“Humanitarian Intervention from Sunnite Islamic Perspective”

Doshisha International Conference on Humanitarian Intervention:
“Asian Perspectives on Humanitarian Intervention in the 21st Century”
Kyoto 28-29 June 2011


“Humanitarian Intervention from Sunnite Islamic Perspective”

Dr. Hassan Ko Nakata (Doshisha University)

1. Introduction
In this presentation, we argue that
(1) Jihad in Islam as its totality is to be interpreted as “a sort of humanitarian intervention”, and
(2) Islam has also the more articulated teaching about the humanitarian intervention in case of violation of “human rights” of the oppressed Muslims.
But before that, we should explain the outline of Islamic world view to clarify that Islamic idea of “humanitarian intervention” is never to be realized in the frame work of “territorial nation state system” because it contradicts Islamic worldview as well as “humanity”.
The sole legitimate Islamic political system is Khilafah, the caliphate, which is intrinsically the global governance. It cannot be realized in “territorial nation state system” in spite that it can co-exist with “territorial nation state system”, because Islamic world view is dichotomy of Dar al-Islam(House of Islam) / Dar al-Harb(House of War), namely, Dar al-Islam(whose political system is Khilafah) is conceived to be forced to coexist with Dar al-Harb according to rules of Siyar, Islamic international law, and the world of the “territorial nation state system” is regarded as this Dar al-Harb(House of War).
In these days, most of the discourse talking about Islam in “public spheres” are systematically distorted under the pressure of the “global” ruling class or Establishment supporting “territorial nation state system” who are oppressing “the true Islamic political discourse” of Khilafah by banning its publications, rejecting its advocators’access to the offices of the government and the mass media, arresting them and killing them. That is why we hardly have heard about Khilafah, especially in terminology of social sciences, consequently have no understanding\of its real meaning and actual implications in the contemporary world.
Therefore we should explain about Khilafah before entering our main topic.

　
2. Meaning of Khilafah
In Islamic law, Khilafah is synonymous with Imamah Kubra, and defined as “the supreme leadership in the religion and this world by the succession of the Prophet Muhammad”.
Establishment of Khilafah, Caliphate, is the consensus of all the scholars of Islam, Ulama’, from the disciples of the Prophet Muhammad up to now. Even the most voluminous contemporary encyclopedia of Islamic law officially endorsed by Kuwait and Saudi Arabia declares that Ummah(Islamic community) anonymously agreed upon the obligation of establishment of Imamah(Caliphate) by the consensus of Sahabah wa-Tabi‘un(Prophetic disciples and their followers) .
Although in Islamic law, Khalifah is abbreviation of Khalifah Rasul Allah, i.e., the successor of the Apostle of Allah, not Khalifah Allah, the vicegerent of Allah on the earth, but the connotation of the vicegerent of Allah on the Earth has never been forgotten. al-Qurtubi says in his famous Qur’anic commentary “This verse (“And when thy Lord said unto the angels: Lo! I am about to place a viceroy in the earth…Q:2:30) is the base for the appointment of Imam or Khalifah who is listened to and obeyed in order that the opinion would be agreed and rules of the people be carried on.” (al-Qurtbi, al-Jami‘ li-Ahkam al-Qur’an, n.p., n.d., vol.1, p.264)
Khalifah is the vicegerent of Allah on the earth, thus the globalism and universalism is essential for Islamic politics, because Allah is not the Lord of any certain country but the Lord of the earth, thus Tawhid (uniqueness of Allah) requires the acceptance of oneness of the lordship of Allah on the earth as well as denial of the lordship for any other creatures on any places on it. And the place on which the unique lordship of Allah is realized, namely the Shari‘ah or the Divine Law of Allah alone is enacted and implemented to rule the people, is called Dar al-Islam. And the uniqueness of Khalifah symbolizes the unity and integrity of Dar al-Islam.
Khalifah must also be one person and two or more Khalifahs (Khulafa’ )’ coexistence is severely forbidden. The Prophet Muhammad ordered loyalty to single Khalifah in one age in order of accession to the throne, saying,; “although there is no prophet after me any longer, Khulafa’ (successors) will appear and their number will quite a large. Give loyalty in order one by one, and follow the authority which Allah vested in them.” (Hadith: Muslim), and he did not only rejected the legitimacy of the second and following Khalifahs but ordered decisively execution of them, saying,; “When the pledge of allegiance is given to two Khalifas, kill the second one.”
(Hadith: Muslim)
When the Prophet Muhammad passed away, many tribes of Arabia refused to give Zakah to Madinah, the capital of the Khalifah Abu Bakr. At this time, the Khalifah Abu Bakr subjugated them in spite that they confessed “there is no god but Allah and Muhammad is the apostle of Allah” and performed the prayer (Salah). This battle is called “apostasy (Riddah)” war. This decision of the Abu Bakr shows that the supremacy of the headship, Khilafah, and the unity of the Ummah(Muslim community) are fatally important for Islam.
The earth is one and indivisible, and consequently, the Khalifah as the vicegerent of Allah on the earth should be one and indivisible, as the lordship of Allah for the earth is one and indivisible, there is no god but Allah.
