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Martyrdom, not Suicide: The Legality of Hamas' Bombings in the mid-1990s in Modern Islamic Jurisprudence

Scientific Study 2009 43 Pages

Politics - International Politics - Region: Near East, Near Orient

Excerpt

Contents

Introduction

A Forms and Functions of Jihad
A.1 Modern Fundamentalist Writings on Jihad
A.2 Varieties of Jihad and Martyrdom and their Legal Interpretation

B The Development of the Suicide-Martyrdom Doctrine of Hamas

C The Crystallization of the Suicide-Martyrdom Doctrine of Hamas

D The 1996 Bombing Wave and its Debate

E The Initial Theological Justification for Hamas’ Suicide Bombings (1995)
E.1 The general framework
E.2 Doctrinal Aspects: The Constantinople-ÎadÐ× and the “tahluka” Concept
E.3 Operational Aspects: The Single Attack and the “tahluka” Concept

F The 1996 debate by supportive clerics (1996)
F.1 The Main Similarities - The Legalistic Argument
F.2 The Main Differences - The Definition of the Jews and

Territorial concepts

Conclusion

Selected Bibliography

Transliteration and Pronunciation of Arabic Letters

Introduction

In early April 1996, a secular Arab intellectual used the odd-sounding expression that peace with Israel was an “operation of collective suicide”.1 Let us use this as a kind of spillover-phrase to introduce our topic: the Islamic legal debate around Hamas’ suicide bombings between 1995-6. In this paper we shall try to decode the legalistic construction of suicide-bombings and understand the theological doctrine behind them. According to a Muslim cleric, the 1995-6 debate caused a “moral crisis” in Islam and created a “fatal and dangerous breach” in the jurisprudential rulings on jihad by permitting suicide operations and invalidating Sharia rulings against harming civilians.2 We will examine how the suicide-martyrdom doctrine of Hamas was constructed by radical Muslim clerics and conclude with a brief assessment of the main characteristics of the doctrine.

It is very important to understand this concept. Although this analysis deals with suicide bombings in a nationalist struggle, the idea has been appropriated by global jihadists as well. It forms the theological basis for suicide bombings that take place on a daily basis in some - mainly Muslim - countries. Moreover, it gives us an idea of where this kind of teaching originates. The Islamic war doctrine with its sanctioning of suicide bombings is often described by Western analysts as not comparable to the occidental concept of a “Just War.” Understanding the ideology that lies behind this doctrine is therefore vital to the West and its long overdue task of rethinking its strategy toward Islamic extremism. After all, as the past years have shown, military measures do not work quite as well as expected (and have arguably exarcerbated the threat of global Islamic terrorism). Therefore, it is imperative that the ideology behind the ongoing conflict be better understood.

Quintan Wiktorowicz criticizes “how little attention seems to be given to constructing a theological argument justifying such attacks”, and quotes one of the main sources of this paper.3

Yet, it seems that the justification of Hamas’ suicide bombings is based on a specific juridical-theological argument. Under investigation are the two different semantics of the Koran term tahluka, which means self-destruction and can be found in Surat al-Baqara 2:195.4 In the 1995-6 debate a group of predominantly Jordanian clerics used the concept to justify suicide bombings. They argued that verse 2:195 supported “martyrdom-operations” on the strength of a ÎadÐ× on the companion of the prophet Abu Ayub al-AnÒÁrÐ. In parallel, they selectively used the concept “tahluka” in a negative sense to comment on the single attack of a Muslim fighter, if it lacked a definite benefit for his companions. Both arguments are derived from classic Islamic sources. Thus, the same legal concept was used to bolster both operational and doctrinal purposes. While moderate clerics argued that the bombings were suicide (intiÎÁr) on the strength of Surat al-Baqara 2:195, and interpreted the tahluka concept only in a negative sense, extremists rejected this interpretation. I will further explain this in parts E. 2 and E. 3 of the paper.

