With support from the Mellon Foundation and the SU Humanities Center, the International Humanitarian Law project examines the role of Islam and Shari’a plays in IHL and how these perspectives contribute to the regulation of international conflicts, civil wars, asymmetric warfare, and human rights. Link
Islam & IHL is an effort to direct global attention toward bridging the gap between Islamic law and the laws of armed conflict, in pursuit of a reformed, comprehensive, and modern humanitarian law. Analysis arising from this project engages a larger community of practitioners and scholars in understanding the relationship between IHL and Islamic law for internationally viable approaches to present-day asymmetric warfare challenges, including:
- Attacks by non-state entities against sovereign state
- Transnational conflicts
- Human shielding (“perfidy” under Article 147 of the Geneva Convention IV)
- Shielding soldiers among civilian populations
- Deliberate and direct targeting of civilians
- Forced displacement and the creation of refugees
- Mistreatment of detained persons
- Failure of belligerents to respect and prevent IHL violations
- The fate of disempowered states in conflict settings
- Lack of standardized approaches to IHL
We are committed to building an international network of scholars, legal analysts, policymakers, and humanitarian practitioners to enhance the ongoing global dialogue concerning reform of the laws of war.
Project Publications Link
Banks, W. “Toward an Adaptive International Humanitarian Law: New Norms for New Battlefields.” In New Battlefields/Old Laws: Critical Debates on Asymmetric Warfare. Ed. William C. Banks. New York: Columbia UP, 2011.Zoli, C. “Humanizing Irregular Warfare: Framing Compliance for Nonstate Armed Groups at the Intersection of Security and Legal Analyses.” In New Battlefields/Old Laws: Critical Debates on Asymmetric Warfare. Ed. William C. Banks. New York: Columbia UP, 2011.
Banks, W. “Shaping a Global Legal Framework for Counterinsurgency: Placing Postmodern War in Context.” In Counterinsurgency Law: New Directions in Asymmetric Warfare. Ed. William Banks. New York: Oxford UP, 2013.
Articles, Working Papers, & Presentations Link
- “Justice in Post-Conflict Settings: Islamic Law and Muslim Communities as Stakeholders in Transition.” Utrecht Journal of International and European Law. (With M.C. Bassiouni & H. Khan.) Forthcoming.
- “The ‘God Gap’ in International Affairs: Missing Cross-Cultural Conversations in International Humanitarian Law and Islamic Jurisprudence.” Florida Journal of International Law (Forthcoming 2017).
- “Lone-Wolf or Low-Tech Terrorism? Emergent Patterns of Global Terrorism in Recent French and European Attacks.” Lawfare (Aug. 17, 2016).
- Zoli, C. “Islamic Contributions to International Humanitarian Law: Recalibrating TWAIL Approaches for Existing Contributions & Legacies.” AJIL Unbound: Symposium on TWAIL Perspectives on ICL, IHL, & Intervention (March 2016).
- Zoli, C. & Schneider, E. “Shari’a Strategy: Rule of Law Replacing the State.” Syria in Crisis (Carnegie Endowment for International Peace) (Jan. 4, 2014).
- Zoli, C. & Schneider, E. “Shari’a Courts Move to the Battlefield: Jabhat al-Nusra Opens a Legal Front in the Syrian Civil War.” Harvard Law School National Security Journal (Jan. 3, 2014).
- Zoli, C. & Schneider, E. “Privacy in Muslim Constitutions & the Bilateral Security Agreement.” The Washington Post (Jan. 2, 2014).
- Abdenour, C., Schneider, E., & Schuster, C. “Conflict Behavior in Muslim States.” (ISPL Presentation, 2013).
- Zoli, C. “The ‘God Gap’ in International Humanitarian Law: Lessons Learned from Islamic Jurisprudence.” ISPL Working Paper Series (Jan. 1, 2012).
Islam & IHL Workshop Link
April 17, 2009 | Syracuse University
ISPL’s interdisciplinary workshop gathered scholars and practitioners from the fields of Islamic law, Muslim politics and culture, comparative religion and history, international conflict and security, and international law and human rights with interest in the contribution of Islam to the rules governing the conduct of warfare. The workshop was a vital first step in a larger effort to understand the challenges posed to humanitarian law today as it is confronted with new kinds of armed conflicts.