Islamic law prescribes the uniqueness of Khalifah and strictly forbids its plurality, because the Islamic order includes security of the freedom of immigration. An angel says in Qur’an; “But was not God’s earth spacious that you might have emigrated therein. (4:97), and Ibn ‘Abbas in his Qur’anic commentary Tanwir al-Miqbas, explains this verse; “…My earth is spacious…” as “the land of al-Madinah is safe, so immigrate to it.” (Ibn ‘Abbas, Tanwir al-Miqbas, 1992, Lebanon, p.102) Namely, al-Madinah, Dar al-Islam should be the place to which all the Muslims can immigrate. The oneness of the Khalifah symbolizes the oneness of the Islamic order, and the Islamic order secures the free movement of human beings and commodities within its territory, Dar al-Islam.
The earth belongs to nobody, but solely to Allah. Therefore, contrary to the ideology of the “territorial nation state” of modern Western Europe, Islam neither allows anyone to cut it into parts and restrict immigration in it, nor allow human beings to be divided into separate nations. This is because Allah created human beings as various ethnic groups so that they could know each other, as Allah says; “We have indeed created you from a male and a female, and made you nations and tribes that you may come to know one another.” (49:13), and the freedom of the immigration is the precondition for mutual-understanding. And Allah orders us to travel in the earth to learn the history of nature and the history of human beings by saying,; “... Travel in the land and observe how He originated creation.” (29:20), “...so travel in the land and behold how
was the end of those who denied.” (3:137, 6:11, 16:36). The liberation of the earth by the abolition of the borders and the unity of the Islamic order are essential conditions for the Islamic mission.
In order to understand the true implication of Islamic globalism, we should reconsider the conception of nationalism in the light of Islam. Nationalism is a form of neo-tribalism born in Western Europe in the second half of the 18th century. The Prophet Muhammad said; “Those who were killed under the flag of delusion which appeals for or support tribalism(‘Asabiyyah) died the death of the Jahiliyyah(pre-Islamic ignorance)” (Hadith: Muslim) and said, “Those who appealed for tribalism are not our fellows. And those who fought for tribalism are not our fellows. And those who died for tribalism are not our fellows.” (Being asked “What is tribalism?”) He answered; “It is supporting your tribe in injustice.” (Hadith: Abu Dawud) Tribalism was of the normal way of life for the Arabs of the Jahiliyyah (pre-Islamic ignorance), and the good tidings for all mankind was the advent of Islamic justice. Now the conquest of this
"neotribalism" has become the major objective of the Islamic mission.
The Western scholars always criticize the Khilafah system as a form of dictatorship because of the lifetime tenure of Khalifah or as a kind of theocracy because Khalifah is the successor of the Holy Prophet.
But it is almost self-evident for Sunnite Muslims that Khilafah is neither dictatorship nor theocracy, because the Sunnite scholarship define Khalifah as the layman elected by the people contrary to the Shiite Imam the divinely nominated infallible saint.
The Prophet Muhammad’s government was based on “unity of Religion and Politics”, thus “religious.” As already stated, the Prophet Muhammad was governing based on Allah’ revelation. That is, a political decision of the outbreak of war etc. was also made based on Divine Will. And much of revelation had taken the form of the individual command responding to each situation, a legal system had not been formed yet, a political system and legal system were still undifferentiated. That is, the Prophet Muhammad’s government is “religious”, in the meaning that it was based on
the transcendental authority of the divine will of a revelation of Allah to which common believers has no access except through him, and is based on the “unity of Politics and Religion” in the meaning that both of the law and the politics were based on his transcendental authority in the undifferentiated form because the legal system and the political system was still undifferentiated.
The Prophet Muhammad’s government was typical “hierocracy” or “theocracy” in terminology of Western political sciences in the meaning that the religious person who represents divine will governs, and we can call Shiite Imamah also “hierocracy” or “theocracy”, because Shiite Imam is also divinely nominated by Allah and infallibly guided by Allah, namely, he alone has the access to Allah, consequently has absolute authority over all the Shiite Muslims. However, according to the Sunnite creed , the revelation ceased since the death of the Prophet Muhammad, and the Khalifah has no special access to the Divine Will. Thus there was no transcendental element in the Khalifah’s political determination, it was carried out through the realistic worldly calculation.
The inaugural speech of the first Sunnite Khalifah Abu Bakr, ; “as long as I follow Allah and His Apostle, follow me. Supposing I disobey Allah and His Apostle, it is not obligatory for you to follow me.” (narated by al-Tabari), shows clearly that the Sunnite Khalifah, the successor of the Apostle, was homogeneous as the fallible Apostolic deputy officials under the reign of the Apostle who obeyed the Divine commandments embodied in Qur’an and Sunnah. Namely, Khilafah is“the rule of law” contrary to Imamah which is “the rule of men”, for the Divine Will is known through Shari‘ah, Divine Law, according to Sunni thinking, while it is known only through the divinely appointed infallible Imam according to the Shiite Imamology.
In addition to the fact that the Sunnite Khilafah is based on the theory of election by people (Ikhtiyar) opposing to the theory of the Divine nomination(Nass) in the Shiite Imamology, consultation with people(Shura) for Khalifah or the Ruler is strongly required. Some scholars say that Shura is obligatory while the others say that it is recommended, for Allah says in Qur’an; “{… So pardon the and ask forgiveness for them and consult with them upon the conduct of the affairs…”(3:159) and “And those who answer the call of their Lord and establish worship, and whose affairs are a matter of counsel, and who spend of what We have bestowed on them”(42:38),
As for the Shiite theory, Imam is the divinely appointed infallible successor of the Apostle of Allah Muhammad. On the other hand, Sunni Khalifah is neither divinely appointed nor infallible. Thus Khilafah is neither theocracy nor dictatorship, but nomocracy or “the rule of law”.