In 1995, the Jordanian Islamist Shaykh Ibrahim al-Ali was the first who developed a specific legal justification for Hamas’ suicide bombings. He based his argument on a particular interpretation of the QurÞanic concept tahluka, though he may have borrowed the idea from another source, Shiite-Hezbollah for example, and then used it as a precedent for the Hamas doctrine. This paper deals with Islamic legal interpretations of the bombings, but it should be clear that the ideology behind them is rather political than religious, and the operations are connected to terrorism5, not to classical jihad.

In March 1996, other fundamentalist jurisprudents copied and developed al-Ali’s concept. This shows how the ideology of modern Muslim jurisprudents - a legalistic system of thought with an established connectivity (nexus) that is based on Islamic law - reverberated and developed via the media in the heart of the extremist Islamist discourse.

Al-Ali’s argument permeated the Islamic legal debate and became manifested as a kind of law among radical clerics in 1995-6. It influences suicide-martyrdom doctrines until today.6 This study is based on the scanning of the London published monthly magazine FilasÔÐn al-Muslima (FM) from 1988 to 1996 regarding the jihad-doctrine of Hamas, and parts of the 1996 discourse that supported the bombings.7 During the research the focus narrowed down to the suicide-martyrdom concept of Hamas and the Islamic legal debate around it. The development of the concepts of jihad and martyrdom (šahÁda; istišhÁd) were observed throughout this period. Yet, it became clear that the development of the doctrine and its discussion had to be located between 1991-6, with a focus on 1995-6. Here, five main sources were used for the analysis.8 The justification of Muslim clerics and ideologues for suicide-martyrdom drew renewed interest after the September 11 bombings in 2001 in the United States, and I would like to point at the papers of Haim Malka9, Quintan Wiktorowicz and John Kaltner10, David Jan Slavicek11, as well as Arabic sources of al-Qaeda that are available on the Internet.

Researchers on Hamas are divided into two schools of thought. One is pessimistic and one is optimistic about the ideological rigidity or flexibility of the organization. The first (pessimistic) approach considers Hamas’ violent jihad-strategy at face value and argues that there is no flexibility in the grand strategy, whereas tactical shifts are possible. The majority of its representatives are members of the American or Israeli academia. They claim that these shifts give no reason to believe that Hamas would change its violent strategy in the long run. In this sense, Kurtz speaks about the ideological rigidity and tactical flexibility of Hamas.12

The second (optimistic) approach considers Hamas strategy as flexible, since its need to survive requires Hamas to enact pragmatic policies within the scope of Islamic concepts. Therefore, the organization might adapt its strategy to non-violence, even though it looks ideologically rigid. The researchers Mishal and Sela are the main representatives of this strand of thought, and argue that it has enabled the movement to maneuver within the “prose of political reality while never ceasing to recite the poetry of ideology.”13

A Forms and Functions of Jihad

A.1 Modern fundamentalist writings on jihad

How did extremist Muslim jurisprudents view the relation between Islamic law and Hamas’ suicide bombings in Israel in 1995-6? Rudolph Peters’ analysis of modern writings on jihad offers an excellent analytical framework to approach this question. Peters argues that the European expansion in the latter half of the 19th century had a grave impact on Islamic juridical writing, because the spread of European norms and ideas made the character of modern instructive writings less legalistic, and the distinction between schools (maÆÁhib) ceased to exist14.

Modern writings on jihad are divided into two classes. The first mobilizes for a specific occasion such as a revolt or war. The second is meant for the instruction of Muslims as to the “real” or “true” doctrine of jihad. While the modern instructive literature misses the technical character of classical writings, it stresses topics such as the definition of jihad; the legal aims of jihad; surveys of early Islamic military history; women and jihad; the strategic lessons of the QurÞÁn.

