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Islamic Law And International Humanitarian Law

This article gives an overview of the principles regulating the use of force under the Islamic law of war in the four Sunni schools of Islamic law. By way of introducing the topic, it briefly discusses the origins, sources and characteristics of the Islamic law of war. The discussion reveals the degree of compatibility between these Islamic principles and the modern principles of international humanitarian law, and offers insights into how these Islamic principles can help in limiting the devastation and suffering caused by contemporary armed conflicts in Muslim contexts, particularly those conflicts in which Islamic law is invoked as the source of reference.

Background
With armed conflicts taking place in so many parts of the Muslim world, the Islamic law of war is as indispensable as ever for the protection of civilians and other persons hors de combat. Over the centuries, classical Muslim jurists have provided an impressive legal literature, which, just as international humanitarian law (IHL), brings humanity in war. Emphasizing the universality of IHL's principles, which transcend legal traditions, civilizations and cultures, is absolutely essential for improving respect and protection for victims of armed conflict in the Muslim world.

Quran prohibits fighting in sacred places like mosques.[1] Humanitarian tradition has two dimensions: first, protection of the physical welfare of the person by providing him/ her medical aid, food, shelter and freedom from torture; and second, protection of spiritual and emotional welfare by enabling mobility, family life and access to cultural life.[2]

Origins of the Islamic law of war
The emergence of Islam, in 610 A.D., threatened the religious, political, economic, and social systems then in place in Arabia. Hostility towards the followers of the new religion gradually rose, and they were forced to flee the birthplace of Islam, Mecca, twice: first to Abyssinia (today, Ethiopia) in 615 A.D. and then to Yathrib, now Medina in Saudi Arabia, in 622 A.D. This hostility continued even after the flight to Medina, and there were a number of violent encounters, including battles, between Muslims and their enemies.

This aspect of Islamic history is dealt with briefly in the Qur'ān; it is recorded in great detail in the sīrah literature, (biography of the Prophet, early Islamic history) which gives the numbers of the dead and those taken prisoner, and sometimes their full names as well. The hadith literature (sayings, deeds, and tacit approvals of the Prophet) also contains thousands of reports on this subject. In order to fully understand these bodies of literature and to derive laws from them, even experts have also to study and examine other bodies of literatures, including tafsīr (exegeses of the Qur'ān), and hadith methodology; they have to do this in order to determine the reliability of the various narrators and the authenticity of the various reports from this period.

Studying the points of correspondence between Islamic law and modern IHL is not a matter of intellectual luxury: it is of strategic importance in ensuring that IHL principles are observed in armed conflict.

All these bodies of literature constituted the material, or the texts, from which the fuqahā', or jurists, developed the Islamic law of war in the literature of fiqh, or Islamic law, under such headings as al-jihād, al-siyar, al-maghāzī; to these headings, contemporary Muslim scholars add those of akhlāq al-ḥarb (the ethics of war) and al-qanūn al-dawlī al-insānī fī al-Islām (international humanitarian law, or IHL, in Islam).

This brief introduction shows where, in what sources, the Islamic law of war can be studied. It also explains how differences in interpretation of these sources are among the reasons why there are contradictory regulations, and major violations, in connection with the use of force by Muslims.

Sources of the Islamic law of war
The sources or the tools used by Muslim jurists to develop the Islamic law of war include the following: 1) the Qur'ān; 2) the Sunnah (tradition of the Prophet); 3) early Islamic precedents, mainly until about 661 A.D.; 4); consensus among the jurists; 5) jurists' rulings reached through analogy; and 6) the public interest.

It is worth adding here that in Islam, a treaty is binding unless it blatantly violates the dictates of the religion in some way. It is a matter of some significance that since the seventh century, Islamic law has been developed by individual, and independent, Muslim legal scholars who belonged to either the Sunni or the Shiʻite sect. In addition, each of these scholars was an adherent of one of numerous schools of law: of these schools, four are now most prominent in the Sunni world (the Ḥanafī, Mālikī, Shāfiʻī, and Ḥanbalī) and three among Shiʻītes (the Twelvers, Zaydis, and Ismāʻilīs).

Because the development of the Islamic law of war rested on specific texts dealing with seventh-century contexts of war, and because of the nature of the tools involved in the law-making process, Islamic regulations on the use of force frequently contradict each other. These contradictions are also partly owing to the fact that Islamic law remained uncodified throughout Islamic history, apart from twentieth-century codifications of what was mainly family law. Moreover, as a consequence of European colonialism, Islamic law was replaced, in all but a handful of Muslim countries, by the French or the English legal systems; because of this, Islamic law in most areas, including the law of armed conflict, has remained a purely academic matter.

With regard to international law, including IHL, a consensus has existed since the founding of the United Nations, among scholars and States in the Muslim world, that these bodies of law are in consonance with the true spirit and ultimate objectives of Islam, but not necessarily with all the rules developed in the past by classical Muslim jurists operating in a very different political context. This is why all Muslim countries have signed the Geneva Conventions and other relevant international treaties.

However, in recent times, serious violations of IHL have been justified by selectively invoking certain classical juristic opinions or interpretations of the scriptures, or simply through analogy to certain classical situations of war - in order, for instance, to justify the killing of civilians. It should also be noted, however, that some other non-State Muslim armed groups have drawn up codes of conduct that are based on Islamic law and that are also in harmony with modern IHL principles. This shows that Islamic law is being both used and abused in contemporary armed conflict in the Muslim world.

Studying the points of correspondence between Islamic law and modern IHL is therefore no longer just a matter of intellectual luxury; it is a subject of strategic importance and of great value in ensuring that IHL principles are observed, to the greatest extent possible, in this specific context of armed conflict.

Characteristics of the Islamic law of war
Because of the uniqueness of the texts and sources, and the contexts (past and present), from which it is derived, the Islamic law of war - which is used to regulate the conduct of hostilities in armed conflicts - has a number of characteristics that should be taken into consideration:
  1. religious basis: because Islamic regulations on the conduct of hostilities are derived from the Islamic scriptures;
  2. religious motivations: it encourages believers to follow Islamic regulations on the conduct of hostilities in order to be rewarded by God in the Hereafter and also to avoid God's punishment, let alone the State's;
  3. self-imposed: for the reasons given above and regardless of the conduct of adversaries though jurists sometimes used the principle of reciprocity to lift restrictions on certain weapons or tactics; (It should be kept in mind that there were no international treaties governing the use of force when the Islamic law of war was formulated.)
  4. contextually and textually based: obviously, throughout Islamic history, jurists differed on the interpretation of texts and contexts in connection with the Islamic law of war, which led to
  5. regulations on the use of force that contradicted each other. These contradictory rulings were also a result of the jurists having to balance Islamic restrictions on the use of certain indiscriminate weapons and methods of warfare - to humanize armed conflict, so to speak - with the military necessity of winning a war. This explains
  6. the wide gap between theory and practice: while Islamic law includes detailed regulations that are, remarkably, largely in agreement with modern IHL principles, serious violations of IHL are now being committed by some Muslims.

Because of these characteristics, the Islamic law of armed conflict will continue to be used, or at least referred to, by Muslims who use Islam as their source of reference. Moreover, because of its contextual and sometimes contradictory rulings, the Islamic law of war is sometimes erroneously used to justify harming protected persons and objects.

On the other hand, and as shown below, the similarities between IHL principles and the Islamic law of war suggest that these two legal traditions have the same objectives and that modern IHL principles are of great practical help in directing conduct of hostilities during contemporary situations of conflict. Emphasizing the universality of IHL principles, which transcend legal traditions, civilizations and cultures, is absolutely essential for ensuring compliance with IHL.

Contemporary Challenges or International Humanitarian Law
International humanitarian law (IHL) is one of the older bodies of international law. Its codification began in the late 19th century. and it has had to deal with various developments in the nature of warfare over the years. Today, technical advances and the changing nature of parties to conflicts, as well as other factors, have altered the landscape in which armed conflict takes place, presenting the existing IHL framework with new challenges.

This contribution explores five of these contemporary challenges: the applicability of IHL to cyber operations occurring in armed conflict, the blurring of lines between IHL and the terrorism paradigm, the geographical scope of application of IHL, the applicability of IHL to peace operations, and the overarching question of how to ensure respect for IHL.

