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Abstract
This paper calls for comparative analysis of international humanitarian law and Islamic laws regulating armed conflict by focusing on the underlying assumptions and interests informing both systems (rather than on rule-based comparison). It argues that examination of the biases inherent to each legal system can potentially inform scholars to understand better the paradigms shaping each of them. In doing so, the paper builds on contextual and critical interpretations of both fields of law to assert the need for ‘critical comparativism’ rather than functionalist comparativism. Unlike functionalist comparativism, which treats international law as the ‘objective’ benchmark against which other legal traditions are measured, ‘critical comparativism’ treats the two legal systems examined as alternative manifestations of power structures which, when contrasted against each other, help shed more light on the inherent bias in each legal system.
Acknowledgements
I would like to thank Lynn Welchman, Vanja Hamzic, Ali Hammoudi, Sujith Xavier, Amar Bhatia, Adil Khan, Adrian Smith, Mazen Masri, Robert Knox, Usha Natarajan, Nahed Samour, John Reynolds and the attendees of the Second Cambridge Journal of International Law Conference and the 2015 Third World Approaches to International Law conference for their valuable and insightful feedback on this paper. It goes without saying, however, that all shortcomings in the paper are, in spite of their excellent feedback, the responsibility of the author.
Notes
1. For an examination of the history of jihād, see, for example, Bassiouni, “Evolving Approaches to Jihad”; Reiter, War, Peace & International Relations, 16–18; and Johnson and Kelsay, Cross, Crescent and Sword.
2. Abou El Fadl, “Between Functionalism and Morality,” 113. For the purposes of this paper, ‘classical’ refers to jurisprudence from the formative and medieval eras.
3. Hashmi, “Saving and Taking Lives,” 129.
4. Whereas the paper predominantly uses the term ‘international humanitarian law’ to refer to the international legal framework governing the regulation of armed conflict, it also uses the terms ‘laws of war’, ‘law of armed conflict’ and the Latin term ‘jus in bello’ (laws in war).
5. Hallaq, Sharī‘a, 340–341.
6. Frankenberg, “Critical Comparisons,” 436.
7. See, for example, Hallaq, “Shar ī’a”; and Shalakany, “Islamic Legal Histories.”
8. See Evans, “The Double Edged Sword’; and Shah, Islamic Law, 30–91.
9. Al-Zuḥaylī, “Islam and International Law,” 269. For consistency with other works by the author, I am using the proper transliteration. It should be noted, however, that the article was published by the Red Cross under the name of al-Zuhili.
10. Frankenberg, “Critical Comparisons,” 436.
11. Gordon, “Critical Legal Histories,” 61–62.
12. Frankenberg, “Critical Comparisons,” 436.
13. Legrand, “How to compare Now,” 238.
14. Al-Zuḥaylī, “Islam and International Law,” 269.
15. Al-Shāfi’ī, Al-Umm, 4: 270.
16. Abū Zahra, Al-‘Ilaqāt Al-Dawliyya fī Al-Islam, 97.
17. Hamidullah, Muslim Conduct of State, 195.
18. Firestone, Jihād, 34.
19. Cockayne, “Islam and International Humanitarian Law,” 597.
20. Hamidullah, Muslim Conduct of State, 46.
21. Anghie and Chimni, “Third World Approaches.”
22. Shah, Islamic Law, 4.
23. Mayer, “War and Peace,” 196.
24. Hallaq, The Origin and Evolution of Islamic Law, 193.
25. Landau-Tasseron, “Non-combatants,” 1.
26. Landau-Tasseron, “Non-combatants,” 2.
27. ICJ, Nuclear Weapons, para 97.
28. Latin term referring to the legal regulation of the use of force.
29. Al-Zuḥaylī, “Islam and International Law,” 282.
30. Al-Shāfi‘ī, Al-Umm, 4: 337.
31. Al-Zuḥaylī, “Islam and International Law,” 282.
32. Al-Shāfi‘ī, Al-Umm, 4: 390.
33. Munir, “Suicide Attacks,” 88.
34. See, for example, Ibn Ḥazm, al-Muḥalla, 7: 335; Ibn Qudāma, Al-Mughnī, 13: 107; Al-Shāfi‘ī, Al-Umm, 4: 257; Al-Shaybānī, The Islamic Law of Nations, 77; and Mālik, Al-Mudawwana, 1: 503.
35. Al-Zuḥaylī, “Islam and International Law,” 283.
36. Al-Zuḥaylī, Athār Al-Ḥarb, 432.
37. Bennoune, “As-Salāmu ‘Alaykum?’,” 625.
38. Bennoune, “As-Salāmu ‘Alaykum?’,” 623.
39. Ibn Ḥazm, Al- Muḥalla, 7: 299.
40. Abu Zahra, Al-‘Ilaqāt, 102.
41. Bassiouni, The Sharī‘a and Islamic Criminal Justice.
42. Sālim, “Bayn Al-‘Uhda Al-‘Umarīya.”
43. Hamidullah, Muslim Conduct of State, 206. Ibn Rushd himself acknowledges that the majority of jurists allowed the killing of captives and that there is a consensus that they could be killed if their threat was established. See Ibn Rushd II, Bidayāt al-Mujtahid, 2: 145.
