JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law discusses Grand Ayatollah Sisani’s call for jihad against ISIS in Iraq …

As has been widely discussed, Grand Ayatollah Sistani recently issued a call for jihad against the terrorist organization currently rampaging throughout much of Iraq, the Islamic State of Iraq and Syria (“ISIS,” recently renamed the Islamic State). This call, however well intentioned, is not likely to be the solution to Iraq’s problems and may in fact create more problems than it solves. The reason is not, as is commonly stated, that it will contribute to rising sectarianism in Iraq. In fact, Grand Ayatollah Sistani’s call was phrased as ecumenically as it could be. It urged all Iraqis, and not merely Iraq’s Shi’a, to join this jihad, though admittedly it is unlikely that significant numbers of non-Shi’a Iraqis would heed such a call. More importantly, the Grand Ayatollah made clear that volunteers should join the army itself rather than fight on behalf of any one of the numerous sectarian militias active in Iraq.

The problem, instead, is that the call to jihad operates on the principles of jihad long established among jurists operating in the Muslim tradition, and it hardly seems fitting for the type of modern warfare in which Iraq is currently engaged. As a result, it is not a solution to the real military problems with which Iraq is faced. To understand why, it is important to review the historic rules respecting jihad as jurists have laid them out.

Essentially, the call to a jihad relies on a conception of warfare wherein a significant number of free adult males who are not professional soldiers are engaged in most of the fighting. Hence, a leader of some sort (in the ideal case, a caliph in the Sunni tradition, and an Imam in the Shi’a one) issues a call for fighters. The obligation then lies on the community as a whole to supply the number of fighters that the leader needs to prosecute the contemplated military action. Once sufficient numbers are reached, the obligation is discharged. Certain individuals are prevented from joining the jihad in most circumstances, including the mentally ill, those in debt, slaves and those with insufficient loyalty to the state. The purpose of the call to jihad, then, is to supply the soldiers necessary to fight a war. Such a conception was not a wholly unrealistic state of affairs throughout much of history, including the US, where wars were generally fought until recently by little trained nonprofessionals called into service either voluntarily or through a draft.

The problem, however, is that contemporary warfare generally requires a standing, extensively trained professional army with the significant administrative and organizational capacities this demands. The ability to call together tens or hundreds of thousands of individuals with light weapons such as AK-47’s and even rocket propelled grenades is far less important than the existence of well trained and well equipped soldiers who are aware of how to fight a war with technological sophistication. To be sure, manpower is hardly irrelevant, and states with smaller populations often do maintain an active reserve to ensure adequate numbers of soldiers. But even in such a case, the reserves are trained and have their training updated repeatedly over time, so as to ensure that when and if they are called, they are able to serve as an effective fighting force.

In fact, the recent stunning victories of ISIS throughout much of Iraq demonstrate this well. By most media estimates, ISIS and its allies command no more than 10,000 soldiers. However, they are battle hardened, well trained and decently equipped. Iraq’s army, by contrast, exceeds 200,000 soldiers. If such an army can neither hold significant parts of its territory, and by most assessments is unlikely to be able to get back most of that which it has lost, then the problem will hardly be solved by more volunteers. This is the equivalent of supplying more teachers to a failing school where funds are being siphoned off to the personal accounts of administrators, cafeterias are substandard and many staff seem to be absent regularly without consequence. No matter how eager or dedicated the new employees, their entry into the failing system will inevitably prove destructive to their own morale and ineffective at improving the school.

Indeed, the comparison of Iraq’s army to a failing school may be charitable. Reports are rife of corruption, cronyism and the emasculating of the military in an effort to render it “coup proof.” It fled numerous posts without so much as a fight against a force it greatly outnumbered. Under such conditions, more volunteers have not proven helpful. Some recent eager recruits were left literally without food for days guarding a border post. Others, untrained and unaware of how to travel on unprotected roads properly, were ambushed and killed. There is little to be gained by a recruit joining such a hapless force, where starvation and pointless death seem almost as likely as actual engagement with the enemy.

To be fair, Grand Ayatollah Sistani has attempted to address these root problems as best as he can. He has urged Iraqi parliamentarians to speed their formation of a new and inclusive Iraqi government, and he has spoken out endlessly against corruption and cronyism. He is neither general nor president, and cannot be blamed if Iraq’s ruling classes seem impervious to these calls. Still, the call to jihad is not helpful, and emblematic of the ossified thinking that prevails in the juristic academies, where adherence to tradition is greatly valued, while independent, original and unconventional thought is not. Little consideration has been given, or could be given, to means by which to revamp and reconsider principles and rules of warfare entirely in modern conditions in such an environment. This is but one example of the way in which traditional juristic rules seem ill equipped to deal with modern problems.

Nevertheless, the call to jihad is being heeded by masses of Iraq’s downtrodden and desperate population, partly because of its historic resonance and juristic pedigree, and partly because it is the greatest opportunity for Iraq’s ordinary citizens to do something to stem the tide of violence and terrorism destroying their land. It is all the more tragic that with the best of intentions, this contribution seems likely to lead only to even more loss of life.

Haider Ala Hamoudi is an Associate Professor of Law at the University of Pittsburgh School of Law. His scholarship focuses on Middle Eastern and Islamic Law, particularly as it pertains to matters of commerce. Professor Hamoudi spent most of 2009 in Baghdad advising the Constitutional Review Committee of the Iraqi Parliament responsible for developing amendments to the Iraqi Constitution aimed at national reconciliation on behalf of the US Embassy in Baghdad. In 2013 he published his latest book, “Negotiating in Civil Conflict: Constitutional Construction and Imperfect Bargaining in Iraq,” chronicling the drafting and subsequent evolution of the Iraqi Constitution. He also maintains a blog on Islamic Law at his website http://muslimlawprof.org.

Suggested Citation: Haider Ala Hamoudi, Sistani and the Jihad, JURIST – Forum, July 3, 2014, http://jurist.org/forum/2014/07/haider-hamoudi-sistan-jihad.php.