Strengthening this argument are the analogous cases of the Qur'an's
unconditional prohibition on consuming blood or dealing in usury, both of
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which were softened by the Prophet, and discussed above.315 These developments lend some support to the proposition that in some limited exigencies the unconditional prohibition on the killing of protected peoples can be adapted for necessity. Permissiveness is a very dangerous path to traverse and the matter m ust be discussed and examined carefully and extensively both by jurists and the Muslim public.
Collateral Injury in our Times
During peacetime, civilians live in large cities among some military infrastructure because of convenience and the economic benefits of co- location, and wartime contingencies are possibly not foremost in the minds of town planners. Notwithstanding this, IHL requires States not to station military objectives within proximity of densely populated areas.316 'Population density' is a relative concept, considered differently by the various States. In Islam the Prophet and the orthodox caliphs conducted warfare in areas of mixed populations by laying siege, but not attacking, except in extreme situations such as at Ta'if.317
Although not a perfect analogy, laying siege is arguably the present day equivalent the application of economic sanctions. Chapter VI of the UN Charter provides for its use and is supported under the shari'a,318 In
practice, however non-State groups such as al-Qa'eda or even small non- aligned States w ithout the backing of a P5 hegemon are unable to access such Charter remedies and for this reason will no longer be considered as a practical means of redress for non-State actors.319
It is not disputed that al-Qa'eda and affiliated entities killed many more civilians than they have 'enemy soldiers', however (reasonably) characterised, in several countries including Pakistan, Iraq, Afghanistan,
315 316 317
318 319
See discussion on Analogy (cji'yas) in Appendix 2.
Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International
Humanitarian Law, vol I (2005), 71.
Sohail H Hashmi, ’Islamic Ethics and Weapons of Mass Destruction: An Argument for Nonproliferation1 in S H Hashmi and S P Lee (eds), Ethics and Weapons of Mass
Destruction: Religious and Seadar Perspectives, (2004) 321, 328.
Qur'an 8:61.
It is noted that non-State groups fighting in Bosnia, Kosovo and Burma (among others) have been able to convince the Security Council to apply sanctions against oppressive regimes. Muslims (and others) have been able to benefit from this
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Spain, the UK, Russia, the USA and Indonesia. The death and destruction caused by al-Qa'eda of many Muslims, civilians and non combatants, has not been accepted as legitimate by the overwhelming majority of
Muslims.320 In Bali, JI attacked bars and nightclubs which were selected as targets where the local JI leadership claimed there were 'no Muslims' , 321 but did not go further and clearly identify these targets as legitimate shari'a
military targets.
Drinking alcohol under the shari'a is not prohibited to non-Muslims, thus delegitimizing JI's choice of bars as a class of 'military' target. Further, JI referred to 'Westerners' as legitimate targets, 322 which is not adequate to characterise them as legitimate category. Further, even if JI did not consider the sanctity of non-Muslim lives, there were also Muslims and civilians working at or near the targets. Whether foreign visitors to Muslim States should be considered must'amin323 is an important question to be addressed
avenue and Muslims (as well as others) have also suffered the ill effects of sanctions.
The vast or overwhelming majority of Muslims disavow terror tactics: Greg Fealy and Virginia Hooker, 'Interactions: Global and Local Islam; Muslims and Non- Muslims' in G Fealy and V Hooker (eds), Voices of Islam in Southeast Asia, (2006) 411, 470; Adam Robinson, Bin Laden: Behind the Mask of a Terrorist (2001), 287; though avoiding the issue that such attacks are contrary to Islamic law.
Di Martin, 'Tackling Indonesian terror' in Background Briefing ABC, 23 September 2007. As Muslims are not permitted to consume alcoholic beverages or to trade in the substance, JI's assumption that there were 'no Muslims' at the 'target' was not perhaps entirely unreasonable. It is noted however, that even though the
consumption of alcohol is prohibited to Muslims, the consumption of alcohol does not put one outside the pale of Islam as is evident by the punishment mandated under the shari'a, and is one that does not put the person who has consumed alcohol, convicted or otherwise, outside the pale of Islam. However, as discussed there are people in other prohibited categories who legitimately may consume alcohol, trade in alcohol and be present on the premises, but whose blood may not legitimately be spilled. There is a debate whether JI exists at all: Peter Symonds, The Political Origins ofjemaah Islamiyah Behind the Bali Bombings (2005)
<h ttp ://www.globalresearch.ca/index.php?context=viewArticle&code=20051002 &artdcleld=1030> at This debate stems mainly because of the nebulous character of the term jemaah Islamiyah (JI), which merely means Muslim Community, is a term widely used in the Muslim world. For the purposes of this paper, the term JI will be used in the form popularly used in the English speaking world.
According to Greg Fealy, 'Jihad1 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.