  1. The Applicability Of IHL To Cyber Warfare

    With the steady advance of technology, a new trend in the conduct of hostilities is becoming apparent, namely, the use of cyber operations in armed conflict. The term 'cyber warfare' describes operations against a computer or a computer system through a data stream, when used as means and methods of warfare in the context of an armed conflict. Cyber warfare has not yet had dramatic humanitarian consequences.

    Nevertheless, there are concerns about the potentially far-reaching effects of cyber-attacks in the future: for example, if cyber-attacks were to be directed against transportation systems, electricity networks, dams, and chemical or nuclear plants, they could cause civilian casualties and have long-term consequences for the daily lives of those affected. The reverberating effects of cyber-attacks directed against military objectives can also have important consequences for the civilian population. For example, shutting down the electricity supply may obstruct the provision of medical services to civilians, potentially leaving many without essential medical care.[3]

    NIACs require protracted armed violence between State armed forces and organized armed groups, or between such organized armed groups.[4] Accordingly, and in contrast to IACs, the existence of a NIAC presupposes a certain level of intensity of violence and a certain minimum degree of organization in the non-State armed group: for instance, that it has a command structure, disciplinary rules, and a headquarters.[5]

    The organizational criterion is met not only when a regular armed group engages in cyber activities, but also, in the view of the ICRC, when a group is organized solely online, depending on the level of organization amongst members of the group. However, the intensity requirement is not easily met where cyber operations do not cause kinetic effects.[6]

    Further to this, according to Additional Protocol I, a number of rules � including, notably, the principles of distinction and proportionality in the conduct of hostilities � apply to attacks as defined in Article 49 of Additional Protocol I.[7] This gives rise to another question: under what circumstances can cyber-attacks be regarded as amounting to such attacks? In this regard, the ICRC is of the view that the employment of any kind of cyber capabilities in an armed conflict must comply with all the principles and rules of IHL, as is the case with any other weapon, means or method of warfare. In any event, the conduct of hostilities is governed by the rules and principles contained in customary IHL, including the principle of distinction, the prohibition against indiscriminate attacks, and the obligation to take precautions to spare the civilian population.[8]
     
  2. Non-State Armed Groups: Blurring Of Lines Between Terrorism And IHL

    In response to the rise in some non-State armed groups' use of terrorist tactics, States have tightened existing counter-terrorism measures and introduced new ones in recent years. There is no question that it is legitimate to take measures designed to ensure the security of the State. These counter-terrorism responses, coupled with robust counter-terrorism discourse in both domestic and international forums, have increasingly resulted in the blurring of lines between armed conflict and terrorism, with potentially adverse consequences for the application of IHL in NIACs. In the first place, there exists no universally accepted definition of terrorism, and IHL does not define the term. In addition, States have shown a growing tendency � based in their conflation of the conflict and terrorism paradigms � to consider any act of violence carried out by non-State armed groups in an armed conflict to be terrorist by definition. However, these two legal regimes are fundamentally distinct: IHL regards certain acts of violence as lawful and others as unlawful, while any act of violence designated as terrorist is always unlawful.

    The rapid proliferation of armed groups further compounds the challenges associated with the application of IHL to such groups. Traditionally, non-State armed groups were organized in a manner similar to State armed forces: hierarchically, with a level of organization that was in plain view. However, particularly in recent conflicts, there has been a growing tendency for armed groups to splinter and thus multiply. The growing number of armed groups is making it more and more difficult to ascertain the degree to which they are organized and the manner in which they interact with one another. This, in turn, has exacerbated difficulties in determining whether a group has the requisite level of organization to qualify as a party to a NIAC.
     
  3. The Geographical Scope Of Application Of IHL

    Armed conflicts involving non-State armed groups raise another issue: as some groups can move easily between several different territories, violence between them and the armed forces of a state can spill over into the territory of a third State that had previously been uninvolved in the conflict. There are at least three different options for thinking about the geographical applicability of IHL in such circumstances: first, the geographical scope of IHL could be considered to be limited to the State in which the conflict has its roots; second, it could be regarded as extending to the additional State or States in which the armed group con- trols territory; and, third, IHL could be thought to follow the members of the group.[9]

    The last option would seem to be too far-reaching, particularly when the members of the armed groups in question are far from the geographical centre of the hostilities. Even so, it is generally accepted that if an armed conflict occurs on the territory of a State, IHL applies to that State as a whole.[10] Though not all activities taking place within that State's territory may be covered by it � such as those activities taking place within the ordinary law- enforcement paradigm � IHL applies fully in the territory of that State, and particularly to the conduct of hostilities against the non-State armed group.[11]
     
  4. IHL And Peacekeeping Operations

    In recent decades, several peacekeeping operations have taken place within the context of armed conflicts. The increasing robustness of the peacekeeping mandates issued by the United Nations Security Council has raised the likelihood of the use of military force by peacekeepers � and that has given rise to questions about when and how IHL applies to these actions.

    In the view of the ICRC, military force employed by peacekeeping forces is not automatically lawful on the basis of its being authorized, ostensibly, by a mandate of the Security Council. Rather, the lawfulness of peacekeeping forces' actions depends on their compliance with IHL. This stems from the distinction between ius ad bellum and ius in bello, under which lawful recourse to the use of force (ius ad bellum) is distinguished from the lawfulness of the force that is actually used (ius in bello).

    When peacekeepers use military force, they become involved in an armed conflict, even if they do not sup- port either of the opposing parties to the conflict and are mandated solely to protect civilians. This makes it important to identify who among the participants in a multinational operation should be considered a party to conflict: the troop-contributing countries, the relevant international/regional organization under whose command the forces operate, or both. In the opinion of the ICRC, the decisive factor is which entity has control over the operation. For example, where contributing States retain a high degree of control over the conduct of their troops, those States can become party to armed conflict. By contrast, where an organization maintains control over the operation, it would be the organization that becomes a party to conflict.
     
  5. Ensuring Respect For IHL

    Like many branches of public international law, IHL lacks direct enforcement mechanisms to address or pre- vent violations of its rules by States. In recent years, international criminal law has contributed to addressing violations of IHL, but the processes under this body of law do not necessarily have an immediate impact on the ground, as they often take place only long after the fact.

    The ICRC therefore engages States and parties to armed conflict in confidential bilateral dialogue to discuss the steps they can take to ensure application of and compliance with IHL during armed conflict. It also regularly encourages States to disseminate IHL through training sessions and courses, and other means, with a view to making certain that their obligations under IHL are known to all those concerned and violations prevented.

    Episodes from recent armed conflicts notwithstanding, and despite the fact that international and domestic discourse has, in recent years, been centered on allegations of IHL violations, the ICRC has also been con- ducting research to acquire a fuller understanding of those instances where IHL has been respected. This not only helps us understand patterns of conduct, but behavioral science also suggests that an increased general awareness that the law is respected can, in fact, also strengthen confidence in this body of law.

    Finally, the ICRC endeavors to work with States to foster dialogue on IHL: for example, it encourages them to share practices and experiences related to discharging their IHL obligations in the most testing circumstances.


Principles of Islamic international humanitarian law
The vast and detailed Islamic legal literature concerned with regulating armed conflict reveals that classical Muslim jurists had in mind more or less the same philosophy and principles that inform modern IHL. Interestingly classical Islamic legal literature distinguished between international and non-international armed conflicts.

The significance here is twofold: first, the rules on the use of force in non-international armed conflicts are much stricter and more humane than those for international armed conflicts; second, because of certain precedents in early Islamic history, Islamic law identified four different categories of non-international armed conflicts which have different regulations on the use of force.

The Islamic law of war sought to humanize armed conflict by protecting the lives of non-combatants, respecting the dignity of enemy combatants, and forbidding damage to an adversary's property except when absolutely required by military necessity or when it happens unintentionally, as collateral damage.

The following are the core principles of Islamic international humanitarian law:
  1. Protection of civilians and non-combatants
    Islamic law makes it abundantly clear that all fighting on the battlefield must be directed solely against enemy combatants. Civilians and non-combatants must not be deliberately harmed during the course of hostilities. According to the Qur'ān 2:190: And fight in the way of God those who fight against you and do not transgress, indeed God does not like transgressors.