Topics discussed at the workshop included:
- The role of culturally and religiously-based legal norms and their authoritative sources for limiting armed conflict’s effects on victims.
- The meaning of asymmetry from the perspective of the weaker party.
- Conflicting and even incompatible notions of legitimacy and defense in military actions.
- The role of universal human rights standards in relation to culture and conflict.
The bodies of law under consideration are “living traditions,” to paraphrase the 8th century jurist al-Awzai’s view of Islamic law referring to the uninterrupted, intergenerational practice of adapting approved legal precepts to contemporary circumstances.
This view of the law rebuts the tendency to reduce Western and Islamic legal traditions to static or monolithic constructs, instead recognizing each as complex, dynamic, and plural (i.e., made up of sub-traditions). Given the inherent complexity of this subject across traditional disciplines and practice areas (i.e., international humanitarian, military, legal, and policy communities) an interdisciplinary approach and sustained collaboration for advancing knowledge is necessary.
The following research questions grounded the inquiry:
- What role does Islam play in international laws and norms for conducting warfare and why do some consider Islamic law an alternative to IHL?
- Does incorporating primary and secondary Islamic sources foster a different understanding and legal interpretation of key IHL provisions and its present challenges today?
- What shared or divergent visions and precepts underlie IHL and Islamic attempts to humanize warfare?
- Do Islamic doctrines of warfare have lessons for contemporary conflict settings, asymmetric warfare, non-state belligerents, present gaps in IHL, or the relationship between jus in bello and jus ad bellum?
- Are contesting interpretations of Islamic law enabling Islamist interpretations of warfare and the use of violence for social and political change?
- What would a productive synthesis look like between Islamic jurisprudence and IHL that humanizes war while preserving state’s sovereignty, a balance central to the universal acceptance of IHL
Project Directors: William C. Banks and Corri Zoli
|8:45 a.m.||INTRODUCTIONS||ISPL/Mellon CNY Humanities Corridor
Eric F. Spina, Vice Chancellor and Provost
Hannah R. Arterian, Dean, Syracuse University College of Law
George M. Langford, Dean, College of Arts & Sciences
|9:00 a.m. – 10:15 a.m.||SESSION 1||What do We Want to Accomplish? Why have Similar Conversations Failed?
William C. BanksModerator: Corri Zoli, Syracuse UniversityContributors:
Robert Barnidge, University of Reading, UK
James Cockayne, International Peace Institute (IPI)
Naz Modirzadeh, Harvard Program on Humanitarian Policy and Conflict Research Bernard Freamon, Seton Hall Law School
|Why have these conversations failed (i.e., the ‘incommensurate worldview’ problem), even though there is enough literature on ‘epistemological pluralism’ in approach and to the subject itself? Is there a western imprint on current international humanitarian law with resulting problems of compatibility and legitimacy with Islamic legal traditions? Is cultural heritage being used as a way to avoid using the rule of law in conflict situations universally?|
|10:30 a.m. – 11:45 a.m.||SESSION 2||Legal Perspectives: International Humanitarian Law, Islamic Jurisprudence, and Shared ConcernsModerator: William C. Banks, Syracuse UniversityContributors:
Mohammed Fadel, University of Toronto, CA
Sohail Hashmi, Mount Holyoke College Niaz Shah, University of Hull, UK
Mark Welton, United States Military Academy, West Point
|What are the commonalities and differences in terms of legal sources, authorities, different modes of reasoning, scholarly traditions, etc.? How have western scholars focused on certain traditions (i.e., Islamic law of jihad) only to deal with Islamic approaches to international armed conflict? What are the pressing areas of shared interest and inquiry: points of contention, overlap, and complementarity for contemporary asymmetric challenges.|
|12:00 p.m. – 1:45 p.m.||Lunch||Keynote: Gen. Montgomery C. Meigs (Ret.), Visiting Professor of Strategy & Military Operations, Georgetown University“Security First: US Priorities in Israeli-Palestinian Peacemaking”|
|2:00 p.m. – 3:15 p.m.||SESSION 3||Multidisciplinary Perspectives on the Role of Islam and IHL—Toward a Complex SynthesisModerator: Mehrzad Boroujerdi, Syracuse UniversityContributors:
Thomas Gibson, University of Rochester
Bernard Freamon, Seton Hall Law School James Turner Johnson, Rutgers University,
Jonathan Brown, University of Washington, Seattle
