Is Osama Bin Laden's Fatwa urging Jihad against Americans dated 23 February 1998 justified by Islamic law?

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1 Defence Studies ISSN: (Print) (Online) Journal homepage: Is Osama Bin Laden's Fatwa urging Jihad against Americans dated 23 February 1998 justified by Islamic law? Major T.R. Copinger Symes British Army To cite this article: Major T.R. Copinger Symes British Army (2003) Is Osama Bin Laden's Fatwa urging Jihad against Americans dated 23 February 1998 justified by Islamic law?, Defence Studies, 3:1, 44-65, DOI: / To link to this article: Published online: 19 Oct Submit your article to this journal Article views: 853 Full Terms & Conditions of access and use can be found at

2 ARTICLE Is Osama bin Laden's 'Fatwa Urging Jihad Against Americans' dated 23 February 1998 Justified by Islamic Law? MAJOR T.R. COPINGER-SYMES, BRITISH ARMY The title of this article is controversial if only because it suggests that there could be some form of justification for a document that is likely to have provided the inspiration for the attacks in New York and Washington on 11 September But the rationale for studying this issue is to further understanding rather than to escalate controversy. There has been an academic and media focus on the potential for prolonged conflict between the liberal democratic West' and the Islamic (Middle) 'East' for some time. 2 Many of these studies have relied heavily on cliche and stereotype but they have proved seductive to a great many readers in both the West and the East. 3 The irony is that the prophecies may turn out to be selffulfilling unless we actively try to prevent such a conflict. If a 'Clash of Civilizations' is to be avoided in the coming decades then it is more likely to be avoided by dialogue between those civilisations rather than through the rejection of countervailing opinions. This dialogue must be based on an accurate understanding of each other's beliefs and opinions rather than prejudice and ignorance. For those who have no interest in such a dialogue there is Sun Tzu's adage that knowledge of one's enemy is a prerequisite to victory. 4 At the very least we have the advice of the current Adjutant General that '[w]hen we are challenged, we must start from the position that the challenger may be right'. 5 In the wake of September 11 the Western media has made some attempt to understand the reasons for such actions. Many of the broadsheets have devoted time and column inches to analysing why young, intelligent, educated Muslims have proved willing to sacrifice their Major T. R. Copinger-Symes, British Army, Advanced Command and Staff Course Number 5 ( ), JSCSC, Shrivenham. Defence Studies, Vol.3, No.l (Spring 2003), pp PUBLISHED BY FRANK CASS, LONDON

3 IS OSAMA BIN LADEN'S FATWA JUSTIFIED BY ISLAMIC LAW? 45 lives in order to hit out at the West. 6 But many of these studies have been based on a shallow and cliched understanding of the rationale behind Osama bin Laden's words and actions. He has been portrayed by some as no more than a spoilt and capricious 'rich kid' with too much time and money on his hands. Others have suggested that bin Laden is motivated by latent homosexuality or that he was" neglected as a child because his father had several wives. 7 In other words we have tended to interpret his actions by relating them to our situation and preoccupations, rather than placing them within his cultural and ethnic context. In particular there has been little willingness to examine whether or not there is any valid theological basis to bin Laden's activities. This reluctance may result from our secular mindset that does not admit the possibility of religious motivation for such actions. Perhaps there is also an unacknowledged fear that if we study Islam too closely we might confirm our darkest stereotypical suspicions of it as a rapacious and aggressive force intent on global subjugation. 8 Understanding the theological element of bin Laden's motivation is surely an important step in stripping away the ignorance and prejudice that shapes our response to him and his activities. This is not to argue that there are not other significant economic, social and political drivers at work; rather it is an acknowledgement that the theological aspect is an area in which our understanding is weakest and consequently requires extra effort and study. It is also the basis on which he demands to be judged and therefore must be worthy of consideration if we wish to undercut his support. Therefore this article explains the way in which Islamic Law is formulated from divine revelation and charts the specific development of jihad doctrine in its various forms - both in terms of/us ad bellum and jus in hello? The distinction between offensive and defensive jihad will be highlighted as well as the principal ways in which jihad doctrine differs from the norms of International Law with regard to the conduct of war. Having provided an overview of the broad concept of jihad, Osama bin Laden's fatwa of 23 February 1998 will be analysed to consider whether it is consistent with the doctrine that has previously been delineated. This will show that bin Laden has considerable justification in calling for a defensive jihad, given the current situation in the Arabian Peninsula as he and his audience perceive it. But it will also demonstrate that the means that he condones in prosecuting that defensive war have no basis in Islamic Law using even the most extreme definitions. This provides a guide to undercutting bin Laden's support. First, we must acknowledge that there is a continuing perception of

