The case of Osama bin Laden's Fatwa
In an article, by Michael Mandel (a professor of law at Osgoode Hall Law School in Toronto), there is a paragraph which begins with "For all that has been said about how things have changed since Sept. 11 . . ." We would like to add to that statement, for the benefit of our readers. For whatever reason, he did not mention the following breaches which the American government, under George W. Bush, have effected:
Osama bin Laden said October 7, 2001 "These events have divided the whole world into two sides. The side of believers and the side of infidels, may God keep you away from them. Every Muslim has to rush to make his religion victorious. . . To America, I say only a few words to it and its people. I swear . . . neither America nor the people who live in it will dream of security before we live it in Palestine, and not before all the infidel armies leave Palestine and the land of Muhammad . . ."The Muslim community at large, particularly in Canada and the United States, is once again experiencing a nervous agitation in relation to the so-called FATWA (legal opinion) issued two days ago [Oct 7, 2001] by Mr. Osama bin Laden. As a consequence, we have received quite a few enquiries from people (both Muslims and non-Muslims) and organisations, (e.g.. CFRB, etc.) asking us as to what the Islamic legal position is. As a student of Islamic Law and a lawyer in Muslim Law (Shari'ah/Fiqh) and Muslim International Law, I would like to express my views and personal opinion very briefly as follows:
1. In view of the chaotic situation that prevails in Muslim countries, it would be prudent to say that only sovereign Muslim states/governments have the legal authority to declare jihad in any given circumstance. Mr. Osama bin Laden is NOT the head of any sovereign Muslim state and as such he has no legal authority or power to declare jihad. Surely, the law of Islam does not say that every Muslim is obliged to accept the declaration of war and respond to the call to take up arms without hesitation and start a world-wide war at the behest of every Tom, Dick or Harry (or Zaid, Omer and Bakr in the Muslim vernacular). It matters not how efficient and popular that individual may be as a brave warrior or a meticulous planner of unlawful and immoral schemes of hatred, terror and destruction.
2. Surely every Muslim in the world is not obliged to accept and immediately act upon the command of any Tom, Dick or Harry, no matter how highly regarded he may be, to take up arms and start a world-wide war! Only people who are properly qualified and trained, and hold a license from Muslim governmental authorities, have the authority to issue fatwas. Mr. bin Laden, to the best of my knowledge, does not qualify as a Mufti (a juris-consult or scholar of law who has been given a license to issue fatwas.) The most that can be said about the so-called "fatwa" of Mr. bin Laden is that it is not worth the paper it is written on - if he ever rendered his ruling on paper at all. For this reason, it goes without saying that his so-called "fatwa" is no more than a personal opinion expressed by an ordinary, yet rich and biased person.
3. Generally speaking, war is forbidden in Islam. Period. However defensive wars may be permissible under Islamic law [for more information please see 304]. These may be referred to as jihad [For more information please see: 441-442, 39]. The right of self-defence, in western public international law, is very similar to the public international law of Islam. It has been nicely expressed by Michael Mandel (a professor of law at Osgoode Hall Law School - York University, Toronto). He is a specialist in international criminal law. He says, "The right of self-defence in international law is like the right of self-defence in our own law: It allows you to defend yourself when the law is not around, but it does not allow you to take the law into your own hands."
It follows, therefore that the Taliban government of Afghanistan, now under attack, has the right of self-defence so long as the U.S. aggression continues. But once the aggression stops, the Afghanistan government, whether run by the Taliban or not, does not have the legal right to retaliate against the attackers or aggressors.
Just like the attack on Afghanistan is motivated by vengeance and the desire to show self-righteous American strength and prowess, any Afghan retaliation (commenced after the American offensive ceases) against the U.S. or other allied nations would also be attributed to similar unlawful motives. As such, it would be a crime against humanity and NOT a jihad sanctioned by the Shari'ah. However, in order to get a proper perspective of the Islamic law of war it should be borne in mind that only in rare circumstances, and only for legally justifiable reasons (i.e. punitive and preventive) were any wars/battles sanctioned in the time of the holy Prophet Muhammad, p.b.u.h. [For more information, please see 296, 297, 298, 299]. In this context, one should never forget that war is forbidden EXCEPT (TRULY) IN THE WAY OF GOD and it is not difficult to understand that this type of soldier is more apt to be humane and will not seek any earthly gain in the course of risking his life. By spiritualising the temporal duties, Islam has no other motive but to strengthen the spiritual side of man who, in this manner, far from seeking the material advantage of a material thing, aspires only to obtain the pleasure of God.
4. Terrorism (i.e. vicarious punishment and inflicting reprisals on one person for the crime of another) is expressly and formally forbidden under Islamic law [Qur'an 6:164, 35:18, and 55:39] The civilian population, (including and especially the elderly and infirm, women and children) cannot be harmed even on the battlefield. Even if these people participated in war by way of providing ancillary services (i.e. first-aid, etc. to wounded soldiers), they cannot be harmed. Collective punishment (i.e. punishment of a group of innocent people for the crimes of certain criminal individuals) being vicarious in nature, is also forbidden under Islamic law. It is for this reason that The Canadian Society of Muslims, in its press release of Sept. 12, 2001 had condemned in the strongest terms possible, the acts of terrorism against the innocent civilians in New York, Washington and Pennsylvania. Islamic Law does not suggest that any political cause could ever be advanced or assisted by such immoral acts which are explicitly forbidden by Islamic Law (Shari'ah).