|Provides cultural, regional, political background for situating these issues. For instance, what role does religion play in the laws of war? Is there a crisis of scholarly authority in the Muslim world today and does it have implications for deciding issues like whether violence/suicide bombings are allowed or not? Is there absolute consensus (ijmā’), as the Amman Message of 2005 claims, relevant to contemporary public policy issues? Are the early Islamic legal and ethical codes in which merchants from vastly different cultures could negotiate contracts a better basis for social justice than the secular humanist tradition established by the Dutch jurist Hugo Grotius (1583-1645)?|
|3:30 p.m. – 4:45 p.m.||SESSION 4||Adapting IHL to New Security Challenges: Tensions, Recommendations, ApproachesModerator: Renée de Nevers, Syracuse UniversityContributors:
Niaz Shah, University of Hull, UK
Mohammed Fadel, University of Toronto, CA
James Turner Johnson, Rutgers University
Mark Welton, United States Military Academy, West Point
James Cockayne, International Peace Institute (IPI)
Miriam Fendius Elman, Syracuse University
|What does the ‘law’ actually mean in each (and in asymmetric) contexts? How do you translate command responsibility into disciplinary mechanisms in Islamic traditions and in asymmetric organizations? Who is actually responsibility for setting operating tactics, command and control in military obedience, both of which likely reference underlying frameworks of justice? Is it feasible to consider reconciling these traditions in militant Islamist cases where there is structural resistance to moderation toward all things jahiliyyah? Does Islamic law of armed conflict add another precept to the basic principles governing jus in bello armed conflicts (i.e., necessity, humanity, distinction, proportionality) to include seeking peace during the conflict? Might shared norms between Islamic jurisprudence and IHL offer understandings for how to speak to Islamist groups in controlling their tactics especially in relation to Islamic norms?|
|5:00 p.m. – 6:00 p.m.||SESSION 5||Agenda Setting for Interdisciplinary Collaboration, Framework Building, and IdeasModerator: Miriam Fendius Elman, Syracuse UniversityContributors:
James Cockayne, International Peace Institute (IPI)
Naz Modirzadeh, Harvard Program on Humanitarian Policy and Conflict Research Bernard Freamon, Seton Hall Law School Sohail Hashmi, Mount Holyoke College
|Next steps: how do we begin to develop guidelines at the intersection of IHL and Islam? If the rule of law and the law of armed conflict each have roots in both western and Islamic traditions, might an explicit emphasis on the interrelationship between them provide a bridge to broader acceptance of the law by those in both traditions who most directly apply it? Might there be opportunities for curtailing violence toward civilians and vulnerable populations by realizing the shared norms and practices between these traditions? Can a sophisticated understanding of compatibilities aid in creatively addressing the most recent challenges to international norms with regard to new forms of warfare?|
- William C. Banks, Syracuse University, Law
- Corri Zoli, Syracuse University, Political Science
- Miriam Elman, Syracuse University, Political Science
- Renee de Nevers, Syracuse University, Public Administration
- Mehrzad Boroujerdi, Syracuse University, Political Science
- Robert Barnidge, University of Reading, School of Law
- Jonathan Brown, University of Washington-Seattle, Islamic Studies
- James Cockayne, International Peace Institute
- Miriam Elman, Syracuse University, Political Science
- Mohammed Fadel, University of Toronto, Islamic History and Law
- Bernard K. Freamon, Seton Hall University, School of Law
- Thomas Gibson, University of Rochester, Anthropology
- Sohail Hashmi, Mount Holyoke College, International Relations
- Naz Modirzadeh, Harvard School of Public Health, Humanitarian Policy and Conflict Research (HPCR)
- Niaz Shah, University of Hull, Law School
- James Turner Johnson, Rutgers, Religion
- Scott Worden, United States Institute of Peace
- Mark Welton, U.S. Military Academy at West Point, NY, Department of Law
- Tucker Culbertson, Syracuse University
Robert Barnidge, University of Reading, School of Law
Examining the Prospects and Possibilities of a New Dispensation to Bridge Islam and International Humanitarian Law begins by providing a broad overview of scholarly discussions related to the principles of an Islamic law of war. It then juxtaposes these findings with the thinking and practice of a variety of militant Islamic groups. Finally, it ties together these discussions by cautioning against the feasibility of reconciliation in light of militant Islam’s structural resistance to moderation and uncompromising stance toward all things jahiliyyah.