Both modernist (moderate) writers and fundamentalists (extremist) writers agree with the general rule that jihad has to be for the good of Muslim society. This notion is best expressed with al-Þamr bi-Þl-maÝrÙf wa-l-nahy Ýan al-munkar (commanding what is good and forbidding what is wrong), the so-called Îisba, a central Islamic doctrine.15

Generally, modern jihad literature has a dual character: While both the mobilizing and the instructive aspects are represented, there is a predominant emphasis on one of the two that goes together with the political aspect of the writings.

A.2 Definitions and Varieties of jihad and martyrdom and their legal interpretation

The analysis of Islamic jurisdiction in relation to suicide bombings requires a number of key definitions. First, jihad is an often misunderstood concept, which in its broadest sense simply means “an effort towards a religiously commendable aim.”16 Khadduri explains this juridical-theological meaning of jihad as exertion of one’s power in Allah’s path. Jihad derives from the third-form verb ÊÁhada (abstract noun Êuhd), literally meaning to “exert one’s effort for something”. In Islam, jihad is “the spread of the belief in Allah and making His word supreme over this world. The individual’s recompense would be the achievement of salvation, since the jihad is Allah’s direct way to paradise.”17 In general, it is a religious propaganda carried out by spiritual as well as by material means.18 There is no Koran passage that directly relates to jihad as war,19 however, war is the predominant interpretation of it.

There are two main concepts of jihad. First, jihad is offensive (jihÁd al-Ôalab) and a collective duty (farà kifÁya), which orders all Muslims to invite people to Islam and a limited number of Muslims to participate in military expeditions. Militarily, all border regions must be fortified, and at least one time per year a Muslim army should be sent into non-Muslim enemy territory (dÁr al-Îarb) to terrorize the enemy (irhÁb aÝdaÞ Allah). Second, jihad is defensive (jihÁd al-dafÝ) and an individual duty for every Muslim (farà Ýayn) if a Muslim territory is under attack.20 In the Palestinian case, most Sunni jurisprudents agree that jihad is a spiritual and physical duty for all Muslims who reside in the occupied territory. If they are not able to fulfill this duty by themselves, it extends in circular fashion to the next bordering Muslim nation, and so on.21

However, there are numerous sub-concepts, which show that the idea of jihad is extremely flexible. In modern Islamic discourse, it can be applied to topics ranging from the encouragement of public cleanliness to the promotion of jobs to stabilize the economy. The interpretation of Mawlana Ali, who belongs to the liberal strand of the Ahmadiyya sect, shows a very typical modern mainstream portrayal of jihad, where the spiritual element is above the physical. Accordingly, Islam’s greatest jihad is not by the means of the “sword”, but by means of the “book”, namely a missionary effort to establish Islam.22 Another typical modernist mainstream interpretation says that the war- jihad by the sword (ÊihÁd bi-l-sayf) comes only after the “spiritual reform” for the inward, and more difficult jihad.23 Both interpretations show that the internal element is inextricably linked to the external, and the concept of physical jihad rests on its spiritual impetus. The Palestinian Islamic struggle proves that the physical jihad is but one element of the spiritual doctrine of jihad, such as the call for orthodoxy, propaganda campaigns, indoctrination, fundamentalist reflections on exemplary deeds in early Islam (fundamentalism) and their politicizing in the present (Islamism). Due to the extensive publication of propaganda material and legal opinions one can closely follow the development of the Palestinian jihad doctrine.

Jihad is the impetus for martyrdom.24 Regarding our debate, we can speak about the systematic creation of a “longing for martyrdom” (Ôalab aš-šahÁda) that is translated into suicide attacks. While Christian Martyrdom often relates to the passive desire to witness the sufferings of Christ through self-sacrifice, which was born out of the suppression of early Christians25, early Islamic martyrdom (šahÁda/istišhÁd) means the active endurance of pains on the battlefield. The Islamic concept of martyrdom discussed in this paper is actually based on a military and expansionist understanding of (early) Islam. Specifically, martyrdom refers to instances when one of the ÒaÎÁba [the holy companions of the Prophet Muhammad] entered into the fight with the intention of penetrating alone into the midst of the enemy lines, kill as many as possible, and witness to his faith by the sacrifice of his life.26 Those attacks took place during the expansion of the early Islamic empire. The Arabic term for martyrdom derives from the root š-h-d. The abstract noun is šahÁda, but also the tenth form verbal noun istišhÁd (maÒÃar).27