4 46 DEFENCE STUDIES Western 'aggression' against Islam and that this perception needs urgently to be changed. Second, bin Laden's Islamic credentials must be challenged on the basis that his actions do not adhere to, and cannot be justified by, Islamic Law. Although his own fellow Muslims must take the lead in this, the West must ensure that it helps By ensuring that its own actions remain within International Law. The Formulation of Islamic Law A fundamental problem for the Western observer when encountering Islam is that our largely secular background inadequately prepares us to comprehend the all-embracing nature of Islam as a framework for the totality of life social, economic and political. Although decreasing involvement with the established Churches has promoted a largely ecumenical tolerance in the United Kingdom, this derives more from disinterest than from depth of understanding. The separation of Church and State has been a fundamental tenet of our political system for over 300 years - in the USA this separation is even more clearly delineated. That is not to say that our legal and political institutions do not owe a huge debt to the influence of Christianity, but that influence is largely invisible at this stage in their development. By contrast, Islam, which has never undergone a process such as the Christian Reformation of the sixteenth century, has a different view of its role:...islam is not a mere belief-system, an ideology or a religion in the usual sense in which these words are understood. Rather it is a total way of life, a complete system governing all aspects of man's existence, both individual and collective. 10 Islamic Law or Shari'a provides the blueprint for this collective and individual governance. It has been and continues to be formulated from detailed study of Allah's scripture as revealed to the Prophet Muhammad through the agency of the Angel Gabriel. This scripture is the Qur'dn ('The Recital') and it represents for Muslims the final, authoritative statement of Allah's guidance to humanity for the rest of time. As such it builds on the other sources of revealed scripture within the monotheistic tradition: the Taurat revealed to Moses, the Zaboor given to David and the Injeel received by Jesus. Islam reveres all of these individuals as Allah's prophets and holds sacred the messages revealed to them by Him.

5 IS OSAMA BIN LADEN'S FATWA JUSTIFIED BY ISLAMIC LAW? 47 But the Qur'dn differs from these other scriptures in that it is claimed to have been preserved in its exact form since Muhammad received it in. the period CE." Whereas the Gospels of the New Testament were written some time after the death of Christ by his disciples and have been repeatedly amended and translated since, the Qur'dn was recorded as it was revealed. As such it is taken quite literally to be the word of God, rather than Muhammad's version of those words. Evidence offered to support this is that Muhammad's own style of speech, as recorded during his lifetime, was of a completely different style to that used in the Qur'an. The latter 'is language of such a sublime and exalted quality as no human being has ever been able to approximate either then or since'. 12 Next to the Qur'dn the most important source for developing Islamic doctrine is the collection of the sayings (hadith) and practices (sunnah) of Muhammad and his closest followers. These reports of their actions and opinions were contemporaneously recorded in documents that comprise the second major source of guidance for Islamic jurists. 13 In effect they are taken as evidence of Muhammad's interpretation of the Qur'dn and are therefore deemed to be definitively authoritative. They too have survived unchanged in the original Arabic since they were first recorded over 1,300 years ago. From the Qur'dn and the Hadith, Islamic scholars (Ulema) have over the centuries formulated doctrine covering every aspect of life encompassing political, social and economic fields. When an issue requiring guidance emerges, the Qur'dn is studied in detail for references to such an issue or situation, from which God's message may be divined. References from the Hadith are also studied for evidence of precedents set by Muhammad or one of his closest companions. And unless it is a totally new and original issue under consideration, the writings of prominent jurists from the past millennium are also considered. Naturally it is up to the individual providing the judgement as to how wide his choice of sources is, and this allows considerable latitude in the issuing of such judgements. Inevitably though, the more carefully researched and extensively supported the opinion is, the more weight it is likely to have with its target audience. Where instances arise in which the guidance provided by the Qur'dn seems contradictory, scholars have recourse to the theory of abrogation (naskh). In essence this allows for verses that were revealed early on in the revelation process to be superseded by those that came later. According to this theory the Qur'dn was updated continuously throughout the process of revelation so that later verses invalidate contradictory points made previously. Other scholars prefer to see different verses of the Qur'dn as

6 48 DEFENCE STUDIES qualifying, rather than invalidating each other. They argue that this allows for a richer, less simplistic interpretation of Allah's message. As will be seen, the concept of abrogation is the source of much controversy and debate in the formulation of Islamic Law. The Development of Jihad Doctrine For a Westerner from a broadly Christian background to understand the development of jihad doctrine it is important first to appreciate the context in which this development has occurred - at least in so much as this context is critically different to that of Western Christianity. Bruce Lawrence has written of three 'asymmetries' between Western Christian and Eastern Islamic attitudes to political power and the use of force in pursuit of that power. The first asymmetry is what Lawrence describes as the 'existential' issue of ingrained suspicion of, and opposition to, a people who are demonstrably and unavoidably 'different' from us. Lawrence argues that such distrust of people from a very different ethnic grouping entirely dwarfs any intra-european rivalries. 14 This atavistic but entirely unacceptable fear of the unknown is evidenced in theories such as Huntingdon's 'Clash of Civilizations'. It impacts on our understanding of Islamic attitudes in the form of a base assumption that any such attitudes are by definition directed against our own interests in particular that any sanction of the use of force must in some way be directed against us. Overcoming or at least acknowledging this prejudice is essential to any objective understanding of Islamic Law. The second asymmetry is scriptural and has been hinted at previously. Whereas the Qur'an has remained in a stable form since 650 (less than 20 years after Muhammad's death), the New Testament only achieved canonical status in the sixteenth century. 15 As such the interpretation of these central texts begins from fundamentally uneven start points. It is an unavoidable fact that Christianity's primary source document for the development of its doctrine has a rather tortuous provenance in comparison to Islam's. It is also an unavoidable fact that one of Jesus' central messages was pacifism, based on his 'own non-violence, his command to turn the other cheek, and his example of "disarming" Peter at the Garden of Gethsemane'. 16 By contrast Muhammad's message and practice, by any definition, allowed for the resort to force in some circumstances. Thus the development of Christian attitudes to warfare must be viewed as an attempt to get round this essential pacifism, whereas the development of Islamic attitudes at least starts from the basis that the use of force is not inimical.