Jonathan Brown, University of Washington-Seattle, Islamic Studies
The Crisis of Scholarly Authority in the Muslim World and its connection with declaring Muslims to be non-Muslims and who has the right to decide issues like whether violence/suicide bombings is allowed or not, focusing on the history of the all-important concept of consensus in Islamic thought and on the Amman Message as a modern instance of consensus (with Hisham Hellyer). The agreement of some several hundred Muslim scholars on key issues relating to Muslim religious authority took place in 2005 – but was not particularly noticed by or well studied in the broader global community. That agreement was on the definition of who could be considered as a Muslim, the outlawing of anathema, and the laying down of how religious authority was constituted in Islam. Uniquely, it comprised of Sunnis, Shi’is, Ibāḍīs and others – accepting them all as Muslims, while setting down clear and precise definitions. The claim of the document was that it was one of ijmā’: absolute consensus, which would indicate that is was obligatory for all Muslims to accept it. This article is an attempt to locate the declaration, described as the ‘Amman Message’ from the point of view of legal discussions of ijmā’ and its relevance in contemporary public policy issues.
James Cockayne, International Peace Academy
Commensurate Systems of Justice and Accountability: IHL and Islamic Law in Command and Control Mechanisms looks at systems of control and accountability mandated within two/three cases and connects these to underlying conceptions of ‘justice’ that they reflect. What such an investigation might allow, then, is the recognition that ‘aligning’ the two systems requires not only demonstrating compatible underlying values, but considering more practical links between control and accountability mechanisms used to enforce those values. At stake in this issue, then, is not only conduct of hostilities questions, but a discussion of what the ‘law’ actually means in each (and in asymmetric) contexts. This practical problem—how do you translate command responsibility into administrative disciplinary mechanisms even in asymmetric organizations—has important implications for meeting new challenges faced by IHL. By trying to figure out in any given case who is actually responsibility for setting operating tactics, for command and control in military obedience, both of which likely reference underlying frameworks of justice, important information might be gleaned for understanding how to speak to these group in controlling their operational tactics especially in relation to Islamic norms.
Mohammad Fadel, University of Toronto, Islamic History and Law
Discussions of The Relationship of Islamic Law And International Humanitarian Law often assume that the relevant body of Islamic law to be engaged is the Islamic law of jihad. This makes sense since the law of jihad deals with international armed conflict. On the other hand, the concept of “international” in the pre-modern world was radically different from the meaning of “international” today. For example, the endemic hostilities that took place between the Ottoman Empire and the Safavid Empire (and their successors) between the 16th and 18th centuries were not “international” conflicts but rather intra-Islamic conflicts more akin to a civil war under the terms of Islamic law, whereas the Iraq-Iran war of 1980-1988 would have qualified as an international conflict under modern conceptions of the international order. At the same time, several modernist Muslim jurists in the 20th century have rejected Islamic law’s pre-modern system of international relations in which territories were subject to different sets of rules based on whether they were an Islamic or a non-Islamic state. The justifications for this change implicitly suggest a subtle, but radical change in how Islamic law should perceive conflict between the independent and sovereign states comprising the modern world order: instead of the law of jihad governing international conflicts between “Muslim” states and non-Muslim states, the rejection of the dar al-islam/dar al-harb distinction suggests that all conflicts, from the Islamic perspective, should be viewed as intra-Islamic conflicts, in which case the law of civil war (ahkam al-bughat) form the relevant body of law rather than that of jihad. As evidence for the existence of this admittedly under-theorized development in Islamic law, I will use, counter-intuitively, the justifications given by Muslim jurists in defense of suicide bombings in Israel in which they claim that Israeli “civilians” are actually “combatants” is an effective admission that even the conflict against Israel is not subject to the laws of jihad, but some other rules. Those other rules are best understood, from an Islamic perspective, to be those of ahkam al-bughat.
