them to these standards. Al-Qa'eda's part shows up a degree of duplicity
for capitalising on either the West's ignorance or arrogance, which should
in any event not be a relevant consideration in its decision-making under
the shari’a. The unavoidable issue however, is that al-Qa'eda and other
Islamists seeking to establish shari'a-based rule, are at least arguably
Pakistan, a majority Sunni State, possesses a nuclear arsenal. Although the US president George VV. Bush's administration accused Iran of developing nuclear weapons capacity in 2007, the US intelligence services later confirmed that Iran 'had discontinued' its nuclear programme in 2003: Jim Brady, 'Intelligence on Iran1,
The Washington Post (Washington D.C), 5 December 2007, A28. The relevant shaii'a
question however, is not that the programme was discontinued but whether the programme was commenced (or continued) after the fatwa by Ayatollah Khomeini, declaring the shari'a prohibition: see n 336, below.
<http://w w w .militantislammonitor.org/article/id/1178>. [Accessed December 2006]. The sources used in the Shi'i fatwa are arguably applicable to Sunni Muslims as well and an advisory opinion from the Tribunal could extend the prohibition to
Sunni Muslims. Pakistan is likely to continue to maintain its nuclear power position for necessity. It would arguably make it more difficult for al-Qa'eda to obtain or threaten to use nuclear weapons given a clear prohibition, without damaging its standing in the Muslim community. According to Sohail H Hashmi, ’Islamic Ethics and Weapons of Mass Destruction: An Argument for Nonproliferation' in S H Hashmi and S P Lee (eds), Ethics and Weapons of Mass Destruction: Religious and Secular Perspectizies, (2004) 321, 332. and after a loss of a large number of Iranians to chemical weapons in the Iran-Iraq war and during the terminal illness of Ayatollah Khomeini, younger Iranian clerics appeared to reverse the strict moral Khomeini position prohibiting the production and use of WMDs. For a Sunni view see Shaykh Nasir Bin Hamd Al-Fahd, A Fatwa on Using Nuclear, Biological and Chemical Weapons Against Infidels (May 2003) (2003)
<h ttp ://www.camegieendowment.org/static/npp/fatwa.pdf> at 10 March 2009. The better view is that of Ayatollah Khomeini and is a position supported by both
Sunni and Shi'i scholars: see n 95, 56.
'Iran call for nuclear-free region' in BBC News Monday, 27 February 2006. Australia has in principle appeared to support a nuclear free Middle East: Daniel Flitton, 'Australia brings Israel, Iran together ', The Age (Melbourne), 16 October 2009.
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estopped338 from invoking IHL interpretations. The absence specific positive contemporary SHL limits to which it can reasonably be held, and therefore be seen and judged by the Muslim community for its own fidelity to the shari'a, has also helped al-Qa'eda to escape Muslim censure.
Indonesia has used a modified formulation of some traditional 'means' employable in a djihad to try to defeat violent extremism. In reinforcing the efficacy of Indonesian methodology, convicted JI bombers have admitted that killing civilians is ultra vires and therefore wrong, and these admissions have been used to help break a cycle of violence.339 An Indonesian precedent may not however be acceptable to a majority of non- Muslims and even Muslims. Therefore, as a general practical compromise 'starting position' on acceptable levels of collateral damage and means, perhaps SHL can draw from a relatively neutral Western source such as the Australian Defence Forces,340 so that '[armed djihadists dojeverything feasible [to] verify the targets' 341 and confirm that the targets are legitimate, within the resources available, before proceeding with an attack. It is proposed that this is a practical compromise until a more humane and
338
339
340
341
While estoppel has not been shown or discussed as being a shari'a concept, it is noted that the prohibition on hypocrisy under the shari'a would also sustain the position made.
Di Martin, Tackling Indonesian terror' in Background Briefing ABC, 23 September 2007; Greg Fealy, 'Jihad' in G Fealy and V Hooker (eds), Voices of Islam in Southeast Asia, (2006) 372. The reason why Bali was chosen as a target was not hatred for Bali's non-Muslims or because of the 'vice' conducted in the bars: according to the bombers this happened everywhere in Indonesia. The reason given by JI was because Bali was frequented by Australians and other Westerners: Greg Fealy, 'Jihad1 in G Fealy and V Hooker (eds), Voices of Islam in Southeast Asia, (2006) 382. Michael Burleigh, Blood and Rage: A Cultural History of Terrorism (2008), 461. claims that tire target was about "Sheer racial hatred [...it was about] killing whitey and nothing else". Burleigh does not provide substantiation for this statement nor does he provide the Malay/Indonesian words purported to have been used (by implication) by one of the convicted terrorists. While nothing turns on this, it is common for Indonesians/Malays to use the term 'orang putih' (white person) although the term does not convey the negative connotations ascribed (and in the past may have even had connotations of superiority). However, if Burleigh is correct, it raises tire element of racism and whether this is the 'motivating force behind the attack', and as racism is not a valid legal basis for djihad, it would render the armed attack something other than djihad.
Not everyone will consider Australia an impartial party. This is not however the right question. The main issue is the starting point for developing a firm SHL position and the right question to ask is whether the Australian position is just, relatively speaking, with respect to IHL more broadly or with respect to the utterly restrictive nature of the traditional SHL position.
Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, vol I (2005), 55.
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objective test of practical SHL evolves, some mechanisms for the development of which are discussed in chapter 6. A further interim solution w ould be for Muslim groups involved in armed djihad or bugha to adopt a IHL strategy of whenever possible, honestly in good conscience, and practical, giving sufficient reasonable advanced warning nominating a reasonable locality of possible attacks on mixed targets.342
Conclusion
The starting point for Muslims considering the lawful use of force is vested in the position and acts of the lawful imam. The shari'a mandates that an imam should first seek peaceful options such as negotiation or encouraging migration to escape persecution and oppression. If these options fail, and the legal conditions for the armed djihad are met, then Muslims are permitted to take up arms. Once armed djihad has commenced, however, Muslims should fight without turning back, motivated by God alone in the aim of subduing the enemy, to bring an end to oppression.
In conducting an armed djihad, the shari’a mandates both those who may be killed and protected. On this analysis there is not an exact match in terms of the protection regimes between the two systems. There is a very significant gap between IHL and the classical shari'a position on the key issues of (i) the classes of people who are protected and (ii) those who can be fought under the shari'a. The 'gap' between the classical shari'a position and IHL has been reduced for necessity by the eponyms in w hat is referred here as the traditional position. There is, still very broad scope to move the two regimes closer on the issues of determining who or what constitutes a legitimate target, who may be fought and also determining 'acceptable levels' of collateral injury that can result. The means of combat explicitly prohibited by the shari'a are quite stringent (which are discussed in some detail in the next chapter) and therefore weapons and means that are permitted by the shari'a remain quite narrow. While theoretically this task of moving the two systems closer is not likely to prove difficult on the principles of law discussed, the practical difficulties for the politics remain quite significant.
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