7 IS OSAMA BIN LADEN'S FATWA JUSTIFIED BY ISLAMIC LAW? 49 The third asymmetry is historical and relates to the environments in which the two religions developed particularly in terms of their relationship with political power. While Christianity did not become a state religion until the conversion of Constantine in the fourth century AD, Islam was almost from its inception involved with the exercise of power. 17 The first Islamic state was established in Medina and had conquered Mecca and the surrounding area by the time of Muhammad's death. This early familiarity with political power inevitably influenced Islam's attitude towards the use of force in a way that has little comparison in Christianity. Political, military and religious activity was fused in Islam at a much earlier stage than it was in Christianity. These three asymmetries combine to form the particular context in which the development of jihad doctrine must be studied, especially in relation to the Western Christian context. As Lawrence summarises the point: 'Despite the best efforts of just war theorists, with a strong assist from hymnodists ('Onward Christian Soldiers'), warfare is an incidental mythomoteur for Christians, while it has been, and will continue to be, a foundational mythomoteur for Muslims of every generation." 8 The strict semantic meaning of jihad has deservedly been a subject of discussion recently. Those eager to stress the essentially tolerant and pacific nature of Islam have pointed out that its literal meaning is to 'strive' or 'struggle' and that it has no a priori relationship with the concept of either Just War or Holy War. 19 Commentators have referred to the 'inner' or 'greater' jihad as the inward spiritual struggle to improve oneself as a Muslim and the 'outer' or 'lesser' jihad as the outward physical struggle to ensure justice and promote the spread of Islam. It is often emphasised that the outer jihad is the less important of the two and that it involves a whole range of activities other than war as a means of pursuing this struggle. 20 But in spite of the semantic definition of jihad it is hard to dispute the fact that over the process of revelation of the Qur'dn the word came to be identified more and more closely with the concept of military activity conducted in support of Islam. This change in emphasis reflects Muhammad's experiences throughout the process of revelation. This spanned an initial period in Mecca from 610CE; the move to Medina to escape persecution in 622CE; and the subsequent establishment of an Islamic state in Medina and its expansion by force to include Mecca and much of the surrounding area by the time of his death in 632CE. Specific references to 'fighting' in the Qur'a'n and Hadith involve the use of the word qital, while jihad is reserved for the overall concept of religious struggle, but over the course of revelation the part played by qital in jihad became increasingly important. 21

8 50 DEFENCE STUDIES This is reflected in the subsequent writings of jurists as they sought to explain and justify the astonishingly successful conquests achieved by Muslim armies in the first century after Muhammad's death. It is as a result of these writings that there exists such a strong identification between jihad and warfare. 22 This identification betweenj't'fiac/ and war has encouraged commentators in both the West and East to group Islamic legal opinions with regard to warfare into a loosely termed 'jihad doctrine', similar in some ways to Christian Just War doctrine. This is the sense in which it is primarily used in this article; notwithstanding the semantic issues already highlighted. Jus ad Bellum within Classical/iAarf Doctrine Within the Qur'dn, justification for resorting to warfare rests on relatively few verses that appear to grant progressively greater amounts of latitude. Self-defence in the face of aggression is permitted as a result of Verse 22:39: 'To those against whom war is made, permission is given (to fight), because they are wronged.' 23 The defensive nature of warfare is emphasised in Verse 2:190, along with a reminder that even within war there are rules that must not be broken: 'Fight in the cause of Allah those who fight you, but do not transgress limits. For Allah loveth not transgressors.' 24 Nothing in this justification is controversial or in any way contradicts similar doctrines from other cultures, except for those that espouse complete pacifism. But further verses have been deemed to grant Muslims the right, even the duty, to use force in situations that are offensive rather than defensive. These are commonly referred to as the 'Sword Verses': But when the forbidden months are past, then fight and slay the Pagans wherever ye may find them, and seize them, beleaguer them, and lie in wait for them in every stratagem (of war); But if they repent, and establish regular prayers and pay Zakat then open the way for them: For Allah is Oft-forgiving, Most Merciful. 25 Fight those who believe not in Allah nor the Last Day, nor hold that forbidden which hath been forbidden by Allah and His Messenger, nor acknowledge the Religion of Truth, from among the People of the Book, until they pay the Jizya with willing submission, and feel themselves subdued. 26 For some Muslims these verses are a clear indication that it is their duty to expand the area controlled by Islam using all possible means; including force if necessary.

