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Israel-Palestine: the calls for jihad and impending wave of foreign fighters

October 30, 2023 at 3:32 pm

A view of destroyed cars after Hamas launched Operation Al-Aqsa Flood in Israel on October 11, 2023 [Mostafa Alkharouf/Anadolu via Getty Images]

On 7 October, Hamas, the Palestinian Islamic Resistance Movement that is the de facto government of the Gaza Strip, launched an aerial and ground offensive on Israel. Mohammad Deif, the leader of the Hamas military wing, Al-Qassam Brigades, condenamed the attack “Operation Al-Aqsa Flood”. The movement said that its offensive was a response to the desecration of Al-Aqsa Mosque in occupied Jerusalem, and increased settler violence in the occupied West Bank. After a few hours, Israel launched a bombing campaign against the 2.3 million Palestinians in Gaza. More than 8,000 Palestinians have been killed so far, with many thousands more wounded. By tightening its 16-year-old siege of Gaza by cutting off food, water and electricity supplies, and ordering the mass displacement of 1m Palestinians, Israel appears to be hell-bent on committing genocide in Gaza.

Graphic images and videos have appeared on mainstream and social media showcasing the suffering of the Palestinians, the Israeli army’s preparation for a ground offensive and Palestinians’ call for help from the Muslim world. Senior Hamas official Khaled Meshaal has urged Muslims in neighbouring countries to join the fight against Israel: “To all scholars who teach jihad, to all who teach and learn, this is a moment for the application [of jihad theory].” Given Israel’s intention to raze the Gaza Strip to the ground and the call for jihad by Hamas, transnational jihad discourse all over world, especially in the Muslim world, is set to re-emerge. Is the call for jihad in Palestine legitimate in Islamic law? How are Muslims likely to respond? Due to a lack of clarity on the rules of jihad, young Muslims are likely to be attracted to go to Palestine, resulting in a new wave of foreign fighters in the region.

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The Western response to the Hamas attack 

Israel and its allies, especially the US and European countries, described the Hamas operation on 7 October as a “terrorist” attack. Prime Minister Benjamin Netanyahu told his war cabinet that every Hamas “terrorist is a dead man”. His allies were quick to announce their support for him. German Foreign Minister Annalena Baerbock said that Israel has the right under international law to defend itself against terrorism. The Spanish foreign ministry insisted that we should not confuse Hamas with the Palestinian people and authorities. The UK Prime Minister Rishi Sunak also said that Israel has an absolute right to defend itself against the “terrorists” of Hamas. Canada’s prime minister stated that Hamas represents neither the Palestinian people, nor their legitimate aspirations. Notably, however, not all Europeans called Hamas a terrorist organisation. France’s opposition Unbowed Party referred to Hamas as “Palestinian forces” contrary to the French president’s declaration of Hamas as a “terrorist” group.

Meanwhile, Hassan Albalawi, the deputy head of the Palestine mission to the EU, criticised the West’s unequivocal backing of Israel’s right to self-defence. “When Israel attacks, when Israel occupies, when Israel encircles Gaza… you [Europe] will say that Israel is defending itself,” he pointed out. 

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The status of Hamas in international law 

Should Hamas be designated and proscribed as a terrorist organisation, or is it merely exercising its right to self-determination and resistance against Israeli occupation? UN General Assembly Resolution 73/158 reaffirmed the Palestinian people’s right to self-determination, and urged all states and UN agencies to continue supporting them.

The right to self-determination traditionally encompasses the right of a people to use force against an occupying power. This is supported by UN General Assembly Resolution 37/43 (1982), which legitimises the struggle for independence and liberation from foreign occupation by any means necessary, “including armed struggle”. However, Israel’s allies claim that Hamas is not a legitimate representative of the people of Palestine therefore it cannot use force for the right to self-determination. Yet, the question remains: Is Hamas legally recognised as a party in this conflict? While the US and several European countries have officially designated Hamas as a terrorist organisation, the UN has not. Furthermore, in the 2006 Palestinian Legislative Council election (the last time that the Palestinians were given the chance to elect their government), Hamas secured 76 out of 132 seats and effectively became the ruling power in Palestine, the occupied and densely-populated Gaza Strip as well as the West Bank. A poll by the Palestinian Centre for Policy and Survey also found that 53 per cent of Palestinians view Hamas as the most suitable representative of the Palestinian people. The mandate of President Mahmoud Abbas expired in 2009; his Fatah-controlled Palestinian Authority has blocked legislative and presidential elections consistently ever since.

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The UN recognises the Palestine Liberation Organisation (PLO) as the official representative of the Palestinian people. However, given Hamas’s control over a significant part of Palestinian territory and its political influence, it could, at the very least, be considered a non-state organised armed group.

