regime-Change Political Violence | p. 11 |
| Abstract | p. 11 |
| Introduction | p. 11 |
| The Arabic Language and the Meanings of Jihad | p. 14 |
| Evolving Meaning | p. 15 |
| Doctrinal Emphasis on the Armed Struggle Aspect of Jihad | p. 23 |
| The Conditions and Limits of Jihad | p. 27 |
| Jihad, in Contemporary Political Doctrine and Practice | p. 28 |
| Conclusion | p. 33 |
| Jihad and the Interpretation of the Quran: Contextualising Islamic Tradition | p. 39 |
| Abstract | p. 39 |
| Introductory Remarks | p. 39 |
| Definition and Scope of Jihad | p. 41 |
| A review of the Source Evidence | p. 42 |
| Types of Jihad | p. 48 |
| Salient Shari'a Positions | p. 49 |
| Other Manifestations of Jihad | p. 50 |
| Suicide and Suicide Bombing | p. 51 |
| Conclusion | p. 57 |
| Understanding the Discourses on Jihad in Islam Through Classical and Modern Narratives | p. 59 |
| Abstract | p. 59 |
| Introduction | p. 59 |
| Jihad as Part of Orthodox Sunni Doctrines | p. 62 |
| The normative and methodological framework of Sunni doctrines | p. 62 |
| Historical sketches of jihad in Islamic narratives | p. 66 |
| The Classical Doctrines of Jihad | p. 69 |
| Presentation of the classical doctrines | p. 69 |
| Conditions for the waging of Jihad | p. 72 |
| Contemporary Interpretations of Jihad | p. 74 |
| Modernist visions of Islam and jihad | p. 75 |
| Fundamentalist vision of Islam and jihad | p. 73 |
| Political theology of al-Qaeda | p. 81 |
| The opinion of the contemporary religious establishment on jihad | p. 83 |
| Conclusion | p. 85 |
| The Pitfalls of Jihad as an Individual Duty (Fard 'Ayn) | p. 87 |
| Abstract | p. 87 |
| Classical Concept of Jihad as Fard 'Ayn | p. 87 |
| Jihad as an Individual Duty in the Modern Era | p. 90 |
| p. 91 | |
| p. 93 | |
| Jihad as an Individual Duty in a Transnational Agenda | p. 97 |
| Jihad as an Individual Duty: From Transnational to Global | p. 100 |
| p. 102 | |
| Jihad as an Individual Duty: Successes and Failures | p. 104 |
| Resurrecting Siyar Through Fatwas? (Re)Constructing Islamic International Law in a Post (Iraq) Invasion World | p. 107 |
| Abstract | p. 107 |
| Introduction | p. 108 |
| Contextualising Siyar, Jihad and Fatwas in the Islamic Legal Tradition and the Contemporary World: An Analytical Overview | p. 109 |
| The Nature of Siyar and Jihad within the Islamic Legal Tradition | p. 115 |
| Fatwas as an Interpretative Vehicle of Siyar and Jihad: An Exploratory Overview in Light of 'Internet Fatwas' on the Iraq War and Muslim Responses to the Invasion | p. 121 |
| Siyar, Jihad, Fatwas and International law: Past, Present and Future in a Globalised World | p. 129 |
| Jihad,jus ad bellum and jus in bello | |
| The Challenge of Fragmentation of International Humanitarian Law Regarding the Protection of Civilians: An Islamic Perspective | p. 139 |
| Abstract | p. 139 |
| Introduction | p. 139 |
| Sources of Islamic Humanitarian Law | p. 141 |
| The role of Islamic law in shaping humanitarian standards | p. 141 |
| Humanitarian law and sacred legal sources | p. 143 |
| Islam as a religion of peace setting up war laws and humanitarian standards | p. 144 |
| The Notion and Protection of Civilians in Islamic Humanitarian law | p. 145 |
| The distinction between combatants and civilians | p. 145 |
| Muslim intellectuals and the distinction between civilians and combatants | p. 146 |
| The debate about permissible killings | p. 148 |
| The Challenge of Weapons of Mass Destruction (WMD) and the Protection of Civilians | p. 153 |
| A new challenge | p. 153 |
| The will to resort to the use of WMD | p. 155 |