3. Khilafah as “the Rule of Law”
As we told, Islamic politics is nomocracy or “rule of Law”. Here we clarify the meaning of “rule of law” in our usage of it.
H. L. A. Hart (d.1992), one of the most influential legal philosopher of the 20th century, pointed out in his book “The Concept of Law” that the ad hoc orders of the rulers cannot be called law, criticizing John Austin’s (d.1819) famous legal positivist theory that “law is the command of the sovereign backed by the threat of punishment”. The law is different from the commands of the sovereign. We should differentiate the law from the commands of “the sovereign” which are legislated by the parliament.
According to Gustav Radbruch (d.1919), famous German legal philosopher, the law has 3 mutually contradicting elements, Gleichheit (justice), Zweckmäßigkeit (purposiveness or effectiveness) and Rechtssicherheit (legal certainty), but the most fundamental is the legal certainty. The legal certainty means stability and predictability. The law should be unchanging and continuous to some ranges of time as well as understandable and well known to people.
We can duly call the Islamic law, Ahkam al-Fiqh, “the very Law”. As for the stability, the Islamic law system started to be formed around in 8–9 century and had been established around in 12/13 century and has little change since then. It remains almost unchanging as well as valid, in spite that the rulers of the Western-made “territorial nation states” in the former Dar al-Islam have no longer enforced Islamic law. Why?
The Islamic law is said to be a typical jurist’s law beside Roman law. Actually, while Roman law became law after its authorization by the Emperor and he is above the law, formation of the Islamic law had been independent from Khalifah’s authorization, rather the jurists, Fuqaha’ had rejected any interference from Khalifah in its formation, needless to say that they had rejected admitting that Khalifah is above it.
Therefore Islamic law is still valid for all the Muslims, in spite that the rulers of the Western-made “territorial nation states” in the former Dar al-Islam have no longer enforced Islamic law, because the ruler has nothing to do with the formation of Islamic law, and consequently its validity is not depending on their enforcement. We are eye-witnessing hundreds of millions Muslims are observing Islamic law voluntarily without being forced by governments, rather even under the severe oppressions and persecutions from their own governments.
As for the legal certainty as the predictability, Muslims are familiar with Islamic law, both substantial rules, Ahkam Taklifiyyah, and legal concepts, Ahkam Wad‘iyyah, because the learning of Islamic law is obligatory on every Muslim. So it is not unusual that ordinary Muslim children learn classical texts books of Islamic law even in elementary school or junior high school.
Islamic law is considerably stable, for it has been almost unchanging nearly one thousand years and same in its contents from Indonesia to Morocco, rather even in US and Europe now.
If you compare Islamic law with Western laws, you would find that the Western laws are not worthy of the name of “law” but commands of the sovereigns which are just expressions of their ever-changing whims. It is same with even the “human rights” of Western laws. Despite that they are claimed to be eternal and universal, they are in fact nothing but the products of the certain age and certain place, namely, they are invented in West Europe in 17 century, and their contents are changing even during this short period. So they are neither “eternal” nor “universal” at all, rather they have still very limited numbers of followers among people in the world in spite of the effort of the Western countries for spreading their ideas among non-Western nations. As for international law, their knowledge are monopolized by the narrow circle of people in the Establishment of “territorial nation state system” and there is no place to teach them in elementary and middle educational institutes at all.
On the other hand, Islamic law is taught from elementary school to university and millions of Muslim children all over the world are learning the basic ideas of Islamic international law, Siyar, in schools, beside Ulama’(scholars of Islamic knowledge) who specialize it.
The Islamic law is not ever-changing arbitral commands of the sovereign but the stable and well known law, because the Islamic law stems from Shari‘ah, the last revelation from Allah, which is considered to be perfect and valid until the day of the Judgments. That is why Islamic politics is nomocracy or “rule of law”. Khilafah is the political system in which the sovereign is Allah, the Legislator of Shari‘ah. The pivot of Khilafah is the law, Shari‘ah, not the person of Khalifah himself. We find the clearest expression of it in the works of the great Islamic jurist of 13-14 centuries Ibn Taimiyyah (d.1328). In his book on Islamic politics, al-Siyasah al-Shar‘iyyah, he never mentions about Khalifah. And in his treatise on the revolt, he affirmed that the true revolt which should be subdued as the apostasy is the violation of the law, Khuruj ‘an Shari‘ah, not the revolt against the ruler Khuruj ‘ala Hakim, i.e., the person of Khalifah. (Ibn Taymiyyah, Majmu‘ah al-Fatawa, vol.28, pp.468–469, pp.502–504, pp.520–521)
“The rule of men” is the essential feature of the Christian societies. Katou Takashi, a Japanese scholar of New Testament and comparative civilization, proved theologically that Western political thought is classified definitely by “the rule of men”. Kato argues, “the rule of men by man” has become the most essential characteristic of Christianity since the infant community of Jerusalem transformed from a sect to the Jerusalem
Church” and “the feature of this principle is that the human beings are divided into two types and the upper class is to control or manage the lower class.”
The comparative analyses between Western political thoughts, Islamic one, and
Chinese one brings to light the fact that the basic frame work of Western political thought is rule of the man, while Islamic one, Khilafah, is rule of law and Chinese one is rule of virtue(Dézhì徳治).
