Welcome back to the Deep Dive. We're going to
get straight into it today, into, I think, one
of the most intense and difficult global conversations
happening right now. It really is. The conflict
that followed the October 7th, 2023 Hamas assault
on Israel is just agonizingly complex. But for
so many, the debate really centers on the religious
justification. Right, because Hamas explicitly
invoked classical Islamic doctrines. They used
the term jihad to justify their actions. And
those actions included the mass Massacre of civilians,
documented sexual violence, mutilation, and of
course, mass hostage taking. And when a group
makes such a profound claim to religious legitimacy
for acts like that, I mean, it demands a really
rigorous, impartial, scholarly review. So that's
our mission for you today. We are not here to
debate politics or weigh conflicting national
narratives. No. We're using a very specific framework.
We're looking at classical Islamic jurisprudence,
or fiqh, to assess the conduct of the attackers
against the faith's own established law of war.
For this deep dive, we've really built our analysis
on the work of leading academic authorities.
People like Ahmed Al -Dawoodi, Karima Ben -Nun.
Nazrin Badawi. And these are scholars who've
gone directly into the pre -modern legal texts,
into what's known as Siyar, the Islamist law
of war, to see if these actions actually meet
the standards Hamas claims to uphold. We're going
to look at this from two angles, right? Exactly.
Two critical legal dimensions. First, you have
Jassad Bellum. Which is the right to wage war
in the first place. Right. And second, Justin
Bellow, which is all about the proper conduct
within that war. And for any military action
to be considered permissible under Islamic law,
both of these have to be satisfied. Both have
to be met. It's not one or the other. Okay, let's
unpack this. And I think we should start with
the foundations. Because what really surprised
me in the research was how much Islamic law already
contains principles we think of as, well, modern.
It's this fascinating idea of convergence. Alda
Woody's work really shows you that modern international
humanitarian law, IHL, It's not some external
concept being forced onto these traditions. So
what's an example of that? How do they converge?
Well, take the core principles we rely on today
in IHL. Things like distinction, proportionality,
taking precautions. Right. These ideas are echoed,
I mean, deeply in the debates of pre -modern
Muslim jurists. Distinction, the absolute need
to distinguish between combatants and non -combatants.
That was a central concern. The timeline here
is just it's staggering. Banoon scholarship shows
that Islamic law established these robust civilian
protections more than a millennium before the
Geneva Conventions were even thought of. A thousand
years. Think about that. A thousand years of
legal tradition already carving out noncombatants.
Women. children the elderly clergy as a separate
category that is entitled to immunity from attack
so that's basically the foundation for our modern
concept of the civilians right there in the tradition
okay so that historical grounding is crucial
but it brings up a huge question about interpretation
if the tradition is so clear on protecting civilians
how on earth do groups like hamas use the exact
same sources to justify mass violence against
them And this is where we, and you, the listener,
have to apply what Badawi calls critical comparativism.
Meaning? Meaning you have to remember that both
the militant groups and the mainstream Muslim
scholars who denounce them are all claiming to
base their arguments on the original Islamic
sources. So you can't just take their claim of
being... authentic at face value. You have to
look at what they're actually arguing. Precisely.
You have to look at the substance. And Bennu
helps frame this. She defines this kind of fundamentalism,
not just as a religious movement, but as an extreme
right movement that achieves political aims by
manipulating religion. A political manipulation.
Yes. And it often requires what she calls double
discourse. You invoke the authority of religion.
You cherry pick a verse here or there while you're
actually pursuing intensely political secular
goals. That sets the stage perfectly. So let's
apply that critical framework to the first major
test. Just ad bellum. The right to wage war,
to put it plainly. Was jihad even permissible
in the first place for this attack, according
to the classical sources? Alda Woody's thesis
here is unambiguous. Jihad in the sense of an
international armed conflict is overwhelmingly
defined as a defensive war. Defensive only? Yes.
Justified only when Muslims face aggression or
what the sources call fitna, severe persecution.
It is not, historically or legally, a blank check.
for aggressive warfare. And this isn't just an
interpretation. It's rooted right in the Quran
itself. It is. Verse 2 .190 is key. It conditions
the permission to fight on engaging those who
fight with you and do not exceed the limits.
Those who fight with you. That's very specific.
It's conditional. It establishes warfare as reactive.
It puts the burden of proof on the attacker to
show they were the victim of aggression first.
Okay, but that leads to, well, a huge authority
problem. Even if you could argue a state of aggression
existed, who actually has the right to declare
jihad? And that is the crucial point. Classical
jurists universally treated jihad as an obligation
of the Muslim ruler, the imam. It was a state
function. It required governmental sanctions.
So it's not something an individual or a group
can just decide to do on their own? Absolutely
not. It had to be a centralized authority, a
ruler who could assess the situation, manage
the resources, and critically ensure compliance
with the rules of war. And Hamas, as a non -state
armed group, operating outside the sanction of
any recognized Muslim state authority. They fundamentally
lack the classical authority to declare or prosecute
a legitimate jihad. It's a non -starter. So if
that authority is missing, what would classical
jurists even call this kind of action? Well,
they wouldn't call it jihad. They'd classify
it as something far more serious, far more criminal.
Which is? Armed action without the ruler's permission,
especially involving this level of violence,
would be categorized as ayurva, which is brigandage,
or highway robbery. Corruption in the land. Yes,
mischief and corruption in the land. These are
serious crimes in Islamic law, not divinely sanctioned
warfare. So from the perspective of the legal
framework they claim to follow, their action
is illegitimate before the first shot is even
fired. That's the key takeaway from the Jost
ad Bellum test. The authority is absent. But
let's push this further. Let's say... For the
sake of argument, they somehow cleared that hurdle
of authority. The bigger issue for most people
is the actions themselves. Of course. The sheer
horror of what happened on October 7th targeting
civilians, the mutilation, the sexual violence,
this moves beyond legal authority into just,
well, fundamental religious adherence. And this
brings us to Jess and Bello. The conduct in war.