    Several reports attributed to the Prophet in which he specifically mentioned five categories of people who are afforded non-combatant immunity under Islamic law: women, children, the elderly, the clergy, and, significantly, the ʻusafā' (slaves or people hired to perform certain services for the enemy on the battlefield, but who take no part in actual hostilities).

    وَ قاتِلُوا في‏ سَبيلِ اللَّهِ الَّذينَ يُقاتِلُونَکُمْ وَ لا تَعْتَدُوا إِنَّ اللَّهَ لا يُحِبُّ الْمُعْتَدينَ سوره بقره آیه190.
     و در راه خدا با کسانی که با شما می جنگند بجنگید و ( وقت جنگ از حدود شرعی و قوانین عقلایی جنگ ) تجاوز نکنید ( بدون عذر قانونی حمله ننمایید ، با هم پیمان متارکه نجنگید ، ضعیفان بی آزار را مکشید ، کشته ها

    .[12را مثله نکنید و اموال را بی جهت اتلاف ننمایید ) که خداوند تجاوزکاران را دوست ندارد]

    The ʻusafā''s various duties on the battlefield at the time included such things as taking caring of the animals and the personal belongings of the combatants. Their equivalent in the context of modern warfare would be medical personnel - military and civilian - military reporters and all other categories of people in the army of the adversary party that do not take part in actual hostilities; these people, too, cannot be targeted.

    The companions of the Prophet and succeeding generations of jurists grasped the logic guiding the prohibition against targeting these five categories of people, and provided non-combatant immunity for other categories of people as well, such as the sick, the blind, the incapacitated, the insane, farmers, traders, and craftsmen.

    However, members of these categories of protected people will lose their non-combatant immunity if they take part in hostilities. Classical Muslim jurists investigated various interesting cases involving participation by such protected people in hostilities and deliberated on the permissibility of targeting these people.

    These cases included the following: a woman who actually fights on the battlefield or throws stones at Muslim army soldiers or patrols the enemy's forces or uses her own money to finance the enemy's army; and a hermaphrodite (whose appearance gives no conclusive proof of gender) encountered during combat. Other cases involved a child or an elderly person taking part in direct hostilities, and an elderly person brought to the battlefield to plan the enemy's operations.

    Regardless of the nuances of their deliberations and their different rulings on the permissibility of targeting these protected people, the mere fact that they investigated these cases and reflected on them proves beyond doubt that the principle of distinction and the doctrine of non-combatant immunity were major concerns for the majority of classical Muslim jurists.
     
  2. Prohibition against indiscriminate weapons
    In order to preserve the lives, and the dignity, of protected civilians and non-combatants - and even though the weapons used by Muslims in the seventh and eighth centuries were primitive and their destructive power limited - classical Muslim jurists discussed the permissibility of using indiscriminate weapons of various kinds, such as mangonels (a weapon for catapulting large stones) and poison-tipped or fire-tipped arrows.

    According to the Qur'ān 5:32: For that We have decreed upon the children of Israel that whosoever kills a human soul except in retribution of committing fasād (destruction, damage) in the land, it shall be as if he killed all of humanity, and whosoever saves it [a human soul] it shall be as if he saved all of humanity. The fact that these indiscriminate weapons were the subject of discussion also indicates a genuine concern for enemy property and a wish to protect it, as shown below.

    سوره ۵: المائدة - جزء ۶

    مِنْ أَجْلِ ذَلِكَ كَتَبْنَا عَلَى بَنِي إِسْرَائِيلَ أَنَّهُ مَنْ قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الْأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا وَمَنْ أَحْيَاهَا فَكَأَنَّمَا أَحْيَا النَّاسَ جَمِيعًا وَلَقَدْ جَاءَتْهُمْ رُسُلُنَا بِالْبَيِّنَاتِ ثُمَّ إِنَّ كَثِيرًا مِنْهُمْ بَعْدَ ذَلِكَ فِي الْأَرْضِ لَمُسْرِفُونَ 32

    از اين روى بر فرزندان اسرائيل مقرر داشتيم كه هر كس كسى را جز به قصاص قتل يا [به كيفر] فسادى در زمين بكشد چنان است كه گويى همه مردم را كشته باشد و هر كس كسى را زنده بدارد چنان است كه گويى تمام مردم را زنده داشته است و قطعا پيامبران ما دلايل آشكار براى آنان آوردند [با اين همه] پس از آن بسيارى از ايشان در زمين زياده‏ روى مى كنند.

    إِنَّمَا جَزَاءُ الَّذِينَ يُحَارِبُونَ اللَّهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا أَنْ يُقَتَّلُوا أَوْ يُصَلَّبُوا أَوْ تُقَطَّعَ أَيْدِيهِمْ وَأَرْجُلُهُمْ مِنْ خِلَافٍ أَوْ يُنْفَوْا مِنَ الْأَرْضِ ذَلِكَ لَهُمْ خِزْيٌ فِي الدُّنْيَا وَلَهُمْ فِي الْآخِرَةِ عَذَابٌ عَظِيمٌ.[13] 33

    سزاى كسانى كه با [دوستداران] خدا و پيامبر او مى ‏جنگند و در زمين به فساد مى ‏كوشند جز اين نيست كه كشته شوند يا بر دار آويخته گردند يا دست و پايشان در خلاف جهت‏ يكديگر بريده شود يا از آن سرزمين تبعيد گردند اين رسوايى آنان در دنياست و در آخرت عذابى بزرگ خواهند داشت.

    It should be added here that the permissibility of using such indiscriminate weapons was investigated in connection with situations other than those involving combat between individuals. For instance, jurists considered whether such weapons may be used against an enemy fighting from fortified positions. In situations like these, it would obviously be extremely difficult to avoid causing incidental harm to protected people and objects. All this again goes to show that the principle of distinction was the rationale for discussing the permissibility of using these indiscriminate weapons.

    Balancing this humanitarian principle with that of military necessity, most of the jurists permitted shooting at the enemy fortifications with mangonels, but they disagreed sharply on the permissibility of shooting fire-tipped arrows at enemy fortifications: one group prohibited it, another expressed its dislike for this method of warfare, and a third permitted it in those instances when military necessity called for it or when it was retaliation in kind. Conflicting rulings of this kind create major difficulties when the Islamic law of war is used as the source of reference in contemporary armed conflicts, because they can be used selectively to justify attacks against protected civilians and objects.
     
  3. Prohibition against indiscriminate attacks
    Motivated by the same concerns that led them to investigate the rightness of using mangonels and poison-tipped or fire tipped-arrows (means of warfare), classical Muslim jurists also discussed the permissibility of two potentially indiscriminate methods of warfare that could result in the killing of protected persons and damage to protected objects: al-bayāt (attacks at night) and al-tatarrus (the use of human shields).

    The rationale for studying the lawfulness of night fighting - an issue that first arose during a discussion between the Prophet and his companions - was that it did not involve fighting between individuals because they cannot see each other at night. Mangonels and similar weapons were mainly used against an enemy at night, which increased the risk of protected persons and objects being harmed. Similarly, they found that attacking human shields might also cause incidental harm in two instances they studied: to persons protected from the enemy or to Muslim prisoners of war.

    Time and again, the need to balance the humanitarian principles of distinction, proportionality and precaution with the principle of military necessity, led the jurists to make contradictory rulings: some of them prohibited attacks made at night or against human shields, others disliked these methods, and still others were willing to permit them, but only when absolutely required by military necessity. They also disagreed about what constituted military necessity. There was, however, no difference of opinion among them on the fundamental point: that protected persons and objects were not to be deliberately harmed.
     
  4. Protection of property
    In the Islamic worldview, everything in this world belongs to God, and human beings - as His vicegerents on earth - are entrusted with the responsibility of protecting His property and contributing to human civilization. Hence, even during the course of hostilities, wanton destruction of enemy property is strictly prohibited.

    The first caliph Abu Bakr (d. 634) instructed his army commander thus: do not cut down fruit-bearing trees; do not destroy buildings; do not slaughter a sheep or a camel except for food; do not burn or drown palm trees.