In the process of theorization of Khilafah of Sunni school, counter-argument against Shiite Imamology has crystallized the concept of “rule of the law”, the sovereignty of Shari‘ah, in contrast to concept of “rule of the man” of Shiite Imamology in which the person of the divinely nominated infallible Imam is the sole source of legitimacy of the rule and only it is what guarantees the good governance, which we can find clearly even in contemporary Shiite political thought of post-Imam Era (Ghaibah) symbolically called theory of “Wilayah al-Faqih (Guardianship of the Islamic Jurist )”
Unfortunately Western scholarship obsessed with the Aristotelian tradition of typology of ruler can neither understand the real nature of Khilafah as “the rule of law” nor esteem its significance correctly, hence they can scarcely imagine form of the rule other than “rule of the man”, i.e., rule of the single person, monarchy or dictatorship, rule of the minority, aristocracy or oligarchy, and rule of the majority or democracy.
The idea of rule of the law only appeared quite recently in 17 century in England, and even this new borne concept of law has soon degenerated into “rule by the law” in Chinese sense（Fǎzhì法治）, or Rechtshtaat, or “rule of the commandments of the rulers” in our terminology. We can only find trace of concept of rule of the law in Western political thought in the concept of “human rights” as supplement to “the rule of men” of the democracy to complement its defects and to neutralize its evils.
Nowadays there is no country where the true “rule of law” exists, even though there might be a Rechtsstaat　in which “men” rule “by law”. It is worth mentioning that in Islam even the taxation is under “the rule of law”, not “the rule of men”, contrary to the West in which the taxation is under “the rule of men” justified by the slogan “No taxation without representation”, hence “the representatives” can impose taxes as they like under the name of “people”. On the other hand, Islam does not approve of any tax except what is legislated by Shari‘ah, i.e., Zakah for Muslims, Jizyah for NonMuslims, and Kharaj for the utility of the lands conquered. Any other taxes imposed by human beings are strictly prohibited. Ibn Taimiyyah(d.1328) says; ‘Levying taxes
are what is not permitted by the agreement of legal schools’.(Ibn Taimiyyah, Majmu‘ah al-Fatawa, al-Mansurah, 2001, vol.28, p.155) Another great jurist of the Hanafi legal school, al-Jassas (d.981) is so severe that he says that every Muslim should fight against those who levy taxes (Al-Jasas, Akam al-Qur‘an, 1986, Beirut, vol.1, p.472), and he should even kill them if they are armed. Consequently, any tariff is not allowed in Dar al-Islam, in which the rule of law is prevalent, because Dar al-Islam is a unified law-governed space, thus it is not permitted to make borders in it to prevent the free movement of people, commodities, and money or capitals by imposing man-made tariffs or any other kind of taxes or fees.
Contrary to “democracy”, in Islam the economy including taxation and currency is under “the rule of law”, not “the rule of men”, so abrogation of borders and tariffs inside Dar al-Islam and monetary system of Gold Dinar and Silver Dirham, as clause 130 of Al-Majallah, a civil code of the Ottoman Khilafah, prescribes that “the Nuqud (species) are gold and silver”, is an important and integral part of Khilafah or the Rule of Law.
Khilafah is “the rule of law” and “the law-governed space” in which Khalifah, the head of the Ummah, rules according to Islamic law and the security of life, property, and honor for all the inhabitants is called Dar al-Islam(House of Islam). To expand “the rule of law”, Khilafah, and the law-governed space, Dar al-Islam, by Jihad to liberates all the human beings and the earth from “the rule of men” is the mission of Islam.
In the next chapter, we try to explain about Jihad for expansion of Khilafah in the frame work of “humanitarian intervention”.

4. Jihad as a Humanitarian Intervention
In Islamic law, “Jihad” is defined as “ a war of a Muslim for sake of exaltation of the Word of Allah against an infidel with whom the treaty has not been concluded after inviting him to Islam and his rejection of it”.(al-Mawsu‘ah al-Fiqhiyyah, vol.26, p.63) “Jihad” is the Islamic war against non-Muslims on some conditions. We will clarify its true meaning by explaining its conditions in details.
Waging Jihad is permitted only after inviting non-Muslims to Islam. This invitation is the charge of Khalifah. Khalifah should send his official invitation for Islam to all the nations before waging Jihad. But what is the meaning of “inviting non-Muslims to Islam”? Does it mean demanding them faith in Islam?
A lot of contemporary Muslim apologists are trying to show that Islam denies the use of force except for self-defense, reacting to the slander against Islam from the West like “Koran in the right hand, left hand sword ”. The refutation is justifiable, if it means that Islam forces nobody to convert to Islam by compulsion. However, if it means that Islam does not accept the use of military force to realize its cause at all, it contradicts clearly the Shari‘ah’s teaching as well as the historical facts. Islam rejects forcing conversion to Islam by means of threat by physical violence but does not reject the use of military power in order to realize its cause and spread its governance to all over the world, rather Islam consider the fight for the sake of spread its governance as its obligatory mission.
Islam advocates love and peace and is not fond of unnecessary violence. However, Islam is not unconditional absolute pacifism. Rather, Islam teaches that the believers should practice commanding good deeds and prohibiting evil (Amr bi-Ma‘ruf wa-Nahy ‘an Munkar) according to their power, respectively. The ruler, as the holder of the greatest power, is especially burdened with the obligation to uphold the “statutory penalties (Hudud)” and to wage Jihad, i.e., sometimes even to resort to violence for the sake of peace, security, and justice for the Islamic society.
