Protection Of The Rights Of Individuals In Armed Conflict Situation: A Comparative Analysis Of Islamic And International Humanitarian Laws

Introduction

1.1 Background of Study

The history of human kind right from antiquity testified that, conflict or rather armed conflict between individuals, families, tribes and nations has been part of the nature of human persons.

Policy of force was encouraged by disinclination of state of Europe during the dark ages through the Middle Ages, to consider any community other than one which was loosely related to them as Barbarian who did not deserve to be treated on equal footing. An example is the case of Romans who treated none but their Latin cousins as equals, while they treated the rest of the world as Barbarians who deserved to live only under Roman Dominance.

During the period referred to above, the rights of combatants as well as non-combatants, e.g. civilians, women, children, aged persons, religious persons and injured combatants were not properly and adequately respected and protected during armed conflict situations. However, even at that period, certain individuals as well as some religious leaders tried with some greater or lesser success to limit the suffering of war among combatants and non-combatants.

For instance, two thousand years before Christ, King Hammurabi of Babylonia (now in Iraq) codified rules of conduct in war.

In India, the text of Maharabati and Manu Codes provided that, mercy be shown to the disarmed and wounded enemy.

Over fourteen hundred years ago (7th Century, A. D.), the religion of Islam laid down comprehensive rules of war, in order to alleviate the suffering of war to both combatants and noncombatants.

In the 17th Century, the Dutch legal scholar and diplomat, Grotius, wrote his book entitled De juri Belli – Acpacis, which was considered to be the first attempt to draw up rules of international law, protecting the victim of armed conflict.

However, the first modern attempt to draw up a binding code for the conduct of armed forces in the field was that prepared by Professor Francis Libber of the United States of America, promulgated as law, by President Lincon in 1868, during American Civil War. This code though only binding upon United States of American forces was based on what Libber regarded as the generally accepted law of his day.

Islam was the first religion to provide Arabian peninsular with comprehensive rules and regulations governing the conduct of war, as well as protection of rights of combatants and noncombatants during armed conflict situations.

The first Islamic state was established in Medinah in the 7th Century (Rabee al-Awwal, first year of Hijra) by the Prophet Muhammad (Peace be upon Him). Since then, some basic rules and regulations governing the conduct of war were laid down by the prophet (peace be upon him). It was reported that, whenever the prophet was sending troops to battle, he instructed them to comply with the following regulations:

Be just, do not act treacherously, and do not act disloyally or negligently. Do not mutilate, do not kill little children, old men or women. Do not cut off palm tree or burn it. Do not fell any fruits bearing tree. Do not slaughter – sheep, cow or camel, except for food, perchance, you will come across men who retired to monasteries (Priest or clergymen) leave them and their devotion in peace.

This is the brief historical account of the position of the two legal systems (International Humanitarian law and Islamic law of war) during their infancy.

1.2 Statement of the Problem

The 1949 Geneva Conventions are said to apply in any armed conflict whether international or non-international by virtue of Article 3, Common to all Geneva conventions. The conventions are said to bind all parties in armed conflict, whether signatory to it or otherwise. The necessary implication of this statement is that, any other legal system that goes contrary to any provision of the said conventions will not be tolerated or accommodated. In other words, the conventions attained a supremacy status, so that, if any other law is in clear conflict with their provisions, the latter will be declared null and void to the extent of its inconsistency.

In other words, permission to commit an act which is regarded by the conventions as war crimes will not exonerate a person from liability. An example is the provision of Islamic law of war which permits the killing or enslaving the prisoners of war. How can this be practicable nowadays, if for instance, a new government in any of the Islamic state emerges and decides to apply this Islamic provision?

(b) There is also provision under Islamic law of war similar to the above (which also violated the provision of the convention– i.e. 3rd Geneva convention Article 14 and Article 34) that permits imposing of poll tax (JIZYA) on the inhabitants of a conquered territory who decide to remain non-Muslims (Christians and Jews). How will this be practiced now-a-days, in the event of the emergence of a new Islamic government that decides to be governed strictly by the provisions of Islamic law of war instead of Geneva conventions provisions, in this and similar respects?

(c) Another problem worth addressing by this research work is that, Geneva Conventions recognize war correspondents (an issue/problem which was not discussed by writers on Islamic law of war). Can such recognition be extended by Islamic law of armed conflict?

(d) Similar problem to the above is the issue of using certain kinds of weaponry which were not in existence during the life time of the Prophet Muhammad (Peace be upon Him) as well as his companions and other classical jurists, such as weapons of mass destruction, biological and chemical weapons. What will be the ruling of Islamic law of war on using these weapons?

(e) Similarly, the issue of rules that will regulate Air warfare was not addressed by the writers on Islamic law of armed conflict despite the significant roles they are playing in the modern warfare, whereas, literature on maritime warfare rules are very minimal and scars.

These and other problems/issues necessitate the writer to embark on this project with a view to address them.

1.3 Objective of Study

The objective of this research is to provide:

1. A comparison of Islamic and International Humanitarian laws by examining the rights of individuals, both combatants and non-combatants, during armed conflict situations.
2. To examine the sources of the said two legal systems.
3. The purpose of war under the said two legal systems.
4. The definitions and different punishments for war crimes as provided under the two legal systems.

1.4 Significance of Study

In the opinion of this writer, there is a serious need to embark on this research at this moment, considering the fact that, there are some new development in the present armed conflict which the Islamic view point has not been discussed by learned writers on this field, such as, Rules and Regulations governing air warfare, maritime warfare, the use of certain kind of weaponry e.g. Weapons of Mass Destruction (Chemical and Biological Weapons), suicide bombing etc. The writer also appreciates the need to address differences between Islamic law of war and International Humanitarian law in respect of some fundamental issues, such as permission to kill or enslave the prisoners of war in certain situations, enforcing a tax (Jizya) on the conquered people etc, by Islamic law of war, which permission still stand valid according Imam Malik, Imam Shafi’I, Imam Abu Hanifa and Imam Hambali.

Beside the above, there is also need to embark on this project, due to the fact that, it happened to be among the neglected areas in Islamic literature; with a view to develop it.

1.5 Scope and Limitation of Research

This research will examine the provisions dealing with protection of individuals’ rights, both combatants and non-combatants during and after armed conflict, under Islamic law of war as well as International Humanitarian law, although the emphasis will be on Islamic law of war.

The scope of research will be limited to the followings:

1. Historical development of the two legal systems.
2. Rights of individuals both combatants and non-combatants during and after the armed conflict under the two legal systems.
3. Extent of protection of such rights under the two legal systems.
4. Punishment for violation of such rights as remedies under the two legal systems.

1.6 Methodology of Study

This research will be doctrinal in nature, thus, it will be carried out through the use of library materials, such as textbooks, journals, article and other available literature, including relevant materials in the internet.