44. Abu Zahra, Al-‘Ilaqāt, 115.
45. Ibn Rushd II, Bidāyat, 2: 145.
46. Abu Zahra, Al-‘Ilaqāt, 99–102.
47. Al-Zuḥaylī, “Islam and International Law,” 270.
48. Al-Zuḥaylī, Athār Al-Ḥarb, 19.
49. Aboul Enein and Zuhur, Islamic Rulings on Warfare, 29.
50. Khadduri, “Introduction: Shaybani’s Siyar,” 58.
51. Al-Zuḥaylī, “Islam and International Law,” 282.
52. Hamidullah, Muslim Conduct of State, 195.
53. Al-Shāfi‘ī, Al-Umm, 4: 340.
54. Al-Sarakhsī, Al-Mabsūṭ, 10: 34.
55. Ibn Ḥazm, Al-Muḥalla, 7: 296.
56. Hallaq, Sharī‘a, 76.
57. See, for example, Hallaq, “What is Shari’a?”; Zaman, Religion and Politics; and Rahman, Islamic Methodology in History.
58. See Abou Odeh, “Comparatively Speaking,” 287–307.
59. Emon et al., Islamic Law.
60. Sachedina, “The Development of Jihad,” 36.
61. Donner, “The Sources of Islamic Conceptions,” 32; Khadduri, War and Peace, 20, 33; and An-Naim, Towards an Islamic Reformation, 2.
62. Khadduri, War and Peace, 20. For similar contextual readings, see An-Naim, Towards an Islamic Reformation, 142; Peters, Jihad in Classical and Modern Islam, 2; Al-Dawoody, The Islamic Laws of War, 143; and Hallaq, Sharī‘a, 324.
63. Abou El Fadl, “Between Functionalism and Morality,” 105.
64. Abou El Fadl, “Between Functionalism and Morality,” 121.
65. Shalakany, “Islamic Legal Histories,” 79–80.
66. Engle, “Comparative Law,” 366.
67. Sassoli, Transnational Armed Groups, 4.
68. Gordon, “Critical Legal Histories,” 106, 109.
69. Kennedy, “Modern War,” 179.
70. See, for example, Escorihuela, “Humanitarian Law.”
71. Berman, “Privileging Combat?,” 5, emphasis in original text; See also Kennedy, Of War and Law, 36–37; and Anghie and Chimni, “Third World Approaches,” 80.
72. Berman, “Privileging Combat?,” 15.
73. Anghie and Chimni, “Third World Approaches,” 85.
74. Anghie and Chimni, “Third World Approaches,” 19.
75. Berman, “Privileging Combat?,” 20.
76. Abou El Fadl, Rebellion, 327.
77. Despite the potential for the application of other legal regimes in Islamic jurisprudence, such as the harsher regime of ḥirāba, normally reserved for highway robbery or apostasy, to incidents of rebellion, this paper is premised on the primary regime addressing rebellion in Islamic jurisprudence, which is baghy.
78. Al-Shaybānī, Siyar, 231–232; Al-Shāfi‘ī, Al-Umm, 4: 311–312; Ibn Ḥazm, Al-Muḥalla, 11: 102; and Ibn Qudāma, Al-Mughnī, 12: 254.
79. Abou El Fadl, Rebellion, 326.
80. Al-Shaybānī, The Islamic Law of Nations, 231–232; Al-Shāfi‘ī, Al-Umm; 4: 311–312, Ibn Ḥazm, Al-Muḥalla, 11: 102; and Ibn Qudāma, al-Mughnī, 12: 254.
81. Al-Shaybānī, The Islamic Law of Nations, 97–98; Al-Shāfi‘ī, Al-Umm, 4: 335; Ibn Qudāma, Al-Mughnī, 13: 44–47; and Ibn Ḥazm, Al-Muḥalla, 7: 324.
82. Al-Shāfi‘ī, Al-Umm, 4: 311.
83. Al-Shāfi‘ī, Al-Umm, 4: 347–348.
84. Al-Shāfi‘ī, Al-Umm, 4: 347.
85. Al-Shāfi‘ī, Al-Umm, 4: 337.
86. Al-Shāfi‘ī, Al-Umm, 4: 347. The Editor of Al-Umm, Maḥmud Mutrajī, provides evidence that this prophetic tradition was abrogated by other traditions. See Al-Umm, 4: 337–338, footnote 3.
87. Ibn Qudāma, Al-Mughnī, 13: 138–140.
88. Ibn Qudāma, al-Mughnī, 12: 247
89. Ibn Ḥazm, Al-Muḥalla, 11: 116–117
90. Ibn Ḥazm, Al-Muḥalla, 7: 296.
91. Al-Shaybānī, The Islamic Law of Nations, 231 (clarifications in brackets in original translations).
92. Al-Shaybānī, The Islamic Law of Nations, 232.
93. Badawi, “Sunni Islam,” 301–370; and Abou El Fadl, Rebellion, 62–100.
94. Berman, “Privileging Combat?,” 69.
95. Simma and Paulus, “Symposium on Method,” 303–304.
96. Baderin, “Religion and International Law,” 652.
97. Anghie, “Peripheries.”
98. Megret, “Savages,” 35.
99. Bennoune, “Remembering the Other’s Others,” 642.
100. Bennoune, “Remembering the Other’s Others,” 661.
101. Berman, “Privileging Combat?,” 69; and Megret, “From Savages to Unlawful Combatants,” 37.
102. Bennoune, “Remembering the Other’s Others,” 650–651.
103. For feminist readings of the biases of the laws of war, see Charlesworth, “Symposium on Method,” 379–394; Gardham, “A Feminist Analysis,” 265–278; and Chinkin, “Gender-related Violence,” 75–81.
104. Whereas the terms ijtihad and jihad stem from the same arabic source (j.h.d), for effort, ijtihad is a technical term for the process of studying and understanding God's laws.