Regulation of the use of force by Islamist non-state actors : using law to regulate such use of force

Abstract

This thesis is a comparative legal examination, of the use of force by non-State actors under both international law and the shari'a. It aims to identify measures for regulating the use of force and thus to promote harm minimisation. The narrower, more specific topic examined here is to determine the legality, or otherwise, of the contemporary use, or threatened use of force, by non-State Islamist groups. Such Islamist groups often work together formally or informally, sometimes to achieve purportedly strategic ends, for reasons variously termed 'fighting for Islam' or being engaged in djihad/jihad or 'holy war' (one of djihad's less accurate contemporary definitions).

Consequently, how a legal methodology can be used to regulate this behaviour is examined by a comparative analysis of (a) lawful pre-conditions for the use of force and (b) the legitimate means that may be employed during armed conflict. Under international humanitarian law (IHL), 'the means of inflicting harm upon the enemy are not unlimited and similarly the shari'a prohibits certain means of fighting and targeting. As with IHL these shari'a limits, can form the basis for creating shari'a crimes, and for criminalising such acts when perpetrated during armed conflict.

Shari'a legal principles and methodologies applicable to humanitarian and criminal law are identified. There are differences between IHL and shari'a laws of war which are also examined. Islamic law however goes further than harm minimisation during conflict, emphasises that a state of justice is mandated and calls for the elimination of all injustice as a positive obligation, through the use of force if necessary and is achieved through djihad, a strictly defined and circumscribed concept. Herein however, can lie the root of the problem of the gratuitous use of force, particularly when djihad is instrumentally employed absent its regulatory framework.

Shari'a views on fighting, justice, life and the reason for human existence, among other issues are also in many ways fundamentally different from the moral yardsticks underlying the current secular international legal regime, signalling potentially significant differences with respect to the regulation of the legitimate use of armed force. However, while the differences between the Western and Islamic legal traditions may at first appear substantial, the laws that result are not significantly different, arguably because what is considered 'criminal' in both legal traditions is deeply rooted in the Mosaic Law. It is shown therefore, that most differences are not irreconcilable.

The shari'a is a system of law and should be treated on its merits rather than dismissed out of hand merely because of an emotive link with 'terrorism' or with radical Islam. On the other hand, critique of the shari'a (as with any system of law) is clearly legitimate and necessary, but for a useful outcome, such criticisms should be fair and objective both options examined in some detail in this thesis. This thesis concludes that the most egregious international crimes can be criminalised under the shari'a and examines practical means for doing this.