"IHL" as "islamic humanitarian law" : a comparative analysis of international humanitarian law and islamic military jurisprudence amidst changing historical contexts
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Florida journal of international law, Vol. 24, no. 2, August 2012, p. 439-468
This analysis illustrates the similarities between Islamic military jurisprudence and international humanitarian law (IHL), while demonstrating that most of the inconsistencies between the two are due to the social contexts in which they were formulated, not an innate incompatibility. As such, an underlying theme of this Note is that relevant principles of armed conflict must be looked at through the prism in which they were formulated because that will help establish their continued relevance today. After an introduction to the relevant sources of law in each respective tradition so as to illustrate their legitimacy and their influence on the regulation of armed conflict, this Note discusses the importance of jus ad bellum, and how the socio-historical contexts that underlie the justifications of going to war have shaped the laws that regulate the conduct of war. Next, it turns to a comparative analysis of particular principles related to the regulation of armed conflict, including civilian immunity and the principle of distinction (including the distinction between civilian and military objectives), the combatant's privilege, and prisoners of war (POWs). It concludes by demonstrating that Islam can stay true to its own traditions, while working within, and contributing to, the broader international framework.