Pre-emptive Defence (Book)

Author: hadi sadeghi

• abstract

Pre-emptive Defense (in persian: دفاع پیش‌دستانه) is a book in the field of political jurisprudence authored by Muhammadjavad Aghabagheri. In this work, the author examines the concept of Pre-emptive Defense from the perspectives of Imamiyah jurisprudence and international law. The discussions are organized into five chapters. In the first chapter, the theoretical foundations of Pre-emptive defense are presented, while subsequent chapters analyze various methods of Pre-emptive defense, including assassination, suicide attacks (isteshhadi), and jihad.

Āghābagherī defines preemptive defense as an action taken against an imminent attack, distinguishing it from preventive defense. He asserts that for this defense to be considered legitimate, there must be concrete evidence of an imminent attack. He examines assassination as a form of preemptive defense and, citing verses and traditions, denies its permissibility. The author considers suicide attacks (isteshhadi) as a form of legitimate defense, provided they are conducted with the permission of the Islamic authority and do not harm innocent individuals. Ultimately, the author analyzes jihad as a means of defending Islam and Muslims, justifying it within the framework of legitimate defense.

Overview and Structure of the Book

'Preemptive Defense' is a book in the field of political jurisprudence. It examines the position of preemptive defense from the perspective of Imamiyah jurisprudence and international criminal law, addressing the feasibility of employing legitimate defense. It is authored by Muḥammad Javad aghabagheri, who holds a PhD in criminal law and criminology, and was published by Imam Sadiq University in 2014, consisting of 228 pages.

The content of this book is divided into five chapters. The introduction and contents list appear at the beginning, while the references are included at the end. The first chapter details the theoretical aspects of preemptive defense. In the following three chapters, the author explores preemptive defense techniques, such as assassination, suicide attacks (isteshhadi), and armed conflicts (jihad). The final chapter draws conclusions from the preceding discussions.

Foundations of Preemptive Defense and Its Characteristics

In the opening chapter of the book, the writer presents the idea of defense, citing reason and human nature as its two underlying principles. He views defense as a religious obligation that is contingent upon necessity. According to the author, in the current criminal systems, legitimate defense possesses four characteristics: the immediacy of the attack, the necessity of defense, the proportionality of defense to the attack, and the intent to repel the attack. This principle is recognized in both religious law and international law, indicating that an individual acting in legitimate defense bears no responsibility (pp. 17-27).

Preemptive Defense during Peacetime

Aghabagheri considers preemptive defense in peacetime to be prohibited under both religious and international law (pp. 40-43). The author argues that preemptive defense is conducted in a state of peace due to the potential for an imminent attack. However, for this defense to be considered legitimate, there must be reasonable evidence demonstrating the likelihood of an imminent attack (pp. 43-49).

Some argue that any defensive action taken before an attack is unlawful, due to the challenges in proving that an attack has actually happened, and the fact that the proportionality of defense to attack cannot be realized in a state of peace. They maintain that defense is only acceptable against an attack that has truly occurred. The author focuses on the importance of tangible evidence in proving preemptive defense, and asserts that one cannot rely solely on subjective probabilities (pp. 49-54).

Jurisprudential Views on Preemptive Defense

Certain jurists, such as Shahid Awwal (the First Martyr), assert that preemptive defense is permissible if there is a likelihood of an attack from the enemy, indicating that an actual attack is not a prerequisite. In contrast, the views of Islamic jurists like Sheikh Ṭūsī suggest that defense is only permissible after an attack has occurred. Additionally, some, including Fakhr al-Muḥaqqiqīn, consider knowledge of the intent to attack as a necessary condition for defense, whereas Shahid Awwal believes that mere suspicion is sufficient (pp. 54-57).

Referencing verse 58 of Surah al-Anfal, the author considers preemptive defense permissible in the face of fear of betrayal from the enemy. Additionally, by citing verse 60 of Surah al-Anfal, he deems a form of preventive defense through the preparation of forces and intimidating the enemy as acceptable. Pointing out that how Imam Ali (AS) treated Ibn Muljam, he concludes that Imam Ali (AS) considers the preemptive defense in the form of an attack as impermissible, since he did not take punitive action against Ibn Muljam prior to the commission of his crime (pp. 58-61).