When Makkah was conquered, and Arabian Peninsula was unified under the banner of Islam, and the revelation given to the Prophet Muhammad was completed, the Islamic mission transformed from propagation of the individual faith and ethics in Makkah term to the liberation of the earth by spreading the Islamic governance. The transformation of Islamic mission to “the liberation of the earth by spreading the Islamic governance” means that the spread of Islamic governance came to be given a priority as the aim of group behavior of the Ummah which came to have the military strength which now enables them to establish the Islamic order.
Jihad is to be put in this context. Allah says, in Qur’an; “Fight those who do not believe in God, nor in the Last Day, and who do not forbid what God and His Messenger have forbidden, nor do they practice the religion of truth, from among of those who have been given the Scripture, until they pay the Jizyah tribute, readily being subdued.”(9:29)
And al-Mugirah, a companion of the Prophet, said to the Persian army on the day of battle of Nihavand(642 ?),; the Prophet who is the Apostle of our Lord ordered “Fight until you worship only Allah or you pay the tax (Jizyah)”. (Hadith: al-Bukhahri).
On these textual bases of Qur’an and Hadith, Islamic law prescribes if only the Jizyah tax is paid, fighting is no more allowed, even though they don’t embrace Islam, but fighting becomes inescapable when tax payment is refused. That is, the purpose of the
Jihad was admission of the Islam order by tax payment, not conversion to Islam. In other words, spread the Islamic governance was the first priority which must be promoted even with military force. Muslim community started to perform their mission toward the whole world after the completion of the revelation to the Prophet Muhammad and the unification of the Arabian Peninsula under the banner of Islam. However, what was not allowed to refuse in confronting this mission and was to be forced even by military power was the payment of the Jizyah tax, not conversion to Islam, and the payment of the Jizyah tax is metonymy of the obedience to Islamic governance.
That is why we can say that the mission of Islam in its complete form is to expand this Dar al-Islam in order to spread Islamic governance to all over the world even by resort to the military force, though there is no compulsion in the religion, as is declared clearly in the famous verse in Qur’an; “Let there be no compulsion in religion”.(2:256)
After passing away of the Prophet, Ummah whose head is Khalifah has taken over this mission. Khilafah, “the rule of law” , should be spread and Dar al-Islam, Law governed space, should be expanded all over the world, even by Jihad. However, before Jihad is waged, “the formal appeal from the Islamic authority which assumes the duty to make the invitation, or Islamic call (Da‘wah), i.e., “official Islamic propagation by the Islamic authority(Khalifah)”, should be made first .
As we explained above, the legitimate Islamic regime is Khilafah, which is in fact nothing but “the rule of law”. And Islamic scholarship categorizes basic human needs(Daruriyyat) into 5 kinds, (1) religion(Din), (2)life(Nafs), (3)reason(‘Aql), (4)family line(Nasl), (5)property(Mal), and the aim of the legislation of Shari‘ah is to realize these basic human needs. So many books has been written on this Islamic five basic human needs(Daruriyyat Khams) by contemporary Muslim apologists who try to equate them with Western human rights , so here we point out only specific purposes of Khilafah contradicting Western political thoughts.
Islam never forces the faith of Islam upon anyone. However, the Islamic domain,　Khilafah, and the lands under Islamic law, Dar al-Islam, should be spread to all over the world, in order that the Erath and human beings would be liberated from the unjust rulers who usurp the sovereignty of Allah.
Although Islam does not enforce the faith of Islam, Islamic order, the Islamic domain, and Dar al-Islam must be expanded to all the Earth, even by resorting to military power.
Why? Islam means total submission to Allah, i.e., obedience only to Allah’s command. In other words, Islam means denying the power of all the things that rule over people beside Allah. As for what is related only with the inner minds of human beings and what they obey according to their own judgment, such as religion in a narrow sense, we must liberate ourselves from its rule after thinking and judging by ourselves, and liberation from outside by force is impossible.
However, when external rule enforced by violence, i.e., political domination, exists, it is necessary to liberate the ruled from the ruler by counter-violence or violent confrontation. For this reason, Muslims performed the mission of establishing Islamic order with the sword to liberate people from local rulers who enclosed the people within their domain in order to exploit them by tax collection, enforced labor and conscription.
The earth belongs to nobody, but solely to Allah. Therefore, contrary to the ideology of the “territorial nation state” of modern Western Europe, Islam neither allows anyone to cut it into parts and restrict immigration in it, nor allow human beings to be divided into separate nations. This is because Allah created human beings as various
The earth differs in climate regionally, and there are also differences in its underground resources. Additionally life in a particular area may be made temporarily difficult by a natural or manmade disaster. So, freedom of migration on the Earth is the first step to enabling the justice and equality of life among mankind. So, the abolition of borders which bar the migration of people is an indispensable part of the Islamic order. And for realizing this, the existence of the single Khalifah is necessary to prevent the discriminatory “territorial nation-state” system, which is nothing but the cartel of the rulers of each country in the world, who mutually agree to divide the world for the purpose of protecting their own vested interests.
John Rawls (d.2002) argued that the unfairness is the situation, in which what rational person cannot choose living under the veil of ignorance, i.e., without knowing whether he or she is part of the poor members or the rich. Without doubt, the contemporary “territorial nation state” system is unfair, in which the small number of nations of the advanced countries enjoy the wealth while the majority of human beings are forced to live inside the under developed countries separated by borders of “territorial nation state” from the advanced countries in order that they cannot immigrate, and number of the poor who live in starvation with less than 1 US dollar per day is 960 millions, which any rational person can accept, assumed under the veil of ignorance.