    The eighth-century jurist Al-Awzāʻī (d. 774) declared: it is prohibited for Muslims to commit any sort of takhrīb, wanton destruction, [during the course of hostilities] in enemy territories. Such destruction was forbidden because it constituted - as the crime of terrorism does under Islamic law - the criminal act described metaphorically in the Qur'ān as fasād fī al-arḍ (literally, destruction in the land).

    It is interesting to note that few jurists distinguished between inanimate and animate property owned by the enemy: Al-Shāfiʻī (d. 820), the eponymous founder of the Shāfiʻī school of law, said that all living creatures were capable of feeling pain and therefore any harm to them amounted to unjustifiable torture; while for Ibn Qudāmah (d. 1223) harming living creatures fell within the bounds of fasād fī al-arḍ. Targeting horses and similar animals during the course of hostilities was permitted, but only if enemy soldiers were mounted on them while fighting.�

    There are numerous examples in classical Islamic legal literature of regard for the sanctity of an adversary's private and public property. It may be enough to mention one example here. Classical Muslim jurists considered the lawfulness of consuming an enemy's food supplies or using his fodder to feed one's own animals; they concluded that this was permissible, but only in the quantities absolutely required by military necessity, thereby confirming the inviolability of enemy property. Therefore, as a rule (except when required by military necessity) attacks against enemy property must be carried out with two aims in mind: to force the enemy to surrender or to put an end to the fighting; to avoid deliberately seeking to cause the destruction of property.
     
  5. Prohibition against mutilation
    Islamic law strictly prohibits mutilation. The Prophet's instructions on the use of force include these injunctions: do not steal from the booty, do not betray and do not mutilate. The Prophet also instructed Muslims to avoid deliberately attacking an enemy's face. Abu Bakr's written instructions to the governor of Hadramaut, Yemen, included the following: Beware of mutilation, because it is a sin and a disgusting act.

    Such regard for human dignity requires that dead enemy soldiers be buried or their bodies handed over to one's adversary after the cessation of hostilities. Early Islamic historical and legal literature records that the Prophet had the bodies of dead soldiers buried without asking whether they belonged to the Muslim army or its adversaries. The Andalusian jurist Ibn Ḥazm (d. 1064) stressed that Muslims had an obligation to bury the dead bodies of their enemies and that failure to discharge this obligation was tantamount to mutilation.
     
  6. Treatment of prisoners of war
    Some of the characteristics of Islamic law discussed above are very much to the fore in the matter of prisoners of war (POWs). There are two main issues here: what to do with POWs and how they should be treated. The rules in both cases are based on scriptural and historical material and on certain precedents in early Islamic history.

    In the matter of what should be done with POWs, classical Muslim jurists fell into three groups.

    The first, basing their position on the Qur'ān 47:4, maintained that POWs must be released unilaterally or in exchange for captured Muslim soldiers.

    The second group, made up of some Ḥanafī jurists, argued that the State should decide, based on its best interests, whether to execute or enslave POWs; but a few others from the same school said that the POWs may be freed, but must remain in the Muslim State because permitting them to return to their country will strengthen the enemy's forces.

    The third group, the majority of the jurists, also argued that the State should decide, based on its best interests; however, they also said that POWs may be executed, enslaved, set free unilaterally or in exchange for captured Muslim soldiers, or be freed but forced to remain in the Muslim State.

    It should be noted here that the jurists who permitted the execution of POWs based their conclusion on reports that three POWs had been executed in the wars between the Muslims and their enemies during the Prophet's lifetime. Examination of the historical record, however, shows that if all or some of these reports were true, these three POWs were singled out because of crimes they had committed before joining the war.

    Emphasizing the universality of IHL principles, which transcend legal traditions, civilizations and cultures, is absolutely essential for ensuring compliance with IHL.

    As for the treatment of POWs, Islamic law requires that they be respected and treated humanely. They must be fed and given water to drink, clothed if necessary, and protected from the heat and the cold and from cruel treatment. Torturing POWs to obtain military information is prohibited, as indicated by Mālik (d. 795), the eponymous founder of the Mālikī school of law.
     
  7. Safe conduct and quarter
    The subject of amān (safe conduct and quarter) gives a number of interesting insights into the Islamic law of war. Amān, in the sense of safe conduct, refers to the protection and specific rights that are granted to non-Muslim nationals of an enemy State who are temporarily living in or making a brief visit to the Muslim State in question for business, tourism, education or other peaceful purposes.

    Because of the nature of their profession, diplomats have enjoyed the privileges of amān since the pre-Islamic era. Classical Islamic legal literature may be said to define amān, in the sense of quarter, as a contract of protection, granted during the actual acts of war, to cover the person and property of an enemy belligerent, all of a regiment, everyone inside a fortification, the entire enemy army or city.
Amān has the same objective, in some respects, as the hors de combat status: in the words of the classical jurists, this is ḥaqn al-damm (prevention of the shedding of blood, protection of life). Therefore, if enemy combatants request amān on the battlefield during the course of hostilities - whether verbally or in writing, or through a gesture or by some other indication they are laying down their arms - they must be granted it. Afterwards, they must be protected and granted the same rights as civilian temporary residents of the Muslim State in question. They must not be treated as POWs; nor must their lives be restricted in any other way during their stay in the Muslim State. This protection remains in effect until their safe return to their home country.

In brief, the amān system makes it unambiguously clear that enemy combatants must not be targeted if they are not actually fighting. It goes without saying that perfidy is strictly prohibited under the Islamic law of war; however, ruses are permitted, as the Prophet held that war is ruse.

The uniqueness of Islamic law - its origins and sources, and its methods of creating and applying laws - should be clear from the foregoing description.

Indeed, classical Muslim jurists have succeeded in providing an impressive legal literature that humanizes armed conflicts. They also showed a great deal of concern for non-combatants and civilians, as well as for specific civilian objects: they argued that all of these must be protected, and that no incidental harm to any of them was justified except in cases of absolute military necessity.

Nonetheless, some Islamic rules on the use of force pose challenges to humanizing armed conflicts. That is because the Islamic law of armed conflicts was not codified at any point in Islamic history, and also because no punishments for violating it were formulated. However, because treaties are binding in Islamic law, and because modern IHL principles are in agreement with the Islamic law of war, IHL fills this gap - the repression of violations - particularly well.

International Humanitarian Law which obliges protection of all people not taking part in the conflict, as well as limiting the means and methods of warfare. The rules and laws of war undoubtedly have deeper historical roots. They are derived from elementary human values that are an integral part of all the world's philosophies and religions.

Islamic law guarantees victims of armed conflict the right to protection, respect, and dignified humane treatment. It also calls for the protection of civilian facilities and property. Islamic law limits the methods and means of warfare to the limits of military necessity.

All this is in full compliance with the provisions of International Humanitarian Law and the Geneva Conventions. Thus, the similarities between IHL and Islamic law are not coincidental, but the evidence that there are universal values and an important part of most religious and other worldviews.

Promotion of the book "Islamic Law and IHL" at the Faculty of Islamic Studies in Sarajevo - February 2020

Similarities and differences between IHL and Islamic Law are the main topics of the publication titled "Islamic Law and International Humanitarian Law." The book is a joint product of the longstanding cooperation between the International Committee of the Red Cross in Bosnia and Herzegovina and the Faculty of Islamic Studies at the University of Sarajevo.

Academic papers published in the book arose from jointly organized events from the past years, primarily from the scientific conference held in September 2018 in Sarajevo. In their papers, the authors who spent much of their academic work dealing with International Humanitarian Law or Islamic Law, answer questions that have emerged as crucial in the discussions.

Conclusion:
This brief discussion shows that IHL and the Islamic legal-humanitarian framework are compatible and complement each other. Understandably, classical Muslim jurists tried to ensure that humanitarian restraints on the use of force would not lead to the defeat of Muslims in war. This resulted in numerous contradictory rules � in many cases, because of differences of opinion between those jurists who gave priority to humani- tarian imperatives and those who gave priority to military victories even if that meant endangering certain protected persons and objects. This latter group of jurists justified civilian casualties as collateral damage or as a consequence of military necessity.

