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Unpublished Paper
Islamic Law, International Law, and Non-International Armed COnflict in Syria
International and comparative law (2016)
  • Patrick B. Grant, MAJ, US Military Accademy, West Point
Abstract

Non-international armed conflicts (NIAC) occur more frequently in the world today than international armed conflicts. Despite the classification of non-international, such conflicts are likely to affect an entire region rather than remain neatly within the borders of one state. International law is not enough to address the atrocities of modern NIACs. The need to supplement international law increases with the number of states dragged into the conflict because not all states apply the full body of international law, non-state actors lack incentive to follow international law, and international law does not focus on reconciliation of the warring parties. Islamic law may serve as common ground for parties to a NIAC to apply greater protections than those provided by international law alone. In the context of NIACs, Islamic and international law are compatible doctrines because both aim to protect life and property. Because they are compatible, application of one doctrine does not preclude application of the other. Application of Islamic and international law to the Syrian conflict demonstrates their compatibility. The fighting between the Syrian Government, the Free Syrian Army, al-Nusra, and ISIS triggers both doctrines because the rebels have a large force, control territory, organize under a leader, and Syria is using its armed forces to fight the rebels. Islamic law’s additional requirement that the rebels have a subjective ta’wil does not conflict with international law because, like Additional Protocol II, it ensures that the state is not responsible for determining when legal protections are triggered. Hanbali jurists’ probable refusal to apply rules governing NIAC to ISIS because they are khawarij also does not conflict with international law, because, reminiscent of Common Article III, they would still apply minimal protections of Islamic law of international armed conflict
Publication Date
2016
Citation Information
Patrick B. Grant. "Islamic Law, International Law, and Non-International Armed COnflict in Syria" International and comparative law (2016)
Available at: http://works.bepress.com/patrick-grant/2/