9 IS OSAMA BIN LADEN'S FATWA JUSTIFIED BY ISLAMIC LAW? 51 Certainly this is the way in which they were interpreted in the period immediately following the Islamic conquests of the seventh and eighth centuries the first 200 years of Islam. Jurists attempting to explain and legitimise these expansionist conquests divided the world into two parts: the Dar al Islam (Territory of Islam) and the Dar al Harb (Territory of War). Increasing the former and subduing the latter was deemed to be the collective duty of the Islamic State. 27 It was on this basis that jihad became synonymous with the notion of Holy War - a religious war aimed at the subjugation of neighbouring states with the intention of bringing them the true faith and if necessary forcing that faith upon them. But this characterisation is overly simplistic and ignores the fact that these early jurists were at least as interested in providing post facto justification for successful conquests as they were in providing ethical guidance from first principles. And just as the Crusades had as much to do with conflicts within Christendom as they did with recapturing the Holy Sites, so these early Islamic conquests were just as interested in regional political hegemony as they were in spreading the Word of God. 28 The degree to which the Qur'dn is thought to oblige an expansionist form of jihad upon the Muslim community depends on relative readings of other verses that either place conditions upon the critical verses or contradict them altogether. One of the most important of the conditional verses is 2:256, which commands: 'Let there be no compulsion in religion.' 29 And the injunction against aggression in Verse 2:190, quoted above, would seem to directly contradict the Sword Verses. This is where the doctrine of abrogation leads to so much controversy between jurists attempting to determine God's message. As the Sword Verses were among the last to be revealed, some jurists deem them to take precedence over all preceding verses that adopt a more tolerant and less belligerent tone. Others regard the Sword Verses as being qualified by the injunction to religious tolerance in Verse 2:256 or by the requirement for specific conditions to be met before offensive jihad can be called. Many of the earliest recorded jurists, including Shaybani, adopted the view that jihad was a defensive activity intended to preserve the social and religious order of the nascent Islamic State. Although they divided the world into the Dar al Harb and the Dar al Islam they refrained from advocating aggressive wars against non-muslims solely on the basis of disbelief. In effect they moderated the injunction to jihad by invoking the parallel injunction of religious tolerance. 30 Other early jurists, most notably al-shafi'i, argued that jihad was a collective duty imposed on the Islamic people to fight non-believers wherever they might be found, thus ignoring the plea for tolerance on the

10 52 DEFENCE STUDIES basis of abrogation. 31 The political imperative to produce a justification for the historical reality of Islam's expansion has already been mentioned and this perhaps accounts for the dominance of the expansionist doctrine for the first seven centuries of Islam's existence. But this political imperative also accounted for a split in opinion between the two main branches of Islam Sunni and Shiia. While Sunni jurisprudence focused on justifying the actual practice of the community, the Shi'i regarded themselves as preserving the Islamic ideal as revealed through the Prophet. As such they argued that Sunni leaders had failed to preserve the true purpose of jihad and had allowed it to become an excuse for wars of territorial conquest. Shi'i jurists claimed that whereas defensive jihad was an obligation for the whole community as a response to external aggression, offensive jihad could only be called by a divinely appointed Imam possessing the grace necessary to avoid errors of judgement. 32 In the absence of such a leader no offensive jihad could be called. Although Sunni dominance accounted for the prevalence of the expansionist jihad doctrine for the first millennium of Islam, the differentiation between defensive and offensive jihad had obvious parallels between the concepts of Just War and Holy War that were also in the process of being developed in the West. As Islamic hegemony in the region began to wane in the face of aggression from external actors principally the Crusaders and Mongols the concept of defensive jihad took on increased relevance and this was reflected in the writings of Sunni jurists. Most notable amongst these was Ibn Taymiya, writing in the thirteenth century, who revived the concept of religious tolerance as central to Islamic doctrine just as Islam was itself coming under threat once more. 33 And along with the increased relevance of defensive war came a decrease in the relevance of offensive war as a result of emerging internal divisions within Islam. As Islam began to fracture into separate polities professing subtly different creeds, so it became obvious that its relations with external states could no longer be based solely on the division of the world into the Territory ofwar and the Territory of Islam. 34 From this basis developed the three approaches to jihad that typify modern Islam. First there is the 'apologist' doctrine, responding to Western criticism that jihad was a 'Holy War' seeking to subjugate the world by force. Essentially the apologists stress the concept of jihad as only a defensive use of force in the face of external aggression. Some Indian Muslim jurists under British rule in the eighteenth century even went so far as to say that provided there was no threat to Islamic worship then political domination by European imperialists did not call for defensive jihad. 35 Once again, this

11 IS OSAMA BIN LADEN'S FATWA JUSTIFIED BY ISLAMIC LAW? 53 must be viewed in the light of the political context of the time. According to apologists, expansionist forms of jihad are a misreading of the Qur'dn and are contrary to Islamic thought. The second approach is the 'modernist' school. This stresses the semantic origins of the word and plays down the military element of jihad. Instead the struggle to expand Islam is one conducted within the confines of International Legal norms and the use of force is only sanctioned in defence of Islam. Followers of this school stress that the division of the world into the Dar al Islam and the Dar al Harb is not to be found in the Qur'dn or Hadith. The modernist approach sees the spread of Islam being achieved through peaceful means, unconnected with the political dominance of particular regions. The third approach is the 'revivalist' school, from which springs much of the fundamentalist or Islamist doctrine that is so prevalent at the moment. Revivalists lean more strongly towards the expansionist doctrines discussed previously, stressing that the clear message of later revelations was to spread the Word of God. This is to be achieved not by forcing Islam upon people, for this is contrary to the Qur'dn, but instead by overthrowing un-islamic regimes. This will allow the natural spiritual superiority of Islam to reach those peoples and result in their conversion by consent. The most pressing task for revivalists is the replacement of un- Islamic regimes within Muslim countries, whose hypocrisy must be overcome before the external jihad can be resumed. Hence the concept of Islamic revolution is a central theme for revivalists. 36 There are other elements of jihad doctrine than the issue of offensive and defensive war that also correspond to the broad distinctions of jus ad helium. These include issues such as the appropriate authority to declare war and the requirement to invite the enemy to avoid battle by conversion to Islam or payment ofjizya. But the central issue for our discussion is the question of defensive or offensive jihad. As has been discussed there are mainstream juristic opinions supporting both options with a variety of shadings in between the two extremes. With hindsight the dominance of a particular school of thought appears to be more closely involved with the historical and political context rather than with innovative theological argument and this continues to the present day. This interplay between political context and theological doctrine will be revisited when considering Osama bin Laden's interpretation ofjihad.

