Examining the Islamic Jus in Bello

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

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-