International Law
14 October 2019

Responding to “Islamic Jihadism”: The Pursuit of Humanity amidst the Clash of Arms and Minds

In his PhD thesis, Omar Mekky discusses how the interaction between the international laws of war and the relevant Islamic law rules could be useful for fostering compliance by the Islamic jihadist groups with the internationally recognised laws of war. He attempts to explain some of the challenges of such an interaction while proposing that an integrated approach could help humanise contemporary wars against “Islamic jihadism”.

How did you come to choose your research topic?

By the virtue of my position as the International Committee of the Red Cross (ICRC) regional legal adviser in the Middle East and North Africa, for the last eight years I’ve had the sad privilege to witness different scenes of the ugly wars between a number of states and the jihadist groups that have lately spread across the region, where the most heinous crimes are committed by all parties under the name of religion by some and national security by others, while innocent civilians are unfortunately paying the highest price. That well-documented fact in our wars today heavily affected me on the personal and professional levels and thus motivated me to start this PhD journey.

On the one hand, jihadist groups often cite Islamic law interpretations and argumentations to justify their combat-related actions against the states while they completely deny, reject and distrust traditional international law rules. On the other hand, some of these states never hesitate to drift from traditional international law rules to justify their so-called “counterterrorism” measures to halt these groups from expanding on their territories. The fact of the matter is that, in these wars, the internationally recognised laws of war that were originally created to protect those who don’t or no longer participate in hostilities are equally and constantly being challenged by the two sides – jihadist groups and states – to justify their combat actions. A shocking reality that international lawyers and policymakers find themselves incapable and astonishingly helpless to deal with – so far.

Interestingly enough, I started my PhD programme in August 2014 – only two months after the fall of the great city of Mosul in Iraq under the control of ISIS, and one month after it declared itself as the only existing “Islamic Caliphate”. This moment exemplified the rapid rise and threat posed by “Islamic jihadism” vis-à-vis current international relations and international law systems, which also proved the limited success – not to call it failure – of the anti-terror campaigns led by the United States and other states to stop the increasing expansion of this emerging global phenomenon. This has left me with an unanswered hard-hitting question, that I tried to answer in this thesis, about the potential role that the different political and humanitarian actors can play in order to preserve and restore the world’s peace and security. 

What are your main arguments?

As we all know, international law, since the end of the Second World War, has often been the key instrument for addressing global conundrums of this kind. Nevertheless, in this particular phenomenon, I argue that international law, to put it in the simplest terms, cannot solve this problem alone since it is predominantly perceived by jihadists – among other mainstream Muslims in the Islamic world – as a Western tool chiefly created by Western powers and used by Western-dominated bodies to enforce an absolute Western imperial agenda. 

I also argue in my thesis that it is evident that no enforcement regime can cope with massive and persistent violations through only coercive mechanisms and that any legal system must assume a high level of voluntary compliance if it is to have the will and ability to enforce its rules in the exceptional cases where that is necessary. That’s why I attempt to create this voluntary compliance among jihadist groups in order to better implement international law principles and values. And I believe that this cannot be done without a genuine interaction between international law and the internal law of the jihadist groups, namely Islamic law. Indeed, this is due to the evident role that Islamic law has played and continues to play in the cultural, political and legal affairs of those groups – who again cite exclusively Islamic law arguments to justify their combat-related actions on a daily basis.

Devising a genuine interaction between international and Islamic law seems a huge challenge. How do you tackle this challenge in your thesis?

