Examining the Islamic Jus in Bello

Author:Fatemah Albader
Position:Kuwait International Law School
Pages:47-72
SUMMARY

Since the Four Geneva Conventions of 1949, the international community has garnered particular interest on how matters of war should be conducted. Ever since the realization that war is an inevitable norm of life and will continue to persist, States have come together to decide on what rules will govern the conduct of warfare, to ensure that war is fought as justly and proportionally as possible. ... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2020 e Institute for Migrant Rights Press
Examining thE islamiC Jus in BEllo
Fatemah Albader
Kuwait International Law School
E-mail: f.albader@kilaw.edu.kw
Since the Four Geneva Conventions of 1949, the international community has
garnered particular interest on how matters of war should be conducted. Ever
since the realization that war is an inevitable norm of life and will continue
to persist, States have come together to decide on what rules will govern the
conduct of warfare, to ensure that war is fought as justly and proportionally as
possible. erefore, the Four Geneva Conventions contain rules governing the
protection of combatants, both wounded and those rendered hors de combat.
e Geneva Conventions also contain protections for prisoners of war and civil-
ians, marking the rst time that an international convention granted protection
to civilians. Yet, these rules of war did not begin with international humanitar-
ian law. Long before the law of armed conict existed, religious texts governed
conduct of war. e Holy Book of Islam, the Quran, along with the other sources
of Islamic law existed to ensure that war would be fought in a humane manner.
us, contrary to much of the western thoughts that presuppose that Islam does
not place limitation on the conduct of war, Islamic law has long established its
own version of the law of armed conict that has come about due to an under-
standing that, because war is inescapable and is bound to occur, the Muslim
population must know how to properly conduct themselves during an armed
conict. As such, this paper seeks to establish the rules of armed conict that
exist under Islamic humanitarian law, the Islamic jus in bello. In doing so, this
paper will look to the Islamic law sources, as well as to the practice that existed
among the earlier Muslim populations in order to establish the rules that govern
the Muslim people both historically and today.
Keywords: Humanitarian Law, Comparative Law, Laws of War, Law and Religion.
VII Indonesian Journal of International & Comparative Law 67-92 (January 2020)
48
Albader
INTRODUCTION
War is inevitable. It is a norm and not an exception. It is bound to oc-
cur. refore, it should not come as a surprise that the international
community has come to an understanding that regulating the actions
that occur during armed conicts is a much safer alternative than plac-
ing an outright prohibition on war.1 If armed conicts are impossible
to deter, would it not be better to place restrictions on the conduct
combatants may or may not engage in during wartime than to pro-
hibit armed conicts altogether knowing that such a requirement is
not feasible? Answering in the armative, that is exactly what the law
of armed conict seeks to accomplish. By understanding that war can
never be foregone, the law of armed conict, the jus in bello, has devel-
oped to regulate every possible aspect of an armed conict to ensure
that war is fought justly and proportionately.
Contrary to Western stereoptypes that presuppose that Islam does
not place limitations on the conduct of war, Islamic law does establish
its own version of the law of armed conict that has come about
due to an understanding that, because Islam understands that war
is inescapable and is bound to occur, the Muslim people must know
how to properly conduct themselves during an armed conict. us,
the actions of a few bad Muslim leaders should not lead one to the
assumption that their actions are permissible under Islamic law. In fact,
“[t]he protection of human life, property and dignity . . . are universal
Islamic doctrines that predate [international humanitarian law].2
Islam is built on the humane treatment of all people and, thus, Islamic
humanitarian law does not allow the iniction of pain and suering
to exceed that of what is required and is necessary during times of
war. us, some have argued that the father of international law, Hugo
Grotius, was inuenced by early Islamic thinking in his development
of international law.3
1. L R. B  G P. N, I L  A
C 1, 70-71 (Wolters Kluwer, 2013).
2. Hadia Nusrat, International Humanitarian Law and Islam, RC (Jan. 24-
25, 2005), http://www.redcross.int/EN/mag/magazine2005_1/24-25.html.
3. Abigail Watson, Western and Islamic laws are not so dierent, F F
P’ (Feb. 15, 2015), http://www.futureforeignpolicy.com/western-islamic-

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