Since jihad and martyrdom are primary Islamic concepts, they are interpreted within the hermeneutical nexus of religious scholarship, which is called tradition. Tradition describes the scholarship that uses the canonical ÎadÐth collections as the most authoritative source of Islamic legal opinion. Calder offers the following definition:

In the Muslim tradition, the works of early (and indeed later) jurisprudence have no meaning outside of an established narrative context. That context is theological construct: it justifies and explains the law by demonstrating its divine origins. Briefly stated, it is thus. The words and deed of the Prophet MuÎammad (his sunna) being an embodiment of the divine command and an expression of God’s law (sharÐÝa), were preserved by the companions of the prophet [ÒaÎÁba], in the form of discrete anecdotes (ÎadÐth). These were transmitted orally through the generations and became the source of juristic discussion (fiqh). The early masters [AbÙ ÍanÐfa, MÁlik, and ShÁfiÝÐ], together with other masters (notably Ibn Íanbal, and a number of sectarian thinkers), brought to these discussions a distinctive authority which led in time to the emergence of divergent schools or traditions of juristic thinking. These were named after the masters: ÍanafÐ, MÁlikÐ, ShÁfiÝÐ, etc. The juristic schools were committed to a hermeneutical task - it was for a thousand years their existential raison d’être and the principal focus of religious scholarship in Islam -namely to justify tradition by demonstrating that it could be harmonized with revelation.28

For the sake of a better understanding we should note that modern Muslim jurisprudents (fuqahÁ’) use different principles to state a legal opinion (Îukm or fatwa). Mainly, these are iÊtihÁd and taqlÐd. While the alleged closing of the gates of iÊtihÁd (independent legal reasoning) in the third AH/ninth AD century is disputed,29 it is nowadays common to emulate on one or more opinions of the four main schools (talfÐq, taÈayyur)30.

Salafi-Jihadis and Muslim extremists claim to go back to the main sources and to exercise a free and new iÊtihÁd instead of taqlÐd (emulation). Despite this claim, they often merely copy the opinions of classical jurisprudents and merge them with their own political ideology. So, according to which legal principle can the Islamic legal justification for suicide bombings in 1995-6 be interpreted? Further research on early and mediaeval Islamic sources might shed light on this matter. It is noteworthy that radical jurisprudents claimed to exercise iÊtihÁd to forbid a possible ÒulÎ (ceasefire) between Israel and the Palestinians in 1995 (See part D of this paper).

[...]


1 The Syrian Arab intellectual Abdallah al-Dayim held a lecture in Beirut titled “Israel regarding her torn identity”. The term refers to the following passage: Al-Dayim said that “the audacity (iqdÁm) of the Arabs toward peace without Israel’s surrender of the call for Zionism, skullcaps, and hostility is merely a travel into the unknown on the deck of the shaking Israeli ship. Perhaps it is a sort of audacity toward a collective suicide with the intimidating Hebrew state.” See “Al-salÁm maÝahÁ ÝamalÐyat intiÎÁr muštarika”, al-Safir, 5 April 1996, p.13.

2 Says the Qatari reform cleric Dr. ÝAbd al-ÍamÐd al-AnÒÁrÐ. See MEMRI, Special Dispatch Series - No.968, August 25, 2005, http://memri.org/bin/opener.cgi?Page=archives&ID=SP96805

3 Quintan Wictorowicz, A Genealogy of Radical Islam (Memphis: Rhodes College, 2004), p. 92.

4 “And spend of your substance in the cause of Allah, and make not your own hands contribute to (your) destruction; but do good; for Allah loveth those who do good” [wa anfiqÙ fÐ sabÐli-llahi wa lÁ tulqÙ bi aydÐkum ilÁ-t-tahlukati, wa aÎsinÙ inna Allaha yuÎibbu-Þl-muÎsinÐna].