12 54 DEFENCE STUDIES Jus in hello within Classical/tTtarf Doctrine The Qur'an is noticeably silent with regard to the actual conduct of war once it has begun. As a result prominent jurists have derived Islamic doctrine in this area largely from interpreting the Hadith. The broad concerns of Islamic doctrine with regard to the conduct of war are similar to those of the Just War doctrine - who is the enemy; where may they be attacked; and what means may be used against them? 37 Many of the answers that Islamic Law provides to these questions are broadly similar to the answers that are provided by Just War doctrine and codified in the Geneva and Hague Conventions. But there are also several areas in which jurists have come to markedly different conclusions than those enshrined in the Law of Armed Conflict. Although a general policy of non-combatant immunity seems to exist within jihad doctrine it is by no means absolute. For instance, although most of the jurists agree that minors and women should not be killed unless they are actually involved in fighting, they are vulnerable to capture for the purposes of enslavement or ransom. And able-bodied adult males are legitimate targets whether or not they are engaged in fighting - although subsequent discussion of the treatment of prisoners implies that the Qur'an does not envisage wholesale slaughter. 38 Shaybani uses several hadith to derive the policy of not killing women and children while condoning the killing of men: He (of the enemy) who has reached puberty should be killed, but he who has not should be spared. The Apostle of God prohibited the killing of women. The Apostle of God said: 'You may kill the adults of the unbelievers, but spare their minors - the youth.' 39 Other categories of adult males, such as the old, the insane, the disabled and priests have limited immunity on the basis that they are incapable of fighting. But most of the jurists agree that if they offer assistance in other ways, such as by giving money or advice, they can also be killed. Certain of the jurists - in particular al-shafi'i - argue that that Verse 9:5 of the Qur'an, quoted above, gives justification for killing even these categories of person and abrogates all indications of clemency within the Hadith. This hardline view is also based on the hadith that Muhammad gave orders for the killing of an old, blind man, Durayd ibn al-simmah. For al-shafi'i and his followers it is disbelief that justifies the killing of such men, rather than their ability to fight. 40 Thus we can see that although there does exist a broad notion of non-combatant immunity this is qualified by the more extreme jurists. Notwithstanding these harsh

13 IS OSAMA BIN LADEN'S FATWA JUSTIFIED BY ISLAMIC LAW? 55 rulings, the intentional killing of women and children is not condoned by any of the jurists. The accidental killing of non-combatants is another potential area of deviation between classical Islamic doctrine and Western norms. In fact they are broadly similar. The death of fellow Muslims as a result of a Muslim attack is regrettable but should not deter the attackers from attacking, on the basis that this would otherwise provide the enemy with an incentive to use Muslims as 'human shields'. 41 This is an approximation to the Christian Just War concept of 'double-effect' or collateral damage and is governed by a further qualification of proportionality - the harm done to innocents must be justified by the importance of the attack. Accidental deaths of non-muslims as a result of a Muslim attack are a risk of war. When asked about the danger of attacking polytheists at night with the risk of accidentally killing women and children, the Prophet's only response was that 'They are from them.' Such accidental deaths are deemed not to be the fault of the Muslim attackers but rather the fault of those who are there to protect them. 42 Nevertheless, intentional targeting of non-combatants is not condoned. Some restrictions are placed on the physical means to be used in warfare. Shaybani sanctions the use of inundation, fire and mangonels when attacking a city 'even though there may be slaves, women, old men and children in it'. 43 But starving, drowning and burning are only to be employed if there are no other means of victory over the enemy. Certain jurists forbid the use of poisoned arrows - if only because Muslims might be endangered if the opposition returned the arrows. 44 The destruction of civilian buildings is also considered acceptable as a means to anger and deceive the enemy, although there is no suggestion that occupants should also be killed. 45 It appears that the governing principle in the Islamic conduct of warfare is similar to other traditions - that is to say a balance of utility and compassion. Nevertheless some of the Islamic rulings are undeniably harsh. This extends to the treatment of prisoners, although this is another area of significant disagreement between different schools of Islamic thought owing to conflicting verses of the Qur'dn. Verse 47:4 seems to be a clear indication that the taking of prisoners of war is approved; followed either by their release or ransom: Therefore, when you meet the Unbelievers (in fight) smite at their necks; at length when ye have thoroughly subdued them, bind (the captives) firmly: therefore (is the time for) either generosity or ransom: until the war lays down its burdens. 46

