• Idris Ibrahim Alao Lecturer, Department of Islamic Law, College of Law, Fountain University, Osogbo, Osun State



The event of September 11 attracted wide condemnation of jihād, with some seeing it as the source that gave right to Muslims to engage in terrorism. The Orientalist views of jihād tend to be dominant in the West that portrays the system as violent, intolerant, barbaric and backward. Islamic law, has, however contributed immensely to the laws of war, by introducing rules and procedure in the event of war which today can be found in the Humanitarian laws and the Geneva Conventions. This doctrine called as-Siyar forms the back bone of the doctrine of the Islamic law of war. Using doctrinal legal research methodology combined with historical and analytical techniques, this paper highlighted the concept of jihād and its classes under Islamic International law, clarified the misconception surrounding jihād as ‘holy war’ and examined the concept of as-Siyar, the use of force and its limitations in the conduct of military form of jihād. It concluded with a key finding that peace is the normative rule regarding the relations between Muslims and non-Muslims, while the use of force in the form of military form of jihād is only an exception.


Keywords:  Jihād, Siyar, Qitāl, Islamic International Law


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An injunction from the Glorious Qur’?nstates: ‘If two parties among the believers fall into a quarrel, make peace between them’(Al-Hujur?t: 9); ‘And if they incline to peace, then incline to it [also] and rely upon All?h. Indeed, it is He who is the Hearing, the Knowing.’ (Al-Anf?l: 61)

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T?h?: 21

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This position partly informed the work Fahmi Huwaidi titled, ‘Muw?tin?n La Dhimmiyy?n’ (Citizens, not protected persons). According to him, “If we admit that certain dynamics relating to time and place impact upon the Shar?‘ah rulings, then it is nothing short of admitting that those dynamics also influence on prevailing thoughts and terms in Muslim societies. In particular, the term “Ahl Dhimmah” (i.e protected persons) has been expunged from the legal framework in the Arab world since the promulgation of the first Ottoman constitution in 1876, which affirmed the concept of equality of rights and obligations among all citizens of the Empire, regardless of their religious differences. (Translation mine) See F Huwaidi Muw?tin?n La Dhimmiyy?n(D?r al-Shur?q Egypt 1999) 126

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Hijrah connotes the emigration of Prophet Muhammad from Makkah to Mad?nah in 622 AD as a result of the persistent torture he and his followers were been subjected to by the pagans of Makkah. It also signifies the first year of the commencement of the Muslim Calendar.

Al-Hajj: 39- 40

Al-Baqarah: 216

Al-Baqarah: 190

The classical concept of division is, old though it may be, not laid down explicitly anywhere in the Qur’?n. Instead, it is understood to be a legal and political structure developed by means of Ijtihad i.e. individual logical deduction and conclusion by the Hanafi jurists based on certain indications in the religious sources. See R Tina Traditional Islamic Approaches to Public International Law – Historic Concepts, Modern Implications (Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, 2012, 2012) 527. Available online at, accessed on 05/04/2023

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Al-Baqarah: 191, 217

Al-Furq?n: 52

It is narrated that when the Prophet (PBUH) was returning from Tab?k to Ma?inah he said, “We have just returned from a lesser jih?d to the greatest jih?d”. He was asked, “What is the greatest jih?d O Messenger? He (PBUH) replied, “Disciplining oneself”. Although, the Hadith, it must be noted, was reported by Al-Bayhaqi with a weak chain of transmission. The version with an authentic narration as reported by Imam Ahmad in his Musnad is: “The Muj?hid is one who strives against his own soul”. Graded as authentic by Imam Tirmidh? in his J?mi‘ at-Tirnidh?, Had?th No. 1621 and Imam Ahmad in his Musnad Had?th No. 23965

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An-Nahl: 125

S?rah literature describes the kinds of torture to which the oppressed, socially weak Muslims were subjected. Bilal, a slave who performed the call to prayer, is described as having been severely tortured by his master to force him to abandon the new religion and worship the famous Quraysh idols al-L?t and al-‘Uzza. Bil?l is reported as saying during his torture “One, One”, meaning that there is only one God. The whole family of Y?sir, including Amm?r ibn Y?sir, his father and his mother Sumayyah the daughter of al-Khayyat, were also reported to have been brutally tortured. The Prophet (PBUH) passed by them as they were being tortured and, being unable to save them, he said, “patience, O family of Yasir! Your meeting place will be paradise.” The mother, Sumayyah, known as the first female martyr in Islam, and her husband, Y?sir, were killed under torture because of their refusal to abandon the religion of Islam. Facing all these tortures and persecution and with no hope of stopping this aggression, the Prophet asked some Muslims to flee to Abyssinia because its king, the Negus, was a righteous man who would not allow anyone to be oppressed in his territory.

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They are Rajab, Dhul Qa’dah, Dhul al-Hijjah and Muharram. See At-Tawbah: 36

Abu Bakra narrated: In his sermon on the Day of Sacrifice at Mina, the Prophet (PBUH) said: ‘Your blood and your property and your honor are forbidden for you to violate, like the sacredness of this day of yours, in this month of yours, in this city of yours.’ (Bukhari, Hadith No. 67 and Muslim, Hadith No. 1679). See also, At-Tawbah: 2

F Huwaidi, op. cit., 219

The Qur’?n is described with many attributes such as Qur’?nun Kar?mun, Qur’?n Maj?d, Qur’?nun Mub?n etc.

For instance, name of S?rahs (translated as chapters in English) and their orderly arrangement are considered tawqif?. Same is true for many Shar?‘ah concepts and terms.

Throughout human history violent conflict has played a role in shaping cultures and in giving rise to nation-states. In the midst of this violence, many different cultures have attempted to restrict the violence, hoping to limit its destruction of people, land, goods, economic resources, and culture. Of particular importance to the formation of the Christian just war tradition were the efforts of the ancient Jewish, Greek, and Roman cultures to develop a code for warfare that would somehow establish rules and limits.

Brek B.A., op. cit., l

Nico R.S., op. cit., 5

F Huwaidi, op. cit., 219

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SA Shaheen and R Javaid, op. cit., 332

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Al-Hajj: 39

Al-Hajj: 40

Manisuli S., op. cit., 18

An-Nis?i: 75

Al-Baqarah: 190-193

AS Niaz The Use of Force under Islamic Law (2013) The European Journal of International Law, 24; 1: 357

Al-Anf?l : 58

Al-Anf?l : 60

Al-Baqarah: 191

Al-Baqarah: 193

Al-Baqarah: 191

Al-Baqarah: 194

Al-Baqarah: 190

AS Niaz, op. cit., 360

Mumtahanah: 8

S Manisuli, op. cit., 28

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AIQ Al-Dinawari Kitab ‘Uyun Al-Akhbar (Dar al-Kitab al-‘Arabi, Cairo, 1957) 107

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Humane treatment of prisoners of war forms an essential part of Islamic humanitarian law. All forms of abuse of prisoners, whether physical or sexual, are prohibited. In S?rah Muhammad:4 two alternatives for the treatment of prisoners of war provided are: either the Muslim commander should free those prisoners of war who cannot offer ransom, either in the form of money or an equivalent number of Muslim captives, or the commander should ransom prisoners of war for money or for a similar number of Muslim captives. This is what is now known as an exchange of prisoners.

M Hamidullah, op. cit., 3; M Noor The Doctrine of Jihad: An Introduction (1985) Journal of Law and Religion, 3: 381

Al-Baqarah : 213

An-Nahl: 126

Al-Gh?f?r: 40

Ash-Sh?ra: 40

Al-Isr?: 33

An-Nahl: 126