The Use of Force in the Koran Niaz A Shah Lecturer in Law University of Hull 1

Overview  Koranic grounds for the use of force  Restrictions on the use of force  Different view: Islam v the rest 2

Grounds for the use of force  War, i.e. armed attack: ‘To those against whom war is made, permission is given (to fight), because they are wronged…’ (Koran, 22:39) 3

Grounds for the use of force  Persecution of Muslims: ‘And why should ye not fight in the cause of Allah and of those who, being weak, are ill-treated (and oppressed)?...’ (Koran: 4:75) 4

Restrictions: necessity ‘And fight them on until there is no more Tumult or oppression, … But if they cease, let there be no hostility … (Koran, 2:193) 5

Restrictions: necessity ‘If they withdraw from you but fight you not … then Allah Hath opened no way for you (to war against them)’ (Koran, 4:90) 6

Restrictions: proportionality ‘Fight in the cause of Allah those who fight you, but do not transgress limits …’ (Koran, 2:190) 7

Restrictions: proportionality ‘And if ye do catch them out, catch them out no worse than they catch you out’ (Koran, 16:126) 8

Restrictions: accept peace ‘But if the enemy incline towards peace, do thou (also) incline towards peace …’ (Koran, 8:61) 9

Different view  An-Na’im (1988)  Khadduri (1956) 10

Theory of abrogation ‘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)…’ (Koran, 9:5) 11

Theory of abrogation ‘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, (even if they are) of the People of the Book, until they pay the Jizya with willing submission, and feel themselves subdued’ (Koran, 9:29) 12

Koranic context  Chapter 9 deals with conduct, not justification of fighting  Focusing on termination of covenants and resumption of hostilities 13

Chapter 9 1. A (declaration) of immunity from Allah and His Messenger, to those of the Pagans with whom ye have contracted mutual alliances 2. Go ye, then, for four months, backwards and forwards, (as ye will), throughout the land … 14

Chapter 9 3. And an announcement from Allah and His Messenger, to the people (assembled) on the day of the Great Pilgrimage,- that Allah and His Messenger dissolve (treaty) obligations with the Pagans… 4. (But the treaties are) not dissolved with those Pagans with whom ye have entered into alliance and who have not subsequently failed you in aught, nor aided any one against you … 15

Chapter 9 5. 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) … 6. If one amongst the Pagans ask thee for asylum, grant it to him, so that he may hear the word of Allah. and then escort him to where he can be secure … 16

Chapter 9 7. How can there be a league … with the Pagans, except those with whom ye made a treaty near the sacred Mosque? As long as these stand true to you, stand ye true to them … 8. How (can there be such a league), seeing that if they get an advantage over you, they respect not in you the ties either of kinship or of covenant? … 17

Chapter But if they violate their oaths after their covenant, and taunt you for your Faith,- fight ye the chiefs of Unfaith: for their oaths are nothing to them … 13. Will ye not fight people who violated their oaths, plotted to expel the Messenger, and took the aggressive by being the first (to assault) you? … 18

Vienna Convention on the Law of Treaties, A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part … 19

The Koran & the UN Charter Koranic grounds:  Fighting, i.e. attack  Persecution of others Restrictions:  Necessity  Proportionality  Accept peace Charter grounds:  Art 2(4)  Art 51: self- defence  Humanitarian intervention Restrictions:  Necessity  Proportionality 20

Book Self-defence in Islamic & International Law: Assessing Al-Qaeda and Iraq Invasion. New York: Palgrave Macmillan (2008) 21