Bernard K. Freamon, Seton Hall University, College of Law
Islamic Law, International Humanitarian Law, and the Legacy of H.L.A. Hart—Many scholars and practitioners are now actively seeking ways to harmonize and synthesize the norms, principles, and rules of International Humanitarian Law, as developed by jurists, states, and international organizations, with the body of norms, principles, and rules identified as being part of the Islamic Law of War, as developed by medieval and contemporary Muslim jurists, and assertedly practiced by jihadists today. This task has proved to be an extremely difficult undertaking. This paper will argue that the two bodies of law have much more in common than we might imagine, but these commonalities are not necessarily to be found in areas most often identified–respect for non-combatants, humane treatment of prisoners of war, regulation of the weapons of war, and decision-making concerning the appropriateness of certain tactics and strategies during armed conflict. Rather, commonality between the two bodies of law may spring from the fact that neither qualifies as a robust and mature “legal system” as such was defined and expounded upon by the legal philosopher H.L.A. Hart in his seminal work, The Concept of Law (1961). Hart argued that a mature legal system must exhibit a union between primary and secondary rules and that the secondary rules, namely rules of adjudication, change, and recognition, are what set mature legal systems apart from other more half-hearted regulatory regimes. Of these sets of rules, the rule of recognition is by far the most important because it enables the system to achieve behavioral compliance. Hart devoted an entire chapter of his work to explaining why international law had not yet achieved this level of maturity. In recent years, the field of International Humanitarian Law has begun to approach a standard that might satisfy Professor Hart and the analytical positivists, particularly Joseph Raz, although there are still significant shortcomings. This paper will examine the Islamic Law of War in light of the arguments of the analytical positivists, with particular reference to the doctrine of consensus, differing conceptions of sovereignty and authority, and the role of foreign law in the development of Islamic law rules. It will also examine these same issues through the lenses of the so-called normative positivists, exemplified in the writing of Jeremy Waldron, and the antipositivists, led by Ronald Dworkin.
Thomas Gibson, University of Rochester, Anthropology
Freedom of The Seas, Just War, and Shariah Law in Indonesia, 1605-2005— Indonesia is the largest Islamic country in the world today, and among the most democratic. Understanding the historical origins of Indonesian attitudes toward the themes explored in this symposium is thus of more than regional interest. In this paper I will explore why many Indonesians continue to see the Islamic tradition of international law as a better basis for social justice than the secular humanist tradition established by the Dutch jurist Hugo Grotius (1583-1645). Grotius developed his doctrine that the freedom of the seas was founded in natural law in a response to a request by the newly created United East India Company (VOC) to justify its seizure of a Portuguese galleon off the coast of the Malay peninsula in 1603. In his essay of 1605, Grotius argued that since the attempt by Portugal and Spain to monopolize trade with Asia was illegitimate, the Dutch were justified in retaliating against them. This argument formed the basis of his better-known treatise On the Law of War and Peace (1625). Once the Portuguese monopoly on east Asian trade was broken, however, the Dutch lost no time in attempting to create a monopoly of their own. This effort was not lost on the rulers of maritime states in Southeast Asia, whose prosperity had always depended on their ability to attract foreign merchants to their ports by guaranteeing the conditions for free trade. Muslim predominance over long-distance trade throughout the Indian Ocean meant that the shariah law functioned as a cosmopolitan legal code that was independent of the whims of any temporal ruler. It provided a shared legal and ethical code in which merchants from vastly different cultures could use negotiate contracts. The most powerful ruler in South Sulawesi at the time was the king of Gowa. Ironically, he converted to Islam in the same year that Grotius wrote his essay on the freedom of the seas. The sultans of Gowa quickly went on to establish a Islamic trading empire over the whole of eastern Indonesia, which brought them into direct competition with the VOC. Superior naval power enabled the VOC to impose a humiliating, one-sided legal treaty on Gowa in 1667, and on most other Indonesian sultanates by the end of the seventeenth century. Thereafter, resistance to the Dutch in Indonesia increasingly took the form of dispersed bands of “non-state actors” who were regarded by the Dutch as “pirates” and “smugglers”, but who often saw themselves as engaged in a just war, or jihad, against non-Muslim aggressors. Even this option was gradually closed off in the eighteenth century, and local Muslims who felt unbearably aggrieved by the actions of VOC officials resorted to a form of ritual suicide also known to the Spanish in the southern Philippines as juramentado and to the British in Malaya as “running amok”, acts reminiscent of twenty-first century suicide bombings. It was not until the development of mass transportation, communication and education in the late nineteenth century that large-scale resistance to colonial rule could develop. By the 1950s, modern schooling had combined with Islamic piety to produce a hybrid form of religious nationalism known as the Darul Islam movement. In the 1980s, I conducted many interviews with former Darul Islam militants in South Sulawesi. Given the actual practice of colonial states in the area, they viewed western claims to possess a universally valid system of secular law with deep skepticism. They saw the shariah law as providing a more secure basis for a just state and society than the secular tradition of international law founded by Hugo Grotius four centuries ago. Given the actual practice of American foreign policy today, many Indonesian intellectuals continue to agree.
