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EXCERPTS FROM THE INTERVIEW WITH M. CHERIF BASSIOUNI
INTERVIEWER: As a scholar of international law, how do you view the concept of Jihad?
CHERIF BASSIOUNI: When the Prophet appealed to spirituality and to a certain type of government, he was perfectly willing to carry out his mission without resorting to the use of force. He resorted to the use of force when he was attacked, and that's when the concept of Jihad came about. The term that is commonly used today to apply to a Holy War, that whole contemporary notion, is badly interpreted. First of all, the word in Arabic, Jihad, means 'effort', and effort goes with everything. We have an individual Jihad within ourselves as we are struggling for the truth, as we're struggling to be righteous, as we're struggling to be fair. That's our personal Jihad. Second, we have a social Jihad, when we're fighting for the sake of our families, for our communities.
And finally, we have Jihad in the name of God, which, if you want to translate it into a modern concept of law, is basically the law of self defense: that if you're prevented from doing what you're entitled to do, either because you're occupied by a foreign colonizer or you're prevented from carrying out your legitimate aspirations of self determination, then you are entitled to use force, and in this case, that force is legitimized, because it has the spiritual legitimacy of Islam.
Now, this is not aggressive force. So it is not a form of legitimizing aggressive force. It is not a form of legitimizing violence against individuals in the name of Islamic ideology, as is portrayed today by certain Islamic fundamentalist groups. Amongst Islamic fundamentalist movements, (and let's be candid and refer to a few of them, Osama bin Laden, Al Qaeda and other similar groups, Islamic Jihad in Egypt and others), there is a tremendous confusion between the legitimacy of a cause, the legitimacy of resorting to force to advance your cause, and lastly, the legitimacy of the cause as a way of justifying the means. Now, by bringing all three together, these fundamentalist groups conveniently confuse them by saying, Well, if I have a cause which is legitimate, then I have the right to use force that's legitimate, then any means I use is legitimate. That is wrong. That is completely contrary to Islamic law, just as it is contrary to contemporary law.
If you have legitimacy in your cause, you may be legitimate in the use of force against an enemy, but that doesn't mean that all means are permissible. Islam was the first of the three monotheistic faiths to establish very narrow rules of combat. The Prophet did that in the battles against the Quraysh and in the peace agreement of Hudaybiyah .
INTERVIEWER: Can you discuss some of those limits?
CHERIF BASSIOUNI: Jihad is a concept that legitimizes the use of force, but does not legitimize every sort of use of force against anyone. Nor does it legitimize every means employed in the use of force. It is, by the way, no different than today's concept of the resort to force in self-defense, except that it distinguishes what amount of force you may use in self-defense.
In the days of the Prophet, just as today, certain targets are simply not permissible. Civilians, children, people who are injured and sick, people who seek sanctuary in religious places: these are all protected targets. They were protected targets then, and they protected targets today in the modern law of war.
For many years, the Prophet felt he could not resort to war, that he could not resort to armed force unless he was specifically attacked. Only after 13 years when he is out of Mecca and then becomes aware that the Meccans are mounting an army to destroy him, does the notion of defensive force surface in this story. And remember, he never wanted to fight the Meccans. The Meccans are his people, his friends, his family.
He wants to co-opt them, he wants to make them the key, if you will, to the new Islamic Ummah that he's trying to form. He doesn't want to go to war with them. This is a tribal society, and in the forefront is the idea that if you kill somebody, you're going to have to pay, blood with blood, an eye for an eye. He's very concerned about that. It is in these changed circumstances that there comes a revelation in the Qu'ran saying, yes, you may go to war, you may wage Jihad. Now, and only now, he receives permission to use force in self-defense against those who are mounting an army and getting ready to attack him. And even now, he makes it very clear to his soldiers that if they have the right to use force against the Qureish, that does not mean that they will do the same thing that has been done in pre-Islamic wars, in which women and children could be killed, in which no prisoners could be taken, no quarter given.
No, No. He said Islam is a religion of law and of spirituality. You have to combat your enemy in a certain way. The humanization of armed conflict starts to take shape with the Battle of Badr, the first battle the Prophet fought with the Qureish.