M. A. Niazi in HiPakistan contributes a complex theological argument about whether or not Pakistan’s President Musharraf has been speaking correctly about jihad. In the course of the article he makes a number of statements that are revealing in that he seems to assume that his readers will take them for granted. One is that jihad involves “weapons, and intent to kill.” Another is that suicide bombing is jihad martyrdom, as declared by Sheikh Muhammad Sayyid Tantawi of Cairo’s prestigious Al-Azhar University.
Jihad (with weapons, and intent to kill) is an obligatory duty (farz). It can be either farz kifaya (in which the participation of some fulfills the duty of all) or farz ain (in which all have to participate). It is a farz ain when it falls within a certain distance of one’s home, or if the Amir [the ruler of an Islamic state] or his duly appointed subordinate has ordered a general mobilisation, and a farz kifaya when the jihad is elsewhere. An Amir may call for volunteers either for a jihad beyond the borders of the Islamic state, but it is a moot point whether he can forbid anyone from going abroad to participate in a jihad elsewhere. Actually, the traditional Sharia does not account for borders, though it recognises the possibility of different subordinate Amirs administering different territories independently, and owing a token allegiance to a single Caliph. Therefore, even if one assumes that Musharraf is indeed an Islamic ruler within the context of Sharia, his right to order people not to participate in a jihad outside the territory under his control is dubious.
In other words, he has no right on Islamic grounds to prevent Pakistanis from leaving Pakistan to join Al-Qaeda or other radical Muslim groups in other countries.
It should be noted that the entire analysis above is based on a traditional view, which is no longer tenable because there is no Khilafat, not even in name. The Caliphate abolished by Mustafa Kemal in 1924 was a poor battered thing anyway, far, far removed from the original concept, but it still provided a legal, or rather sharai cover of sorts. Obviously, there is a need for ijtihad [new interpretation of the sacred texts] on the issue.
One clever way of avoiding ijtihad is to re-establish the Caliphate.
That is exactly what Osama and other radicals want to do, for precisely these reasons.
This would immediately restore the Islamic system to its correct footing. Theologically, in fact, it is still the only feasible solution, but there are political difficulties in its path too numerous to discuss. This solution has been proposed by a number of groups. In Pakistan, the most eminent is Dr Israr Ahmed’s Tanzeem Islami, while the Hizbut Tahrir has recently set up a branch here. The Hizb is an interesting organisation, for it does not consist of sister parties (such as the Jamaat Islami in India, Pakistan, Kashmir and Bangladesh, which are separate and independent parties), but claims to be one single party spread throughout the Muslim world.
However, there is a practical difficulty. The Kashmiris, the Afghans, the Iraqis, the Palestinians and the Chechens cannot wait for Dr Israr or the Hizb to establish the Caliphate. They are faced with oppression and foreign occupation right now. They have no option but to engage in jihad, by whatever means available. This is why the Grand Mufti of Al-Azhar (no firebrand, but enlightened and moderate enough to support the Frnech headscarf ban) has issued a fatwa declaring suicide bombings not just a valid means of jihad, but its highest form. In fact, this is the only formal fatwa holding the field on this issue. Though many Muslims have condemned suicide bombings as suicide, no scholar has issued a prohibitory fatwa. And these jihads are a farz kifaya for Muslims outside these areas.
Note well: no scholar has issued a prohibitory fatwa [ruling] against suicide attacks.