Evidence Supporting the Permissibility of Assassination

In the second chapter of the book, Muhammad Javad Aghabagheri examines the legal and jurisprudential aspects of terrorism, which is a method of preemptive defense. He begins by analyzing the terminology of terrorism and various definitions, ultimately defining terrorism as: 'the use of force and violent actions motivated by political or non-political reasons, carried out in a scattered and covert manner, such that legitimate defense does not apply' (pp. 67-78). The author further elaborates on the historical background of terrorism and global efforts to combat it (pp. 78-90).

Citing the Verses of the Quran to Find Answer

Proponents of the justification for assassination in Islam often reference verse 191 of Surah al-Baqarah and verse 5 of Surah at-Tawbah, which instruct the killing of polytheists. The author views the interpretation of these verses and their relevance to assassination as a matter of personal opinion. He contends that these verses are related to self-defense and do not pertain to assassination conducted in a secretive and unexpected manner. Additionally, he regards these verses as general and believes they can be limited by sayings such as «إِنَّ الْإِيمَانَ قَيَّدَ الْفَتْكَ» (Faith has constrained assassination), suggesting that assassination is excluded from the verses' applicability (pp. 91-95).

Citing the Practice of the Prophet to Find Answer

The author continues to examine four events related to the conduct of the infallible, based on which some Islamic jurists have issued fatwas permitting assassination:

1. The command issued by the Prophet for the killing of specific individuals during the conquest of Mecca; the writer does not categorize this incident as a murder, since the directive was made openly, not secretly (pp. 95-96).
2. Organized assassinations of Jews during the early Islamic period; Seyyed Jafar Mortezā Amelī argues that such acts are not permissible if the individual is under the protection of a Muslim (as exemplified by Muslim ibn Aqil's refusal to assassinate Ibn Ziyad). However, in situations where the enemy is not protected, killing is allowed with the Imam's permission. Conversely, the author contends that based on the Prophet's practices, such an assassination (even that of a woman nursing her child) cannot be considered as having been ordered by the Prophet. Furthermore, the narration «إِنَّ الْإِيمَانَ قَيَّدَ الْفَتْكَ» is general and cannot be restricted by such actions (pp. 96-100).
3. There was no admonition from Imam Sadiq (AS) regarding the assassination of Nāṣibī (anti-Shia) individuals; in discussing the definition and the ruling on blasphemy against the Prophet, Āghābagherī regards these individuals as deserving of death, maintaining that the Imam (AS) publicly expressed this ruling, and was not done secretly or unexpectedly (100-103).
4. The silence of Imam Ali (AS) regarding the assassination of the second caliph; according to the author, Imam's silence was due to the fact that the second caliph faced the consequences of his own actions (pp. 104-106).

The author subsequently references the fatwa for the execution of Salman Rushdie issued by Imam Khomeini and the fatwa for the execution of Rāfiq Taqi by Muhammad Fazel Lankarani, arguing that due to their public nature, these instances fall outside the category of terrorism (pp. 106-112).

Evidence for the Impermissibility of Assassination

Āghābagherī cites a narration from Imam Sadiq (AS) to demonstrate that assassination is not permissible, indicating that the Prophet (PBUH) prohibited such acts. The fact that Ibn Ziyād was not assassinated by Muslim ibn Aqil, along with his reference to a saying of the Prophet (PBUH), serves as another argument by the author against the permissibility of assassination in Islam (pp. 112-115).

The author identifies terrorism as a form of waging war, highlighting that both share elements of violence and intimidation. He argues that since Islam vehemently condemns war and prescribes severe penalties for it, terrorism, being a manifestation of war, cannot be deemed permissible (pp. 127-129).

The Unjustifiability of Illicit Means in Islam

The author identifies ethics as the governing spirit of Islam, contrasting it with acts of terrorism. He asserts that the prohibition of illegitimate means (such as terrorism) to achieve legitimate goals is a fundamental principle of Islamic policy. Aghabagheri considers the use of unethical means, including terrorism, to be a violation of Islamic objectives (pp. 115-120).