14 56 DEFENCE STUDIES But some jurists prefer to see Verse 8:67 as having precedence: It is not fitting for a Prophet that he should have prisoners of war until he hath thoroughly subdued the land. 47 Verse 8:67 is deemed to give commanders the choice whether to allow prisoners to be released, with or without ransom, or to be killed, depending on the interests of Islam. This judgement is also based on the practice of the Prophet, who had some prisoners killed after the Battle of Badr (624CE) and ordered the deaths of an enemy tribe (the Banu Qurayzah) after their defeat. 48 Shaybani advocates that male captives may be killed if it is advantageous to the Muslims. But those of the prisoners who convert to Islam may not be killed they may only be enslaved. 49 This attitude to the treatment of prisoners is quite obviously at odds with International Law. 50 So too is the relatively weak guarantee of noncombatant immunity afforded by Islamic doctrine. But it must be acknowledged that of all areas of Islamic doctrine it is the jus in bello that is most obviously anachronistic in view of the technological, social and legal changes that have impacted on the conduct of war since the demise of the Islamic Empire. As John Kelsay argues: 'there is a paucity of attention in contemporary Islamic discussions of the jus in bello concerns, and this points to the difficulty of keeping a moral tradition "up to date" when its interaction with military and political matters is limited'. 51 Arguably the reason that this element of Islamic Law is so out of date is because there have been relatively few major actions involving Islamic states that have called for significant revision of the doctrine. And where such actions have occurred Islamic states have generally complied with internationally accepted norms rather than falling back on the classical doctrine outlined above. Kelsay refers to the work of Chubin and Tripp who concluded that in the Iran-Iraq War ( ) it was generally the Islamic state Iran that exhibited greater restraint in its treatment of the enemy. By contrast it was the secular, Ba'thist regime of Saddam Hussein's Iraq that initiated the War of the Cities' and employed chemical weapons. 52 Nevertheless it must also be acknowledged that there are those who still use classical Islamic doctrine to justify actions that are entirely contrary to International Law. 53 It is clear from this study of the jus in bello within jihad doctrine that there are considerable differences between classical Islamic Law and International Law as codified in documents such as the Hague and Geneva conventions. In particular, non-combatant immunity; treatment of

15 IS OSAMA BIN LADEN'S FATWA JUSTIFIED BY ISLAMIC LAW? 57 prisoners of war; and restriction of certain weapon types seem to be areas that would bring adherents of the Shari'a in conflict with Western norms. Just as with jihad doctrine's treatment of the jus ad bellum these areas are open to widely differing interpretations by different jurists; depending on their particular viewpoint and the specific political and historical contexts in which they are operating. But even the most extreme jurists do not allow for the intentional killing of non-combatant women and children. Osama bin Laden's Fatwa of 23 February 1998 It is of course dangerous to extrapolate from a single document the views of an individual such as Osama bin Laden. Nevertheless, his fatwa of 23 February 1998 can be seen as an authoritative declaration of his theological position with regard to military action taken against the United States in particular and the West in general. 54 Following criticism that his lengthy 'Ladenese Epistle: Declaration of War' (October 1996) lacked religious credibility, bin Laden issued the fatwa in conjunction with several other Islamic leaders whose theological credentials addedgravitas to his statement. 55 That bin Laden should bother to issue a joint declaration is itself a sign of the importance that he attaches to justifying his actions with theological argument. It gives a clear indication of his motivation and allows his views to be placed within the broader context of jihad doctrine that has been studied here. But in spite of the obvious utility of th& fatwa in determining bin Laden's 'core argument', neither it, nor the 'Ladenese Epistle', have been subjected to the level of detailed analysis one might expect. Rosalind Gwynne has highlighted this shortcoming in the only detailed study of the topic that is available. 56 The fatwa begins with the first half of Verse 9:5 of the Qur'dn: 'But when the forbidden months are past, then fight and slay the pagans wherever ye find them, and seize them, beleaguer them, and lie in wait for them in every stratagem (of war).' 57 The second half of this verse which turns to reconciliation and refers to Allah as 'Oft-forgiving and Most Merciful', is omitted. By opening the fatwa with this verse, bin Laden would seem to be preparing his audience for a call to offensive jihad and this impression is reinforced by following it with a quotation from the Hadith: 'I have been sent with the sword between my hands to ensure that no one but God is worshipped...' But instead of pursuing an aggressive theme the focus switches to defence, claiming that the Arabian Peninsula has been 'stormed...by crusader forces...consuming its riches and destroying its plantations'. We are reminded of'three facts that are known to everyone':

16 58 DEFENCE STUDIES The United States has been 'occupying the lands of Islam in the holiest places' for over seven years, using bases in the Arabian Peninsula from which to fight neighbouring Muslims. In spite of the '...in excess of 1 million...' Iraqis already killed, the Americans are trying to repeat these massacres,'...to annihilate what is left of this people and to humiliate their Muslim neighbours'. The aims of these wars are not merely religious and economic, but also to '...serve the Jews' petty state and divert attention from its occupation of Jerusalem and murder of Muslims there'. Evidence of this diversionary aim is the attempt to '...destroy Iraq, the strongest neighbouring Arab state...' and to fragment the rest of the region into individual 'paper statelets'. These three facts amount to '...a clear declaration of war on God, his messenger, and Muslims'. By summarising the situation in this way bin Laden is careful to make the case that it is Islam that is under attack from external aggression rather than Islam seeking to expand its borders. And tempting though it may be to dismiss his summary of the aftermath of the 1991 Gulf War as a blinkered and biased version of history, it is worthwhile remembering that his primary audience is not Western politicians but fellow Muslims. Having established his case for the presence of foreign aggression within Islam, bin Laden reminds his audience of their duty in the face of such a threat: '...ulema have throughout Islamic history unanimously agreed that the jihad is an individual duty if the enemy destroys the Muslim countries'. This claim is supported by references to several prominent jurists that lend credence to what is not a particularly controversial point, as we have seen from our study of jihad doctrine in this article. Although some apologists would argue that defensive jihad is only incurred if the Islamic faith is itself under threat, both modernists and revivalists would agree that external aggression does call for defensive jihad. The critical point is of course whether the United States' actions do constitute external aggression or not, but that issue is not the subject of this article. However bizarre bin Laden's analysis of the current situation in the Middle East may appear to a Western observer, it is hard to ignore the fact that his view is shared by many others. For those who do share his viewpoint it is clear that this constitutes the possible grounds for defensive jihad.