Therefore, the territorial nation state system is not only contradicting Shari‘ah but also contradicting the ideal of the justice and the humanity which the West claim to advocate, thus the borders of the territorial nation states should be eliminated, in order that the earth would be liberated for all the human beings and the complete freedom of migration would be guaranteed.
Moreover, even in terms of economical development, the liberation of the earth, i.e., permission of the free migration is the best way. The Newsweek writes, ; Pretty much every expert agrees that creating a guest-worker program in the rich world would be one of the best ways to fight poverty and boost global incomes. The economic effects of migration are “profound,” says Dilip Ratha, an economist at the World Bank. “Even a small increase in migration can produce significant welfare gains, and those welfare gains can be much larger than complete trade liberalization.”
In fact, the establishment of Khilafah and Dar al-Islam means liberation of the earth for free migration of the whole human beings through the elimination of the unfair rulers who enclose their exploited subjects by the border of their territory. It should be started from so-called “Muslim countries”, then expanded to all over the world.
The “humanitarian intervention” is defined as “Entry into a country of the armed forces of another country or international organization with the aim of protecting citizens from persecution or the violation of their human rights.” (The Concise Oxford Dictionary of Politics: http://www.highbeam.com/doc/1O86-humanitarianintervention.html)
Now the similarity between Jihad and humanitarian intervention has become obvious, because Jihad is an entry of Khilafah’s army into another country in Dar al-Harb(House of War, i.e., Infidels land) to liberate people from the violation of the human rights by the unfair rulers who enclose their exploited subjects inside the border of their territory to exploit their wealth under the name of tax collection and impose the enforced labor and the conscription.
We can call Jihad a kind of “humanitarian intervention” because it is a military invasion to another country to liberating its citizen from the violation of human right and to establish the rule of law to guarantee the security of religion, life, reason, family line and property for all the citizens regardless of their race, ethnicity, religion, language, and nation.
However, in spite of many similarities, we should notice that there is negligible difference, i.e., this kind of Jihad is waged only by Khilafah, and consequently any war waged by any “territorial nation state” is not categorically Jihad, because all the countries which are integrated into the “territorial nation state” system in their totality are nothing but Dar al-Harb. As for self-defensive Jihad, we will discuss about it in the next chapter.
Islamic law prescribes that Jihad is obligatory, based on Qur’anic verses; “Warfare is ordained for you, though it is hateful unto you; but it may happen that ye hate a thing which is good for you, and it may happen that ye love a thing which is bad for you. Allah knoweth, ye know not.” (2:216), “Let those fight in the way of Allah who sell the life of this world for the other. Whoso fighteth in the way of Allah, be he slain or be he victorious, on him We shall bestow a vast reward.”(4:74), and so on. But it is not a individual obligation(Fard ‘Ain) but a collective obligation(Fard Kifayah) , which if some Muslims perform the others are exempted from.(al-Mausu ‘ah al-Fiqhiyyah, vol.16, p.57）Therefore those Muslims who don’t participated in Jihad are not punished though the Jihad fighters are promised to be rewarded more. Allah says; “Those of the believers who sit still, other than those who have a (disabling) hurt, are not on an equality with those who strive in the way of Allah with their wealth and lives. Allah hath conferred on those who strive with their wealth and lives a rank above the sedentary. Unto each Allah hath promised good, but He hath bestowed on those who strive a great reward above the sedentary.”(4:95)
Muslims are ordered to fight Jihad to establish “the rule of law” until relieve all the human beings from the oppression of the unfair rulers, even if their own lives are at risk, as said in Qur’an; “Let those fight in the way of Allah who sell the life of this world for the other.” But this obligation is not unconditional but on the condition that Muslims are not outnumbered overwhelmingly. Allah says in Qur’an, “O Prophet! Exhort the believers to fight. If there be of you twenty steadfast they shall overcome two hundred, and if there be of you a hundred (steadfast) they shall overcome a thousand of those who disbelieve, because they (the disbelievers) are a folk without intelligence. Now hath Allah lightened your burden, for He knoweth that there is weakness in you. So if there be of you a steadfast hundred they shall overcome two hundred, and if there be of you a thousand (steadfast) they shall overcome two thousand by permission of Allah.　Allah is with the steadfast.”(8:65-66)
Therefore it is concluded that Jihad is considered as a kind of “humanitarian intervention” and consequently “humanitarian intervention” is not only permissible but also obligatory. And theoretically Jihad should be waged against all the countries in Dar al-Harb in which “the rule of men” is dominant in place of “the rule of law” and all the regimes of the contemporary “territorial nation state” system like democracy, monarchy, communism, and so on, are “the rule of men” and “all the rule of men” is categorically unfair in Islamic perspective.
However, we should re-emphasize two points. The first is that this Islamic Jihad of “humanitarian intervention-like nature” can be waged only by Khalifah, thus there can be no Jihad of this kind in the contemporary world. In fact, all the so-called “Islamic countries” are not in charge of waging Jihad, rather they are all to be fought until they are melted into Khilafah. The second is that the obligation of this “humanitarian interbention” of Jihad is restricted by the condition that Muslims are not far weaker than Non-Muslims, and Muslims are by far the more weaker than Non-Muslims not only militarily, but also politically, economically and scientifically, thus Jihad hardly seems to happen due to this weakness of Muslims.