Many people feel more bound to, and are more inclined to follow, their own religious and indigenous trad- itions, and Islamic law is a prime example. If a certain group of weapon bearers attempt to limit their use of force on the basis of traditional frameworks that do not violate IHL, they should not be discouraged from doing so. This � permitting groups to make use of alternative frameworks that they are willing to adhere to and respect � may be the most effective means of achieving the objectives of IHL. However, the challenges such permission might present must always be kept in mind, because frameworks are not all the same or in complete compliance with IHL.

Therefore, coordination with the parties concerned is a necessity, to ensure that these alternate frameworks are not later found to have endorsed violations of IHL. However, despite the potential for divergence from IHL in some areas, the Islamic legal tradition will continue to be used, regard- less of whether we choose to engage with it or disregard it. Therefore, it is imperative that we recognize the significance of this rich body of law and engage with it: we cannot afford to allow it to be abused.

References:
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2-ICRC, Niger: Seminar on Islamic Law and Humanitarianism, news release, 25 November 2015, available at: www.icrc.org/en/document/niger-seminar-islamic-law-humanitarianism.

3-ICRC, Egypt: Continuous Humanitarian Dialogue between the ICRC and Al-Azhar, news release, 24 October 2017, available at: www.icrc.org/en/document/egypt-grand-imam-dr-ahmed-al-tayyeb-al-azhar-willing-support-humanitarians.

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5-Editor's note: For the purposes of this article, the term the Islamic state refers to the State founded by the Muslims during the seventh century.

6-See Muḥammad ibn Aḥmad al-Sarakhsī, Kitāb al-Mabsūt, Vol. 10, Dār al-Maʻrifah, Beirut, p. 2.

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8-As discussed below, the jurists gave conflicting rulings regarding the permissibility of, for example, targeting women, children or the aged if they engage in hostilities, and the use of certain means and methods of warfare.

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38-AP I, Art. 52(2).

39- Anas, Mālik ibn, Al-Muwaṭṭa', ed. Muḥammad Fū'ād ʻAbd al-Bāqī, Vol. 2, Dār Iḥyā' al-Turāth al-ʻArabī, Beirut, 1985, p. 448Google Scholar.

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66- Mubārikī, Dalīlah, Ḍawābiṭ al-ʻAlāqāt al-Dawliyyah fī al-Islām Zaman al-Ḥarb, Majallat Kulliyyat al-ʻUlūm, 4th year, 9th ed., 2004, p. 206Google Scholar.

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68-See Maḥmūd, ʻAbd al-Ghanī, Ḥimāyat Ḍaḥāyā al-Nizāʻāt al-Musallaḥah fī al-Qānūn al-Dawlī al-Insānī wa al-Sharīʻah al-Islāmiyyah, ICRC, Cairo, 2000, p. 39Google Scholar; Zayd ibn ʻAbd al-Karīm al-Zayd, Muqaddimah fī al-Qānūn al-Dawlī al-Insānī fī al-Islām, ICRC, 2004, pp. 39, 77Google Scholar.

69- al-Zuhaylī, Wahbah, Āthār al-Ḥarb fī al-Islām: Dīrāsah Muqāranah, 3rd ed., Dār al-Fikr, Damascus, 1998, p. 415Google Scholar.

70- Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III), Art. 17.

71- See Muḥammad ibn al-Ḥassan al-Shaybānī, Al-Siyar, ed. Khadūrī, Majīd, Dār al-Fikr, Beirut, 1985, p.179Google Scholar; N. al-Armanāzī, above note 27, pp. 88, 164; ʻA. Ṣaqr, above note 22, p. 89.

72- See ʻA. Ṣaqr, above note 22, p. 88; Shūmān, ʻAbbās, Al-ʻAlāqāt al-Dawliyyah fī al-Sharīʻah al-Islāmiyyah, Silsilah al-Dirāsāt al-Fiqhīyyah, No. 1, Al-Dār al-Thaqāfiyyah lil-Nashr, Cairo, 1999, p. 106Google Scholar.

73- See Muḥammad al-Khatīb al-Shirbīnī, Mughnī al-Muḥtāj ilā Maʻrifah Maʻānī Alfāẓ al-Minhāj, Vol. 4, Dār al-Fikr, Beirut, p. 237; ʻA. Ṣaqr, above note 22, p. 83; Y. al-Qaraḍāwī, above note 56, p. 1178.

74- AP I, Art. 41(2)(b).

75- M. al-Shirbīnī, above note 73, p. 237

76- See ibid., p. 237; A. Al-Dawoody, above note 7, p. 132.

77- Muwaffaq al-Dīn ʻAbd Allah ibn Aḥmad ibn Qudāmah, Al-Kāfī fī Fiqh al-Imām Aḥmad Ibn Ḥanbal, ed. Fāris, Muḥammad and Musʻad ʻAbd al-Ḥamīd al-Saʻdanī, Vol. 4, Dār al-Kutub al-ʻIlmiyyah, Beirut, 2004, p. 163Google Scholar.

78- Qur'an 17:70.

79-Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), CustomaryInternational Humanitarian Law, Vol. 1: Rules, Cambridge UniversityPress, Cambridge, 2005CrossRefGoogle Scholar, Rule 112, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule112.

80- Z. al-Zayd, above note 68, pp. 49, 78; A. Abū al-Wafā, above note 62, pp. 206�209.

81- The UN Secretary-General's annual report on children and armed conflict documented over 24,000 violations by government forces and non-State armed groups in 2018. Report of the Secretary-General on Children in Armed Conflict, UN Doc. A/73/907-S/2019/509, 20 June 2019 (Secretary-General's Report), para. 5.

82- The term Muslim States is used as shorthand in this article to refer to States where the majority of the population is Muslim.

83-ICRC, The Roots of Restraint in War, Geneva, 2018, p. 34.

84- Regarding the influence of local Islamic scholars and legal institutions, as well as global Salafi-Jihadi scholars, on two non-State armed groups in Mali, see ibid., pp. 46�51.

85- For example, the United Nations (UN) Committee on the Rights of the Child has noted with satisfaction that there were different interpretations of some aspects of the application of Sharia (Islamic law) and that Egypt has adopted an attitude consistent with the spirit of human rights in that regard. Committee on the Rights of the Child, Consideration of Reports: Egypt Concluding Observations, UN Doc. CRC/C/15/Add.145, 21 February 2001, para. 56.

86-Saudi Arabia and Oman, for example, have stated that they find the definition of the child within Article 1 of the Convention on the Rights of the Child (CRC) to conform with Islamic law. Saudi Arabia's report to the Committee on the Rights of the Child in 1998 stated that Article 1 of the Convention on the Rights of the Child is totally in harmony with Islamic law with regard to the definition of the child. See Committee on the Rights of the Child, Consideration of Reports: Initial Report of Saudi Arabia, UN Doc. CRC/C/61/Add.2, 29 March 2000, paras 30�32. Regarding its law that sets the age of 18 as the age of legal adulthood, Oman reported that [t]he Decree is in accordance with the principles of Islamic Sharia: see Committee on the Rights of the Child, Consideration of Reports: Initial Report of Oman, UN Doc. CRC/C/78/Add.1, 18 July 2000, paras 13�14. For additional analysis of Islamic law and its relationship with international law, see, for example, Mahmood Monshipouri and Claire L. Kaufman, The OIC, Children's Rights and Islam, Danish Institute for Human Rights, Copenhagen, 2017, available at: www.humanrights.dk/sites/humanrights.dk/files/working_papers/2015._matters_of_concern_monshipouri_and_kaufman_feb2015.pdf (all internet references were accessed in November 2019); Mosaffa, Nasrin, Does the Covenant on the Rights of the Child in Islam Provide Adequate Protection for Children Affected by Armed Conflicts?, Muslim World Journal of Human Rights, Vol. 8, No. 1, 2011CrossRefGoogle Scholar.

87- For example, a child rights bill was drafted in Somalia between 2017 and 2018. This development was noted in the Secretary-General's Report, above note 1, para. 146. Prior to the drafting of this bill, Somalia entered the following reservation when it ratified the CRC in 2015: The Federal Republic of Somalia does not consider itself bound by Articles 14, 20, 21 of the above stated Convention and any other provisions of the Convention contrary to the General Principles of Islamic Sharia. The principles of Islamic Sharia referenced therein are accordingly of import to the State's interpretation of children's rights.