5. To commit suicide is a heinous crime and sin under Islamic law. It is the legal obligation of every Muslim to protect and preserve his or her own life by all available means and to NEVER destroy one's own life, since one's life does not belong to the individual but only to God.
Murder is also a monstrous capital crime and sin which carries with it an appropriate punishment. When suicide and murder are combined and committed, as was done in the terrorist attack on the U.S., it is a double crime. In my opinion, the perpetrators have definitely reserved for themselves the punishment of eternal life in Hell.
They are deluding themselves if they think that they will receive the reward of Paradise. That is the reward for true martyrs (shahid[s]) and it is not a reward for the self-proclaimed false ones.
39. In all these "wars," extending over a period of ten years, the non-Muslims lost only about 250 persons on the battlefield and killed, and the Muslim losses were even less. With these few incisions, the whole continent of Arabia with its million and more square miles, was cured of the abscess of anarchy and immorality. During these ten years of disinterested struggle, all the people of the Arabian Peninsula and the southern regions of Iraq and Palestine had voluntarily embraced Islam. Some Christian, Jewish and Parsi groups, however, remained attached to their creeds and they were granted liberty of conscience as well as judicial and juridical autonomy. Introduction to Islam, by Dr. M. Hamidullah
296. The Muslim law of war is humane. It makes a distinction between belligerents and combatants. It does not permit the killing of minors, women, the very old, sick, and monks Debts in favour of the citizens of the enemy country are not touched by the declaration of war. All killing or devastation beyond the strict indispensable minimum is forbidden. Prisoners are well treated, and their acts of belligerency are not considered crimes. In order to diminish the temptation of the conquering soldiers, booty does not go to the one who seizes it, but to the government, which centralizes all spoils and redistributes them, four-fifths going to the participants of the expedition, one-fifth to the government coffers; the share of a soldier and of the commander-in-chief are alike and equal. Introduction to Islam, by Dr. M. Hamidullah,
297. In an interesting passage (47:35), the Qur'an enjoins peace and says: "Do not falter, and cry for peace when ye are the uppermost: God is with you and He will not forget your (praiseworthy) actions." It reverts to it again (8:61) and says: "If they incline to peace, then incline to that and have confidence in God." So did the Prophet on the conquest of Mecca, and told its inhabitants: "Go, you are freed." Introduction to Islam, by Dr. M. Hamidullah,
298. The Qur'an attaches such great importance to the given word, that it does not hesitate (8:72) to give it preference over the material interest of the Muslim community. It teaches us the Islamic law of neutrality even in the case of religious persecution, in the following terms: ". .. with regard to those who believe (in Islam) but do not immigrate (into Islamic territory), ye have no duty to protect them till they immigrate; but if they seek help from you in the name of religion then it is your duty to help (them) except against a folk between whom and you there is a treaty of peace (mithaq): and God is Seer of what ye do." Introduction to Islam, by Dr. M. Hamidullah,
Conclusion 299. To sum up, Islam seeks to establish a world community, with complete equality among people and without distinction of race class, or country. It seeks to convert by persuasion, allowing no compulsion in religious beliefs, every individual being personally responsible to God. To Islam, government signifies a trust, a service, in which the functionaries are the servants of the people. According to Islam, it is the duty of every individual to make a constant effort to spread good and prevent evil - and God judges us according to our acts and intentions. Introduction to Islam, by Dr. M. Hamidullah
Universal International Law 304. War, which unfortunately has always been very frequent among the members of the human family, is a time when one is least disposed to behave reasonably and do justice against one's own self, and in favour of one's adversary. As it is really a question of life and death, and a struggle for very existence, in which the least mistake or error would lead to dangerous consequences, the sovereigns and heads of States have always claimed the privilege to decide, at their discretion, the measures they take in regard to the enemy. The science relating to such behaviour of independent sovereigns has existed from very old times, but it nevertheless formed a part of politics and mere discretion and was, at the most, guided by experience. The Muslims seem to have been the first to separate this science of public international law from the changing whims and fancies of the rulers of the State, and to place it on a purely legal basis. Moreover, it is they who have left to posterity the oldest extant works on international law, developed as an independent science. Among authors of such treatises, we find names of such eminent personalities as Abu Hanifah, Malik, al-Auza'i, Abu Yousuf, Muhammad ash-Shaibani, Zufar, al-Waqidi, etc. They all called the subject siyar (conduct, i.e., of the sovereign). Further, in the ordinary codes of law (the oldest extant work hails from Zaid ibn 'Ali who died in 120 or 122 A.H., and also by every subsequent author) one speaks of this subject as forming part of the law of the land. In fact one speaks of it immediately after the question of highway robbery, as if war could be justified for the same reason as police action against highwaymen. The result is that belligerents have both rights and obligations, cognizable by Muslim courts.
Qur'an 6:164 translated by Yusuf Ali:
Qur'an 35:18 translated by Yusuf Ali:
Qur'an 55:39 translated by Yusuf Ali: