Bridging the Chasm in the Holy Lands: The Antithesis of Islamic Law to Warfare in the Middle East

Abstract

The present article scrutinizes the intricacies surrounding defensive warfare aimed at reclaiming territories perceived by Muslims as under non-Muslim occupation through the lens of the four Sunni schools and Twelver Shia perspectives. In Shia jurisprudence, in the absence of the twelfth Imam, the concept of defensive war does not extend to reclaiming Islamic territories per se; rather, Muslims are not sanctioned to engage in warfare solely for territorial defense. Instead, the imperative for Muslim involvement in armed conflict arises only when the fundamental tenets of Islam face jeopardy. According to Shia’s legal interpretation, jeopardizing the core principles of Islam implies a scenario where the erasure of Prophet Muhammad’s legacy and the utter annihilation of Sharia law are imminent. Such a predicament is not contingent upon the occupation of Islamic lands. However, Sunni jurisprudence posits a prerequisite for Muslims to engage in warfare, even in defense, necessitating a certainty of prevailing in the conflict. Consequently, given the contemporary milieu, wherein the requisite conditions for assured victory remain unattainable and are likely unattainable, defensive warfare for territorial reclamation is deemed impermissible. The findings of this inquiry propose an Islamic legal framework that advocates abstention from resorting to warfare concerning the mentioned territories in current circumstances, absolving Muslims of any obligation in this regard. Closing the avenue of armed conflict thereby paves the way for alternative avenues such as negotiation, reconciliation, and peace-building. It underscores Islam’s reverence for human life, prioritizing it over territorial concerns.

If anyone slew a person—unless it be for murder or for spreading mischief in the land—it would be as if he slew the whole people: and if any one saved a life, it would be as if he saved the life of the whole people (Quran. 5:32)1

1. Introduction

One of the paramount challenges characterizing the relationship between Muslims and the West pertains to the territories designated as “Islamic lands” by Muslims, who perceive them as being under non-Muslim occupation. This challenge has engendered numerous conflicts in recent decades, precipitating substantial loss of life among both Muslim and non-Muslim populations. Addressing this challenge requires formulating a solution conducive to terminating the protracted conflicts in the Middle East region, thereby fostering enduring peace and security for all stakeholders—a mission with profound human and global implications.

One avenue toward resolution involves a nuanced examination of the role of religion within this multifaceted dispute, emphasizing the need to delve into religious theoretical frameworks and endeavor to mitigate the incitement to war and violence originating from religious discourse. Muslim intellectuals bear a significant responsibility for engaging with this imperative, as they are tasked with critically evaluating the religious dimensions of the conflict and exploring avenues for reconciliation. Conversely, commensurate responsibility rests with counterparts on the opposing side, necessitating their active engagement in fostering an environment conducive to dialogue and conflict resolution. Despite the plethora of studies addressing this issue in a piecemeal manner (Tinnes 2014), there persists a pressing need for research aimed at deconstructing the genesis of conflict by reassessing foundational readings and theories. Many within the Muslim community perceive such conflicts as inherently unequal, with their outcomes seemingly predetermined; nevertheless, they perceive a divine imperative to engage in these struggles, grounded in their unique interpretation of Islamic principles.

In pursuing this inquiry, as an Islamic studies scholar, I have examined the theory of war and Islamic defense within the framework of Islamic jurisprudence. Through this exploration, I endeavor to posit a conclusion: presently, the participation of Muslims in such asymmetrical conflicts resulting in the indiscriminate loss of innocent lives and the mass displacement of populations cannot be deemed legitimate. Despite the ostensibly noble objectives, such as the liberation of Islamic lands, these conflicts stand in stark contrast to the paramount value Islam places upon human life, superseding even territorial considerations. The elucidation of this principle, rooted in classical jurisprudential sources spanning the Ḥanfī, Ḥanbalī, Mālikī, Shāfiʿī, and Shīʿah schools of thought, offers a blueprint for constructive engagement between Muslim and non-Muslim entities in contested regions, grounded in Islamic legal precepts. By doing so, it holds the promise of mitigating bloodshed and the wanton loss of life on both sides, thereby averting the ceaseless cycle of tragic reports detailing the slaughter of innocent civilians. By closing the gate on armed conflict, avenues for peaceful resolution through dialogue and negotiation are illuminated, ensuring the equitable resolution of grievances for all parties involved. As long as war remains a perceived legitimate recourse, the doors to alternative pathways toward resolution shall remain firmly shut.

It is noteworthy that in recent decades, particularly in recent years, extensive research has been undertaken in the Western scholarly arena concerning the concept of Jihad. The contributions of Sherman Jackson (2002), Hashmi (1996), Idris (2018), Nardin (1998), Gopin (2002), Engineer (2005), Bonner (2006), and Kelsay (2007) exemplify this burgeoning field. The breadth of their work engenders a lengthy catalog of scholarship. These studies traverse a spectrum of inquiries delving into the nuances of Jihad, encompassing its doctrinal underpinnings, historical evolution, requisite conditions, and regulatory frameworks within Islamic jurisprudence. Notably, the divergence between these investigations and the present inquiry, which endeavors to substantiate the proscription of territorial warfare, is unmistakable. Many of these scholarly endeavors aim to refute the fallacious assertions propagated by proponents of violence who indict Islam as inherently predisposed to aggression and warfare (For example, Jackson 2002). Some efforts are concentrated on projecting an image congruent with principles delineated in humanitarian law codes or just in Bello (for example, Hayward 2013, p. 29). Central to some discourse is the reinterpretation of Jihad in Islam as inherently defensive rather than offensive warfare (For example, Hallaq 2009, pp. 334–38). This nuanced understanding underscores a fundamental re-evaluation of traditional conceptions, aligning with contemporary norms of ethical conduct in armed conflict. Such an approach is exemplified in the scholarly endeavors of researchers such as Natana DeLong-Bas. In one instance, DeLong-Bas articulates, “Outer jihad, on the other hand, refers to the defense of the Muslim community under attack (Delong-Bas 2008)”. In another seminal work titled “Wahhabi Islam: from revival and reform to global jihad,” DeLong-Bas employs a similar interpretative lens, construing Jihad primarily within the context of repelling military aggression (Delong-Bas 2008). This analytical framework highlights the conceptual confines of Jihad within defensive paradigms. The fatwa issued by certain Sunni muftis concerning the permissibility of peace within this region has spurred some scholarly inquiry, notably by scholars such as Reiter Yitzhak (2011) and Hassan Khalil (2011). What sets apart their research from the present study is twofold. Firstly, their investigations have predominantly focused on Sunni jurisprudence. Secondly, they have primarily invoked the concept of hudnah to advocate for the legitimacy of peace, and their critics reject this argument, contending that the requisite conditions for hudnah are not presently met, thereby leaving room for dissent. Conversely, our current research accentuates another pivotal factor articulated in Sunni jurisprudential sources as a precondition for the legitimacy of jihad and defense: the “certainty of victory”. This principle dispels uncertainty surrounding the applicability of hudnah to the contemporary circumstances of Muslims.

Our investigation unveils a notable disparity between the model espoused by Shia jurisprudence, which denounces war for territorial acquisition and the stance advocated by the four major Sunni sects on the matter. Accordingly, this article is structured into two principal segments: war for territorial liberation within the framework of Shia jurisprudence and a corresponding examination from the perspectives of Sunni schools of thought.

It is imperative to underscore repeatedly that the author composed this article solely with the intent of aligning with a movement that vehemently opposes bloodshed and violence, striving to avert the perpetuation of brutal occurrences.

2. Methodology

This study explores Shia and Sunni jurisprudence’s foundational texts to scrutinize their respective stances on defensive warfare and the perspectives of eminent jurists. This inquiry illuminates how esteemed Muslim jurists endeavor to reconcile the legitimacy of defensive warfare with the practical exigencies of conflict. Our investigation unveils a notable disparity between the model espoused by Shia jurisprudence, which denounces war for territorial acquisition, and the stances advocated by the four major Sunni sects on the matter. Accordingly, this article is structured into two principal segments: war for territorial liberation within the framework of Shia jurisprudence and a corresponding examination from the perspectives of Sunni schools of thought. By adopting this structured approach, the article circumvents tangential discussions that have historically clouded analyses of territorial warfare, such as the multifaceted dimensions of conflict encompassing historical, geographical, and symbolic contexts (Gelvin 2014). Likewise, it sidesteps the investigation into the roots of territorial disputes, the arguments espoused by opposing factions, and any inquiries into depicting land in the Old and New Testaments (Chapman 2015). Moreover, it eschews delving into the political dimensions of territorial conflicts between Muslim and non-Muslim entities or engaging in the historical discourse surrounding Muslim–non-Muslim warfare (Rogan and Shlaim 2001). This methodological rigor, aimed at elucidating the doctrinal underpinnings of the defensive war theory, obviates the need to reconceptualize the notion of Jihād or reinterpret its tenets (Esposito 2002) to preclude its misuse as a justification for acts of war and terrorism within this discourse.

3. The Repudiation of Armed Conflict as a Means of Land Liberation within Shia Jurisprudence

War is divided into two categories: offensive, termed Jihad, and defensive warfare. These classifications frequently feature in Shia jurisprudential texts, notably within Kitāb al-Jihād, sometimes referred to as Kitāb al-Sīyar (Al-Ṭabarsī 1989, vol. 2, p. 433). Offensive warfare is characterized by its intent to propagate Islam by extending an invitation to non-Muslims rather than being undertaken solely for defensive purposes (Ibn Muṭahhar al-Ḥillī 1999, vol. 2, p. 132).

3.1. Offensive Warfare in the Shia Sect

Shiites adhere to the belief in the Imamate of Twelve Infallible Imams, with Imam ‘Alī bin Abī Ṭālib being the first and Mahdī serving as the final figure. Mahdī, as the last infallible Imam, was born in 255 AH, August 869 AD, and entered occultation at the age of 5, in 260 AH, 5 January 874 AD, marking the commencement of what is known as the minor occultation. This period endured until 329 AH, 941 AD, spanning 69 years. Subsequently, the major occultation commenced, persisting to the present day, spanning 1116 years. According to Shia doctrine, the conclusion of the major occultation remains obscure, potentially extending for millennia. It is universally acknowledged among Shia jurists that offensive warfare, termed Jihad, is incumbent solely when an infallible Imam or his appointed emissary initiates and proclaims Jihad. This stance enjoys unbroken consensus from the earliest sources of Shia jurisprudence to contemporary scholarship. Consequently, within the current epoch, identified as the era of the great occultation, all forms of Jihad are deemed impermissible, closed, and sinful, warranting divine retribution (Ibn Bābway al-Qumī 1997, p. 57; Al-Ṭūsī 1979, p. 290; Al-Ṭūsī 1967, vol. 2, p. 8; 1955, p. 312; Al-Rāwandī 1984, vol. 1, p. 333; Ibn Idrīs al-Ḥillī 1989, vol. 2, pp. 3–4.)

This doctrinal emphasis is so pronounced that certain Shia jurisprudential texts omit any discourse on Jihad, deeming it applicable solely during the presence of the incumbent Imam (Shaīf al-Murtaḍá 1999). Certain jurists have advocated for this approach as a paradigm for the jurisprudential literature (Al-Fayḍ al-Kāshānī 1980, vol. 2, p. 50; Al-Ardibīlī 1982, vol. 7, p. 437.) The prevailing view among these scholars holds that during occultation, war becomes a moot point, with defense being the only permissible form of warfare. Thus, according to this prevailing doctrine in Shia jurisprudence, presuming the war between Muslims and non-Muslims in regions such as the Middle East as offensive warfare remains illegitimate within the context of the current era, extending indefinitely into the future.

It is pertinent to note that Shia jurists maintain a nuanced interpretation regarding the requirement for Jihad, stipulating that the designated authority must emanate directly from the infallible Imam or his expressly appointed delegate. This designation excludes jurists, even under the rubric of the “wilāyat al-faqīh” theory2, as “one appointed by him”, which signifies an individual specifically assigned as a commander for Jihad, limiting its applicability to the period of the Imam’s presence. Numerous jurists have explicitly articulated that this designation pertains solely to those appointed by the Imam during his physical presence (Al-Ṭūsī 1967, vol. 2, p. 8; Ibn Barrāj 1985, vol. 1, p. 296; Abū al-majd al-Ḥalabī 1993, p. 142; Ibn Ḥamzah 1987, p. 199; Ibn Zuhrah 1996, p. 199; Ibn Idrīs al-Ḥillī 1989, vol. 2, p. 3; Al-Kaydarī 1995, p. 187; Al-Muḥaqqiq al-Ḥillī 1988, vol. 1, p. 278; Ibn Saʿīd al-Ḥillī 1984, p. 233; Ibn Dāwūd al-Ḥillī 1990, p. 87; Ibn Muṭahhar al-Ḥillī 1990, p. 87; 1991, vol. 14, p. 25; 1992, vol. 1, p. 478; Ibn Makkī al-ʿĀmilī 1996, vol. 2, p. 30; Al-Kāshif al-ghiṭāʾ 1998, vol. 4, p. 290). The consensus among Shia scholars unequivocally declares the illegitimacy of jurists undertaking Jihad in the absence of the Imam (Al-Ṭūsī 1979, p. 290; Al-Karakī al-ʿĀmilī 1994, vol. 3, p. 370; Zayn al-Dīn al-ʿĀmilī 1992, vol. 3, p. 9; Zayn al-Dīn al-ʿĀmilī 1989, vol. 2, p. 381; Al-Ṭabāṭabāʾī 1997, vol. 8, p. 13).

3.2. Defensive Warfare within the Shia Sect

The term “difāʿ,” as delineated in the lexicon, originates from the word “ dafʿ” or “ dāfaʿa,” signifying the act of averting harm (Al-Farāhīdī 1989, vol. 2, p. 45; Al-Jawharī 1989, vol. 3, p. 1208). It has been posited that the root “ dafʿ” entails repelling something forcefully (Ibn Manẓūr 1993, vol. 8, p. 87). While jurisprudential sources refrain from furnishing a precise technical definition of this term, they invoke it with dual connotations. Firstly, it denotes a defensive conflict waged in response to enemy aggression. Secondly, it signifies protecting an individual’s life, possessions, or dignity. In this latter context, defense does not connote engaging in warfare against adversaries but aligns with the contemporary concept of self-defense (Al-Ṭūsī 1967, vol. 2, p. 8; Ibn Idrīs al-Ḥillī 1989, vol. 2, p. 4; Zayn al-Dīn al-ʿĀmilī 1989, vol. 2, p. 379; Ibn Makkī al-ʿĀmilī 1996, vol. 2, p. 40). Certain jurisprudential authorities delineate defense specifically within this purview, reserving the designation of “defensive jihad” for wars waged in defense (Al-Muḥaqqiq al-Ḥillī 1988, vol. 1, p. 176; Ibn Muṭahhar al-Ḥillī 1991, vol. 1, p. 571; Ibn Makkī al-ʿĀmilī 1989, p. 264; Al-Najafī 1984, vol. 21, p. 15).

Most jurists regard participation in defensive warfare as a communal obligation (farḍ al-kifāyah). This entails that the obligation to engage in such action is discharged if sufficient individuals undertake it. Consequently, even if a requisite number is present, participation in defensive warfare is not individually obligatory. Notably, defensive warfare is distinct from the legal rulings governing offensive warfare within Sharia. For instance, fleeing from battle is proscribed in offensive Jihad, and the distribution of spoils acquired in warfare is subject to specific regulations, which do not extend to defensive battles (Abū al-Qāsim al-Qumī 1992, vol. 1, p. 356).

Furthermore, according to certain juristic sources (Al-Mufīd 1992, p. 84; Al-Ṭūsī 1979, p. 290; Ibn Idrīs al-Ḥillī 1989, vol. 2, p. 4; Ibn Saʿīd al-Ḥillī 1984, p. 49; Al-Muḥaqqiq al-Ḥillī 1988, vol. 1, p. 37), an individual slain in offensive Jihad is deemed a martyr exempt from the ritual bath and shroud, being interred in the attire worn at the time of demise. Conversely, casualties in defensive warfare are generally not accorded the status of actual martyrs, as per the prevailing opinion among most jurists. Thus, the legal rulings applicable to those slain in offensive Jihad diverge from those applicable to individuals killed in defensive warfare.

Shia jurisprudence delves deeply into the realm of defensive warfare, offering a nuanced framework through which to deny the legitimacy of military action undertaken in defense of Islamic territories or the protection of Muslim communities. Central to this framework is the recognition that many Muslims, particularly those affiliated with Islamic militant groups, are often motivated by a desire to safeguard Islamic lands or their fellow adherents. However, Shia jurisprudence articulates a principled stance that underscores the sanctity of human life, asserting that the pursuit of territorial defense cannot justify the wanton endangerment or loss of life. Within Shia legal discourse, the concept of “bayḍat al-Islām” emerges as pivotal in delineating the parameters of Islamic defense. Here, “subject” denotes the focal point around which defensive warfare revolves—an entity deemed worthy of protection through military means. According to Shia jurists, the crux of what constitutes a justifiable defensive war hinges solely upon this concept. It is widely held within Shia jurisprudence that defensive warfare is obligatory solely for the preservation of “bayḍat al-Islām “ (Al-Ṭūsī 1967, vol. 2, p. 8; 1979, p. 290; Ibn Idrīs al-Ḥillī 1989, vol. 2, p. 4; Ibn Saʿīd al-Ḥillī 1984, p. 234; Al-Muḥaqqiq al-Ḥillī 1997, p. 109; Ibn Muṭahhar al-Ḥillī 1991, vol. 14, p. 28; Ibn al-Muṭahhar al-Ḥillī 1993, vol. 9, p. 48; Ibn Muṭahhar al-Ḥillī 1990, p. 87; Ibn Makkī al-ʿĀmilī 1996, vol. 2, p. 30; Ibn Makkī al-ʿĀmilī 1989, p. 81; Zayn al-Dīn al-ʿĀmilī 1989, vol. 2, p. 379; Al-Ṭabāṭabāʾī 1997, vol. 8, p. 14; Al-Mūsawī al-ʿĀmilī 1997, vol. 5, p. 233; Al-Fayḍ al-Kāshānī 1998, p. 175). Hence, it follows that Muslims can engage in defensive hostilities during periods of occultation—a state that may endure for millennia—only when the integrity of “bayḍat al-Islām” faces imminent threat (Ibn Ḥamzah 1987, p. 200). Significantly, Shia jurists assert that the notion of “bayḍat al-Islām” transcends mere territorial boundaries, dismissing the defense of occupied Islamic lands as insufficient grounds for initiating defensive warfare. Their elucidation of “bayḍat al-Islām” is multifaceted:

• “bayḍat al-Islām” encompasses entities whose destruction precipitates the obliteration of Islam and the everlasting effacement of Muḥammad’s legacy (Al-Rāghib al-Iṣfahānī 1991, p. 311)—a definition echoed in certain Shiite narrative sources (Al-Kulaynī 1986, vol. 5, p. 21; Ibn Bābawayh al-Qumī 1962, vol. 2, p. 604; Al-Ṭūsī 1986, vol. 6, p. 125).
• “bayḍat al-Islām” denotes anything whose demise precipitates the total annihilation of the Islamic faith (Al-Ṭūsī 1967, vol. 2, p. 8; 1979, p. 290).
• “bayḍat al-Islām” epitomizes the bedrock upon which Islam rests, constituting its very foundation (Ibn Idrīs al-Ḥillī 1989, vol. 2, p. 4; Zayn al-Dīn al-ʿĀmilī 1989, vol. 2, p. 381; Al-Ṭabāṭabāʾī 1997, vol. 8, p. 14).

A careful examination of these definitions underscores a conceptual departure from lexical sources, wherein “bayḍat al-Islām” is typically construed as the collective body of Muslim believers (Al-Farāhīdī 1989, vol. 7, p. 69; Ibn Manẓūr 1993, vol. 7, p. 127). However, Shia jurisprudence refines this understanding. Al-Qumī, a renowned jurist of the twelfth century, elucidates this discrepancy, positing that the endangering of “bayḍat al-Islām” lies in the potential threat posed to the fundamental underpinnings of Islam—a threat akin to jeopardizing the stability and continuity of the religion itself. Drawing an analogy to a bird’s egg, he illustrates how the destruction of this foundational element portends the extinction of Islam, much like the demise of an egg heralds the demise of the bird it harbors. Alternatively, he suggests a metaphorical linkage to the helmet worn by warriors in battle, equating the preservation of “bayḍat al-Islām” with safeguarding the very essence and vitality of Islam, akin to protecting the head—the quintessence—of a human being (Abū al-Qāsim al-Qumī 1992, vol. 1, p. 370).

The doctrine of Shia jurisprudence, delineating the permissibility of defensive warfare solely in safeguarding “bayḍat al-Islām” (the core of Islam), finds its doctrinal genesis in the corpus of narrations attributed to Shia imams. Shaykh al-Ḥurr Al-ʿĀmilī, renowned for his comprehensive compilation of jurisprudential traditions stemming from the imams, serves as the principal repository of Shia jurisprudence, with his seminal work serving as a pivotal source within the Shia tradition. Notably, within his treatise on Jihad, al-Ḥurr Al-ʿĀmilī articulates a chapter expressly declaring the prohibition of warfare during the occultation of the infallible Imam, save for defensive engagements aimed at protecting “bayḍat al-Islām”. It is noteworthy that the chapter titles that he employs are imbued with doctrinal significance, tantamount to explicit legal opinions (fatwas). Within this chapter, Shaykh al-Ḥurr Al-ʿĀmilī elucidates five narrations, three of which espouse the notion of defensive warfare exclusively in defense of “bayḍat al-Islām”.

In one such tradition, Imām Abū al-Ḥasan al-Riḍā, the eighth Imām of the Shia, was queried regarding the permissibility of engaging in warfare against infidels within locales such as Qazvin, Daylam, and Ashkelon, regions embroiled in conflict between Muslims and non-believers at the time. The Imām unequivocally responded in the negative, emphasizing the impermissibility of such actions. Furthermore, when prompted about the scenario wherein Rome encroaches upon Islamic territory, Imām al-Riḍā iterated the stance, deeming it impermissible unless “bayḍat al-Islām” faced imminent peril (Al-Ḥurr Al-ʿĀmilī 1988, vol. 15, p. 31).3 In another narration, Imām Jaʿfar ibn Muḥammad al-Ṣādiq, the sixth Imām of the Shia, was approached regarding the status of individuals slain in battle against infidels in pursuit of noble objectives such as liberating Islamic territories from Roman occupation. ʿAbd Allāh ibn Sanān recounts querying the Imam concerning individuals who perish in combat as purported soldiers of the Islamic army along the frontiers of Islamic lands, ostensibly striving for the liberation of territories held by Romans. To this, the Imām rebuffed, lamenting their hasty demise, asserting that they shall not be deemed martyrs. The Imām replied: “Woe to them!” They are in a hurry to get destroyed in this world and the hereafter” (Al-Ḥurr Al-ʿĀmilī 1988, vol. 15, p. 31).4

The essence distilled from the preceding discourse underscores that within Shia jurisprudence, the legitimization of defensive warfare hinges upon the protection of “bayḍat al-Islām,” a concept disassociated from mere territorial concerns or other peripheral issues pertinent to the Muslim populace. Rather, the imperative for defensive engagement arises only when the encroachment upon the target territory poses an existential threat to the very foundation of Islam, jeopardizing its overarching existence. However, realizing such a circumstance remains elusive in the contemporary context. Islam, notwithstanding its geographical expanse spanning across all continents and boasting a diverse following numbering in the hundreds of millions, embodies a universal and expansive ideology whose essence transcends the confines of any specific locale. Consequently, the loss of a particular territory fails to imperil the foundational essence of Islam on a global scale. Therefore, the contemporary landscape wherein defensive battles are waged for territorial claims is bereft of a direct parallel with the doctrinal precepts elucidated within Shia jurisprudence. Notably, the incursion of non-Muslim entities into Islamic territories, the peril faced by Muslim populations, or the jeopardy befalling revered Islamic sanctuaries, including holy sites, do not per se constitute grounds for initiating defensive warfare within Shia legal doctrine. Muslims are absolved of the obligation to undertake military endeavors against threats targeting these aspects. Instead, their duty to engage in defensive warfare solely materializes when the very bedrock of Islam stands imperiled to an extent where its preservation becomes indispensable, lest its entirety faces annihilation.

An important caveat deserving attention within this discourse pertains to certain juridical viewpoints. In addition to “bayḍat al-Islām,” these viewpoints advocate other factors as compelling grounds necessitating defensive action. These perspectives challenge the aforementioned conclusion, thus warranting examination in this section.

1. Muslims: Within some jurisprudential sources, Muslims themselves emerge as a focal point for obligatory defensive warfare (Al-Ṭūsī 1967, vol. 2, p. 8; 1979, p. 290; Abū al-majd al-Ḥalabī 1993, p. 142; Ibn Idrīs al-Ḥillī 1989, vol. 2, p. 4; Ibn Muṭahhar al-Ḥillī 1991, vol. 14, p. 344). Various appellations such as “Nation/qawm” (Al-Ṭūsī 1979, vol. 2, pp. 8, 290; Ibn Idrīs al-Ḥillī 1989. vol. 2, p. 4; Ibn Muṭahhar al-Ḥillī 1999, vol. 2, p. 132), “a group of Muslims” (Al-Kāshif al-ghiṭāʾ 1998, vol. 4, p. 389), “Some Muslims” (Abū al-Qāsim al-Qumī 1992. vol. 1, p. 359), or “jamāʿah” (Al-Muḥaqqiq al-Ḥillī 1991, vol. 2, p. 5) have been employed to denote the collective subject of mandatory defense. These jurists intend to encompass a substantial segment of the Muslim populace rather than a specific faction, as defensive warfare in response to a minor group threat would typically fall under the purview of self-defense rather than full-fledged war. Therefore, jurisprudential sources aligning Muslims alongside Bayda al-Islam utilize terminology indicative of a sizable Muslim community. This assertion finds support in the writings of Ibn Muṭahhar al-Ḥillī, who opines that the capture of a Muslim or a group of Muslims by non-Muslim entities does not warrant obligatory warfare, with ] the mustering and deploying of an entire army not being necessary for the liberation of an individual or a small group (Ibn al-Muṭahhar al-Ḥillī 1993, vol. 9, p. 18). Likewise, a prominent Shia jurist, Zayn al-Dīn al-ʿĀmilī, unequivocally asserts that such scenarios are emblematic of self-defense rather than warranting a declaration of war (Zayn al-Dīn al-ʿĀmilī 1989, vol. 2, p. 379).

2. Islamic Lands: Within specific sources, the concept of Islamic lands emerges as the focal point of defensive warfare (Ibn Barrāj 1985, vol. 1, p. 296; Ibn al-Muṭahhar al-Ḥillī 1993, vol. 9, p. 9; Ibn Muṭahhar al-Ḥillī 1992, vol. 1, p. 478; Zayn al-Dīn al-ʿĀmilī 1992, vol. 3, p. 8). This perspective often predicates this defense as a communal obligation rather than an individual one (Ibn al-Muṭahhar al-Ḥillī 1993, vol. 9, p. 16). This stance contrasts with the viewpoints of certain Sunni scholars, who, as we shall explore, deem this defense an individual obligation. Furthermore, according to Shia jurists, it becomes obligatory for Muslims residing in other regions to partake in this defense should the inhabitants of those territories find themselves unable to fend off aggression (Ibn al-Muṭahhar al-Ḥillī 1993, vol. 9, p. 7; Zayn al-Dīn al-ʿĀmilī 1989, vol. 2, p. 382).

The sources delineating Islamic lands or Muslims as the object of defense frequently juxtapose these designations alongside “bayḍat al-Islām,” either immediately (Al-Ṭūsī 1967, vol. 2, p. 8; Abū al-majd al-Ḥalabī 1993, p. 142; Sabziwārī 2002, vol. 1, p. 368) or following a temporal interval (Ibn al-Muṭahhar al-Ḥillī 1993, vol. 14, pp. 25, 28; Zayn al-Dīn al-ʿĀmilī 1989, vol. 2, pp. 379, 381). Evidently, these sources imply that Islamic lands or Muslims epitomize bayḍat al-Islām, wherein the annihilation of these Muslims or the occupation of their lands would precipitate the demise of bayḍat al-Islām, thus imperiling the very foundation of this faith. Such a perception arises from the understanding that an assault on bayḍat al-Islām invariably entails an attack on Islamic lands or Muslims. Hence, when jurists assert that the defense of “bayḍat al-Islām constitutes the subject of defense, they imply the obligation to defend when Islamic lands or Muslims face aggression, thereby jeopardizing the bedrock of Islam and imperiling its existence under Sharia law. However, should these jurists categorize Islamic lands or Muslims as the subject of defense absolutely and independently of the bayḍat al-Islām, a contradiction ensues in their discourse. This is because they have previously stipulated that the obligation to defend arises only in the event of bayḍat al-Islām’s destruction due to an attack on Islamic lands or Muslims. To reconcile this contradiction, their subsequent discourse should be interpreted in light of the preceding assertion, signifying a specific circumstance rather than any assault on lands or Muslims.

Shaykh Jaʿfar al-Kāshif al-ghiṭāʾ, a 13th century jurist who lived during the Iran–Russia wars5, epitomizes such jurists, articulating that “If infidels invade Islamic lands with the intent to subjugate Islam, obliterate its tenets, and promulgate alternate faiths, defense becomes obligatory, as exemplified by Russia’s current incursion into Iran (Al-Kāshif al-ghiṭāʾ 1998, vol. 4, p. 287).” In another instance, he asserts, “Defensive warfare becomes obligatory for the liberation of Islamic lands when the preservation of “bayḍat al-Islām” hinges upon it, facing imminent danger and impending destruction (Al-Kāshif al-ghiṭāʾ 1998, vol. 4, p. 288)”.

In light of these considerations, this cohort of jurists, while acknowledging the imperative of defensive measures in response to attacks on Muslims, constrains the discussion of the requisite circumstances obligating such defense primarily to the concept of bayḍat al-Islām, or the preservation of religion. Ibn al-Qaṭṭān, a prominent 9th-century jurist, epitomizes this stance, asserting that “War assumes an obligatory character solely upon the summons of the Imam, except in the event of aggression against Muslims. Thus, the mandate for war arises either to propagate religion (in offensive jihad), to safeguard religion (in defensive jihad), or to uphold religion (in the struggle against internal dissension) (Ibn al-Qaṭṭān 2003, vol. 1, p. 285).” Al-Najafī, while also acknowledging the justification for defensive warfare against assaults on Muslims, endeavors to elucidate the conditions necessitating such action, stating that “The second category of warfare, namely defense against aggressions targeting Muslims or Islamic territories, becomes obligatory when adversaries assail Muslims, thereby imperiling the foundations and identity of Islam (Al-Najafī 1984, vol. 21, p. 58).” Sayyid ʿAlī al-Ṭabāṭabāʾī similarly espouses this viewpoint (Al-Ṭabāṭabāʾī 1997, vol. 8, pp. 7, 14).

The endorsement of Muḥammad Ḥasan al-Najafī, author of the pre-eminent Shia jurisprudential encyclopedia, Jawāhir Al-Kalām, lends credence to this perspective. Al-Najafī, amongst jurists, expands the purview to encompass Islamic territories, alongside bayḍat al-Islām. Yet, under the rubric “When is war obligatory?” he contends the following: “Indeed, one may contest the defensive warfare in the face of infidel incursions into Islamic territories. Presently, should infidels seek control over Islamic lands while permitting Muslims practice of their faith and refraining from impeding their religious obligations, we may entertain the proscription of defensive warfare for the preservation of Islamic territories. It is manifest that one should not precipitate one’s own demise without the sanction of Sharia law. Furthermore, the prohibition of warfare during the occultation of the Imam of the era, as delineated in narrations, extends to this scenario and is proscribed by Shia imams. Indeed, defensive warfare remains permissible solely in the event that infidels seek to extirpate Islam entirely, obliterating its very essence to the extent that the mention of Muhammad and his religion becomes effaced (Al-Najafī 1984, vol. 21, p. 18)”.

Hence, should an assault upon Islamic territory or Muslims fail to equate to the annihilation of bayḍat al-Islām, the legitimacy of engaging in defensive warfare is forfeited. However, individuals retain the right to safeguard their lives and property when faced with imminent peril, akin to any other individual confronting such threats. Numerous scholars assert that in the event of an incursion upon a city or Muslim populace, the imperative to defend arises as an act of “personal defense” rather than constituting a defensive war per se. This rationale, therefore, does not justify the collective mobilization of Muslims in defensive campaigns aimed at preserving these cities and their inhabitants. Such elucidation finds resonance in the writings of various jurists, among whom Ibn Barrāj unequivocally distinguishes the following: “This pertains to self-defense, not defensive warfare (Ibn Barrāj 1985, vol. 1, p. 297)”. Likewise, Ibn al-Muṭahhar al-Ḥillī (1993, vol. 9, p. 9), Ibn Muṭahhar al-Ḥillī (1999, vol. 2, p. 132), Ibn Ḥamzah (1987, p. 200), Al-Rāwandī (1984, vol. 1, p. 332), and (Ibn Zuhrah 1996, p. 199), Al-Kaydarī (1995, p. 187), al-Muḥaqqiq al-Ḥillī (1997, p. 109), and Ibn Makkī al-ʿĀmilī (1996, vol. 2, p. 30) expound most explicitly that such an obligation is confined to “personal defense” and does not exemplify the broader concept of a defensive war typically undertaken by Muslims.

As final evidence, it is noteworthy to cite Sayyid Jawād al-ʿĀmilī, a prominent 13th-century jurist renowned for his seminal work in Shia jurisprudence. Confronted with Wahhabi incursions upon Najaf, he authored a succinct treatise titled “Wujūb al-dhabb ʿan al-najaf al-ashraf li-anahā bayḍat al-Islām” (Najaf Ashraf must be defended because this city is an example of bayḍat al-Islām) (Tihranī 1983, vol. 25, p. 33). As the title suggests, he deemed it obligatory to defend the city of Najaf solely by its status as an exemplar of bayḍat al-Islām.

Consequently, the initial segment of this discourse underscores that, according to Shia jurisprudence, neither offensive nor defensive warfare aimed at reclaiming occupied Islamic territories enjoys legitimacy. The former is rendered untenable by the absence of an infallible Imam. At the same time, the latter is precluded by the contemporary geopolitical landscape, where no territory holds parity with the foundational essence of Islam.

4. The Repudiation of Armed Conflict as a Means of Land Liberation within Sunni Jurisprudence

The discourse surrounding Jihad within the Sunni jurisprudential literature encompasses various themes, including the prominent notion of “kitāb al-sīyar”. This term, derived from the plural of “sīrah”, denoting tradition and methodology, holds significance in elucidating the principles of Jihad as inferred from the Prophet’s conduct during his military campaigns (Al-Shirbīnī 1995, vol. 4, p. 208; al-Anṣārī 1988, vol. 2, p. 296; Al-Shirwānī 1992, vol. 9, p. 211; Al-Qāsānī 1984, vol. 7, p. 97; al-Ramlī 1992, vol. 8, p. 45). Al-Sarakhsī posits that the appellation “al-sīyar” is apt due to its delineation of Muslim conduct towards non-Muslims (Al-Sarakhsī 1986, vol. 10, p. 2). Alternatively, certain sources adopt the title “al-maghāzī”, signifying the notion of engaging in battle and combat (Ibn Nujaym Al-Ḥanafī 1997, vol. 5, p. 119; Ibn ʿĀbidīn 1992, vol. 4, p. 295), albeit the designation “al-nafīr” remains sparingly employed within this context (Al-Mardīnī 1987, vol. 9, p. 47).

Within Sunni jurisprudential discourse, both offensive and defensive warfare find mention under the rubric of Jihad (For example, see Al-azharī 1991, p. 411). Notably divergent from Shia jurisprudence, Sunni scholarship adopts a distinct stance concerning offensive Jihad. While it upholds Jihad as a collective obligation (Ibn Rushd 1995, vol. 1, p. 305; Al-Ḥiṣfakī 1995, vol. 4, p. 297; al-Ramlī 1992, vol. 8, p. 46; Al-Buhūtī 1997, vol. 3, p. 35; Al-Damyāṭī 1997, vol. 4, p. 206), it stipulates that it persists until the Day of Resurrection, with an annual mandate for its fulfillment (Al-Shawkānī 1973, vol. 8, p. 25; Al-Sarakhsī 1986, vol. 10, p. 2). Despite interpretations positing the annual obligation as a preventative measure against potential enemy incursions (Al-Nawawī 1987, vol. 19, p. 266), it stands in contrast to Shia jurisprudence, which prohibits offensive warfare during the period of occultation, an epoch spanning over a millennium with an indefinite conclusion.

The objective of Jihad fundamentally diverges from that of defense. Jihad, rather than being primarily defensive, aims to propagate Islam (Al-Samarqandī 1984, vol. 3, p. 293; Al-Qāsānī 1984, vol. 7, p. 98) or extract jizyah (Ibn Rushd 1995, vol. 1, p. 312), thereby encompassing endeavors to proselytize non-Muslims and combat those resistant to conversion (Al-Ḥiṣfakī 1995, vol. 4, p. 296). Nonetheless, within the Sunni classical literature, there exist interpretations that imbue Jihad with a defensive character, positing its raison d’être as the repulsion of enemy assaults. For instance, Al-Nawawī advocates for the recommendation of Jihad on an annual basis to forestall infidel aggression against Muslims, contending that the cessation of Jihad would embolden adversaries to strike (Al-Nawawī 1987, vol. 19, p. 266). Similarly, Ibn Nujaym, a Ḥanafī jurist from the 10th century AH, asserts that Jihad arises in response to infidel hostility, echoing a defensive ethos (Ibn Nujaym Al-Ḥanafī 1997, vol. 5, p. 119). This perspective has piqued the interest of certain Western scholars seeking to portray Islamic Jihad as inherently defensive. Sherman A. Jackson (Jackson 2002, p. 15), drawing upon Fred Donner’s scholarship (Donner 1991), posits that offensive Jihad finds sanction in Islamic jurisprudence owing to the absence of formal peace treaties and delineated borders, where inter-state relations are characterized by perpetual conflict, rendering pre-modern states inherently militaristic. Consequently, when jurists designate neighboring non-Muslim territories lacking peace accords as “Dār al-Ḥarb”, they merely depict the prevailing geopolitical realities, eschewing normative prescriptions.

4.1. Sunni and Shia Jurisprudential Treatises Exhibit Disparities in Their Treatment of Defensive Warfare

Some Sunni sources notably omit discussions on defensive war entirely (Ibn Anas al-Aṣbaḥī and Al-Tanūkhī 1994, vol. 2, pp. 2–51; Ibn Anas al-Aṣbaḥī 1985, vol. 2, pp. 443–72; Al-Qīrrwānī n.d., p. 411; Al-Jundī 1995, pp. 89–95; Al-Sarakhsī 1986, vol. 10, pp. 2–145; Al-Mardīnī 1987, vol. 9, pp. 47–227; Al-Ḥiṣfakī 1995, vol. 4, pp. 294–396; Ibn Rushd 1995, vol. 1, pp. 305–31; Al-Samarqandī 1984, vol. 3, p. 317). Even ibn Ḥazm, in al-Muḥallā, references war with “bughāt” but neglects the concept of defense (Ibn Ḥazm 2018, vol. 10, pp. 97–117). This omission could be attributed to the milieu in which these classical sources were composed, where Muslim dominance was prevalent, relegating defensive warfare—emerging from infidel incursions—to the realm of conjecture. This viewpoint finds affirmation in Ibn ʿĀbidīn’s assertion that jurisprudential works emphasize the communal obligation of Jihad over its individual counterpart due to the greater prevalence of offensive Jihad and the rarity of defensive warfare (Ibn ʿĀbidīn 1992, vol. 4, p. 298). Majid Khadduri’s contention that the Quran makes no distinction between offensive and defensive war further bolsters the rationale for amalgamating defense with Jihad in Sunni jurisprudence. Khadduri argues that contextual factors necessitated the prioritization of al-ribāṭ—an Islamic defensive strategy aimed at safeguarding borders through military deployment—in Mālikī jurisprudence prevalent in regions like Spain and North Africa, where Islamic territories faced imminent threats from external adversaries (Khadduri 1965, p. 81).

In other scholarly discourses, the umbrella term Jihad encompasses both defensive and offensive wars, delineating them into communal obligation and individual obligation, the latter encompassing defensive warfare (Al-Shirbīnī 1978, vol. 2, p. 211; Al-Malībārī al-Hindī 1997, vol. 4, pp. 205–6). Defensive warfare, however, is not explicitly articulated as a distinct concept but subsumed under the overarching notion of Jihad as an individual obligation. This conceptualization, termed individual obligation, extends beyond mere defense, thus allowing for offensive warfare under certain circumstances to be an individual obligation. It posits that when the Imam of Muslims issues a call to Jihad, whether to repel an attack or to engage in offensive maneuvers, it becomes an individual obligation for all Muslims (Al-Sarakhsī 1986, vol. 10, p. 3; Al-Qāsānī 1984, vol. 7, p. 191; Al-azharī 1991, p. 411; Al-Samarqandī 1984, vol. 3, p. 294). This doctrinal stance, articulated by Ibn Qudāmah, identifies three scenarios constituting individual obligations in Jihad: defensive warfare, participation in offensive Jihad, and the Imam’s general call for offensive warfare (Ibn Qudāmah al-Maqdisī 1984, vol. 10, p. 365).

Contrary to Shia jurisprudence that the legitimacy of defensive warfare is framed within the concept of “bayḍat al-Islām”, a fluid notion not inherently tied to territorial boundaries and disengaging the legitimacy of defensive war from the mere occupation of Islamic lands, in Sunni jurisprudential discourse, distinct criteria legitimizing defensive warfare are outlined, including the desecration of Muslims (Al-Nawawī 1987, vol. 19, p. 269) and Islamic lands (Al-Nawawī 1991, vol. 7 pp. 416–18; al-Anṣārī 1988, vol. 2, pp. 298–99; Al-Shirbīnī 1978, vol. 2, p. 212; 1995, vol. 4, pp. 219–20; Al-Malībārī al-Hindī 1997, vol. 4, pp. 205–6; Al-Damyāṭī 1997, vol. 4, p. 206; Ibn Nujaym Al-Ḥanafī 1997, vol. 5, p. 122; Ibn Qudāmah al-Maqdisī 1984, vol. 10, p. 365; Al-azharī 1991, p. 420; Al-Qāsānī 1984, vol. 7, p. 98; Al-Buhūtī 1997, vol. 3, p. 40), the repulsion of enemy aggression (without specifying the nature of the aggression) (Al-Disūqī 1987, vol. 2, p. 10; Ibn ʿĀbidīn 1992, vol. 4, p. 298), and the liberation of Muslim captives held by non-Muslim entities (Al-azharī 1991, p. 411). Notably, Sunni jurisprudence predominantly aligns defensive warfare with the notion of preserving Islamic territories, diverging from Shia jurisprudence’s emphasis on bayḍat al-Islām. The salient disparity between Shia and Sunni jurisprudence regarding the conception of defensive warfare underscores the fact that the framework of bayḍat al-Islām advocated in Shia jurisprudence cannot be universally applied to deem wars for the liberation of Islamic lands illegitimate. Sunni jurisprudence, however, introduces a pivotal criterion for warfare, be it offensive or defensive, transcending the paradigm of bayḍat al-Islām, which acts as a pragmatic deterrent against indiscriminate warfare for territorial gain in contemporary contexts.

4.2. Ensuring Victory: A Prerequisite for the Art of Warfare

Sunni jurisprudence posits that the decision to engage in warfare, whether in an offensive or defensive capacity, hinges upon the assurance of victory (Al-Nawawī 1987, vol. 19, pp. 267, 291). It is widely accepted among Sunni scholars that initiating aggressive warfare necessitates confidence in overpowering the adversaries. As articulated by al-Shāfiʿī, should Muslims find themselves at a numerical or strategic disadvantage, embarking on a military campaign risks the possibility of defeat and subsequent subjugation by non-believers. Under such circumstances, Muslims are advised against participation in battle (Al-Shāfiʿī 1983, vol. 4, p. 178). Al-Shāfiʿī further outlines that a commander undertaking Jihad must prioritize the safety of Muslim combatants, admonishing against leading a small contingent against a vastly superior force of infidels. Compliance with such an ill-advised commander is deemed impermissible (Ibid).

Support for this stance is underscored by the provision that even in cases of offensive warfare, which Sunni jurists deem an individual obligation, Muslims may retreat from the battlefield if outnumbered by infidels by more than twice their force. This course of action is deemed permissible, with an obligation to flee should there be a risk of death (Al-Nawawī 1987, vol. 19, pp. 291–92; Al-Nawawī 1991, vol. 7, p. 449; Al-azharī 1991, p. 413). Jurists stress that the concept of “strength” extends beyond mere numerical superiority or military armaments, emphasizing instead the capacity of Muslims to endure and achieve unequivocal victory. This principle finds explicit endorsement in the writings of scholars such as al-Samarqandī, a Hanafi jurist (Al-Samarqandī 1984, vol. 3, p. 296).

In stark contrast to Shia doctrine, which universally mandates defensive warfare for the preservation of bayḍat al-Islām, Sunni jurisprudential sources stipulate that defensive war waged to safeguard Islamic lands must also consider the feasibility and certainty of victory as prerequisites. In cases where Muslim forces lack the requisite power, defensive war is not deemed obligatory. Furthermore, scholars assert that surrender becomes permissible if defeat is imminent and survival is unattainable (Al-Shirbīnī 1978, vol. 2, p. 212; Al-Shirbīnī 1995, vol. 4, p. 219; al-Ramlī 1992, vol. 8, p. 59). Thus, instead of the Shiite notion of bayḍat al-Islām, which prevents defensive warfare exclusively for safeguarding Islamic territories, the Sunni doctrine emphasizes the concept of “muhādanah.” This term, derived from “hadana”, signifying peace, denotes a negotiated agreement to halt hostilities with non-believers (al-Ramlī 1992, vol. 8, p. 106). Such agreement, referred to in jurisprudential sources as “muwādaʿah”, “al-muʿāhadah” and “al-muslamah”, is deemed obligatory when deemed advantageous for Muslims (al-Anṣārī 1988, vol. 2, pp. 318–19; Al-Malībārī al-Hindī 1997, vol. 4, p. 224; al-Ramlī 1992, vol. 8, p. 106). Typically, considerations of Muslim weakness or infidel strength serve as benchmarks for determining expediency (Al-Nawawī 1991, vol. 7, p. 519; al-Anṣārī 1988, vol. 2, p. 318).

The viewpoint espoused by radical factions diverges sharply from the nuanced stance of Sunni jurists. Notably, Abdullah al-Rifa’i, editor of the Jeddah-based newspaper al-Muslimun, highlights a prevalent sentiment among certain Muslims, rejecting peace negotiations with Israel under the premise that perpetual warfare against enemies of Islam is imperative, irrespective of the balance of power (Hassan Khalil 2011, p. 136). This is while many scholars argue that in circumstances of Muslim vulnerability or incapacity, the muhādanah treaty becomes unnecessary. In the absence of a treaty also, Muslims are enjoined to cease hostilities and pursue peace, drawing parallels to historical instances where the Prophet made peace without formal agreements with Banū Tamīm, Banū Rabīʿah, and Banū Asad (Al-Shāfiʿī 1983, vol. 4, p. 199). As recounted by Ibn Rushd Hafid, according to some interpretations, even in situations where Muslims are not inherently weak, if ending conflict offers strategic advantages, entering into a muhādanah treaty becomes imperative. This perspective is attributed to Mālik, Shāfiʿī, and Abū Ḥanīfah by Ibn Rushd (1995, vol. 1, p. 311).

Therefore, in the contemporary geopolitical landscape, engaging in defensive warfare to protect Islamic territories without a definitive prospect of victory is considered forbidden according to Sunni jurisprudence.

An imperative facet worthy of scrutiny in this study is the delineation of two prerequisites outlined by certain jurists within the framework of truce contracts. These requisites pose a challenge to the conclusions drawn hitherto. The initial stipulation pertains to temporal constraints, stipulating that a truce cannot be boundless but must be temporally delimited. The second condition necessitates a monetary tribute from non-Muslim entities to Muslims.

Upon closer examination of this contention, it is pertinent to underscore that all jurisprudential reservoirs attest that the muhādanah period terminates when circumstances shift, affording Muslims the ascendancy to surmount non-Muslim adversaries. Consequently, while a maximum period of ten years is often mentioned, should Muslims’ imbalance and frailty persist beyond this timeframe, the treaty may be extended indefinitely (Al-Shāfiʿī 1983, vol. 4, p. 199; Al-Nawawī 1991, vol. 7, p. 519; al-Anṣārī 1988, vol. 2, pp. 318–9; Ibn Nujaym Al-Ḥanafī 1997, vol. 5, p. 133). Thus, as long as the benchmark of ensuring victory remains unmet, peace must endure. The ostensibly infinite duration of muhādanah, sanctioned by jurists during periods of Muslim vulnerability, has engendered reluctance among Muslims to engage in offensive warfare for centuries. This contravenes the notion that war is a fundamental tenet of Islam, positioning muhādanah as a stratagem for instigating warfare at a later juncture (Spoerl 2006, p. 6). Majid Khaduri rejected this viewpoint, asserting the following: “Islam emerging in the seventh century as a conquering nation with world domination as its ultimate aim refused to recognize legal system other than its own. It was willing to enter into temporary treaty relations with other states, pending consummation of its world mission. The temporary period endured for several centuries, and it proved itself more permanent than originally contemplated (Khadduri 1965, p. vii).” Furthermore, he posits that the imperative of peace with non-Muslim entities, ostensibly temporary and restricted in theory, invariably transpires into enduring pacification in practice (ibid., p. 52). This exemplifies not a mere tactical maneuver but a policy and strategy predicated upon perpetual interests (ibid., p. 144).

Concerning the second condition, jurists unequivocally opine that in circumstances of Muslim frailty and incapacitation, whereby peace is sought due to the uncertainty of victory, such a condition is not only superfluous but demands concessions from Muslims to sway non-Muslims from warfare (Al-Shāfiʿī 1983, vol. 4, p. 199; Al-Muzanī 1984, p. 279; Ibn Nujaym Al-Ḥanafī 1997, vol. 5, pp. 133–34). Quoting Adhraʿī, Al-Shirbīnī underscores this as the prevailing view among jurists (Al-Shirbīnī 1995, vol. 4, p. 261). Khaduri cites the conduct of figures like Muʿāwīyah and ʿAbd al-Malik al-Marwān, who assented to tribute payments to the Byzantine government in exchange for peace (Khadduri 1965, p. 136). Ibn Nujaym clarifies that concessions need not be confined to material wealth but encompass any gesture mitigating the specter of war (Ibn Nujaym Al-Ḥanafī 1997, vol. 5, p. 134). Al-Buhūtī recounts a tradition where the Prophet, amidst aḥzāb strife, proffered ʿyaynah bin Ḥuṣayn one-third share of the date crops of Anṣār Medina to dissuade him from warfare, yet ʿyaynah remained unsatisfied, demanding more (Al-Buhūtī 1997, vol. 3, p. 128).

Giving concessions to the adversary to avert war transcends offensive and defensive scenarios. Shafi’i contends that in defensive predicaments, where the peril of attack and annihilation looms, the conclusion of a muhādanah treaty with concessions from Muslims becomes obligatory (Ibn Rushd 1995, vol. 1, p. 311). In this vein, Al-Nawawī’s assertion elucidates the following: “The conclusion of the muhādanah treaty, contingent upon Muslim concessions to non-Muslims, such as pecuniary payments in defensive warfare to forestall their aggression, is mandatory in the face of the potential obliteration of Muslims. Although defense is an individual obligation, its mode need not invariably involve combat; here, it is accomplished through monetary means, rendering it obligatory if this type of defense is the sole recourse (Al-Nawawī 1991, vol. 7, p. 520)”.

The conclusion drawn in the latter part of the discourse is that within Sunni jurisprudence, neither an offensive nor defensive war aimed at reclaiming Islamic territories holds legitimacy under contemporary circumstances. The term “current conditions” herein diverges from a universal state of peace purported by some scholars. Jackson postulates that within our contemporary global framework, the presumed (though not necessarily actual) state of affairs leans toward peace. For instance, diplomatic accords between nations like the United States and Mexico do not necessitate explicit agreements to establish peaceful relations (Jackson 2002, p. 8). Instead, the present milieu denotes the absence of Muslim authority to overpower adversaries, coupled with the uncertainty of achieving victory. This, irrespective of the broader state of peace, renders warfare illegitimate even under the pre-modern Islamic warfare paradigm. This stance stems from the prerequisite outlined in juristic sources for engaging in warfare—ensuring a decisive triumph—a condition unmet in today’s context. Western powers, including the United States and Europe, showing unwavering commitment to the existence of a nation-state in the Middle East obviates the prospect of victory in liberation conflicts within this region. Consequently, the essential precondition for war’s legitimacy, even in defense, remains unfulfilled. According to Colin Chapman “The Jewish state, established in 1948 at the heart of the Arab world and the Islamic world… sustained as if on a life support machine by the moral, political and economic support of the US. (Chapman 2004, p. 2)”.