I first discuss briefly the concept and sources of Islamic law, revealing that it is mostly a product of rational intellectual thinking that has been developed in different cultural environments throughout hundreds of years. I also highlight the historical and contextual evolution of the notion of jihad from the “Medinan ideal” state of Prophet Muhammad to the now collapsed “state” of Abu Bakr Al Baghdadi and, drawing on various sociopolitical considerations, I attempt to prove how every Islamic state or group used or misused the notion of jihad throughout Islamic history. This leads to the obvious conclusion that the notion of jihad has always evolved in reaction to a new sociopolitical reality that is either endeavoured by or imposed on the Islamic community, pushing the Islamic state or a group to seek one form of jihad or another. Those new sociopolitical realities – for example the rapid decline of the Islamic empire in the 19th century, colonialism in the 20th century, the anti-Soviet jihad in the 1970s–80s and the global “war on terror” in 2001 – were most impactful turning points generating paradigm shifts in the notion of jihad.

I then tackle the laws of war (jus ad bellum and jus in bello) from the perspectives of international law and Islamic law. My main purpose is to shed light on the commonalities and differences between these two existing legal paradigms as they are, mainly, the norms regulating the wars of, and against, “Islamic jihadism” in our contemporary world. 

Having discussed these two major branches of public international law, I turn to one of the most important, but also most problematic, solutions that the international community came up with to respond to “Islamic jihadism”, namely the counterterrorism legal framework, focusing on the challenges that the implementation of this newly developed framework poses to pre-existing legal frameworks such as domestic laws, international humanitarian law and international human rights law. The thesis highlights how the ambiguity of the term “terrorism” – as introduced by the UN General Assembly and the Security Council resolutions – and the absence of any concrete definition made every state interpret the term in light of their political interests. Accordingly, the term has frequently been used to stigmatise, delegitimise and dehumanise those at whom it is directed, including legitimate political opponents, at the risk of blurring the line between the acts that deserve triggering counterterrorism measures and the acts that could be regulated by other branches of international or domestic law. This is, however, without undermining the pressing need to regulate the phenomenon of terrorism that clearly disturbs states’ public order and often threatens international peace and security.

After tackling all these challenges and complexities, I come to discuss how the interaction between Islamic law and international law could be useful for fostering compliance by jihadist groups. The aim is to explain some of the challenges of such an interaction while proposing that an integrated approach could help to reach the desired end. The rationale behind such an integrated approach is to create a pragmatic humanitarian legal formula, inspired by the common values of international law and Islamic law, which international lawyers and policymakers could use to bolster the compliance by jihadist groups with the laws of war and their commitment to them.

Finally, I put forward the four main pillars of this integrated approach as practical guidelines for those interested to apply it in the relevant contemporary warfare.

So you wrote this thesis in the hope of attracting the attention of international lawyers and policymakers.

I believe that the biggest impact of this thesis can be on international lawyers and policymakers themselves if it manages to convince them to become more reflexive, open-minded, humble and ready to engage with legal cultures others than the one that we are used to and that proved its incapacity to deal with jihadism – at least alone – in order to ultimately reach our pursued objectives. Sometimes, international law must be used in different ways to prove its effectiveness. In this spirit, I believe that we can certainly contribute to resolving the quest of responding to “Islamic jihadism” if we manage to engage in a constructive dialogue between international law and Islamic law, including all their diverse interpretations and embracing their similarities and differences. While bearing in mind that this integrated approach is very unlikely to yield any utopian results, I still hope that my humble thesis serves as a brick for other more capable scholars to build bridges between two distant communities and cultures through civil and respectful dialogues.

*  *  *

Full citation of the PhD thesis:
Mekky, Omar Ahmed Mahmoud. “The Quest for Responding to ‘Islamic Jihadism’: Between International Law and Islamic Law; The Pursuit of Humanity amidst the Clash of Arms and Minds.” PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2019.

Omar Mekky defended his PhD thesis in International Law in September 2019. Professor Andrew Clapham presided the committee, which included Professor Andrea Bianchi, thesis director, and Dr Ahmed Al-Dawoody, Legal Adviser, Islamic Law and Jurisprudence, International Committee of the Red Cross (ICRC), Geneva.

*  *  *

Banner image: excerpt from a photo by muratart/
Interview by Nathalie Tanner, Research Office.