Being a derivation of the root word halaka, tahluka literally means ruin or danger. However, in Surat alBaqara 2:195 this term refers to self-destruction, which is forbidden. The radical fundamentalists agree on the strength of a hadÐth on the companion of the prophet Abu Ayub al-AnÒÁrÐ that self-destruction is the omission of jihad. Thus, the semantic connotation of the order wa lÁ tulqÙ bi aydÐkum ilÁ-t-tahlukati is translated as keeping up the jihad, i.e. perpetrating a “martyrdom operation” (suicide bombing), which is regarded as equivalent to a “single attack” in early Islamic warfare.

5 Terrorism is the indiscriminate use of arms against civilian non-combatants for political-ideological purposes.

6 See MEMRI, Special Dispatch Series - No.968, August 25, 2005, http://memri.org/bin/opener.cgi?Page=archives&ID=SP96805

7 Filastin al-Muslima offers itself as a primary source for case studies since it is a monthly magazine which has continuously been published from 1982 until the present, and became the (unofficial) mouthpiece of Hamas from 1988 onward, printing original leaflets and announcements until 1996. From 1996 on the editors gave in to the pressure exerted on the magazine after the Feb-Mar bombing wave and reverted to paraphrasing the leaflets and announcement of Hamas.

8 The sources are the treatises of al-Ali in FilasÔÐn al-Muslima (Oct, Nov, Dec 1996); the Jordanian fatwa in March 1996; and the treatise of Yusuf al-Qaradawi in September 1996. See also in the Bibliography.

9 Haim Malka, “Must Innocents Die? The Islamic Debate over Suicide Attacks”, in: Middle East Quarterly, Vol. X. Number 2, Spring 2003, pp. 19-28.

10 Quintan Wiktorowicz and John Kaltner, “Killing in the Name of Islam: Al-Qaeda’s Justification For September 11”, in: Middle East Policy, Volume X, Summer 2003, Number 2, pp.76-92.

11 David Jan Slavicek, “Deconstructing the Shariatic Justification of Suicide Bombings”, in: Studies in Conflict & Terrorism, Vol. 31, Issue 6, 2008, pp. 553 - 571.

12 See Anat Kurz, Hamas: Radical Islam in a national Struggle (Tel Aviv: Tel Aviv University, Jaffee Center for Strategic Studies, 1997), Memorandum No.48, July 1997, 47. See also the Israeli researchers Litvak and Paz in various publications on the topic.

13 See Shaul Mishal and Avraham Sela, The Palestinian Hamas: Vision, Violence, and Coexistence (New York: Columbia University Press, 2000), 12. But also Muslih and Nuesse, who hold the same opinion.

14 This is a summary of Rudolph Peters arguments on jihad-literature in “The Doctrine of Jihad in Classical and Modern Islam”, in: Rudolph Peters, Jihad in Classical and Modern Islam (Princeton: Markus Wiener Publishers, 1996), especially pp. 103-148.

15 Surat The Wise (al-Luqman) 31:17.

16 Rudolph Peters, Jihad in Classical and Modern Islam (Princeton: Markus Wiener Publishers, 1996), 149.

17 Majid Khadduri, War and Peace in the Law of Islam (Baltimore: John Hopkins Press, 1955), p. 55, but in complete pp. 55-82.

18 See Majid Khadduri, The Islamic Law of Nations: Shaybani’s Siyar/translated with an introduction, notes and an appendix by Majid Khadduri (Baltimore: John Hopkins Press, 1966), p. 15.

19 For example 61:10-13; 29:69; 22:78. Yusuf Ali version.

20 See Abdallah Azzam, Al-DifaÝ Ýan araÃÐ al-muslimin (Defense of Muslim lands), 2nd edition, (Amman: Maktabat al-RisÁla al-ÍadÐ×a, 1987), p.32.