Right. And on this, the classical sources aren't
just restrictive. They are absolutely unequivocally
categorical. How so? The law makes it, to use
Alda Woody's phrase, abundantly clear that fighting
must be directed solely against enemy combatants.
That principle of distinction is non -negotiable.
What are some of the specific prohibitions that
the earliest sources lay down? They're incredibly
specific. The Prophet Muhammad himself explicitly
prohibited targeting women, children, the elderly,
clergy, and anyone not actively participating
in the fighting. These are the foundational protected
categories. And it wasn't just a one -off instruction.
We see it being institutionalized immediately
after. Exactly. Look at the commands from the
first caliph, Abu Bakr, to his army. He ordered
them, do not commit treachery, do not mutilate,
neither kill a child or aged a man or woman,
do not cut down fruit -bearing trees. And when
you look at the documented abuses of October
7th. The deliberate targeting of noncombatants,
the reports of mutilation, the sheer destruction
of life. These are direct violations of those
ancient foundational commands. They are textbook
examples of un -Islamic conduct. The victims,
the women, the children, the elderly, the foreign
workers, people at a music festival, they all
fall squarely within those protected categories.
Absolutely. And later jurists extended those
protections even further to farmers, traders,
craftsmen. Basically, anyone not holding a weapon
is protected. There's just no ambiguity on this
point. So this brings us to an argument you always
hear in these situations, retaliation. The idea
that, well, the enemy does it to us so we can
do it to them. Does Islamic law permit retaliation
against civilians? And that's a critical point
of theology. The answer is a resounding absolute
no. No exceptions. None. The Islamic rules of
war are binding on the Muslim soldier regardless
of the enemy's conduct. Compliance is a theological
act. It's considered an act of worship. An act
of worship. So it's not a reciprocal deal that
you can just suspend if the other side breaks
the rules. Exactly. The moral obligation is to
God, not to the enemy. So the argument that Israeli
actions, however one judges them, could ever
justify Hamas's retaliation against civilians
is completely nullified by the theological basis
of CR. OK, let's talk about the hostage taking.
This was a huge part of the attack. Seizing civilians,
children, elderly people for political leverage.
Classical Islamic law always required humane
treatment towards the prisoners. The jurists
debated what to do with captured combatants,
whether to release them, ransom them. But humane
treatment was a constant. But what about taking
noncombatant hostages? Badawi points out that
this specific tactic, seizing civilians for political
leverage, is a modern tactical innovation. It
finds no support, none in classical law. And
abuse of captives. Torture. It was simply inconceivable
in that framework. There's a famous story of
Imam Malik, one of the greatest jurists, being
asked about torturing prisoners. His response
was just, I have not heard of that. Wow. It's
a response that shows how deeply alien the concept
was. So the seizure and abuse of women, children
and the elderly for political aims is completely
and totally outside the bounds of Islamic Justin
Bellow. So let's bring this all to a head. We
have two massive failures here. First. the lack
of legitimate authority under Justin Bellum.
A complete failure on that front. And then the
spectacular, horrific failure to adhere to the
core principles of conduct under Justin Bellum.
And the conclusion from the scholars we've been
looking at is definitive. Yeah. As Ben -Nun puts
it, once those humanitarian precepts are violated,
the targeting of women and children, the mutilation,
the conflict, no longer qualified as permissible
warfare because it was no longer Islamic. It
stops being Islamic at that point. It ceases
to be. according to its own rules. So is this
just an academic argument, or do we see this
reflected by mainstream religious authorities
today? Oh, it's been thoroughly echoed. Major
Islamic institutions around the world have not
endorsed this conduct. You see an overwhelming
scholarly consensus that jihad has to be bounded
by law. It's not a blank check for slaughter.
Can you point to anything specific? Sure. Look
at documents like the Amman Message, signed by
hundreds of top scholars, or statements from
institutions like Al -Azhar in Cairo. They all
affirm that noncombatants are not legitimate
targets. So Hamas's claims are really a fringe,
politically motivated interpretation that the
scholarly majority rejects. Absolutely. And it
just reinforces Binyon's point. Hamas is actively
betweening the authentic Islamic tradition. They
are engaging in the political manipulation of
religion by cherry picking texts while ignoring
the vast body of law that constrains violence.
And for you, the listener, the implication here
is pretty profound. When the international community
talks about IHL compliance in Muslim contexts,
it's not about imposing foreign Western values.
Not at all. It's actually promoting the revival
of neglected principles within the Islamic tradition
itself. Principles of civilian immunity that
have been there for a millennium. So to wrap
this up. Our deep dive really shows that Hamas's
claims to Islamic legitimacy completely fail
when judged by their own jurisprudential standards.
They do. The historical consensus against targeting
civilians, against mutilation, against this kind
of destruction of life is just clear and unequivocal
in the classical sources. It makes the conduct
not only illegal under IHL, but impermissible
under the very law they claim to be championing.
And that theological basis leaves us with a powerful
point to think on. It does. Remember, these rules
protecting civilians, treating prisoners humanely,
they're based on divine commands. They're considered
inviolable norms, acts of worship. So think about
this. If Islamic law's humanitarian obligations
are grounded in a theological command, not just
reciprocity or politics, what does that really
imply? What does it imply about the future? It
implies a potential for truly robust interfaith
dialogue, for lasting humanitarian protections
that can transcend political divides. It's a
moral standard that demands to be met no matter
what the enemy does.