88-This subject of the legal protection of children deprived of their liberty in NIACs was one of the topics identified for further research, consultation and discussion by the ICRC at the 32nd International Conference of the Red Cross and Red Crescent: see ICRC, Concluding Report on Strengthening IHL Protecting Persons Deprived of Liberty, Geneva, June 2015, pp. 44�46Google Scholar, available at: http://rcrcconference.org/wp-content/uploads/2015/04/32IC-Concluding-report-on-persons-deprived-of-their-liberty_EN.pdf.

89-See Al-Dawoody, Ahmed, Islamic Law and International Humanitarian Law: An Introduction to the Main Principles, International Review of the Red Cross, Vol. 99, No. 3, 2017CrossRefGoogle Scholar; Al-Dawoody, Ahmed, Management of the Dead from Islamic Law and International Humanitarian Law Perspectives: Considerations for Humanitarian Forensics, International Review of the Red Cross, Vol. 99, No. 2, 2018Google Scholar.

90- Regarding the ICRC's approach to this dialogue with experts in Islamic law, see ICRC, above note 3, p. 51, Section 4.6; ICRC, Niger: Seminar on Islamic Law and Humanitarianism, news release, 25 November 2015, available at: www.icrc.org/en/document/niger-seminar-islamic-law-humanitarianism; ICRC, Egypt: Continuous Humanitarian Dialogue between the ICRC and Al-Azhar, news release, 24 October 2017, available at: www.icrc.org/en/document/egypt-grand-imam-dr-ahmed-al-tayyeb-al-azhar-willing-support-humanitarians. Regarding dialogue with scholars from other religions, see, for example, ICRC, Reducing Suffering During Armed Conflict: The Interface between Buddhism and IHL, 25 February 2019, available at: www.icrc.org/en/document/reducing-suffering-during-conflict-interface-between-buddhism-and-international.

91-Article 20 of the CRC makes reference to Islamic law. For a discussion on the significance of this reference, see Hashemi, Kamran, Religious Legal Traditions, Muslim States and the Convention on the Rights of the Child: An Essay on the Relevant UN Documentation, Human Rights Quarterly, Vol. 29, No. 1, 2007, p. 196CrossRefGoogle Scholar.

92-See Mayer, Ann Elizabeth, Islamic Reservations to Human Rights Conventions: A Critical Assessment, Recht van de Islam, Vol. 15, 1998, pp. 36�37Google Scholar.

93- K. Hashemi, above note 11, pp. 223�224.

94- For further information regarding the ICRC's work on the protection of children in armed conflict, see ICRC, In Brief: Children in War, Geneva, 2019Google Scholar, available in Arabic, English, French and Spanish at: www.icrc.org/en/publication/4383-children-war.

95- This potential for mutual reinforcement is illustrated in, for example, Afghanistan's 2018 Policy for Protection of Children in Armed Conflict, approved by the minister of national defence and minister of the interior, which begins with a reference to both Islamic Law and international law as the legal basis for government responsibilities regarding the protection of children in armed conflict: Based on inherent human rights, Islamic teachings, and established international legal standards, the Ministry of Defence (MoD) will take every necessary step to support the humanitarian treatment and protection of children in various situations arising during armed conflict. The protection of children is one of the Government's basic responsibilities. Afghanistan, Policy for Protection of Children in Armed Conflict, Ministry of Defence and Ministry of Interior, Kabul, 2018.

96- For an application of this solution-oriented approach to matters related to the management of the dead, see A. Al-Dawoody, Management of the Dead, above note 9.

97-Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 135CrossRefGoogle Scholar.

98-These notably include Articles 23(1), 24 and 50 of Geneva Convention IV (GC IV), Article 77 of Additional Protocol I (AP I) and Article 4(3) of Additional Protocol II (AP II). For an overview of the many other rules, see ICRC, Legal Protection of Children in Armed Conflict � Factsheet, Geneva, 2003, available at: www.icrc.org/en/document/legal-protection-children-armed-conflict-factsheet.

99- On the treatment of children deprived of their liberty, including their separation from adults, see GC IV, Arts 51(2), 76(5), 82, 85(2), 89, 94, 119(2), 132(2); AP I, Art. 77(3�4); AP II, Art. 4(3)(d).

91- GC IV, Arts 23, 24(1), 38(5), 50, 89(5), 94; AP I, Arts 70(1), 77(1), 78(2); AP II, Art. 4(3)(a).

92- GC IV, Arts 14, 17, 24(2), 49(3), 132(2); AP I, Art. 78; AP II, Art. 4(3)(e).

93-GC IV, Arts 24�26, 49(3), 50, 82; AP I, Arts 74, 75(5), 78; AP II, Art. 4 (3)(b).

94- Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable on Armed Conflicts, Geneva, 1974�1977, Vol. 15, CDDH/III/SR.45, para. 3.

95-Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987, para. 4544Google Scholar.

96-Official Records of the Diplomatic Conference, above note 25, para. 7.

97-The preamble of the OIC Covenant on the Rights of the Child in Islam also refers to the child as the vanguard and maker of the future of the Ummah [Muslim nation]. The Covenant was adopted by the 32nd Islamic Conference of Foreign Ministers in Sana'a, Republic of Yemen, in June 2005. The authors of the present article did not ascertain the number of States bound by the Covenant.

98- See Al-Dawoody, Ahmed, The Islamic Law of War: Justifications and Regulations, Vol. 2, Palgrave Series in Islamic Theology, Law, and History, Palgrave Macmillan, New York, 2011, pp. 111�114CrossRefGoogle Scholar.

99- al-Sāʻatī, Aḥmad ʻAbd al-Raḥmān al-Bannā, Badā'iʻ al-Manan fī Jamiʻ wa Tartīb Musannad al-Shafiʻī wa al-Sanan: Mudhayla bi-al-Qawl al-Ḥasan Sharaḥ Badā'iʻ al-Manan, 2nd ed., Vol. 2, Maktabah al-Furqān, Cairo, 1983, p. 12Google Scholar.

100-Ṣādīq ibn Ḥasan ibn ʻAli al-Ḥusseini al-Qannūji al-Bukhārı̄ Abū al-Ṭayyib, Al-Rawḍah al-Nadiyyah Sharaḥ al-Durar al-Munır̄yyah, Vol. 2, Idārah al-Ṭibāʻah al-Munır̄ıȳah, Cairo, p. 339.

101- Shaybah, ʻAbdullah ibn Abī, Al-Kitāb al-Muṣannaf fī al-Aḥādīth wa al-Āthār, Vol. 6, Dār al-Kutub al-ʻIlmiyyah, Beirut, 1995, p. 478Google Scholar.

102- mOIC, Cairo Declaration on Human Rights in Islam, 5 August 1990, available at: www.refworld.org/docid/3ae6b3822c.html.

103-This age was subsequently raised in Articles 2, 3(1) and 4(1) of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2000. The age of lawful recruitment is set at 18 years of age by Article 22(2) of the African Charter on the Rights and Welfare of the Child, 1990.

104-Committee on the Rights of the Child, General Comment No. 24 on Children's Rights in the Child Justice System, UN DOC. CRC/C/GC/24, 2019, paras 21�22.

105-For example, all children facing criminal charges are entitled to the rights set out in Article 40 of the CRC, as well as the other rights in this convention unless an age limit is otherwise stipulated in a given provision.

106-See GC IV, Art. 24 (identification of children under 12).

107- See ibid., Arts 14 (hospital and safety zones to protect different categories of persons, including children under 15), 23 (free passage of humanitarian assistance for some categories of persons, including children under 15), 24 (measures to ensure that orphans and children separated from their families who are under the age of 15 are not left on their own), 38 (same preferential treatment for alien children under 15 as for nationals), 50 (maintenance of preferential measures in regard to food, medical care and protection adopted prior to occupation for children under 15), 89 (additional food for interned children under 15); AP I, Art. 77, and AP II, Art. 4(3) (prohibition of recruitment and participation in hostilities for children under 15).