21 See the Hamas Covenant (MÐthÁq Íarakat al-MuqÁwama al-IslÁmiyya), article 14.

22 He justifies this on the strength of the Qur’anic injunction 25:52. See: Maulana Muhammad Ali, A Manual of Hadith (Lahore: The Ahmadiyya Anjuman Ishaat Islam, [no year of publication given)

23 For example Mohammed al-Masry, national president of the Canadia Islamic Congress, who says that ‘those who are performing outward jihad must spiritually reform themselves by performing an inward, personal and more difficult type of jihad (al- ÊihÁd al-akbÁr).’ From:Islamicvoice.com, Volume 10-15, No:178, October 2001, http://www.islamicvoice.com/october2001/dialogue.htm#hum. For further definitions of jihad see Rudolph Peters, Jihad in Classical and Modern Islam (Princeton: Marcus Wiener Publishers, 1996), pp. 115-9.

24 Haim Malka, “Must Innocents Die? The Islamic Debate over Suicide Attacks”, in: Middle East Quarterly, Vol. X. Number 2.

25 Carole Straw, “A Very Special Death: Christian Martyrdom in its Classical Context”, in: Margaret Cormack (ed.), Sacrificing the Self: Perspectives on Martyrdom and Religion (New York: Oxford University Press, 2001), p. 43.

26 See for example the fatwa concerning martyrdom-operations/suicide bombings on the Islamic website

islamicvoice.com, Rajab 1422/October 2001, Volume 10-15, No.178,

http://www.islamicvoice.com/October.2001/dialogue.htm#hum,

27 The semantic concept of the word was absorbed from Greek during the early centuries of Islam. Fenech explains that the primary meaning of the term in the Qur’an means witness, the one who testifies for Allah and the prophet Muhammad. But the term shÁhÐd has a pre-Quranic history and was used as part of legal Arabic and Syriac language to describe all kinds of “attestation, testimony, and observation”. Only after the Islamic conquest of Palestine, the Arabs - in the same manner as the Syrians -translated the GraecoChristian martys (witness) as “witness” to designate Muslims who fell in the battle - and witnessed to their religion with their lives. See: Louis E. Fenech, Martyrdom in the Sikh Tradition: Playing the ‘Game of Love’ (Oxford: Oxford University Press, 2000), p. 3.

28 Norman Calder, Studies in early Muslim Jurisprudence (Oxford: Clarendon Press, 1993), Preface, VI.

29 Wael B. Hallaq, “Was the Gate of Ijtihad Closed?”, in: Intl. Journal of Middle East Studies, Vol. 16, 1984, pp. 3-41. “As conceived by classical Muslim jurists, ijtihÁd is the exertion of mental energy in the search for a legal opinion to the extent that the faculties of the jurist become incapable of further effort. In other words, iÊtihÁd is the maximum effort expended by the jurist to master and apply the rules and principles of uÒÙl al-fiqh (legal theory) for the purpose of discovering God’s law.” (p.3)

30 “TaqlÐd in Islamic Jurisprudence means ‘emulation of another in matters of the law’”, see L.Clarke, “The ShÐÝÐ Construction of TaqlÐd”, in Oxford Center for Islamic Studies (ed), Journal of Islamic Studies 12:1 (2001), 40. However, the question is if these modern juridical opinions/fatwas are really taqlÐd, or rather ijtihÁd - independent legal reasoning in the tradition of the Yemenite traditionalist al-Shawkani, for example. In short, taqlÐd means to formulate an opinion based on another acknowledged Muslim jurisprudent’s opinion.

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Pages
43
Year
2009
ISBN (Book)
9783640473335
File size
778 KB
Language
English
Catalog Number
v140139
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Martyrdom Suicide Legality Hamas Bombings Modern Islamic Jurisprudence

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Title: Martyrdom, not Suicide: The Legality of Hamas' Bombings in the mid-1990s in Modern Islamic Jurisprudence