The international legal community is divided over the classification of the conflict between Hamas and Israel. Is it an International Armed Conflict (IAC) or a Non-International Armed Conflict (NIAC)? The latter is defined typically as a conflict where state forces engage with rebel groups. In the former, the conflict is between two or more states. In the wake of Hamas’s attack on Israel, Hamas spokesperson Khaled Qadomi claimed, “This is the day of the greatest battle to end the last occupation on Earth.” Article 1(4) of Additional Protocol I to the 1977 Geneva Convention states that conflicts against foreign occupation in the exercise of the right to self-determination should be considered IACs. Given that various UN resolutions have declared Israel to be an occupying power, the conflict should thus be classified as an IAC. However, as Israel is not a signatory to the Additional Protocols, the Israel-Hamas conflict can be classified as NIAC. Nevertheless, regardless of the legal classification, both parties may be prosecuted for the violation of Common Article 3 of the Geneva Convention 1949.

Under international law, an invitation by organised armed groups for others to join in the conflict fighting for political liberation will be entertained as valid consent. This proposition becomes complex, though, when multiple entities claim to represent the same population or territory, as is the case with the PLO and Hamas. Effective control over a substantial part of the territory in question is the legal criterion to determine the legitimacy of the conflicting party. While the PLO is the internationally-recognised representative of the State of Palestine, the significant territorial control and political influence of Hamas, particularly in the Gaza Strip, opens the door for debate among legal scholars on who is the legitimate representative of the Palestinian people. There is no clear legal answer to whether Hamas, in the presence of the PLO, could be considered a legitimate authority with the right to use force in the realisation of the right to self-determination and invite foreign intervention.

The legitimacy of authority can change over time and is not fixed to one party eternally, like the PLO in the Palestinian context

Importantly, however, the question of legitimacy isn’t static but can shift, based on the evolving dynamics of the conflict. In the Syrian civil war, for example, initially the Assad regime was the internationally-recognised government of Syria. As the conflict progressed, though, the US, France and the UK recognised the National Coalition of Syrian Revolutionary and Opposition Forces as the legitimate representative of the Syrian people. This shift underscores the fact that the legitimacy of authority can change over time and is not fixed to one party eternally, like the PLO in the Palestinian context.

Is jihad an obligation for every Muslim? 

Even if it is accepted that Hamas is a non-state actor, Islamic law commands able Muslims to defend the territory held by Hamas from foreign non-Muslim state aggression. The majority of Muslim scholars, classical and modern, agree over self-defence (jihad bil diffa) of the global Muslim community, but the present situation in the Gaza Strip spurs debate over the issue of whether jihad in Palestine is an individual religious responsibility (fard ayn) or collective religious duty (fard kafayah). Jihad fard ayn means that each Muslim and Muslim state has a strict obligation to perform jihad and abstention from it is a sin; jihad fard kafaayah means that it is not binding on everyone; abstention from it is not a sin and it would only be waged with the permission of the political authority or government of a country. If the call for jihad is not characterised appropriately, this will have an impact on the ability of governments in Muslim countries to prevent their citizens from going to Palestine to fight, potentially leading to the emergence of another wave of volunteer foreign fighters.

Before the Soviet invasion of Afghanistan in 1979, the foreign fighter phenomenon in Palestine was insignificant. This was partly because Muslims abroad were at that time touched less significantly by the events in Palestine due to a lack of developments in communication technology. However, theological opinions about jihad are likely to prove more crucial in the present Palestine-Israel conflict and must be understood properly and disseminated effectively.

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Islamist revolutionaries such as Syed Qutb and Muhammad Faraj declared jihad to be fard ayn when fighting is about eliminating corrupt Muslim regimes and revoking secular legislation. However, they have characterised jihad against external military aggression in Muslim lands as fard kafayah and only binding on the local population. This is why Islamist revolutionaries did not call on all Muslims to join their wars of national liberation. Wahhabi revolutionary scholars such as Muhmmad Ibn Abd Al-Wahhab and his exegetes also declared a duty to support Muslim insurgents fighting corrupt regimes rather than Muslims fighting to liberate their occupied territories because they were more interested in the establishment of a Sharia-based state and less interested in international politics.

Mainstream Muslim scholars such as Yusuf Al-Qaradawi and Salman Al-Awda also stressed that in case of foreign non-Muslim aggression on a Muslim land, jihad as fard ayn is applicable primarily to the local population facing foreign aggression. For the rest of the Muslims, jihad remains a non-binding collective obligation (fard kafayah). This collective duty argument predominated because it was promoted by political and religious establishments that were more interested in granting states and their governments veto power to prevent their citizens from joining conflicts abroad.