108- See AP I, Art. 8 (newborn babies to have the same protection as the wounded and sick).

109-GC IV, Arts 51 (prohibition of compulsion to work in occupied territory), 68 (prohibition of pronouncement of the death penalty on persons under 18 at the time of the offence); AP I, Art. 77 (prohibition of execution of the death penalty on persons under 18 at the time of the offence); AP II, Art. 6 (prohibition of pronouncement of the death penalty on persons under 18 at the time of the offence).

110-Article 1 of the CRC defines a child as every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

111-Attesting to this disparity in the lawful age of marriage between girls and boys, the World Policy Center maintains databases on the minimum age of marriage for girls, the minimum age of marriage for boys, and gender disparity in the legal age of marriage, available at: www.worldpolicycenter.org/topics/marriage/policies.

112-The Mālikī school of law is predominant in countries such as Mauritania, Morocco, Tunisia, Algeria, Libya, Sudan, the United Arab Emirates and certain States in West Africa.

113-For a more detailed discussion of the applicable rules, see Vit�, Sylvain, Protecting Children during Armed Conflict: International Humanitarian Law, Human Rights and International Legal Discourse, Vol. 5, No. 14, 2011, pp. 23�29Google Scholar.

114- Article 77(2) of AP I binds parties to IACs; Article 4(3)(c) of AP II binds parties (State and non-State) to NIACs; Article 38(3) of the CRC binds States party to the CRC.



115-Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2000, Art. 2.

116-African Charter on the Rights and Welfare of the Child, 1990, Art. 22(2).

117- Available at: www.sahih-bukhari.com/Pages/Bukhari_3_48.php.

118-The Shafiʻī school of law is predominant in States such as Yemen, Jordan, Palestine, Lebanon, Somalia, Djibouti, the Maldives, Indonesia, Malaysia, Brunei, Singapore, the Philippines and Thailand.

119-The Ḥanbalī school of law is predominant in States such as Saudi Arabia and Qatar, and to a lesser extent in the other Gulf States.

120- The Ḥanafī school of law is predominant in countries such as Syria, Egypt, parts of Iraq, Turkey, the Balkan States, Pakistan, Afghanistan, Bangladesh and India.

121- For further information, see, for example, Al-Dawoody, Ahmed, Internal Hostilities and Terrorism, in Shah, Niaz A. (ed.), Islamic Law and the Law of Armed Conflicts: Essential Readings, Edward Elgar, Cheltenham, 2015Google Scholar; Badar, Mohamed, Al-Dawoody, Ahmed and Higgins, Noelle, The Origins and Evolution of Islamic Law of Rebellion: Its Significance to the Current International Humanitarian Law Discourse, in de la Rasilla, Ignacio and Shahid, Ayesha (eds), International Law and Islam: Historical Explorations, Brill's Arab and Islamic Laws Series, Leiden, 2018Google Scholar; Al-Dawoody, Ahmed, Conflict Resolution in Civil Wars under Classical Islamic Law, Peace Review: A Journal of Social Justice, Vol. 27, No. 3, 2015, 2015CrossRefGoogle Scholar.

122-OIC, Rabat Declaration on Child's Issues in the Member States of the Organization of the Islamic Conference, 8 November 2005, available at: www.refworld.org/docid/44eb01b84.html.

123-See CRC, Art. 40(1); AP I, Arts 77(4�5); AP II, Art. 6(4).

122-Committee on the Rights of the Child, above note 37, paras 21�22.

124-In 2019, the UN Global Study on Children Deprived of Liberty estimated that at a minimum, 35,000 children were deprived of liberty in the context of armed conflict, including in Iraq and Syria. Though the number of these children facing criminal charges is not specified by the Global Study, reports have indicated that many have faced prosecution in Iraq. See Report of the Independent Expert leading the United Nations Global Study on Children Deprived of Liberty, UN Doc. A/74/136, 11 July 2019 (Global Study Report), para. 68.

125-See, notably and inter alia, CRC, Art. 40; Committee on the Rights of the Child, above note 37; UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), 1985; UN Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules), 1990. For a more comprehensive overview of juvenile justice standards, see UN Interagency Panel on Juvenile Justice, Compendium of International Instruments Applicable to Juvenile Justice, Lausanne, 2014, available at: www.eda.admin.ch/dam/Weltkongress%20zum%20Jugendstrafrecht/en/Tdh-Compendium-instruments-justice-juvenile_EN.pdf.

126-The Child Rights International Network maintains a database of States' minimum ages of criminal responsibility; for examples of MACRs in Muslim States, among others, see: https://archive.crin.org/en/home/ages/asia.html.

127-Jiddi al-Ṣādiq, Mas'ūliyal al-Ṭifl al-Jazā'iyyah fī al-Sharīʻah al-Islāmiyyah wa al-Taqnīn al-Jazā'irī wa al-Lībī, Dirāsat Qānūniyah, No. 13, undated, pp. 174�175.

128-Iran, Islamic Penal Code, 20 November 1991, available at: www.refworld.org/docid/518a19404.html.

129-See, for example, Zīdān, ʻAbd al-Karīm, Al-Wajīz fī Uṣūl al-Fiqh, 5th ed., Mu'assasah al-Risālah, Beirut, 1996, pp. 201�204Google Scholar; Khallāf, ʻAbd al-Wahhāb, ʻIlm Uṣūl al-Fiqh, Dār al-Ḥadīth, Cairo, 2003, pp. 71�75Google Scholar.

130-Regarding the detention of children for alleged or actual affiliation with armed groups in Iraq, Syria, Nigeria and Somalia, see Secretary-General's Report, above note 1, paras 12�13. See also Global Study Report, above note 60, para. 68.

131-UNSC Res. 2427, 9 July 2018, paras 19�20; Secretary-General's Report, above note 1, paras 12�13; Global Study Report, above note 60, paras 68�71, 73, 132�143. The ICRC has also raised concerns regarding the treatment of children in the foreign fighter context in Iraq and Syria: see the sub-chapter on the status and protection of foreign fighters and their families in ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2019, p. 51Google Scholar, available at: https://rcrcconference.org/app/uploads/2019/10/33IC-IHL-Challenges-report_EN.pdf.

132-Aside from criminal grounds for the deprivation of liberty, in exceptional circumstances, GC IV allows States Parties to deprive certain persons of their liberty for imperative reasons of security (Art. 78, applicable to persons in occupied territories) or if the security of the Detaining Power deems it absolutely necessary (Art. 42, applicable to aliens in the territory of a party to the conflict). On detention outside a criminal process in NIAC under Article 3 common to the four Geneva Conventions, see ICRC, Commentary on the First Geneva Convention, Cambridge University Press, Cambridge, 2016 (ICRC Commentary on GC I), paras 717�728.

133-For example, Article 82(2) of GC IV permits internees to request that their children who are left at liberty without parental care be interned with them, and Article 89(5) foresees the possibility that a mother may be interned with children she is nursing.

134- ICRC Customary Law Study, above note 18, Rule 120. See also GC IV, Art. 82(2); AP I, Art. 77(4�5).

135- Ibid., Art. 94(2�3). GC IV also encourages parties to conflicts to conclude agreements for the release, repatriation or return to places of residence or accommodation in a neutral country of certain categories of internees, including children (Art. 132(2)).

136-ICRC Commentary on GC I, above note 68, para. 553.

137-GC IV, Art. 68(4); AP I, Art. 77(5); AP II, Art. 6(4).

138- See Maḥmūd, ʻAbd al-Ghanī, Ḥimāyat Ḍaḥāyā al-Nizāʻāt al-Musallaḥah fī al-Qānūn al-Dawlī al-Insānī wa al-Sharīʻah al-Islāmiyyah, ICRC, Cairo, 2000, p. 39Google Scholar; al-Zayd, Zayd ibn ʻAbd al-Karīm, Muqaddimah fī al-Qānūn al-Dawlī al-Insānī fī al-Islām, ICRC, 2004, pp. 39, 77Google Scholar.

139- See, for example, Thomas, Troy S., Jihad's Captives: Prisoners of War in Islam, U.S. Air Force Academy Journal of Legal Studies, Vol. 12, 2003, p. 95Google Scholar.

