Fiqh al-jihad in the contemporary world : addressing the gaps in the regulations on the means and methods of warfare

Abstract

Since the perfection of Islam through the revelations to Prophet Muḥammad ﷺ, Muslims have always been engaged in wars until this day, and the aḥadīth indicate that war will continue will until near the end of times. Throughout the ages, the trends of warfare has always developed in scale, means, and methods. Mostly through customary laws, rules regulating warfare have always been set and developed. While modern international humanitarian law (IHL) seems to have developed very rapidly within the past century to meet the new challenges of war, fiqh al-jihad seems to instead experience lethargy. It seems to be very difficult to find comprehensive and accurate rulings of fiqh regarding various aspects of modern warfare, especially in the means and methods. This research employs a doctrinal legal research to fill in the gap of scholarship specifically in the rulings related to the means and methods of warfare. It first explores the extent to which fiqh can develop, and whether it could be affected by the development of science and technology and international law. Second, this research examines three areas of the recent developments on the means and methods of warfare: (i) proportionality and precaution in attacks, (ii) means and methods which may cause unnecessary suffering and superfluous injuries, and (iii) treachery and perfidy; and explores the options to develop fiqh al-jihad rulings to cover what has yet to be covered or covered inaccurately. This research finds that certain areas of fiqh, especially rules related to maṣlaḥat such as which include much of fiqh al-jihad, can, to some extent, change depending on the circumstances which include developments of science, technology, and international law. However, these developments are only considered to the extent that it fulfils, and does not contradict, the principles and purposes of the Shari‘ah. It is also found that the development of international law regarding means and methods of warfare in the aforementioned three areas can, to a large extent (but not all), be adopted into fiqh al-jihad.