However, in the mid-1980s, Abdullah Azzam challenged the mainstream position by issuing a fatwa (juristic ruling or opinion) that jihad becomes fard ayn on every Muslim if any Muslim land, even a hand’s width, is infringed upon. His ruling on jihad as individual responsibility neutralises government vetoes over the authorisation of jihad for self-defence in a foreign Muslim land. According to the famous classical juristic rule, when jihad becomes a fard ayn, it is incumbent on respective Muslims to go out to the extent that women should go out even without the consent of their husband, a son can go as well, without the permission of his parents, a slave without the approval of his master, and the employee without the leave of his employer. This is a case where obedience should not be given to anyone in something that involves disobedience to Allah.

However, several prominent scholars such as Al-Awda and Al-Qaradawi disagreed with Azzam’s ruling, stating that non-locals might be allowed, or may even be encouraged, to fight in a foreign Muslim land but they were not obliged to do so. Azzam’s ruling of jihad being a fard ayn on all able Muslims was arguably similar to the classical jihad doctrine which is why it gained support from more than 100 prominent Muslim scholars, including Sheikh Abdul Aziz Bin Baz in Saudi Arabia. According to classical Muslim jurists, in the case of a non-Muslim state’s aggression on Muslim territory where Muslims are unable to repel such aggression, the immediate neighbouring Muslims have a fard ayn to take part in the self-defence of such Muslim territory. For the rest of the Muslims, it will be fard kafayah and they may take part, but it will be not binding on them. If the joining of neighbouring Muslims remains insufficient to repel the enemy, then jihad becomes fard ayn on the next Muslim neighbours, and so on. Ultimately, therefore, all Muslims may fall within the domain of fard ayn if they are required to join the jihad to repel the aggression on a Muslim territory. This is why Meshaal urged Muslims in the neighbouring countries to join the fight against Israel.

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His request to Muslim states for help is in line with a verdict of the International Court of Justice (ICJ). In the case concerning the application of the Genocide Convention in Bosnia Herzegovina, the ICJ held that the occupied people have the right to request the immediate assistance of any state to come to their defence, including by means of armed force. Furthermore, armed assistance to the Palestinian people by any Muslim state on the basis of the Islamic concept of self-defence is aligned completely with Article 51 of the UN Charter.

However, in the contemporary world of nation states, governments have exclusive power to use force against adversaries. Notably, the nation state concept will only have an impact on the Islamic doctrine of jihad to the extent that the government of a neighbouring Muslim state will have a strict obligation to support its neighbouring Muslims while its own able citizens will have a collective duty to join with the permission of their government. The issue of whether the failure of a neighbouring government in such duty entails an individual duty (fard ayn) on its citizens or the duty is transferred to the next neighbouring Muslim government remains debatable. Given the current passive behaviour of neighbouring states around Palestine, it seems that Meshaal’s plea for jihad would urge the able non–combatant Muslims (at least from the neighbourhood) to assume this religious responsibility, hence instigating the new wave of foreign fighters. Notably, when all Muslim states failed to realise their strict obligation of jihad during the Afghanistan invasion, Azzam issued a fatwa about jihad becoming fard ayn for every able Muslim. Therefore, it seems imperative to characterise jihad as a fard ayn for Muslims around the globe when all Muslim states fail to perform their obligation.

How could Muslims respond to the call for jihad?

The failure of Muslim states to repel the Israeli aggression at least from the Gaza Strip will cause Muslims all over the world to swing between either of the two possible rulings on jihad, following either the ruling of Islamist revolutionaries or that of Azzam. For the former, replacing the non-Islamic regime with an Islamic one will comply with their individual religious responsibility to wage jihad. If the government in a Muslim state is unwilling to repel aggression against another Muslim territory and is not authorising its citizens to engage in jihad as fard ayn, the Islamist revolutionaries would consider such a government to be a corrupt Muslim regime. However, insurgency against the regime on the basis of failure to perform jihad obligations remains highly controversial in Islamic law.

As far as the second option is concerned, given the Muslim governments’ explicit commitments of non-military support as per UNGA resolution 37/43 to Palestinian people and the sentiments of devout Muslims, the fundamentalist jihadi groups have suitable conditions to recruit volunteer fighters. These foreign fighters will be non-state actors under Article 51 of the UN Charter as long as they are engaged in self-defence of the Gaza Strip. UN Resolution 2178 (issued in 2014) was directed primarily against global terrorists and will not have an impact on the combatant status of those fighters as long as they fight alongside the resistance movement in Palestine, and engage in self-defence of Gaza. However, due to ideological and cultural differences, such foreign fighters may create fissures within the Palestinian resistance movement, and ultimately many of them could end up joining global terrorist organisations. What’s more, Israel may be able to make it extremely difficult for foreign fighters to reach the occupied Gaza Strip, so there is a high probability that foreign fighters may join Hezbollah and insurgent groups in Syria, making an already complex geopolitical landscape even more complicated. 

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.