| Terrorism | p. 157 |
| The deliberate targeting of civilians | p. 157 |
| The mobilization against distorted interpretations of Islam to justify the killings of civilians | p. 159 |
| Suicide Attacks | p. 160 |
| What legitimacy for suicide attacks? The debate in Islam regarding suicide attacks | p. 160 |
| Justifications of suicide attacks | p. 161 |
| What Solutions to these Distorted Warmongering Interpretations of Islam? | p. 161 |
| The propagation of other interpretations in the field as a key | p. 161 |
| New conduct of hostilities: How to deal with reality? | p. 163 |
| The need for a New Islam: The Hermeneutics of the Shari'a | p. 164 |
| Conclusion | p. 165 |
| Jus in Bello: Civilians' Fundamental Rights Under Islamic and Public International Law | p. 167 |
| Abstract | p. 167 |
| Introduction | p. 168 |
| Right to Life, the Prohibition of Torture and Inhuman Treatment | p. 170 |
| Right to Respect of Religious Beliefs, Customs and Traditions | p. 177 |
| Judicial Rights | p. 181 |
| The principle of punishment according to individual responsibility | p. 181 |
| The principle of proportional crime and punishment | p. 184 |
| The right to protection from retroactive law | p. 186 |
| Concluding Remarks | p. 189 |
| Does the Impact of Jihad Ideology and Action Require a Transformation in the Legal Rules on Targeting? | p. 191 |
| Abstract | p. 191 |
| Introduction | p. 191 |
| Review of the Legal Rules of IHL on Targeting | p. 192 |
| Comparison Between the Relevant Rules on Conduct of Hostilities of IHL, Just War Doctrines and Jihad Ideology | p. 197 |
| Conduct of Hostilities in Asymmetric Warfare | p. 199 |
| Jihad Ideology or Asymmetric Conflicts Do Not Require a Transformation in the Rules on Targeting | p. 204 |
| Self-Defence Arguments in the Jihad Concept and their Counterparts in Western International Law | p. 209 |
| Abstract | p. 209 |
| Introduction | p. 209 |
| International Law and Islamic Law | p. 210 |
| Self-Defence in the Western and Islamic Traditions | p. 212 |
| Self-defence in Western international law | p. 212 |
| Self-defence and the concept of jihad | p. 215 |
| Self-Defence Arguments in the Quran and their Western Counterparts | p. 216 |
| The basic formulation of self-defence | p. 216 |
| The limits of self-defence | p. 218 |
| Moderation | p. 218 |
| When should defence stop | p. 219 |
| Anticipatory self-defence | p. 220 |
| Jihad as Self-Defence and Modern State Practice | p. 222 |
| Jihad and non-state groups | p. 223 |
| Islamic states and jihad | p. 224 |
| Conclusion | p. 226 |
| Jihad and domestic law | |
| Jihad and Counter-Jihad: Western European Legal Responses to Islamic Militancy | p. 229 |
| Abstract | p. 229 |
| Introduction: The European Context | p. 229 |
| Fighting the Enemy: Setting the Legal Framework | p. 230 |
| New Battlefields | p. 232 |
| Countering Jihad (1): De-Radicalization and Integration | p. 235 |
| Countering Jihad (2): Protection | p. 238 |
| Jihadi Ideology: Defending Islam | p. 241 |
| Counter-Effects of the Counter-Strategies | p. 244 |
| Securitization | p. 244 |
| Religionization | p. 245 |
| Legalization | p. 245 |
| Conclusion: Jihad and Counter-Jihad | p. 246 |
| Why Continue Counterterrorism Policies If They Are Hurting? | p. 249 |
| Abstract | p. 249 |
| Introduction | p. 249 |
| Why Is It So Difficult to Counter Terrorism? | p. 250 |
| The Overly Broad Approach in Dutch Counterradicalisation | p. 258 |
| Effectiveness | p. 265 |
| Conclusion | p. 273 |
| Index | p. 275 |
| Table of Contents provided by Ingram. All Rights Reserved. |
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