140- Mubārikī, Dalīlah, Ḍawābiṭ al-ʻAlāqāt al-Dawliyyah fī al-Islām Zaman al-Ḥarb, Majallah Kulliyyat al-ʻUlūm, 4th year, 9th ed., 2004, p. 206Google Scholar.

141-T. S. Thomas, above note 77, p. 95. Thomas also served in the White House from 2013 to 2017 on the National Security Council as special assistant to the president for national security affairs, senior director for defence policy, and director for strategic planning.

142- Muwaffaq al-Dīn ʻAbd Allah ibn Aḥmad ibn Qudāmah, Al-Mughnī: fī Fiqh al-Imām Aḥmad Ibn Ḥanbal al-Shaybānī, Vol. 9, Dār al-Fikr, Beirut, 1984, p. 215Google Scholar; Mahmassani, Sobhi, The Principles of International Law in the Light of Islamic Doctrine, Recueil des Cours, Vol. 117, 1966, p. 306Google Scholar.

143-AP II, Art. 4(3)(a). See also Articles 14(1) and 14(2) of the CRC on the child's right to freedom of religion and respect for the rights and duties of parents and legal guardians in the child's exercise of that right.

144- Though some argue that they should be released when they no longer have shawkah (organized force) � i.e., when they do not constitute a danger.

145- See, for example, Muḥammad ibn Idrīs al-Shāfiʻī, Al-Umm, 2nd ed., Vol. 4, Dār al-Maʻrifah, Beirut, 1973, p. 218; Muwaffaq al-Dīn ʻAbd Allah ibn Aḥmad ibn Qudāmah, ʻUmdah al-Fiqh, ed. ʻAbd Allah Safar al-ʻAbdalī and Muḥammad Dughaylib al-ʻUtaybī, Maktabah al-Ṭarafayn, Taif, undated, p. 149; Fadl, Khaled Abou El, Rebellion and Violence in Islamic Law, Cambridge University Press, Cambridge, 2006, pp. 152, 160Google Scholar; A. Al-Dawoody, above note 29, pp. 163�167.

146- A. Al-Dawoody, above note 29, pp. 136�141.

147-For further detail on the protection of education by rules of IHL, see the sub-chapter on access to education in ICRC, above note 67, pp. 36�39.

148- ICRC Customary Law Study, above note 18, Commentary on Rule 135.

149- Hadith 224, in Muḥammad ibn Yazīd ibn Mājah, Sunan Ibn Mājah, ed. Muḥammad Fū'ād ʻAbd al-Bāqī, Vol. 1, Dār Iḥyā' al-Kutub al-ʻArabiyyah, Cairo, undated, p. 81.

150- Accordingly, they benefit from the general protection that IHL extends to civilians and civilian objects, as laid out in a number of treaty and customary law provisions: Common Art. 3 to the Geneva Conventions; AP I, Arts 48, 49 50, 52, 53, 57, 58; AP II, Arts 4, 13, 16; 1954 Hague Convention and 1999 Second Protocol; ICRC Customary Law Study, above note 18, Rules 1�24, and see also Rules 38, 40.

151- AP I, Art. 51; ICRC Customary Law Study, above note 18, Rule 6. See also Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009Google Scholar.

152- AP I, Art. 52; ICRC Customary Law Study, above note 18, Rule 10.

153- AP I, Arts 51, 57; ICRC Customary Law Study, above note 18, Rules 14�21. See also Rome Statute of the International Criminal Court, 1998, Arts 8(2)(b)(ix), 8(2)(e)(iv).

154- AP I, Art. 58; ICRC Customary Law Study, above note 18, Rules 22�24.

155-Pictet, Jean S. (ed.), The Geneva Conventions of 12 August 1949: Commentary, Vol. 4: Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958Google Scholar, Commentary on Art. 24(1), p. 187.

156-For other rules relevant to the maintenance and restoring of family links, see GC IV, Arts 25, 49(3), 50, 82(2); AP I, Arts 75(5), 78.

157- ICRC Customary Law Study, above note 18, Rule 105.

158- In addition to the provisions regarding the facilitation of the reunion of dispersed families, see GC IV, Arts 49(3), 82(2�3), and AP I, Art. 75(5), regarding the duty to avoid, as far as possible, the separation of family members.

159- Hadith 1566, in Muḥammad ibn ʻIsā Al-Tirmidhi, Sunan Al-Tirmidhi, wa huwa Al-Jāmiʻ al-Ṣaḥiḥ, Vol. 4, Maṭbaʻah al-Ḥalabī, Cairo, 1962, p. 134.

160- See, for example, Muḥammad ibn Abī Bakr ibn Qayyim al-Jawziyyah, Jāmiʻ al-Fiqh, ed. Yusrī al-Sayyid Muḥammad, Vol. 4, Dār al-Wafā', Al-Manṣūrah, 2000, p. 70; Z. ibn ʻAbd al-Karīm Al-Zayd, above note 76, pp. 39�40, 77; Ḥammīdullāh, Muḥammad, Muslim Conduct of State: Being a Treatise on Siyar, That Is, Islamic Notion of Public International Law, Consisting of the Laws of Peace, War and Neutrality, together with Precedents from Orthodox Practice and Preceded by a Historical and General Introduction, rev. & enl. 5th ed., Sh. Muhammad Ashraf, Lahore, 1968, p. 215Google Scholar; Thomas, Troy S., Prisoners of War in Islam: A Legal Inquiry, The Muslim World, Vol. 87, No. 1, 1997, p. 50CrossRefGoogle Scholar; T. S. Thomas, above note 77, p. 95; Marsoof, Saleem, Islam and International Humanitarian Law, Sri Lanka Journal of International Law, Vol. 15, 2003, p. 26Google Scholar; Weeramantry, C. G., Islamic Jurisprudence: An International Perspective, Macmillan, Basingstoke, 1988, p. 135CrossRefGoogle Scholar.

161- See, for example, Ghassan Ma�rouf Arnaout, Asylum in the Arab-Islamic Tradition, Office of the UN High Commissioner for Refugees (UNHCR), Geneva, 1987; Abou-El-Wafa, Ahmed, The Right to Asylum between the Islamic Shari'ah and International Refugee Law: A Comparative Study, UNHCR, Riyadh, 2009Google Scholar, available at: www.unhcr.org/4a9645646.pdf.

End-Notes:
  1. Koran, Chapter II verse 191; also see M.K. Ereksoussi, The Koran and the Humanitarian Conventions, International Review of the Red Cross, (1962), p. 5
  2. Major thrusts of four Geneva Conventions 1949 relating to humanitarian law, their Protocols, Hague Convention, 1954 and UN Guidelines on Protection of Internally Displaced Persons 1998 have been towards these objectives. See Haris Peter Gasser, 'International Humanitarian Law' in M.K. Balachandran and Rose Verghese, Introduction to International Humanitarian Law ( ICRC, 1997), p. 1 at 13; also see Jean Pictet, The Principles of International Humanitarian Law, ( ICRC, 1966), pp. 27-29.
  3. See, for example, the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (the original Geneva Convention), which was adopted in 1864, and the Hague Regulations concerning the Laws and Customs of War, dating from 1899.
  4. ICRC, Commentary on the First Geneva Convention (2016), paras 414�444.
  5. Ibid. See also, for example, ICTY, Prosecutor v Ramush Haradinaj, Case No. IT-04-84-5-T, Judgment, 3 April 2008. paras 37�62.
  6. ICRC, Commentary on the First Geneva Convention (2016), paras 253�256 and 436�437.
  7. As set out in Art. 49 of Additional Protocol I, 'attacks' means acts of violence against the adversary, whether in offence or in defence.
  8. Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, Cambridge University Press, 2005; see Rules 1, 7, 14, 15.
  9. Ibid.
  10. See ICTY, Prosecutor v Du�ko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, 2 October 1995, para. 70.
  11. ICRC, Commentary on the First Geneva Convention (2016), paras 465�482
  12. Extract from the Quran , Sura 2 Al Baqara, Verse 190.
  13. Extract from the Qu'ān, Sura 5 Al-Maaida, Verse 32
Written by: Sayed Arsalan Sadat Nasseri - Kabul- Afghanistan
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