Sohail Hashmi, Mount Holyoke College, International Relations
Jihad and the Geneva Conventions: The Impact of International Law on Islamic Theory— The advent of an international legal regime governing war and peace has had an obvious and profound impact upon Muslim articulations of jihad. As postcolonial Muslim states acceded to the United Nations Charter, the Geneva Conventions, and other treaties that comprise this legal regime, they contributed to the claim that public international law is a universally-accepted set of principles and procedures, the first such in history. This claim of universality threatened to make Islamic theories of world order, articulated in the classical jurists’ works on siyar and jihad, completely obsolete. This essay explores the different reactions that the rise of international law elicited among theorists of Islamic law. I divide the responses into three broad categories. The first group is the assimilationists. They treat the classical Islamic theory largely as a historical and now obsolete approach to world order. The assimilationists accept the universality of public international law and argue that through the accession of Muslim states to international law, most Muslims do so as well. The second group is the accommodationists, who coalesce around the claim that while international law appropriately governs the conduct of Muslim states in international society as a whole, Islamic law could and should have a role in the mutual relations of Muslim states. In other words, they see the potential for an Islamic international law alongside public international law. Potential conflict of laws is minimal, in the accommodationist view, because the basic Islamic principles governing both the resort to war and its conduct are fundamentally compatible with those underlying modern international law. The third group is that of the rejectionists, who view international law as an alien code imposed on Muslims by Europeans. The rejectionists affirm the superiority of Islamic law over public international law and call for its application by Muslim states, not just in their relations with each other, but in their relations with non-Muslim states as well. These three categories are ideal types; there are, of course, nuances within each of these general positions, and few writers fit perfectly into one camp or the other. Still, the three groups do represent, I believe, an accurate expression of the spectrum of Muslim responses to the advent of international laws on war and peace.
James Turner Johnson, Rutgers, Religion
Problems Posed by Radical Islamist Claims of the Jihad of Individual Duty—The parameters of the jihad of individual duty in a variety of types of sources in the history of fiqh. The context is the claim of the radical Islamists that the jihad of individual duty amounts to a kind of levee en masse in which individuals fight anywhere and anyhow they can, with no restrictions on means or targets. They trace this conception to Ibn Taymiyya and to a particular reading of the Qur`anand Hadith literature. But a broader look at the sources shows this to be anything but the standard interpretation. For the conference I’d locate the significance of this in the LOAC, thinking specifically of the 1949 Geneva rules on partisans and their modification in 1977 Protocol II.
Niaz Shah, University of Hull, Law School
Islamic Law of Armed Conflict looks at the origin, primary sources and basic and general principles of the Islamic law of armed conflict, i.e. jus in bellow. The Islamic law of armed conflict emerged out of real conflicts as the Prophet Muhammad (1-11 A.H.) addressed different conflict situations during his early wars or pacts with different tribes and rulers in the seventh century Arab society. Most of the times, verses of the Koran were revealed to deal with particular conflicts such as Badr (2 A.H.; Koran, 8:38-64) and Uhud (3 A.H.; Koran, 3:121-148) or an issue, such as war captives (Koran, 47:4; 8:67-61). The Prophet Muhammad also concluded several peace covenants with different tribes and rulers, such as the covenant with Quraish of Mecca known as the Covenant of Hudaybiyya (6 A.H.). Therefore, the primary sources of the Islamic law of armed conflict are the Koran and the practice of the Prophet Muhammad. The practices of the four caliphs (11-39 A.H.) do not found but is illustrative of it except where clear guidance in the primary sources was not available and they did Ijtihad, e.g. a commander took an individual decision which was accepted by the rest or was followed later on. Reference is also made to the work of early Imams where they either gave new meanings to the primary sources or developed totally new rules. Five basic principles can be gleaned from this study of the primary sources of the Islamic law of armed conflict: necessity, humanity, distinction, proportionality and seeking peace during the conflict. An exhaustive list of general principles dealing with issues, such as war captives (‘slay them wherever you find them’ (Koran, 9:5)), sex with captives, spoils of war, bringing all prisoners to Medina, mutilation, non-combatants and resumption of hostilities is carefully examined. The rules governing an internal armed conflict are examined in a separate chapter as this paper forms part of a larger research project called ‘Islamic and International Law of Armed Conflict: The Conflict in Pakistan and Afghanistan’.
