From Doctrine to Practice

The Arabic term jihad, from a root connoting exertion or struggle, has many contested meanings. Jihad is most commonly understood in Islamic traditions as religiously sanctioned warfare—especially in the expression “jihad in God's path” [al‐jihād fī sabīl Allāh]—against non‐Muslim powers or, less frequently, against Muslim rulers as well. But the term has also often been used to denote nonviolent and purely internal struggles, such as attempts at personal and spiritual improvement, or social activism. And just as jihad is not always about violence, not all forms of political violence recognized in Islamic law are considered jihad (Abou El Fadl Reference Abou El Fadl2001).

In examining armed jihad, Western commentators have often focused on three doctrinal questions. First, when is jihad “defensive” or “offensive”? Second, when is jihad a collective duty of communities (farḍ kifāya) versus a duty of individual Muslims akin to prayer or fasting (farḍ ῾ayn)? Third, what methods govern the treatment of captives and civilians? While important, these questions illuminate more about prevalent anxieties in the West than the actual practices and debates within jihads. Discussions of jihad are often framed in anachronistic terms that attempt to judge centuries‐old jurisprudence against contemporary logics of liberalism in a nation‐state context. The subtext of these debates is often whether contemporary jihads express some kind of religious or cultural essence; they are more elaborate ways of asking: “How scared should ‘we’ be of Islam?”

Jihads are thus perceived through a vexed double relationship with legal norms: on the one hand, their violence and irrationality are antithetical to basic notions of legality and fairness; on the other hand, they are marked by an excess of fidelity to a legal order characterized by radical alterity, namely, the sharī῾a. Several dominant—and interrelated—tendencies have accordingly emerged, all of which purport to correct reductionist Islamophobic claims: (1) the recuperative, which highlights the historical diversity of approaches to jihad in Islamic law, thereby showing the contingency or even falsity in arguments made by contemporary alleged radicals (Afsaruddin Reference Afsaruddin2013); (2) the reformist, which seeks commensurabilities between Islamic law and contemporary international law, often to show how the former can be rendered compatible with the latter (Bennoune Reference Bennoune1994; Shah Reference Shah2008; Ssenyonjo Reference Ssenyonjo2012);Footnote ³ (3) the comparative, which traces the similarities and influences linking jihad to just war and other legal concepts developed in the West to undermine claims of Muslim civilizational backwardness (Johnson and Kelsay Reference Johnson and Kelsay1990); (4) the “terrorological,” which sets out to reconstruct a genealogy for alleged radical groups that often starts with ibn Taymiyya and leads teleologically to Osama bin Laden (Cook Reference Cook2005).Footnote ⁴

Despite the many differences between them, these bodies of work on law and jihad share important limitations. They treat law primarily as a set of rules and texts and often read the fiqh of jihad through the lens of international law's canons of jus ad bellum and jus in bello (rules on the resort to force and the conduct of warfare, respectively) in the search for equivalents, compatibility, or foils. Moreover, they approach jihad as a discrete analytical problem about violence, a pathological form of “extremism” or “radicalism,” without also critically interrogating the state and the international order based on it.Footnote ⁵ I do not mean the unremarkable observation that state violence often provokes and exceeds nonstate jihads or that states are sometimes complicit in supporting or training so‐called jihadi groups.Footnote ⁶ Rather, what matters is that the legal conditions of the sovereign order also structure contemporary jihads and the challenges they face. As a result of these limitations, the literature largely fails to challenge the framing of transnational jihad groups as fundamentally hostile to any legal order other than an ahistorical imagining of the sharī῾a that mirrors Orientalist conjurings.

In contrast, this article uses the case of the Bosnia crisis to reexamine contemporary transnational jihads, treating law as a socially embedded process rather than as a set of rules and doctrines. As historian of early Islam Fred Donner has argued, understanding jihad primarily through theological definitions “would be to strip it of most of its human significance, since what really matters in human terms is how the Muslims of a particular time and place dealt with the vital questions of war and peace” (Donner Reference Donner, Kelsay and Turner Johnson1991, 32). This article accordingly analyzes diverse categories of political violence as relational—situating the jihad alongside nationalist and imperial forms of warfare—rather than simply taking up the liberal state's conceptual horizons (Asad Reference Asad2007). Contemporary transnational jihads need to be understood as taking place in a world of sovereigns: these invocations of jihad may draw on the rich and diverse textual traditions of Islam, but they do so under the structural conditions of a world order based on sovereign nation‐states. Contrary to the view that transnational jihad groups seek to overthrow the international order (Mendelsohn Reference Mendelsohn2009), this article demonstrates how they engage and struggle within it (Lia Reference Lia1998; Mohamedou Reference Mohamedou2007), just as pirates and other figures deemed outlaws in the history of international law have before them (Benton Reference Benton2010).

Jihad and World Order

Situating jihad in the international legal order of sovereign states is a necessary step toward rendering this phenomenon intelligible and illuminating the kinds of dilemmas and strategic considerations that come with it. Contemporary international law establishes two categories of armed conflict: international armed conflict (commonly understood as war between states) and noninternational armed conflict (commonly understood as civil war within a state). Many invocations of jihad readily fall within these categories, whether in fighting non‐Muslim powers or rebelling against Muslim governments: groups such as Hamas, Hizb Allah, and the Taliban, for example, have transnational aspects but the scope of their recruitment and their theaters of operation are largely confined to a territorial nation‐state space.

In contrast to these groups are those that are often labeled as global jihad because of their ability to mobilize volunteers from distant places without nationalist or ethnic ties, such as the jihads in Afghanistan, Bosnia, and Chechnya. The prominence of foreign fighters within these jihads has led to their conflation with al‐Qa'ida, even though they do not necessarily share that organization's goal of armed confrontation with the United States around the world (Gerges [Reference Gerges2005] 2009; Tawil [Reference Tawil and Bray2007] 2010; Strick van Linschoten and Kuehn Reference Strick van Linschoten and Felix2011). These groups appear to lack what Carl Schmitt called a telluric orientation, a “tie to the soil, to the autochthonous population, and to the geographical particularity of the land” (Schmitt [Reference Schmitt and Ulmen1963] 2007, 21) that limits the partisan's fight to purely defensive parameters. Without this telluric aspect, the partisan is often imagined as detached from the local context, rendering his enmity dangerously unlimited. Schmitt thus posits a distinction between “autochthonous defenders of the homeland and globally aggressive revolutionary activists” (30), with the latter clearly gesturing toward the specter of international communism.Footnote ⁷ Transnational jihads mobilizing volunteers from across the Muslim world seem decidedly nontelluric. They invoke a sense of shared responsibility among the worldwide community of Muslims (umma) and often argue that participation in jihad is necessary even when governments prohibit it. And for that reason, they are seen to reject sovereign authority and, by extension, any kind of credible legal regulation in favor of an abstract commitment to sharī῾a.Footnote ⁸ Transnational jihad thus appears as a form of warfare that is rootless, ruthless, and boundless.Footnote ⁹

Instead of treating Islamic and international law as two cohesive legal orders that can be superimposed on one another—leaving jihad as a kind of messy inscrutable leftover—it is necessary to interrogate and connect two problems within the sovereign state order that relate to Islam and war, respectively.

The first problem relates to the concept of Islamic law, by which I mean the institutionalization of legal orders deemed Islamic within modern territorial states.Footnote ¹⁰ This institutionalization affects substantive doctrine, procedural mechanisms, and the social reproduction of law. Islamic law today is practiced primarily as a form of family or personal status law processed through state institutions, with a smaller number of states adopting criminal codes labeled as “Islamic.” It is not uncommon for Islamic law to be codified by legislatures rather than by classically trained jurists and implemented in civil or common law courts using state procedural rules.Footnote ¹¹ Jurists specializing in Islamic law—legal scholars (῾ulamā᾽), jurisconsults (muftīs), and judges (qāḍīs)—are often state functionaries or work under strict state supervision and are hence unlikely to develop an institutional context for the law of jihad. Sociolegal studies of contemporary Islamic law have accordingly focused on debates around gender and instantiations of Islamic law within state legal institutions (Warrick Reference Warrick2005; Boellstorff Reference Boellstorff2006; Hussin Reference Hussin2007; Subramanian Reference Subramanian2008; Moustafa Reference Moustafa2013).

Scholars of Islamic law continue to debate the extent to which these changes should be understood in terms of ruptures or continuities.Footnote ¹² Notwithstanding the importance of this discussion, jihad is one of the clearest examples of a process of legal dis‐articulation, in the sense of separating conjoined textual authorities, epistemological frameworks, and institutional contexts, which in turn affects the elaboration and contestation of legal positions and doctrines. Among Muslim‐majority states today, warfare is an area generally off‐limits to Islamic law.Footnote ¹³ To the extent major scholars of Islamic law engage jihad, it is mostly at a theoretical level and largely an exercise in reinterpreting the doctrine to render it broadly consistent with the existing state system (Hashmi Reference Hashmi and Hashmi2012, 338; Samour Reference Samour2012, 553–54). Even self‐proclaimed Islamic states such as Iran and Saudi Arabia do not conduct military operations within the juridical framework of jihad, even if they occasionally reference jihad as a rhetorical flourish to provide broad legitimization of their actions (March and Modirzadeh Reference March and Modirzadeh2013, 369). Given the state reconstitution of Islamic law and the deepening of governmental power over many Muslim scholars, it is unsurprising that theorization of jihad in recent decades has often taken place outside the major schools of Islamic jurisprudence. The concept of jihad is detached from any kind of stable, grounded, institutional contexts for its further elaboration—hence the oft‐repeated critique from many liberals that supposed jihadists have a poor understanding of Islamic law and legal traditions. The sovereign order thus domesticates Islamic law in three senses: doctrinally, with the reduction to primarily family and personal status issues; geographically, by organizing jurisdiction within state territorial boundaries; and politically, through constricting institutional spaces for the legitimization of dissent, especially armed dissent.

Analyzing the relationship between law and contemporary jihads from a sociolegal perspective also requires moving beyond a focus on state institutions and a perspective defined by the contours of the nation‐state. This is where a second major effect of the sovereign order must be reckoned with: the spread of a normative principle grounding the ultimate authority to wage war in nation‐states (Thomson Reference Thomson1994). A corollary to the emergence of the modern state as an entity monopolizing the legitimate use of violence in its territory (Weber [Reference Weber, Gerth and Wright Mills1918] 1946) is the collective arrogation by states of the authority to project legitimate violence outside their own territories. By the late nineteenth century, formal international law recognized states as the arbiters of legitimate warfare by restricting or outright banning mercenaries, pirates, and other nonstate providers of organized violence (Percy Reference Percy2007; Cameron and Chetail Reference Cameron and Chetail2013). The process of decolonization—which effectively left the state as the default form of political organization—arguably universalized this normative principle. Indeed, the ubiquity of a residual term such as “nonstate actor” is an ideological effect of this process.

The principle that only states can authorize war has obviously never been empirically realized. More importantly, it is part of a broader problem inherent to the sovereign order itself insofar as it assumes that juridically equal sovereigns are the constituent units of world politics. Because states have different interests, they have always sought to create mechanisms for cooperation and coordination, whether through institutions such as the United Nations or more amorphous concepts such as the International Community. The state system embodies a tension that has long vexed scholars of international law: Is its legitimacy merely the aggregate of its constituent sovereign parts, or is there another source of authority at work? Various signifiers are invoked to name that surplus authority: humanity, civilization, international peace and security. But the relative abstraction of these values—to say nothing of their cynical exploitation—gives them at best a precarious authority. In other words, the sovereign order produces an excess: the attempt to root the authority for warfare in states and states alone creates tensions that can often only be resolved by appealing to nonstate authority. This tension is a reminder that the alleged secularization of the state system never eliminated religion as a source of authority for conservative, reformist, and revolutionary approaches to the international legal order (Berman Reference Berman2012).

Contemporary transnational jihads are produced out of the vicissitudes of the sovereign order's attempts to institutionalize Islamic law and to regulate the authority to wage war. Specifically, Islam provides an alternative to the abstract values of humanism and civilization; or, to be more precise, pan‐Islamists refuse to allow the Western powers a monopoly on defining humanism and civilization. At the same time, the invocation of jihad remains largely disconnected from state‐institutionalized Islamic law and from classical textual traditions, which renders it precarious as well.Footnote ¹⁴ These jihads are critical responses to the sovereign order, but they are also shaped by and tethered to that same order; they operate at its edges.

While the sovereign order produces the theoretical puzzle of authority beyond the nation‐state, Islamic law is premised on a notion of supra‐state authority, but struggles through a disarticulation that leaves it with limited institutional purviews. Contemporary transnational jihads thus emerge from both the sovereign order's excess and contemporary Islamic law's disarticulation. They represent an authority for violence that the sovereign order cannot eliminate and that Islamic law cannot institutionalize.

Bosnia and the Sovereign Order

The dissolution of Yugoslavia was one of the defining crises facing the international system in the first years after the Cold War. For much of the 1990s, a cascading process of territorial partition and forcible demographic engineering overtook Yugoslavia as nationalist movements sought to carve out new states (Hayden Reference Hayden1999). The bloodiest and most protracted of the wars of Yugoslav successionFootnote ¹⁸ was in Bosnia, where none of the country's three constitutionally recognized “constituent peoples” comprised a majority of the population. According to the last census conducted in the country before the war, 44 percent of the country's 4.3 million people identified as Muslim, 31 percent as Serb, and 17 percent as Croat (“Bosnian” was not a recognized national group) (Toal and Dahlman Reference Toal and Dahlman2011, 137–38).Footnote ¹⁹ The 1992–1995 war in Bosnia‐Herzegovina resulted in some 100,000 dead and displaced over half of the country's population. It pitted the central government in Sarajevo—officially nonsectarian but increasingly tilting toward Muslim nationalism over time—against Serb and Croat nationalist forces. Although all sides engaged in ethnic cleansing to shift the demographics in their favor, the Bosnian Serb forces committed the bulk of wartime atrocities in their attempt to build a majority‐Serb polity. The war formally ended with the US‐brokered Dayton Accord, which preserved Bosnia‐Herzegovina as a nominally independent sovereign state but effectively rendered it an international protectorate governed by Euro‐US bureaucrats, experts, and peacekeepers, in which nationalist divisions were territorially, institutionally, and constitutionally entrenched (Chandler Reference Chandler2000; Bose Reference Bose2002; Keane Reference Keane2002; Knaus and Martin Reference Knaus and Martin2003; Coles Reference Coles2007; Haynes Reference Haynes2008).

The Bosnia crisis dampened enthusiasm in the West for a revitalized system of political cooperation and conflict resolution based on the United Nations. The Security Council authorized the creation of a UN Protection Force (UNPROFOR) for the Yugoslav crisis, which eventually became the largest peacekeeping operation in the history of the United Nations, numbering 39,000 at its height. Yet divisions within the Security Council saddled UNPROFOR with an unclear mandate. UNPROFOR's various tasks included stabilizing a ceasefire in Croatia between government forces and Serb separatists, escorting aid convoys, and protecting six Bosnian cities or towns designated as safe areas by the Security Council. However, in none of these tasks was it given clear authority to use force. This uncertainty left it exposed to criticism from all sides, especially after Bosnian Serb forces ethnically cleansed the allegedly safe area of Srebrenica, resulting in the massacre of some 8,000 Muslim men and boys, notwithstanding the presence of Dutch UN peacekeepers.

Bosnia and the Muslim World

While the Bosnia crisis has secured a central place in the history of the post‐Cold War order, far less discussed has been the intense interest that the war aroused among Muslims worldwide. Although Bosnian Muslim nationalist mobilization tended to emphasize identity over piety (many ardent Muslim nationalists also openly engage in other ritually proscribed practices such as consuming alcohol and pork), this did not preclude a sense of identification with the umma. In both the West and the Muslim world, there was a “rediscovery” of this largely unknown country, leading to the publication of many books and other educational materials. Bosnia was covered extensively by news media in the Muslim world. Arabic newspapers at that time lacked many of the resources of their Western counterparts, but several sent correspondents to cover the war, who subsequently wrote firsthand about their experiences (Ghānim Reference Ghānim1993; Manṣūr Reference Manṣūr1995; Hādī Reference Hādī1996). Bosnia became a cause célèbre in the Muslim world as much as in the West—and perhaps most of all for Muslims living in the West—inspiring large‐scale charitable efforts (Bellion‐Jourdan and Benthall Reference Bellion‐Jourdan and Benthall2003, 128–52).

Audiences in both the West and the Muslim world criticized the UN response to the Bosnia crisis. The arms embargo was widely blamed for preventing Bosnians from defending themselves, as Serb nationalists inherited arms and equipment from the old Yugoslav army, and Croat nationalists could still smuggle in goods through the long Adriatic coastline. Prominent Western politicians, including US Senate majority leader (and later presidential candidate) Bob Dole, called for lifting the embargo and conducting air strikes on Serb nationalist forces (the so‐called lift and strike policy). Critics also blamed the United Nations for not empowering peacekeepers to respond more effectively and deter atrocities on the ground. These critiques were also widespread in the Muslim world, although audiences were more likely to view the plight of Bosnia as an outcome reflecting anti‐Muslim animus rather than as a sign of impotence or paralysis. When the United Nations deepened its interventions, this was often perceived as an attempt to stifle the Bosnian Muslims’ ability to take matters into their own hands. A common denominator in these critiques was to accuse the United Nations of double standards in swiftly responding to Iraq's seizure of oil‐rich Kuwait while failing to stop mass atrocities in Bosnia.

The Bosnia crisis exposed the contradictions between the promise of a post–Cold War “New World Order” based on prosperity, rights, and stability and the United Nations as an organization centralizing authority in the great powers. At the same time, there was no obvious alternative, pan‐Islamist or otherwise. Solidarity efforts in the Muslim world consisted mostly of holding demonstrations, sending humanitarian aid, and condemning the Western role in the crisis. At the political level, Muslim states tended to operate within existing international institutions. The Organization of the Islamic Conference, a grouping of Muslim‐majority states, participated in the 1992 International Conference on the Former Yugoslavia, held several ministerial meetings, and issued statements of support for Bosnia, but did not exert much concerted effort. Some states made efforts to lobby on Bosnia's behalf in the United Nations, while Turkey, Jordan, Bangladesh, Egypt, and Pakistan contributed units to UNPROFOR or NATO‐led forces. Only Iran appears to have defied the embargo and provided bilateral (if covert) military aid to Bosnia—and even then with tacit US assent.

Jihad in Bosnia: Early Legitimacy Challenges

Shortly after independence and the outbreak of war in April 1992, Bosnia hurried to organize an army, cobbling together former Yugoslav National Army personnel, local territorial defense units, the SDA's security apparatus, and criminal gangs (Hoare Reference Hoare2004). Throughout the war, the Bosnian army would officially maintain a nonsectarian ideology and include considerable numbers of non‐Muslims in its ranks. Nevertheless, a discourse on jihad also emerged early in the war. It is important to stress that the language of jihad took hold on the fringes of nationalist mobilization and that its adherents were themselves quite diverse: the idea of jihad, with its long and rich history in Islam, was open to appropriation and mobilization by very different actors.Footnote ²⁰ It was embraced by a few young imams in Travnik, Zenica, Konjic, and other smaller towns, who started local militias denominated as Muslim units. A few dozen Arabs, mostly veterans of the Afghan jihad, soon joined them. The vast majority of Bosnian Muslims use the term “war” (rat) to refer to the violence in the country and some occasionally spoke of “jihad” (džihad) to indicate that their fighting was legitimate in Islamic terms. In contrast, these Bosnian and Arab activists used the term jihad to indicate not simply Islamic legitimacy for the war, but that fighting should be conducted according to Islamic means as well, grounded in notions of Muslim piety such as regular prayer and abstention from pork and alcohol. Those who engaged in jihad, be they Bosnian or non‐Bosnian Muslims, called themselves mujahids.

Just as the Bosnian army consisted of a disparate patchwork of fighting groups, Arab mujahids fought in different configurations, belying representations of a global jihadist conspiracy. One group teamed up with a local militia called the Muslim Forces (Muslimanske Snage) in Travnik. Another, under the leadership of a Saudi called Badr ῾Abd al‐Karīm al‐Sudayrī (better known as Abū al‐Zubayr al‐Ḥā᾽ilī), operated independently near Tešanj. Meanwhile, individual Arab fighters joined various units: a handful served with the Fourth Muslim Light Brigade in Konjic under the command of a local imam. In a sign of how local‐level dynamics defied easy nationalist categorizations, the right‐wing Croat nationalist militia HOS included considerable numbers of Bosnian Muslims and one Gambian Muslim volunteer.

Mujahids in Bosnia faced numerous challenges related to informal organization of fighting units and lack of clear legal status. Bloody battlefield losses involving Arab mujahids led to mistrust of the Bosnian army and exposed the limits of informal coordination based on personal relationships between commanders. Atrocities against non‐Muslim prisoners and civilians and intimidation of Muslims deemed insufficiently pious were attributed to Arabs in general without regard to differences between groups. Bosnians wishing to join mujahid groups frequently did so from other units in the army and risked being accused of desertion as a result. Moreover, by early 1993 Croat forces began to arrest and mistreat Arab travelers suspected of being fighters, notwithstanding their alliance with the Bosnian government.

The jihad's problems were not purely local, however: the entire project faced considerable skepticism among the very quarters in Saudi Arabia that had supported similar efforts in Afghanistan just a few years earlier. The Saudi government stressed Islamic solidarity and spent billions of dollars on humanitarian aid and direct assistance to the Bosnian government, but there was far less official enthusiasm for sponsoring individuals to travel and fight in Bosnia, in contrast to the jihad against the Soviet Union in Afghanistan (Hegghammer Reference Hegghammer2010, 16–69). Skepticism toward the call to jihad—whether in Afghanistan or elsewhere—was especially pronounced for adherents of the Salafi strand of Islam, which Western observers frequently associate with fundamentalism and violence.Footnote ²¹ None of the three leading Salafi authorities of the time—chief mufti of Saudi Arabia ῾Abd al‐῾Azīz bin Bāz and major scholars Muḥammad ibn al‐῾Uthaymīn and Muḥammad Nāṣir al‐Dīn al‐Albānī—explicitly endorsed traveling to fight in Bosnia.Footnote ²² Indeed, al‐Albānī ridiculed the idea of joining the jihad outside the framework of organized armies, conceding only that pious Muslims could carry personal arms purely for self‐defense while proselytizing in war zones (see http://youtu.be/7Ih_PB0OHtQ and http://youtu.be/hnuJfTz4j7Q). One significant exception to this trend in the early 1990s was the Salafis in Kuwait, who participated in parliamentary politics at home and publicly supported jihad abroad in Bosnia.

There were many reasons for this skepticism. Salafis in that period tended to shy away from endorsing political activism, especially in forms not authorized by governments, making them useful allies for regimes seeking to burnish their religious credentials. For many Salafis, an insufficient basis in proper religious training makes political activity likely to end in corruption, chaos, or both. The Afghanistan experience validated this concern. Infighting between Afghan factions in the wake of the 1989 Soviet withdrawal soured many Arab supporters of the jihad. Arabs returning from Afghanistan were widely blamed for stirring up violence, especially in Algeria and Egypt. In a related vein, some Salafis were concerned that Bosnian Muslims’ Islamic piety was tainted or even eradicated by decades of socialist rule, making them unfit partners in jihad. Notably absent from these discussions was much reliance on the canons of Islamic jurisprudence on jihad. The relevance of fiqh of jihad appeared limited in a situation where most Muslims live under governments that conduct their affairs of war and peace through the sovereign order.

Legality and Legibility

The jihad drew together men fighting in the name of a global Muslim community who were also citizens of diverse nation‐states. For the army, subordinating the mujahids to centralized authority was important to strengthening its control over territory. Another major reason for establishing the Katiba was to provide a regular legal status for both Bosnian and foreign mujahids, to make them legible to the state. For Bosnians, belonging to the Katiba would avert possible charges of desertion from other army units or draft dodging. The difficulty arose with recently arrived foreigners, about whom the state knew far less. The Katiba frequently fielded inquiries from the army as to whether certain Arabs alleged to have committed atrocities or infractions belonged to it. As one Bosnian member of the Katiba explained to the ICTY: “People were not familiar with the fact that there were different groups and the relationships between them, so it was very simple to say, for any of them, that this was an Arab from the El Mujahedin Detachment, when actually it was not the case” (Testimony of Protected Witness 9, Delić trial, November 15, 2007, 5636:11–15). The Katiba provided a mechanism to disclaim abuses committed by nonmembers, thereby deflecting charges of being a rogue unaccountable militia. After the murder of a British aid worker in January 1994, the Katiba issued a letter providing an alibi for two mujahids arrested in connection with the incident while also attesting that the third suspect had left the unit months earlier and was not under its responsibility.Footnote ³⁵

For foreign mujahids, the benefits of legal status had to be weighed against other considerations. Some mujahids did not wish the Katiba to resemble a conventional military unit too much. They took pride in the lack of uniforms, ranks, and protocols such as saluting, which they argued could potentially dampen the unit's religious purity. For these mujahids, joining the army was a necessary formality, but did not entail a personal embrace of the Bosnian state. The Katiba sought to assure supporters abroad that it was formed “under the army in organizational matters [al‐umūr al‐niẓāmiyya] but proclaimed upon its foundation absolute loyalty to God, His Prophet (Peace Be Upon Him), and His book and refuses to appeal to any order [naẓm] or traditions outside the provisions of the sharī῾a.”Footnote ³⁶

The mujahids’ desire to identify with the umma over the nation‐state was not simply ideological; it also dovetailed with potential problems arising from their position between various sovereigns. Many states in the Arab world have criminalized the unauthorized participation of their citizens in wars overseas. Arabs hailing from dictatorial regimes that harshly repressed Islamist dissent such as Egypt, Algeria, Tunisia, and Syria were especially concerned that their participation would be reported to their home governments. There were also fears that the Katiba was vulnerable to infiltration, especially by Arab and Western intelligence agencies. While foreign mujahids handed over their passports and other identity documents to the Katiba's secretariat for safekeeping, they resisted the state's demands to identify themselves to it. This was a persistent source of concern for the army: on one personnel list, I found a handwritten notation from an officer in the Third Corps requesting passport data on foreign mujahids.Footnote ³⁷ The army's Military Security Service (Služba Vojne Bezbednosti) targeted the Katiba for intelligence collection, tapping its phones, intercepting its faxes, compiling dossiers on its leadership, and attempting to recruit informants from within.

Foreign mujahids dealt with the issue of legibility by using kunyās to identify themselves. A kunyā is an everyday Arabic naming convention that uses the terms “abū” (father) for men or “umm” (mother) for women, generally to denote a lineal affiliation. In contexts of clandestine work, use of kunyās is widespread as a security precaution, often in conjunction with a relational adjective [nisba] that usually indicates place of origin or nationality. Hence, “Abū ῾Abd Allāh al‐Lībī” suggests someone whose son is named ῾Abd Allāh and who hails from Libya. Kunyās are convenient because they can be portable between different contexts of jihad but they are also disposable: unlike a legal name fixed in state identity documents, kunyās can be readily changed if one wishes. Kunyās were the primary basis of identification within the unit as well as in published materials. Years after the jihad, ex‐mujahids I interviewed would often give me a blank stare when I asked them about an individual using a legal name, but would immediately recognize the same person by kunyā.

The Katiba's personnel records reflect this practice and the reluctant attitude toward making oneself legible to the state. For Bosnian members who wished to ensure that they were accounted for and not treated as deserters, data are generally accurate and complete. They are listed by full name (including father's name), with place and date of birth, identification number, and date of induction into the unit. For foreigners, the story is quite different. Almost all foreign mujahids are listed as kunyās or nicknames. The lack of legal names, however, did not make these lists completely fraudulent or useless. After all, kunyās served to identify mujahids to each other and as a form of socially contextualized knowledge could be traced back to individuals with legal names. Moreover, by the end of the war, foreigners in the Katiba may have been listed under kunyās or even false names, but they were nevertheless assigned a unique military identification number.

Several dozen foreign mujahids, however, chose to be registered with the army under their legal names. This act usually indicated an intention to take Bosnian citizenship and settle in the country. At the end of the war, the Bosnian army disbanded the Katiba under pressure from the United States. Most of the foreign mujahids left, but several dozen stayed behind, often from poorer Arab countries whose governments would have likely punished them for their participation in the war. The decision to stay was facilitated by a May 1993 amendment to the Bosnian citizenship law that exempted foreigners in the armed forces from standard naturalization requirements (BH Službeni Glasnik 11/93, May 10, 1993). Many of these individuals also married Bosnian women and applied for back pay from the Bosnian army.

The liberal naturalization law for foreign volunteers in the army may have facilitated legibility to the state, but it had unintended consequences as well. Shortly after the war, Western governments pointed to the prospect of militants holding Bosnian passports as an obstacle (one of many, to be sure) to joining the European Union. And for Arabs, membership in the army later became construed as evidence of militancy or, worse, association with al‐Qa'ida. This was especially unfortunate for Arabs who appear to have falsely claimed membership in the Katiba as a way to obtain Bosnian nationality. Omar Rajab Amin, a Kuwaiti aid worker,Footnote ³⁸ first appeared in the Katiba's personnel records in May 1995 and became a Bosnian citizen in September of that year.Footnote ³⁹ Years later, Amin was captured in Afghanistan by US forces and sent to the Guantánamo Bay detention facility, where his alleged membership in the Katiba was used against him as evidence of extremism. Amin denied fighting in the jihad and claimed that he obtained citizenship instead on the basis of his marriage to a Bosnian woman, only to discover later that the middleman he paid to arrange his naturalization papers had falsely enrolled him in the Katiba's records. This move would allow the intermediary greater profit, since naturalization on the basis of army service was exempt from processing fees. “Because I'm an Arab, it was easy for me to be registered in the Bosnian Army, in the Mujahadin Brigade. They would just take 200–500 Deutschmarks and register you under the Bosnian Army, like a bribe” (Combatant Status Review Tribunal Transcript for Omar Rajab Amin (ISN 65), 7).Footnote ⁴⁰ While I cannot independently verify Amin's account, such corruption would explain why he seems never to have appeared in Bosnian army records under a kunyā and why his induction into the Katiba is back‐dated by two years to May 1993, a time when joining the jihad from outside was almost impossible due to Croat‐Muslim fighting.Footnote ⁴¹ In any event, the ease with which Amin could pass for—or be mistaken as—a mujahid illustrates the possibilities and risks for pan‐Islamist activists attempting to navigate between sovereign states.

Marriage and Madhhab

Aside from the Bosnian army, the other major institution that the Katiba dealt with was the Islamic Community (Islamska Zajednica, IZ). The IZ is a semi‐autonomous centralized bureaucracy for Islamic religious affairs in Bosnia, responsible for mosques, religious schools, endowments, and hajj travel. The IZ was consolidated under Austro‐Hungarian rule (1878–1918) as a structure to regulate Muslim affairs in a non‐Muslim state. Sharī῾a courts responsible for Islamic family law and endowments continued to operate under the Hapsburgs, the kingdom of Yugoslavia (1918–1943), and the rule of fascist Croatia during World War II (Donia Reference Donia1981; Karčić Reference Karčić, Clayer and Germain2008; Greble Reference Greble2014). Socialist Yugoslavia severely curtailed the IZ's activities, abolishing sharī῾a courts and Muslim personal law codes in 1946, banning face veiling in 1950, closing nearly all Islamic schools, and expropriating most religious endowments (Karčić Reference Karčić1999). After decades of restrictions under socialism, the IZ was reconstituted for a newly independent Bosnia in 1993 and anxious to assert its spiritual authority over the country's Muslims; in this context, it also became an important, if very junior, ally to Bosnian Muslim nationalists.

The consolidation of a national institution for Islamic authority in Bosnia was both succored and challenged by transnational processes. The IZ invested considerable effort in cultivating a notion of “Bosnian Islamic tradition,” consistent with the nationalist vision of the country as a bridge between Europe and the Muslim world. At the same time, the IZ has been central to strengthening Bosnia's ties with the umma. Solidarity efforts and financial assistance were forthcoming from elsewhere in the Muslim world, especially Turkey, Egypt, the Arab Gulf, Iran, and Malaysia. For a younger generation of pious Bosnian Muslims and preachers frustrated with their sinecure‐holding elders, outside organizations provided exciting new ideas, to say nothing of opportunities for travel and study abroad. Most fiercely debated has been Salafi influence (frequently referred to pejoratively as “Wahhabism” in Bosnia, as elsewhere), which came through both the Arab mujahids and Gulf‐based aid organizations. During the war, stories soon spread of Salafi Arab aid workers and fighters castigating locals for drinking alcohol and smoking, and telling women to cover their hair. The head of the Katiba's training school published a pamphlet criticizing several popular Bosnian Muslim rituals as verging on polytheism and attacking local Muslim clerics for their laxness (el‐Misri Reference el‐Misri1993), drawing sharp ripostes in turn (Arnaut n.d.). Many of the debates concerned points of ritual practice such as ablution and prayer style, issues where parties could agree to disagree. Perhaps the most polarizing area of dispute, and one that implicated struggles over Islamic interpretive authority, was marriage.

Marriage was an important dimension of the jihad. As noted above, the rise of colonial states throughout the Muslim world often resulted in Islamic law being narrowly redefined as family law attached to state legal systems.Footnote ⁴² But in Bosnia and sites of similar jihads, marriage was key to constituting new communities that were transnational, transregional, and multiracial in scope. Dozens of Arab aid workers and fighters in Bosnia married local women (the number would climb to the low hundreds in the years after the war); mujahids in particular often met their wives through the Bosnians in the Katiba who introduced them to their sisters. Such marriages helped ground foreign mujahids in local contexts and in turn set the stage for further proselytizing efforts but also caused considerable controversy that strained ties with Bosnians.

In this context, stories also began to spread of Arabs, especially wealthy men from the Gulf, precipitously divorcing their Bosnian wives after consummating their marriages. The practice was regarded as at best extremely immoral and licentious, at worst a form of sexual exploitation thinly legitimized by marriage. These fly‐by‐night marriages aroused considerable concern. IZ officials in Zenica—where the Katiba and many Arab aid organizations were based—were tasked with collecting information on marriages between Arab men and Bosnian Muslim women.Footnote ⁴³ The Katiba was mindful of the impact these behaviors had on its reputation, but also recognized that there was a legal issue involved. In late December 1994, Anwar Sha῾bān wrote to solicit the views of Ṭal῾at Qāsim, a leader in al‐Jamā῾a al‐Islāmiyya, an Egyptian dissident group then waging an armed jihad against the regime of Ḥusnī Mubārak.Footnote ⁴⁴ Sha῾bān was concerned about the behavior of some of the Arab “youths”:

The Islamic legal opinion, or fatwa, Sha῾bān mentioned was issued by ῾Abd al‐῾Azīz bin Bāz, the chief mufti of Saudi Arabia. It permitted marriage with the secret intent to divorce on the rationale that this would provide students and other travelers in non‐Muslim countries a way to avoid extramarital sexual activities (al‐Rasheed Reference al‐Rasheed2013, 128). This fatwa was widely criticized, including by many other Salafi scholars, and its use in Bosnia underlined the dangers to the IZ's interpretive monopoly on Islamic law. In December 1993, the IZ's new leader, Mustafa Cerić, dedicated his second fatwa in office to reaffirming the community's adherence to the Ḥanafī school of Islamic jurisprudence [madhhab]. The fatwa's preamble noted the “frequent occurrence of deviations from the Ḥanafī madhhab in certain religious practices, especially recently, upon coming into contact with Muslims from other madhhabs, whether in the country or abroad in exile [muhadžerluk]” (Cerić Reference Cerić1993). Cerić's fatwa was all the more important because the IZ lacked courts or any other institutional means to enforce legal rulings.

The question of which madhhab would apply was especially important in the issue of consent for marriage. In many cases, Arab men wished to marry Bosnian women and girls, but their fathers objected. In response, some Arabs would cite the dominant position in the Ḥanafī school that women may marry as long as they are mentally competent, of age, and free from coercion; their fathers’ opinions were not dispositive. One Bosnian imam I interviewed decried this behavior as “selective” since the position of the Ḥanbalī school, which he claimed many Arab Salafis held to, requires the consent of the woman's guardian.Footnote ⁴⁶ At the same time, Bosnian fathers demanding the right to refuse on their daughters’ behalf were themselves implicitly repudiating the Ḥanafī position propagated by the IZ (to say nothing of the state's own civil marriage laws). This eclecticism in argumentation was not a case of “forum shopping” per se, as there was no sharī῾a court at hand that would enforce either position.Footnote ⁴⁷ Moreover, it did not concern competing communities within the nation‐state, as studies of personal status law and legal pluralism often highlight. Rather, the debate here expressed competing logics in a space of transnational intra‐Muslim disputation, a tension introduced by the attempt to subsume sharī῾a into a system of nation‐states.

The Katiba was in a dilemma: endorsing the IZ's attempts to make Ḥanafī law the sole school of jurisprudence for Bosnian Muslims would offend Salafi sensibilities and indirectly support the very type of nationalist divisions between Muslims that the unit repudiated. At the same time, the Katiba was anxious not to antagonize the IZ or Bosnian Muslims further on this matter or in general. In response, the Katiba dodged the doctrinal question of which madhhab to uphold and instead sought to exercise more control over the mujahids under its command. Starting in 1994, the Katiba took several steps to curtail “immoral” marriage practices: first, speeches from senior mujahids reminding everyone that their purpose in Bosnia was jihad, not marriage. Then, the Katiba adopted a rule requiring any Arab mujahid to spend six months in Bosnia before marrying a local woman.Footnote ⁴⁸ This would allow time for others to vet their character and suitability for marriage. Finally, the Katiba's titular commander at that time, Abū al‐Ma῾ālī, decided to require the consent of both the woman's parents and the Katiba's command. When I asked one Bosnian mujahid for any example of this policy being tested, he telephoned his wife at home, who reminded him of a “girl” (he did not specify her age) whose parents forbade her from marrying a mujahid suitor.Footnote ⁴⁹ The Katiba received information that the girl's father had been threatened to obtain his consent, so Abū al‐Ma῾ālī called him in and told him to report anyone who exerted any pressure on them. The two never wed. The man who told me this story also acknowledged that the policy was not necessarily grounded in a strong fiqh doctrinal argument: “it's true that this is not based in sharī῾a rules. But sharī῾a is both rules and principles. What's important is the good.”

The Katiba's attempts to regulate marriage with the local population represented an improvisational response to a practical legal dilemma: it sought to accommodate the IZ's concerns without endorsing its quasi‐nationalist project of interpretive authority. At the same time, the Katiba did not explicitly base its position in Islamic legal doctrine. Instead, it relied on its authority as a military unit informed by appeals to both Islamic and national legitimacy.

Moving the Court

A third area of encounter between the mujahids and institutions of the sovereign order has been in the transitional justice project. Since the war, crimes committed by mujahids in Bosnia—especially executions of captured Serb soldiers in 1995—have come under considerable scrutiny from the ICTY. None stood as defendants, in part because much of the Katiba's leadership was killed in the war. Instead, the tribunal sought to hold Bosnian Muslim officers responsible for the mujahids’ crimes in two cases, based on the principle of command responsibility. In particular, the case of Rasim Delić, former overall commander of the Bosnian army, in some ways tried the jihad in absentia—not only because no mujahids were in the dock, but also because the legal status of the jihad was important but only elliptically referenced. The case highlighted the gaps in the sovereign order that shaped the jihad, both in the performances of the trial and in the tribunal's jurisprudence.

The jihad trials have been largely overlooked by scholars of transitional justice, who have instead understandably focused on the major atrocity cases involving Serb nationalist defendants, such as the Srebrenica massacre, the siege of Sarajevo, and the Omarska concentration camp. This is unsurprising, for the transitional justice literature typically posits external actors (Internationals) such as the ICTY, human rights NGOs, and diplomats acting upon local ones; scholars tend to focus on institutional dynamics or local “reception” to international norms, debating the extent to which the transitional justice project has been successful or not, harmful or not, desirable or not (Hagan Reference Hagan2003; Hagan, Levi, and Ferrales Reference Hagan, Levi and Ferrales2006; Meyerstein Reference Meyerstein2007; Nettelfield Reference Nettelfield2010; Rowen Reference Rowen2012). The jihad cases instead highlight actors who are depicted as neither local nor international, but rather as foreign in a manner distinct from Western actors such as peacekeepers and NGOs. The ICTY noted that “[f]oreign mujahedin were easily recognisable by their traditional clothing and dark complexion. They had long beards and wore turbans or hats” (Hadžihasanović judgment, ¶ 414)Footnote ⁵⁰ and on multiple occasions quoted witness statements highlighting mujahids as dark‐skinned, bearded, and speaking in foreign languages (Hadžihasanović judgment, ¶¶ 1094, 1110, 1073, fn 2571; Delić judgment, ¶¶ 205, 209, 239, 275, 302, 424). The perceived foreignness of the mujahids mapped onto the idea of jihad as normatively outside the international order, a category not recognized in international law except as a factual matter to describe the ideological justifications of perpetrators.