At the end of this article, we elucidate that, under current conditions, engaging in warfare in the Middle East contravenes the orthodox tenets of both Shia and Sunni jurisprudence. The resistance of contemporary Shia scholars to the notion of peace in the Middle East region signifies a departure from the established doctrine of Shia jurisprudence, which posits that defensive warfare is only justified when the very foundation of the Islamic faith is imperiled. Similarly, the opposition among Sunni scholars overlooks a fundamental principle upheld by the majority of Sunni jurists, who stipulate that the “certainty of victory” is a prerequisite for legitimizing defensive warfare. Adhering to the orthodox traditions of Shia and Sunni jurisprudence necessitates the prioritization of peace over the pursuit of war.

Among contemporary Shia jurisprudents, I have yet to encounter a jurist who has explicitly endorsed peace in the Middle East in alignment with orthodox Shia jurisprudential tradition. However, it is noteworthy that I discovered a notable exception within Sunni jurisprudence. In 1994, Abdul-Aziz ibn Abdullah Bin Baz, the Grand Mufti of Saudi Arabia, not only legitimized but also deemed the pursuit of peace with Israel obligatory. This stance is in accordance with the orthodox Sunni jurisprudential tradition, illustrating a significant divergence in jurisprudential interpretations between the two branches of Islam. Bin Baz’s rationale rested upon the Peace of Hudaybīyah, wherein the Prophet accorded concessions to the Meccan polytheists. His endeavor aimed at adapting the terms of Ḥudaybīyah to the contemporary conflict scenario (Hassan Khalil 2011, p. 136). In response, Yusuf al-Qaradawi emphasized the need to factor in ground realities when deducing legal rulings, advocating for consultations between figures like Bin Baz and political and legal experts (for example, see Bartal 2016). Notably, he contested Bin Baz’s argument, asserting that Israel’s readiness for peace hinged on Palestinian territorial concessions. Bin Baz aptly pointed out that the verse cited by al-Qaradawi, “Be not weary and faint-hearted, crying for peace, when ye are the uppermost: for Allah is with you, and will never put you in loss for your (good)deeds” (Quran 47:35), pertained to situations of believers’ dominance over adversaries, suggesting fighting only when in a position of strength (Hassan Khalil 2011, p. 137). In contrast, al-Qaradawi construed this verse as revealed in the situation after the battle of uḥud, when the Muslims were defeated and weak, and applicable to defensive rather than offensive warfare, viewing the ongoing Middle Eastern conflict as defensive (Hassan Khalil 2011, p. 137). As evident from this discussion, al-Qaradawi’s interpretation finds no resonance within prevailing jurisprudential traditions, challenging his understanding of the verse. Al-Qaradawi posited the Palestinian conflict not merely as a local issue but as an Islamic one, encompassing sacred lands. This study established the theory of war and defense contingent upon “ensuring a definite victory”, thus remaining unchallenged by al-Qaradawi’s overarching perspective. Criticisms were also directed at al-Qaradawi’s dismissal of Bin Baz’s argument regarding the Peace of Hudaybiyah, viewing the Prophet’s decision as a divine exception (Hassan Khalil 2011, p. 136). Contrarily, traditional jurisprudential norms indicate that ensuring victory renders abstention from war not an exception but a general rule.

Prior to Bin Baz’s fatwá, Gad al-Haq Ali Gad al-Haq, the Mufti of al-Azhar in Egypt, had similarly decreed the legitimacy of peace grounded in the impossibility of victory, citing Qur’anic and Sunnah references (Gad Al-Haq 2005, p. 177). The significance of his fatwa lies in his esteemed stature as a leading scholar of religious law, presiding over the prestigious Al-Azhar institution in Cairo and serving as Egypt’s religious authority at that time (Yitzhak 2011, p. 2).

5. Conclusions

The present article delves into the theory of war and defense within Shia and Sunni jurisprudence, with the overarching objective of elucidating the invalidity of waging war solely for territorial purposes within the contemporary global milieu. The imperative nature of this inquiry becomes manifest when confronted with the formidable challenge confronting Muslims vis-à-vis the West concerning territories perceived as occupied by Muslims. As underscored by Chapman, juxtaposing the editor of the Guardian’s saying alongside other admonitions, “It is time to accept that the Arab-Israeli conflict is the main source of tension between the Muslim world and the West and act to resolve it (Chapman 2004, p. 18)”.

The proposition posited herein does not entail an abandonment of Muslim beliefs or those of the opposing party. Rather, it advocates for desanctifying warfare and bloodshed within this region. Within Shia jurisprudence, which, in the absence of the Twelfth Imam, deems defensive warfare legitimate solely for the protection of bayḍat al-Islām, concordance with defensive warfare aimed at land liberation is untenable. This arises from Shia jurists’ interpretation of bayḍat al-Islām as signifying the “principle” and “foundation of Islam”, its jeopardy connoting the erasure of Muhammad’s legacy and the extinction of his religion. It is evident that territorial occupation, no matter its significance, does not culminate in such outcomes. Reiterating the sentiments of Muḥammad Ḥasan al-Najafī, author of the pre-eminent Shia jurisprudential encyclopedia Jawāhir al-Kalām, “Indeed, one may contest the imperative of defensive warfare in the face of infidel incursions into Islamic territories. Presently, should infidels seek control over Islamic lands while permitting Muslims practice of their faith and refraining from impeding their religious obligations, we may entertain the proscription of defensive warfare for the preservation of Islamic territories. It is manifest that one should not precipitate one’s own demise without the sanction of Sharia law. Furthermore, the prohibition of warfare during the occultation of the Imam of the era, as delineated in narrations, extends to this scenario and is proscribed by Shia imams. Indeed, defensive warfare remains permissible solely in the event that infidels seek to extirpate Islam entirely, obliterating its very essence to the extent that the mention of Muhammad and his religion becomes effaced” (Al-Najafī 1984, vol. 21, p. 18).

In Sunni jurisprudence, although the notion of Islamic land legitimizes defensive warfare, both offensive and defensive warfare hinge upon the condition of “assurance of victory”, a condition unmet in contemporary circumstances in the Middle East. This reality is acknowledged through scrutinizing the prevailing situation in our region. Consequently, according to Sunni jurisprudence, warfare lacks legitimacy.

Addressing the role of the opposing party in fomenting Muslim bellicosity, along with historical precedents of conflict wherein the other party played a catalytic role, does not obviate the conclusions drawn in this research. This article does not seek to vindicate the actions of the other party but instead advocates for a non-belligerent approach by Muslims in response. Such an approach mitigates the loss of innocent lives. Moreover, challenging the findings of this research by invoking the prospect of victory in warfare is futile. The contention that proponents of war persist in advocating for violent solutions without a comprehensive analysis of the contemporary global landscape, particularly the regarding stance of the West and the United States, lacks substantive merit. At the very least, this study presents an opportunity for many Muslims to reconsider the legitimacy of war, given its implausibility of success, and explore alternative peaceful avenues.

It is imperative to underscore the fact that deeming war for territorial liberation illegitimate does not equate to accepting the subjugation of Muslims. Shia and Sunni jurists who denounce war for land liberation under circumstances akin to the contemporary regional milieu prioritize the preservation of Muslim lives and proffer alternative means to safeguard Muslim honor and dignity. Presently, avenues exist within the framework of international law, international organizations such as the United Nations and the Security Council, and, notably, through media and public opinion to address these issues.