17 IS OSAMA BIN LADEN'S FATWA JUSTIFIED BY ISLAMIC LAW? 59 Having established his case for defensive JiW, bin Laden next delivers the zctud fatwa. 'The ruling to kill all Americans and their allies - civilians and military - is an individual duty for every Muslim who can do it in any country in which it is possible to do it, in order to liberate the al-aqsa Mosque and the holy mosque from their grip, and in order for their armies to move out of all the lands of Islam, defeated and unable to threaten any Muslim.' Using defensive jihad as his justification, bin Laden calls for offensive action well beyond the geographical boundaries of Islam. While this is a perfectly valid military ploy - in effect a tactical offensive as part of a strategic defence bin Laden fails to justify these means with any reference to the, jus in hello of Islamic Law. Instead there are further passages from the Qur'an that would seem to call for both offensive ('...fight them until there is no more tumult or oppression') 58 and defensive ('...fight in the cause of God and those who are weak, are ill-treated and oppressed...'y* jihad. Gwynne makes a strong argument that these texts provide support for the resort to war but unfortunately she does not go on to discuss the absence of any texts supporting the injunction to kill both civilians and military personnel. 60 At no point in the fatwa is any justification provided for selecting civilians as the targets of this defensive jihad. In fact the rest of the fatwa merely broadens the scope for attacks against the US and her allies - including an allusion to the Saudi Royal Family - without providing any theological justification for the targeting of these actions. Instead bin Laden employs what Gwynne calls a '...combination of promise, reproach and threat...' 61 to encourage his audience to act. This failure to justify the identification of civilians as legitimate targets wherever they may be in the world is a major weakness of bin Laden's fatwa from a theological point of view. Even though his reasoning with regard to US 'occupation' of the Arabian Peninsula is faulty from a Western perspective, one can at least appreciate its appeal to an Islamic Arab audience. The call for a defensive jihad is supported by appropriate texts and has additional credibility if only because it stops short of a call for offensive jihad. But the jump from defensive action to killing civilians wherever they may be found is unsupported because it is insupportable. We have seen from our study of the jus in hello vsithinjihad doctrine that some extremist jurists allowed for the killing of all adult males, whether or not they were engaged in combat. And others implied that the accidental killing of non-muslim non-combatants was tolerable. But nowhere in Islamic Law is the deliberate targeting of all non-combatants allowed. Bin Laden provides no textual support for his targeting policy because there is none available. Such a policy has no grounding in jihad

18 60 DEFENCE STUDIES doctrine and runs counter to Islamic Law. It is presumably for this reason that bin Laden resorts to the use of a threat in an attempt to coerce his audience: 'Unless you go forth, He will punish you with a grievous penalty, and put others in your place...' 62 While jihad doctrine can be considered to justify bin Laden's resort to war in defence of Islam, it cannot justify the means that bin Laden proposes to use in that war. These means the murder of non-combatants wherever they may be found - are against even the most extreme interpretations of Islamic Law. Conclusion Having studied the formulation ofjihad doctrine in some detail we can see that bin Laden's fatwa cleverly combines a well-supported call for defensive jihad against perceived Western aggression with a totally insupportable call for directing that defensive jihad against noncombatants around the world. He cleverly uses the doctrinal credibility of his call to arms to hide mask the unacceptability of the means that he advocates using in the conflict. This gives us in the West several areas for reflection. First, we must understand the strength of bin Laden's case in terms of the jus ad bellum. Although his representation of the political situation in the Arabian Peninsula is almost unrecognisable to us, we have to understand that it is all too recognisable for millions of people in the region itself and in other parts of the developing world. This article has not studied the social, economic and political reasons for the deep sense of frustration felt in the Arab world. But these frustrations have been acknowledged in the West for some time. 63 Given the circumstances within the region at present, bin Laden has no need to take liberties with the jus ad bellum of jihad doctrine. He has sufficient basis to call for a defensive jihad, given his audience's perception of the situation. Although he will not necessarily convince more than a small minority this may prove to be adequate for his purposes. We have already witnessed the dedication of those individuals motivated by religious conviction. The West, and its allies in the region, must appreciate the potency of this call to arms, and concentrate on changing both the situation and perception of bin Laden's audience. We must also continue to stress that bin Laden's actions run entirely counter to thejus in bello of jihad doctrine, as well as International Law. This must be used to undercut his credibility by calling into question his understanding of Islamic Law. The only way this can be done effectively is

