IHL as Islamic Humanitarian Law: A Comparative Analysis of International Humanitarian Law & Islamic Military Jurisprudence Amidst Changing Historical Contexts (forthcoming and subject to change)
Abstract
Islamic military jurisprudence has been the subject of much intellectual discourse since 2001. As conflicts have erupted in many Muslim-majority regions, so too have questions about how Islam views armed conflict, and how it regulates hostilities. But addressing these questions requires a comprehensive approach that understands the socio-historical evolution of the relevant provisions. As such, this paper is a comparative of analysis of International Humanitarian Law and Islamic Law, as they pertain to particular provisions regulating the conduct of armed conflict. Specifically, this paper analyzes the provisions of Civilian Immunity, Distinction, the Combatant’s Privilege, and Prisoner of War status. However, the paper is unique in that it analyzes the historical evolution of each tradition, and how global society evolved from one premised on war with very few regulations, to one that attempts to establish a “state of peace” as the status quo. Within this context, traditional Islamic sources are used to show that despite the development of Islamic military jurisprudence in the pre-modern world, many of its provisions are not only relevant, but can contribute to contemporary regulations of hostilities. By uniquely re-examining important historical events within Islamic history, this paper asserts that contemporary Islamic intellectuals are responsible for adapting many conventional provisions to existing social currents; a characteristic which is inherent within the Islamic tradition itself.