Islam & Europe: Crises are Challenges

Resurrecting Siyar Through Fatwas?(Re)constructing ‘Islamic International Law’in a Post–(Iraq) Invasion World*

117 resurrectIng SIYAR through FATWAS? (re)constructIng ‘IslamIc InternatIonal law’ In a Post–(IraQ) InVasIon world* Shaheen Sardar Ali1 Abstract This article seeks to explore the impact of the Iraq war on siyar or ‘Islamic international law’ from a range of Muslim perspectives by raising some critical questions and addressing these through the lens of a selection of fatwas solicited by Muslims from a range of countries and continents, on the Iraq war and its implications for popular understandings of siyar and jihad. This article suggests that the Iraq war presents an opportunity to revisit and potentially revive historical siyar pronouncements of a dichotomous world, i.e., dar-al-harb and dar-al-Islam. I argue that in so doing, this discourse has invigorated the notions of a universal Ummah within the normative framework of siyar hitherto marginalized by ascendancy of the nation state, international organizations and contemporary Muslim state practice. Finally, I argue that a wider Internet access to Muslim communities in the global * This article was first published in: Journal of Conflict and Security Law, 2009, 1-30. We wish to express our gratefulness to the editorial board for giving us permission to publish the text in the present volume. 1 Professor of Law, University of Warwick; Professor II, University of Oslo, Norway; and Vice-Chair of the United Nations Working Group on Arbitrary Detention. Formerly, Professor of Law, University of Peshawar, Pakistan. This article draws upon some of my earlier research on the subject including: S. Ali, “Religious Pluralism, Human Rights and Muslim Citizenship in Europe: Some Preliminary Reflections on an Evolving Methodology for Consensus”, in T. Leonon and J. Goldschmidt (ed.), Religious Pluralism and Human Rights in Europe, 2007, 57-79; S. Ali, “The Twain Doth Meet! A Preliminary Exploration of the Theory and Practice of as-Siyar and International Law in the Contemporary World”, in J. Rehman and S. Breau (ed.), Religion, Human Rights and International Law: A Critical Examination of Islamic State Practices, 2007, 95-136; S. Ali and J. Rehman, “The Concept of Jihad in Islamic International Law”, Journal of Peace and Security Law 2005, 10, p. 321, p. 343. I am grateful to Mamman Lawan, Ayesha Shahid, Amila Jayamaha and Shahbaz Cheema for their research assistance in writing this article and my colleagues Prof. Javaid Rehman, Dr. Andrew Williams and Dr. Barbara Roberson for their incisive comments on earlier drafts of this article. I would also like to record my appreciation for constructive feedback provided by Prof. An-Nàim and participants of the conference on ‘Islam and the Secular State’ in honour of Professor Abdullahi Ahmed An-Nàim held in Leuven, Belgium, 30-31 January 2009, where this paper was presented. 118 Shaheen Sardar Ali South has facilitated a modified institution of ifta to reflect popular understandings of siyar and jihad and influence its reformulation in the backdrop of the Iraq war. Introduction ThisarticleseekstoexploretheimpactoftheIraqwaronsiyaror‘Islamic international law’2 from a range of Muslim perspectives. There is little doubt that the war has caught the attention of people and governments worldwide, finding expression at multiple levels and in diverse forums and disciplines. Within Muslim communities,3 the challenge and the resulting discourse is two-fold: to reiterate to themselves and the world at large the belief that Islam is the only basis for authority for any action, individual or collective in local, national and international affairs. The second, and following on from the first point, is a renewed focus on conceptions of siyar and jihad, and whether under its principles, the Iraq war imposes a religious duty on Muslims, individually and collectively, Iraqi and non-Iraqi, to engage in armed struggle against the occupying forces. Which particular constituency of Muslims poses this question and to whom? What textual definitions of siyar and jihad inform their understandings of the resistance/insurgency in Iraq? Why is the duty under siyar and jihad understood by most Muslims in religious terms rather than in a political or ideological framework? Is there a unified ‘popular’ position amongst Muslims regarding legitimacy or otherwise of this resistance or, do understandings and approaches differ from ‘official’ positions of governments in Muslim jurisdictions? Under popular Muslim understandings of siyar, do governments in some Muslim countries as allies of the West, comprise ‘Islamically’legitimate targets of armed struggle? Has this discourse revived a historical siyar categorization of the world as dar-al-Islam (territory of peace) and dar-al-harb (territory of war)? And finally, in the absence of a single...