19 IS OSAMA BIN LADEN'S FATWA JUSTIFIED BY ISLAMIC LAW? 61 by Islamic leaders who have the theological credentials to do so. They must continually stress that the murder of non-combatants is inimical to Islam. This is not an area in which the West can play a leading role. But the West must ensure that it acts properly in a supporting role and that it is above reproach with regard to rules that it has developed for its own guidance - Public International Law including the Laws of Armed Conflict. Whether it is the resort to war; non-combatant immunity; or the treatment of prisoners of war, our actions must be demonstrably legitimate. We must ensure that we cannot be accused of allowing the prevailing historical and political situation to expand our interpretations of the law. Bin Laden regularly stresses that the West has proved incapable of living within its own rules and he will continue to do so if we are not irreproachable. 64 This article has studied the effect that prevailing political conditions have had on the development of Islamic Law in the past. We must ensure that we do not allow a political situation to develop in which bin Laden's actions begin to be seen as legitimate within Islam. This can only be achieved by removing the perception of threat to Islam and ensuring that we abide by our own Laws. ANNEX A Text of Osama bin Laden's Fatwa XJrgingJihad Against Americans Published in Al-Quds al-'arabi on 23 February, Also at: < Statement signed by Sheikh Usamah Bin-Muhammad Bin-Ladin; Ayman al-zawahiri, leader of the Jihad Group in Egypt; Abu- Yasir Rifa'i Ahmad Taha, a leader of the Islamic Group; Sheikh Mir Hamzah, secretary ofthejamiat-ul-ulema-e-pakistan; and Fazlul Rahman, leader ofthe Jihad Movement in Bangladesh. Praise be to God, who revealed the Book, controls the clouds, defeats factionalism, and says in His Book 'But when the forbidden months are past, then fight and slay the pagans wherever ye find them, seize them, beleaguer them, and lie in wait for them in every stratagem (of war)'; and peace be upon our Prophet, Muhammad Bin-'Abdallah, who said 'I have been sent with the sword between my hands to ensure that no one but God is worshipped, God who put my livelihood under the shadow of my spear and who inflicts humiliation and scorn on those who disobey my orders.' The Arabian Peninsula has never - since God made it flat, created its desert, and encircled it with seas been stormed by any forces like the crusader armies now spreading in it like locusts, consuming its riches and destroying its plantations. All this is happening at a time when nations are attacking Muslims like people fighting over a plate of food. In the light of the grave situation and the lack of support, we and you are obliged to discuss current events, and we should all agree on how to settle the matter. No one argues today about three facts that are known to everyone; we will list them, in order to remind everyone: First, for over seven years the United States has been occupying the lands of Islam in the holiest of places, the Arabian Peninsula, plundering its riches, dictating to its rulers, humiliating

20 62 DEFENCE STUDIES its people, terrorizing its neighbors, and turning its bases in the Peninsula into a spearhead through which to fight the neighboring Muslim peoples. If some people have formerly debated the fact of the occupation, all the people of the Peninsula have now acknowledged it. The best proof of this is the Americans' continuing aggression against the Iraqi people using the Peninsula as a staging post, even though all its rulers are against their territories being used to that end, still they are helpless. Second, despite the great devastation inflicted on the Iraqi people by the crusader-zionist alliance, and despite the huge number of those killed, in excess of 1 million... despite all this, the Americans are once against trying to repeat the horrific massacres, as though they are not content with the protracted blockade imposed after the ferocious war or the fragmentation and devastation. So now they come to annihilate what is left of this people and to humiliate their Muslim neighbors. Third, if the Americans' aims behind these wars are religious and economic, the aim is also to serve the Jews' petty state and divert attention from its occupation of Jerusalem and murder of Muslims there. The best proof of this is their eagerness to destroy Iraq, the strongest neighboring Arab state, and their endeavor to fragment all the states of the region such as Iraq, Saudi Arabia, Egypt, and Sudan into paper statelets and through their disunion and weakness to guarantee Israel's survival and the continuation of the brutal crusade occupation of the Peninsula. All these crimes and sins committed by the Americans are a clear declaration of war on God, his messenger, and Muslims. And ulema have throughout Islamic history unanimously agreed that the jihad is an individual duty if the enemy destroys the Muslim countries. This was revealed by Imam Bin-Qadamah in 'Al- Mughni,' Imam al-kisa'i in 'Al- Bada'i,' al-qurtubi in his interpretation, and the shaykh of al-islam in his books, where he said 'As for the militant struggle, it is aimed at defending sanctity and religion, and it is a duty as agreed. Nothing is more sacred than belief except repulsing an enemy who is attacking religion and life.' On that basis, and in compliance with God's order, we issue the following Jatwa to all Muslims: The ruling to kill the Americans and their allies - civilians and military - is an individual duty for every Muslim who can do it in any country in which it is possible to do it, in order to liberate the al-aqsa Mosque and the holy mosque from their grip, and in order for their armies to move out of all the lands of Islam, defeated and unable to threaten any Muslim. This is in accordance with the words of Almighty God, 'and fight the pagans all together as they fight you all together,' and 'fight them until there is no more tumult or oppression, and there prevail justice and faith in God'. This is in addition to the words of Almighty God 'And why should ye not fight in the cause of God and of those who, being weak, are ill-treated and oppressed-women and children, whose cry is 'Our Lord, rescue us from this town, whose people are oppressors; and raise for us from thee one who will help!" We with God's help call on every Muslim who believes in God and wishes to be rewarded to comply with God's order to kill the Americans and plunder their money wherever and whenever they find it. We also call on Muslim ulema, leaders, youths, and soldiers to launch the raid on Satan's US troops and the devil's supporters allying with them, and to displace those who are behind them so that they may learn a lesson. Almighty God said 'O ye who believe, give your response to God and His Apostle, when He calleth you to that which will give you life. And know that God cometh between a man and his heart, and that it is He to whom ye shall all be gathered.' Almighty God also says 'O ye who believe, what is the matter with you, that when ye are asked to go forth in the cause of God, ye cling so heavily to the earth! Do ye prefer the life of this world to the hereafter? But little is the comfort of this life, as compared with the hereafter. Unless ye go forth, He will punish you with a grievous penalty, and put others in your place; but Him ye would not harm in the least. For God hath power over all things.' Almighty God also says 'So lose no heart, nor fall into despair. For ye must gain mastery if ye are true in faith.'