5. Rescue of the Oppressed Muslims
In the last chapter, we have explained Jihad for sake of establishing Khilafah, “the rule of law”, as “humanitarian intervention”. But there is another type of Jihad, which is nearer to the “humanitarian intervention” in the Western sense.
As we have mentioned, Jihad is a collective obligation(Fard ‘Ain) but it becomes an individual obligation in three cases; (1) when Muslims’ army meets Non-Muslim enemy’ army, (2) when the one is called by Khalifah for Jihad, (3) Non-Muslim enemy’s army invades a Muslims’ land. So if the Non-Muslims’ enemy invades Muslims’s land, its Muslim inhabitants should fight Jihad without waiting for the permission of Khalifah.
This type of Jihad can be called defensive Jihad, which is very important topic of Islamic politics. But this paper is not a place to discuss it in details.
Topic of this chapter is the case of Muslim inhabitants’ being persecuted in their　homeland of Dar al-Harb. Allah says in Qur’an; “How should ye not fight for the cause of Allah and of the feeble among men and of the women and the children who are crying: Our Lord! Bring us forth from out this town of which the people are oppressors! Oh, give us from thy presence some protecting friend! Oh, give us from Thy presence some defender!”(4:75)
This Qur’anic verse is related to Muslims of Makkah who could not immigrate to Madinah with the Prophet Muhammad and was persecuted by polytheists of Quraish tribe. Al-Fakhr al-Razi(d.1209) says that this verse shows that Jihad is obligatory(in this case). (Tafsir al-Fakhr al-Razi, Beirut, n.d., vol.9, p.187) al-Qurtubi(d.1272) says; “this verse urged Jihad. It implies rescue of the oppressed people from the hands of the polytheist infidels who persecuted them severely and seduced them from the religion(Islam). Allah imposed Jihad for sake of exaltation of His word, propagate His religion and the oppressed believers of His servants, even if it might cause the loss of the lives.” (al-Qurtubi, al-Jami‘ li-Ahkam al-Qur’an, n.p., n.d., vol.5, p.279)
So Islamic law prescribes Jihad of “humanitarian intervention” to relieve the persecuted Muslims, in case they ask Khilafah for rescue, even if it would cost the lives of Khilafah’s army. Contrary to the general theory of Jihad of “humanitarian intervention” for establishing “the rule of law” which we explained in the last chapter, this type of Jihad of “humanitarian intervention” is specific, because it is limited to the rescue of the oppressed Muslims if they request for help.
But this verse should be interpreted with verse 97-98. “Lo! as for those whom the angels take (in death) while they wrong themselves, (the angels) will ask: In what were ye engaged ? They will say: We were oppressed in the land. (The angels) will say: Was not Allah’s earth spacious that ye could have migrated therein ? As for such, their habitation will be hell, an evil journey’s end, except the feeble among men, and the women, and the children, who are unable to devise a plan and are not shown a way.” (4:97-98) According to al-Qurtbi’s commentary, this verse shows that Muslims living in Makka, i.e., Dar al-Harb, after Hijrah(immigration) of the Prophet Muhammad should have immigrated to Madinah, Dar al-Islam, except those who were not able to immigrate to Madinah.
Therefore the obligation of Jihad of “humanitarian intervention” for rescue of the persecuted Muslims living in Dar al-Harb is limited to the persecuted Muslims who are so physically or economically or socially or politically week that they are not able to immigrate to Dar al-Islam, because the oppressed Muslims living in Dar al-Harb who are able to immigrate to Dar al-Islam, should immigrate to Dar al-Islam in place of asking rescue.
As mentioned before, in Islamic law the term “Jihad” is used only for the war against Non-Muslim for sake of Allah. But Islamic law has another category of war which is related to “humanitarian intervention”. That is the war against the revolt(Baghy). Islamic law prescribes rules of the war against the revolt based on the Qur’anic verse; “And if two parties of believers fall to fighting, then make peace between them. And if one party of them doeth wrong to the other, fight ye that which doeth wrong till it return unto the ordinance of Allah; then, if it return, make peace between them justly, and act equitably. Lo! Allah loveth the equitable.”(49:9)
“Revels(Bughat)” is defined as “Those Muslims deviating from the obedience to Khalifah with their interpretation of Islam who own the military force.” (al-Muwsu‘ah al-Fiqhiyyah, vol.8, p.52)
It is worth mentioning that this kind of revolt with interpretation of Islam(Baghy)
itself is not considered as a crime to be punished, even if the war(Qital) is required to subdue it. al-Fakhr al-Razi clearly says, “the war is not punishment on the revel”(Tafsir al-Fakhr al-Razi, vol.129). And even if the revels kill the soldiers of Khalifah and destroy the properties, there is neither punishment nor compensation imposed to the revels after the war.
In difference to the West which call the insurgents “terrorist” to demonize them and reject the negotiation with them categorically, Islamic law demands Khalifah to negotiate with them at first, because Allah orders reconciliation saying; “make peace between them”. Here we cite the word of Encyclopedia of Islamic law; “Khalifah should call the revels for return to the society and the obedience to him hoping the response and acceptance of his call as if the evils would be avoided, because their repentance is able to be anticipated. As well as he should ask them the reason of their revolt, if there is injustice in his side he should remove it, if they mention the reason which is possible to solve he should resolve, if they complained heresy he should clarify their doubt. Because Allah ordered reconciliation before waging war saying; “And if two parties of believers fall to fighting, then make peace between them.”