Suicide Attacks (istishhadi)

Chapter three of the book analyzes the second preemptive defense strategy, which is suicide attacks (martyrdom operations). The author clarifies the concept of martyrdom operations by comparing it with related concepts such as suicide, terrorism, and self-destruction. However, in some instances, he references non-academic sources for this purpose (see for example: pages 136-137 and 142).

The author considers martyrdom operations to be a modern defensive strategy, wherein the individual executing it is fully aware of their impending death, yet undertakes it for a greater purpose: the defense of faith, homeland, and honor. Given that the author views martyrdom operations as a form of defense, they are deemed legitimate and lawful under both religious and international law. According to the author, martyrdom operations are structurally a type of suicide attack, with the distinction that they are solely conducted for the defense of faith, homeland, and honor (pp. 135-142).

The Permissibility of Martyrdom Operations and Their Conditions

Aghabagheri, who considers the defense of the Islamic nation to be more important than preserving one's life, deems martyrdom operations permissible. He argues that even if such operations can be viewed as a form of suicide, they are justified and necessary because they fulfill a greater obligation (of striking against the enemies of Islam and defending the Islamic territory). He further cites the fatwas of several contemporary Islamic jurists that support the permissibility of martyrdom operations (pp. 162-167). According to the author, Seyyed Muhammad Hossein Fazlallah, who also views martyrdom operations as permissible, has addressed the arguments against their permissibility. One of these arguments is based on verse 195 of Surah al-Baqarah (و لا تُلقُوا باَیدیکُم الی التَّهلُکَه), which Faḍlallāh interprets as pertaining to personal matters and not applicable to martyrdom operations (p. 140).

Aghabagheri has outlined three conditions for the eligibility of the martyrdom operation:

1. It must be the only way to defend Islam and Muslims and there are no alternative defensive methods;
2. it must be conducted with the permission of the religious authority;
3. It must not involve killing the Innocent, such as women, children, and the elderly.

Using Human Shields (tatarrus)

The author asserts that for conducting martyrdom operations against Israeli society, the third condition is not necessary to be observed, as all Israeli citizens are, in some way, military personnel with assigned missions. Consequently, the author further discusses the issue of human shields. According to the author, all Islamic jurists agree on the permissibility of killing individuals used as human shields, although differing views exist regarding the details. Sheikh Tusi conditions the permissibility of this act on the intensity of the conflict. Additionally, Allameh Ḥelli considers the fear of enemy dominance as a factor in its permissibility. Imam Khomeini and Seyyed Mahmoud Hashemi Shahrudi also deem this action permissible if it is essential for overcoming the enemy (pp. 152-162).

Primary jihad as a Defensive jihad

War, or armed conflict, is a method of exercising power that, according to the author, is deemed legitimate and lawful under international law for the purpose of maintaining global peace and security (p. 173). In Islamic culture, jihad also holds a significant position (p. 176). The author emphasizes the distinction between aggression and defence, asserting that the rationale for the establishment of jihad in Islam is rooted in the concept of defence, and believes that all beings inherently remove obstacles to their perfection through jihad. He considers the use of force against aggressors to be an unavoidable course of action (pp. 182-184).

The author categorizes jihad into defensive and primary forms, asserting that defensive jihad is universally recognized as legitimate by all Islamic jurists. He argues that primary jihad is also a form of defensive jihad, as oppressors obstruct the dissemination of divine knowledge to the underprivileged, and this jihad aims to eliminate such barriers. The author considers the most fundamental human right to be the right to life, equating life in the Quranic context with faith in God and familiarity with Islamic knowledge and teachings (a pure life). He identifies the divine revelation as the foundation of a pure life, while labelling disbelievers and polytheists as the primary obstacles preventing humanity from accessing the well spring of life. Consequently, he believes that prophets, as defenders of human rights, have the duty to protect this human right against aggressors (pp. 184-191).