The emphasis on the mujahids’ foreignness—and, by implication, their brutality as rootless fanatics—served different agendas at once. The jihad cases were important to showing that the Bosnian Muslim side was not blameless, especially for those who complained that the ICTY's focus on Serb and Croat defendants evinced lack of “balance.” At the same time, Bosniak nationalists could point to the fact that the jihad cases comprised two of the five prosecutions of Bosnian Muslim defendants (with two of the other cases resulting in acquittalsFootnote ⁵¹ ) to preserve their narrative of being the war's primary victims. In the perverse mathematics of “balance,” mujahid crimes were useful for settling accounts between all sides.

The Delić trial highlighted the jihad's ambivalent relationship with the Bosniak nationalist project. This was most apparent in the testimony of Ayman Awad, a Syrian who served as one of the Katiba's interpreters (he acquired fluency in the local language through studying in Yugoslavia before the war). Awad was one of the dozens of Arab mujahids who settled and started families in the country and became a spokesman of sorts for these veterans. He was reluctant to testify:

Awad's cautious positioning of himself as aligned with neither side in the case reflected the dilemma he faced. Awad had no interest in helping to prosecute Delić, whom many Bosniaks continued to regard as a national hero. Yet he had to know that Delić's defense would argue that the foreign mujahids were essentially rogue fighters more beholden to al‐Qa'ida than to him. Moreover, the Bosnian government had recently stripped Awad of his Bosnian citizenship as part of a US‐driven campaign to expel ex‐mujahids from the country.Footnote ⁵² This left Awad exposed to the risk of deportation to torture in his native Syria, whose ruling regime would have viewed him as an Islamist dissident. The Delić trial presented Awad with little choice but to engage the proceedings and attempt to depict the Katiba as a responsible part of the Bosnian army without implicating that army's commander, Delić, as someone who could be held liable for its actions.

The presentation of the Arabs as unusual foreigners and of the jihad as an extraordinary phenomenon informed the trial proceedings in important ways. For the first and so far only time in nearly two decades of trials, the ICTY held sessions outside the Hague—and did so twice, in September 2007 and February 2008.Footnote ⁵³ Attorneys, clerks, translators, and the accused himself all moved to Sarajevo, at considerable expense to the tribunal. The special sessions were undertaken to procure Awad's testimony and that of another Arab ex‐mujahid, even though the ICTY has permitted witnesses to participate by video teleconferencing on multiple occasions, starting with its very first case (Tadić, Decision on the Defence Motions to Summon and Protect Defence Witnesses, and On the Giving of Evidence by Video‐Link [June 25, 1996]). These Arabs were unlike anyone else who had come before the Tribunal: they did not belong to one of the warring “ethnic groups” of the Balkans, nor were they “Internationals” such as peacekeepers, journalists, or NGO workers. The decision to move the hearings to Sarajevo in this case only is all the more extraordinary given the persistent and widespread criticism of the ICTY's geographical remoteness from the scenes of the alleged crimes. Many, especially victims’ advocates, have long accused the ICTY of practicing an overly abstract form of justice divorced from local concerns (Stover Reference Stover2005, 125; Nettelfield Reference Nettelfield2010, 185, 201).

Awad later explained to me the strange circumstances of his testimony:Footnote ⁵⁴ due to his own legal problems, he refused to travel to the Hague to testify without a guaranteed right to return to his Bosnian family, which was not forthcoming. Even if the court had ordered Awad transferred to the Hague to face contempt charges, it would itself run the risk of having no acceptable place to return him to afterward if Bosnia refused to take him. Thus, the US‐driven “War on Terror” and the ICTY's transitional justice agenda intersected to produce an ironic outcome: that it took a “foreign” fighter to make the international court finally “go local.”

The jihad's ambiguous place in international law also haunted the jurisprudence of the Delić trial. The central legal question of the case, as with many others at the ICTY, was that of command responsibility: whether Delić could be held responsible for crimes committed by mujahids fighting in the name of the Bosnian army. The ICTY waded into the mixed evidentiary record and did its best to discern various indicia of control: whether mujahids obeyed the army's commands, whether the army was capable of punishing mujahids for disciplinary infractions, and so on. In the end, its piecemeal multifactoral approach yielded a narrow result: the tribunal found Delić guilty only in connection to one set of crimes in August 1995 where prosecutors could show that he had reason to know they would occur and failed to take remedial steps (Delić judgment, ¶¶ 336–557).Footnote ⁵⁵ The technical analysis of command responsibility, however, also had broader political implications. This can be seen in the cases dominating the ICTY's Bosnia docket concerning Serb and Croat forces: in those cases, various legal doctrines of individual and state responsibility played into the political question of whether those militias were to be considered nonstate secessionist movements or instruments of neighboring governments, namely, Croatia or (then Serbia‐dominated) Yugoslavia. Regardless of the outcome, Croat and Serb forces could be understood in the logic of state formation and national sovereignty: they were either seeking to build new sovereignties or were the tools of existing ones.

In contrast, Islamist fighters were seen to be operating either under Delić's command—and therefore under the Bosnian army and state—or under some kind of amorphous global Muslim community. The specter of the latter found its way into the chief judge's dissent to the conviction, which argued that the fighters did not truly answer to Delić but rather had “allegiance to other superiors,” including some Muslim clerics outside Bosnia (Delić, Dissenting Opinion of Judge Moloto [September 15, 2008], ¶ 19). The dissent's heavily loaded yet almost throwaway reference to “other superiors” is perhaps the closest the tribunal came to acknowledging the notion of pan‐Islamist authority that the Katiba continually drew on in response to the perceived failures of the United Nations and the international system generally. That Delić's appeal was prematurely terminated on the occasion of his death on April 26, 2010 before these issues could be reviewed only underscores the jihad's unresolved—and perhaps irresolvable—place in international law.Footnote ⁵⁶