Khilafah is not a centralized “territorial nation state”, government of which monopolizes military force and local people enjoy independence and autonomy under Islamic law. The above mentioned Qur’anic verse literally talking about the case that two parties are fighting, one of which is persecuting the other unjustly. In this case, Khalifah should try to reconciliation these two parties by peaceful means first, and if they does not work well, then he should make “humanitarian intervention” to fight the unjust party until the injustice is removed. But afterward Islamic jurisprudence deduces from this verse the concept of the revolt(Baghy) in which Khalifah is the head of two fighting parties.
Though Khalifah’s party is named “people of the truth(Ahl al-Haqq)”, it is assumed as the matter of fact that injustice can occur from Khalifah’s party, as is mentioned in Encyclopedia of Islamic law; “if there is injustice in his(i.e., Khalifah’s) side he should remove it”, and in this case, the injustice of Khalifah’s party should be removed and no punishment is imposed on the rebels.
It seems to mean implicitly that if there happened injustice from Khilafah’s government in some country inside Dar al-Islam, Muslim power can rise in revolt of “humanitarian intervention” with military force to defend its people and remove the injustice. Maybe we can say this is a kind of “the right of resistance” expressed in Islamic manner and is related to the topic of “humanitarian intervention”, because the “humanitarian intervention” is always closely involved with political issue of injustice and right of resistance.
In terminology of Islamic law, there is no such controversial word as “terrorist” which is used not only for justifying the vested interest of the Establishment but also for concealing the existence of its injustice. Realistic approach of Islamic law which deals with revolt and resistance “neutrally” and gives preference to negotiation with the insurgent seems more suitable for the peace building.
Jihad for rescue of Muslims oppressed in Dar al-Harb and rescue by revolt (Baghy) for Muslims oppressed by Khilafah’s government are only related to Muslims, and in the sense that it lacks generality, it is a little bit difficult to call them “humanitarian intervention” but they have many commonalities with Western notion of “humanitarian intervention”.

6. Conclusion

In Islamic worldview, the world is classified into Dar al-Islam(House of Islam) and Dar al-Harb(House of War). And the polity of this Dar al-Islam is Khilafah, which is nothing but “the rule of law”. Khilafah is the general leadership for all the Ummah (Musulim community), thus undividable. Khilafah is only the sole legitimate political regime of Islam.
Jihad is the war against Non-Muslim for sake of Allah(fi sabil Allah), which has some sub-categories. Defensive Jihad is in case of Non-Muslim enemy’s invasion into Dar al-Islam and become obligatory for Muslim inhabitants of the land invaded. It does not need the permission from Khalifah. As for Jihad to spread Khilafah, the rule of law to all over the world to transform it to Dar al-Islam, law-governed space, it is collective obligation and decision of Jihad is the prerogative of Khalifah.
Rules of Jihad in Islamic law shows that war of Jihad against Non-Muslim is permitted only after their denial of payment of Jizya-tax, ie, the rule of law of Islam, not after denial of Islamic faith. The aim of Jihad war is “for sake of Allah(fi sabil Allah), but it does not means for sake of forcing Islamic faith but means for sake of spreading the rule of law of Islam. In other word, Jihad is a kind of “humanitarian intervention”, because it is a entry of Khilafah’s army into another country of Dar al-Harb in order to remove the violation of human rights from its inhabitant and restore the rule of law.
The Prophet Muhammad is sent not only for specific nations but for human being in totality as Allah says to him; “And We have not sent you but as mercy for all the worlds.” (21:107), and the Divine Law revealed to him, Shari’ah, is universal and valid until the Day of Judgment. And Ummah(Muslim community) is in its essence missionary community to establish this universal law to all over the world as Allah says; “Let there be one community of you calling to good, and enjoining decency, and forbidding indecency; those are the successful.”(3:104) and “You are the best community brought forth to men, enjoining decency, and forbidding indecency, and believing in God…”(3:110)
Therefore from Islamic point of view, all the “rules of men” on the earth are injustice, and consequently should be replaced by the rule of law of Shari’ah、Islamic Divine Law. Especially the contemporary Western “territorial nation state system” is categorically unjust because it differentiates nations and separates them by national-borders and contains them into their respective countries, i.e., it violates basic human rights like equality and freedom of migration.
Not only Islam accept “humanitarian intervention”, but Islamic Jihad is a kind of “humanitarian intervention”. But this “Islamic humanitarian intervention” is not possible except under Khilafah, which is nothing but the rule of law, the true universal Divine Law of Shari‘ah. Any “territorial nation state” in the former Dar al-Islam is not an actor which is in charge of perform “Islamic humanitarian intervention” of Jihad, but the obstacle to prevent establishing Khilafah.
Therefore it is necessary to abolish all the “territorial nation states” in ex-Dar al-Islam for establishing Khilafah in order to perform “humanitarian intervention” and liberate human beings and the earth from the prison of “territorial nation state system” under “the rule of men”


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Reference

Hassan Ko Nakata, The Mission of Islam in the Contemporary World – Aiming for the Liberation of the Earth through Reestablishment of the Caliphate, 2009/4, Kuala Lumpur,
Saba Islamic Media, 71p.
Hassan Ko Nakata, “The Deconstruction of Sunnite Theory of Caliphate: Spreading the Rule of Law on the Earth”, JISMOR, 2011, pp. 67-86.