323 Must'amin are people granted temporary access to Muslim lands for trade,
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by jurists, and if they decide in the affirmative then Muslim guarantee of such safety is binding on Muslims. The explosions resulted in the death or injury to many persons in protected categories including Muslim passers- by in the adjoining public streets in Bali,324 and to very few military personnel.320 Note that the shari'a crime of drinking wine, even when proved against Muslims, does not carry a sentence of death, punishment by fire or maiming.326 Some convicted JI bombers in Indonesia later accepted that killing civilians was w rong.327
Bin Laden328 and Imam Samudra (of the Bali bombing)329 concede that killing Muslims, women and children and 'innocents7330 is prohibited under the shari'a. They do not appear however to honour this prohibition during war. However bin Laden, contradicting his general position, considers all non-Muslims legitimate targets. Even if his view is correct, a position not supported in this paper, the WTC also housed Muslims, the killing of whom under all Schools of the shari'a m ust specifically be authorised and legally justified. While bin Laden discusses the collateral
324 325 326 327 328 329 330
granted security': Milton J Cowan (ed) The Hans Wehr Dictionary of Modern Written Arabic (1980), 28.
Muhammad Al-Mughirah al-Bukhari, Tire Translations of the Meaning of Sahih al- Bukhari vol 4 (1976), 158. According to Di Martin, 'Tackling Indonesian terror' in Background Briefing ABC, 23 September 2007. and in response to the question by Ms Martin Ts killing civilians just?' Convicted Bali bomber, Ali Imron said that killing civilians was unjust; and although he did not specifically say that this decision was based on the shari'a, it could not conceivably have been a decision he reached other than under the shari'a. As pointed out in n321, the victims of attacks on premises in Bali where alcohol was served may have avoided injuring Muslims on the premises, though those injured would certainly have belonged to other protected categories, though casualties amongst passers by would almost certainly include Muslims as proved to be the case in practice.
According to Jonathan Garland, 'Bali Bombing Instant response1, Anny - The Soldiers' Newspaper (Canberra), 15 October 2002:
The whereabouts and wellbeing of all ADF personnel in Bali has been established. Two soldiers were injured, one seriously and one slightly, and no ADF personnel were killed in the blast.
Any such claim by Islamists is void ab initio, and the onus is on them to prove otherwise.
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.
Bruce Lawrence (ed) Messages to the World: The Statements of Osama Bin Laden (2005), 262.
Michael Sheridan, 'We didn't mean to kill so many: bomber', The Australian
(Melbourne), 3 March 2008.
Bruce Lawrence (ed) Messages to the World: The Statements of Osama Bin Laden (2005), 262.
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killing of 'M uslims', he circumvents the prohibition by declaring 'Muslim' victims as:
(a) heretics or
(b) m artyrs to the cause in a battlefield
He does not provide a legal basis in support of his blanket and unprecedented declaration of some (unspecified number of) 'Muslims' killed by al-Qa'eda as 'heretics', a spurious and unsupportable claim at best. His alternative and contradictory claim is that some who were killed were 'm artyrs' is also problematic in an Islamic sense as only God is able to declare a person a martyr. In any event these 'martyrs' appear to lack the necessary discemable mental element of intention and, as a class, do not appear to fall into a category of persons considered 'non battlefield' martyrs under the sunna,331 In any event, the specific targeting of civilians (including Muslims332) is both a political problem and a problematic legal issue for al-Qa'eda, JI and other Islamists who target civilians.333
It is difficult to see how a Dinstein interpretation of collateral deaths could be reconciled, even in 'retaliation', under Qur'an 9:36,334 which requires restraint in a Muslim's application of reciprocity in fighting and therefore not to defer pragmatically to more liberal IHL limits when convenient. In advance of international community opinions and as a contemporary 'red line' under the shari'a, Ayatollah Khomeini, better known in the West for his fatvoa on Rushdie, and at any rate whose fatwas
Battlefield martyrs are distinguished here from other martyrs: see above 'Terminology and Language Issues ' in Appendix 1.
There are claims that al-Qa'eda has warned Muslims of pending attacks. However, these broadcasts are not public (or have been 'intercepted by the FBI') and it is unlikely reasonably to constitute a 'warning' or 'reasonable notice'. For example, according to James Robbins, Tone-Deaf Terrorists The National Review Online 22 May 2003.
Terrorist e-mails intercepted by five FBI gave Muslims a deadline (if I can use that word) of yesterday to clear out of New York, Boston, Washington, and 'the commercial coastline' area.
The targeting of civilians by al-Qa'eda because of the nexus between supporting the government by paying taxes and voting' is histrricalty invalid. Non- combatants in tire past were also compelled to pay taxes to their king/leader but the Prophet did not use this nexus as a reason for targeting non-combatants. See below n 66.
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