Towards a synthesis between islamic and Western jus in bello
Host item entries:
Journal of transnational law and policy, Vol. 21, no. 1, 2011-2012, p. 165-206
International Humanitarian Law (IHL) has lagged behind modern warfare. This article deals with the difficulties in distinguishing civilians from combatants in an age where most conflicts are fought between irregular combatants and full-time armies. The recent killing of Osama Bin Laden, as well as the increasing use of armed aerial 'drones' has provided publicity to these debates. It has also become apparent that many Islamist participants in warfare do not consider themselves primarily bound by traditional Western IHL sources, such as the Geneva Conventions, instead preferring religious sources. It is imperative that new provisions of IHL be developed to accommodate the dynamics of modern warfare. In order that these provisions attain the requisite level of moral force to bind both state and non-state actors, a new element of legitimacy must also be secured. This article takes the novel approach of suggesting that Islamic as well as Western sources of law should be taken into account in re-designing the law. The article concludes by demonstrating how such a synthesis may be achieved in practice, particularly in relation to the distinction between civilians and combatants.