All perfect praise be to Allah the Lord of the Worlds. May His peace and blessings be upon our Prophet Mohammad and upon all his family and companions.
Jihad in the path of Allah is a great and magnificent ritual of Islam, carrying an immense reward from Allah, the Almighty. Among its wisdoms is that it is a source of honor and dignity for Muslims, safeguarding people's religion, homelands, lives, honor, and wealth. The concept of Jihad is not restricted to fighting enemies; rather, it encompasses calling people to Allah (Da'wah), as well as struggling against the self (Mujahadat al-Nafs) and compelling it towards noble character (Mahasin al-Akhlaq).
Allah, the Almighty, says {what means}: "And those who strive for Us—We will surely guide them to Our ways. And indeed, Allah is with the doers of good." [Al-'Ankabut/69]. The Chief Justice, Imam al-Mawardi al-Shafi'i (may Allah have mercy on him), said regarding the verse, {And those who strive for Us}: "There are four interpretations: First, they fought the polytheists in obedience to Us. Second, they struggled against their own desires out of fear of Us. Third, they exerted themselves in performing acts of obedience and abstaining from sin out of desire for Our reward and caution against Our punishment. Fourth, they struggled against their souls in repentance from their sins." [Tafsir al-Mawardi, Vol. 4/P.294].
It is well-known that Muslims live in states to which they belong, and in which they establish their religious rites. These are what are now known as Islamic countries, which embrace Muslim societies, possess a governing system, and have an army to defend their freedom, dignity, and borders, just like all other countries in the world. Therefore, the defense of the state, the land, honor, and religion with a sincere intention for the sake of Allah the Almighty is what is meant by Jihad in the path of Allah. This is a legitimate right, as every state has the right to defend its land, existence, and territorial integrity. Such defense is not accomplished through the Jihad of calling to Islam and gentle admonition, but rather by repelling the aggression of the assailants, warding off their danger, and breaking their power. Disbelief is treated by calling to Allah with wisdom and fair exhortation, while aggression, plotting, and threats are treated by fighting in defense of one's life, religion, and homeland.
The majority of jurists (Jumhur al-Fuqaha') have concluded that the underlying reason ('Illah) for Jihad is the repulsion of aggression (Dar' al-Harabah)—which is the manifest intention of hostility—substantiating this with numerous proofs from the Glorious Qur'an and the Purified Sunnah:
From the Qur'an, such as the saying of Allah, the Exalted: "And fight in the way of Allah those who fight you but do not transgress. Indeed. Allah does not like transgressors." [Al-Baqarah/190], and His saying: "Will you not fight a people who broke their oaths and intended to expel the Messenger, and they had begun [the aggression] against you the first time? Do you fear them? But Allah has more right that you should fear Him, if you are [truly] believers." [At-Tawbah/13], and His saying: "Allah does not forbid you from those who do not fight you because of religion and do not expel you from your homes—from being righteous toward them and acting justly toward them. Indeed, Allah loves those who act justly." [Al-Mumtahanah/8]. The indication from these verses and others is clear and evident, pointing to the fact that aggression (Harabah) is the 'Illah for Jihad and fighting.
From the Purified Prophetic Sunnah, it is reported that Hanzalah al-Katib said: We raided [a place] with the Messenger of Allah (peace and blessings be upon him), and we passed by a slain woman around whom people had gathered. They made way for him, and he said: "She was not fighting among those who fight." Then he said to a man: "Go to Khalid ibn al-Walid and tell him that the Messenger of Allah (peace and blessings be upon him) commands you, saying: 'Do not kill any offspring, nor any hired laborer ('Asif).'" [Reported by Ahmad and Ibn Majah]. The basis of this is in the two Sahih collections from the narration of Ibn 'Umar (may Allah be pleased with them both), who said: A woman was found killed in one of the battles of the Messenger of Allah (peace and blessings be upon him), "So the Messenger of Allah (peace and blessings be upon him) forbade the killing of women and children." The point of evidence is that our Master the Prophet (peace and blessings be upon him) forbade the fighting of those who do not commit aggression against Muslims and do not fight them, even if they are non-Muslims.
Due to the importance and seriousness of Jihad in Islam, Allah the Almighty has made it the exclusive prerogative of the ruler (Wali al-Amr), or whosoever acts on his behalf, and not the prerogative of the general populace. The Wali al-Amr is the one who assesses the public interest (Maslahah 'Ammah), regulates affairs in accordance with the current reality, and has the right to manage the policy of the state and its subjects within the framework of the Shari'ah. It is in his hand to declare a state of war or peace, or to conclude treaties. Imam Shihab al-Din al-Qarafi (may Allah have mercy on him) said: "The Imam is the one to whom the general policy over the creation has been delegated, the regulation of the foundations of interests, the repulsion of corruption (Dar' al-Mafasid), the suppression of criminals, the execution of tyrants, and the settlement of the servants in the lands, in addition to other matters of this nature." [Al-Ihkam fi Tamyiz al-Fatawa 'an al-Ahkam wa Tasarrufat al-Qadi wal-Imam / p. 24].
Islamic Shari'ah has permitted the ruler to conclude treaties with non-Muslim states; indeed, a consensus (Ijma') on this has been narrated. Al-Khatib al-Shirbini (may Allah have mercy on him) said: "Reconciliation (Musalahah) in the Shari'ah is the reconciliation of the people of war on abandoning fighting for a specified period, with or without compensation, whether they include those who adhere to their religion or not... The basis for this, before the consensus, is the saying of Allah the Exalted {which means}: "A declaration of disassociation from Allah and His Messenger to those with whom you had made a treaty among the polytheists." [At-Tawbah/1], and His saying: "And if they incline to peace, then incline to it also and rely upon Allah. Indeed, it is He who is the Hearing, the Knowing." [Al-Anfal/61], and the Prophet's (peace and blessings be upon him) truce with Quraysh in the year of al-Hudaybiyyah, as narrated by the two Shaykhs [Bukhari and Muslim]." [Mughni al-Muhtaj, Vol.6/P.86]. This aligns with our contemporary reality of international treaties for maintaining peace among contracting parties.
In the absence of a treaty with a non-Muslim state, the default principle is that the relationship with it should be one of peace. The ruler then decides what he deems to be in the public interest (Maslahah): either the continuation of peace and calling to Islam, or engaging in fighting. This fighting is Jihad al-Talab, which is a Fard Kifayah (collective obligation) upon those whom the Imam or ruler designates for it. In the context of Jihad, the Imam may suffice with deterrence by means of military maneuvers conducted by most state armies and displaying them before the enemy, as a form of warning and demonstrating strength and dominance.
In any case, when addressing and engaging with such issues, it is essential to note that the nature of the system among contemporary states is highly complex; it is more complex than the reality upon which the jurists based their rulings, where they divided the world into the Abode of Islam (Dar al-Islam), the Abode of Treaty (Dar al-Ahad), and the Abode of War (Dar al-Harb). This reality has changed, as relationships have become more intricate and are based on peace and treaties. Consequently, the precise legal ruling (al-Hukm al-Shar'i) in such matters requires contemporary Ijtihad (independent reasoning) that suits the current reality and considers the ultimate consequences (I'tibar al-Ma'al). This is a task that can only be properly executed and mastered by specialized bodies, such as Fatwa Councils and Fiqh Academies at the global level. And Allah the Almighty knows best.