Mark Welton, US Military Academy, West Point, Department of Law
The Rule of Law and Law of Armed Conflict Education: Western and Muslim Perspectives— Education and training of American military personnel in the law of armed conflict has always been challenging, requiring an understanding and acceptance by warfighters of the correlation between the legal rules and the practical (tactical and strategic) importance of adhering to those rules. The difficulty of this task has been exacerbated by the changing nature of warfare (both due to new technology and the increasingly irregular nature of military conflicts), as well as the disregard or disparagement of the law of armed conflict by some political leaders and regimes. Overlapping these problems has been the western imprint on the current international humanitarian law regime and resulting questions about its compatibility with and legitimacy in non-western (including Muslim) legal traditions. Yet the rule of law and the law of armed conflict each have roots in both western and Islamic traditions, and an explicit emphasis on the interrelationship between them may provide a bridge to broader acceptance of the law by those in both traditions who most directly apply it. Specifically, connecting basic rule of law principles to the law of armed conflict may support more effective education and training in this area, and overcome the perceived west-centricity of the current legal regime. By “basic” is meant a narrow, positivist approach to the rule of law that focuses on (1) the clarity and stability of legal rules, sufficient to guide the behavior of warfighters, and (2) the commitment by warfighters to a set of rules that reflects and promotes their own traditions and values. It might be useful in this regard to compare law of armed conflict education/training at the United States Military Academy and the Afghanistan National Military Academy. A focused, parallel inquiry could shed light on whether and how acceptance of the rules by future military leaders (cadets) can be made more relevant and effective, and specifically whether an emphasis on basic rule of law principles can make such acceptance more likely in both settings. Although some evidence has already been gathered, as will be noted, this essay will also propose and seek input for a more structured framework for inquiry that, if successful, may be expanded to other institutions.
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- Center for Human Rights and Humanitarian Law, American University College of Law
- Center for Study of Law and Religion, Emory College of Law
- Crimes of War Project
- DECAF MENA Regional Program, Geneva Center for the Democratic Control of Armed Forces
- Geneva Academy of International Humanitarian Law and Human Rights, University of Geneva
- Geneva Call
- Harvard Humanitarian Initiative, Harvard University
- Institute for International Law of Peace and Armed Conflict, Ruhr-Universität Bochum
- International Association for Humanitarian Policy and Conflict Research
- International Humanitarian Law, International Committee of the Red Cross
- International Humanitarian Law and International Criminal Law, T.M.C. Asser Institute
- International Humanitarian Law Research Initiative, Harvard University
- International Humanitarian Law Project, London School of Economics
- International Humanitarian Law Workshop, Santa Clara College of Law
- International Humanitarian Law Clinic, Emory College of Law
- International Institute of Humanitarian Law
- International Institute for Strategic Studies
- International Peace Institute
- Non-State Actors under IHL, ICL and International Human Rights Law, International Institute of Higher Studies in Criminal Sciences
- RULAC, Geneva Academy of International Humanitarian Law and Human Rights
- Summer Institute for International Humanitarian Law and Human Rights, UC-Berkeley War Crimes Studies
- Transnational and Non-State Armed Groups: Legal and Policy Responses
Project Sponsors Link
Support for this initiative is generously provided by the Andrew W. Mellon Foundation, in conjunction with the Mellon CNY Humanities Corridor.
Project Partners Link
The US Institute of Peace’s (USIP) Rule of Law Center, which develops strategies for policymakers and practitioners to promote the rule of law in fragile and post-conflict societies.
International Institute of Higher Studies in Criminal Sciences (ISISC), a not-for-profit foundation that has been a major contributor to the development of more effective criminal justice systems worldwide, and in the strengthening of respect for human rights and the Rule of Law. ISISC focuses on education, training and research in the fields of international and comparative criminal justice and human rights.
Harvard University’s International Humanitarian Law Research Initiative (IHLRI), a central resource for the reaffirmation and development of international humanitarian law based at the Program on Humanitarian Policy and Conflict Research (HPCR) at the Harvard School of Public Health.