Exploring foundational convergence between the Islamic law of armed conflict and modern international humanitarian law: Evidence from al-Shaybani's Siyar al-Kabir

2021 ◽  
pp. 1-26
Author(s):  
Cenap Çakmak ◽  
Gökhan Güneysu
Keyword(s):  
Armed Conflict ◽  
Islamic Law ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Law Of Armed Conflict

Abstract This paper compares and contrasts the Islamic law of armed conflict with the modern international humanitarian law, with the view of identifying foundational similarities between these two separate canons, drawing extensively from al-Siyar al-Kabir. To this end, it raises the question as to whether the Islamic law of armed conflict is compatible with its modern counterpart, and, if it is, to what extent. To address these interlinked questions, the study departs from the premise that in order to identify resemblance, it is necessary to enquire into the foundations (both legal and philosophical) of the Islamic and contemporary approaches vis-à-vis armed conflicts.

scholarly journals EVOLUTION OF THE CONCEPT OF «ARMED CONFLICT»: HISTORICAL, LEGAL AND THEORETICAL AND METHODOLOGICAL ASPECTS

2021 ◽  
Vol 74 (1) ◽  
pp. 20-26
Author(s):  
Oleksandra Severinova ◽  
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
Modern World ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Law Of Armed Conflict ◽  
The World ◽  
History Of ◽  
Political Economic ◽  
Methodological Aspects

The article analyzes the theoretical and methodological aspects of the formation and development of doctrinal ideas about the meaning of the concept of «armed conflict» in the history of world political and legal thought. The question of the name of the branch of law that regulates armed conflict, by analyzing its historical names such as «law of war», «laws and customs of war», «law of armed conflict», «international humanitarian law» and «international humanitarian law, used in armed conflicts». As a result of this analysis, it can be concluded that it would be most appropriate to use the terms «international humanitarian law» only in a narrow sense or «international humanitarian law applicable in armed conflicts», which is more cumbersome but most accurately describes the field. It is emphasized that due to the availability of new powerful weapons (economic, political, informational, cultural and weapons of mass destruction), which are dangerous both for the aggressor and for the whole world; the aggressor's desire to downplay its role in resolving conflicts in order to avoid sanctions from other countries and international organizations, as well as to prevent the loss of its authority and position on the world stage; the attempts of the aggressor countries to establish their control over the objects of aggression (including integrating them into their political, economic and security systems) without excessive damage to them is the transformation of methods and means of warfare. It is determined that the long history of the formation of the law of armed conflict has led to the adoption at the level of international law of the provision prohibiting any armed aggression in the world, which is reflected in such a principle as non-use of force or threat of force. At the same time, the UN Charter became the first international act in the history of mankind, which completely prohibited armed aggression and enshrined this principle at the international level, which is binding on all states of the modern world.

Protecting the Environment from the Perspective of the Law of Armed Conflict

2021 ◽  
Vol 23 (2-3) ◽  
pp. 252-260
Author(s):  
Bartłomiej Krzan
Keyword(s):  
Climate Change ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Normative Framework ◽  
Law Of Armed Conflict ◽  
The Law

Abstract The present study analyses climate change from the perspective of the law of armed conflict. Climate may be both a victim and a means of warfare. Arguably, the existing normative framework is broad enough to allow for accommodating climate change. It cannot be denied that the environment is easily harmed, or at least jeopardized in times of armed conflicts. Despite the obvious lack of explicit references in the instruments of international humanitarian law, it may be argued that it is possible to fit climate change in. The accompanying analysis addresses the respective potential and the ensuing hurdles.

scholarly journals Destructive trends in contemporary armed conflicts and the overlooked aspect of intangible cultural heritage: A critical comparison of the protection of cultural heritage under IHL and the Islamic law of armed conflict

2021 ◽  
pp. 1-20
Author(s):  
Victoria Arnal
Keyword(s):  
Cultural Heritage ◽  
Islamic Law ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Intangible Cultural Heritage ◽  
Humanitarian Law ◽  
Legal Rules ◽  
Legal Traditions ◽  
Law Of Armed Conflict ◽  
Rules And Principles

Abstract The destruction of cultural heritage in armed conflicts has gained increasing political momentum and visibility over the last two decades. Syria, Iraq and Mali, among others, have witnessed the intentional destruction of their cultural heritage by non-State armed groups (NSAGs) that have invoked Islamic law and principles to legitimize their actions. The response of the international community has predominantly focused on the material aspect, to the detriment of the significant impact on the associated intangible manifestation of cultural heritage in local communities. This article argues that several Islamic legal rules and principles may, more adequately than international humanitarian law, safeguard the intangible dimension of cultural heritage in certain contemporary armed conflicts in Muslim contexts. It aims to demonstrate the importance of drawing from multiple legal traditions in order to enhance the protection of intangible cultural heritage in armed conflicts and to strengthen engagement with the relevant NSAGs.

scholarly journals Lest We Forget the Realm of Armed Conflicts: A Guided Discussion on the Law of Armed Conflict/International Humanitarian Law

2021 ◽  
pp. 1-50
Author(s):  
Yugichha Sangroula
Keyword(s):  
Armed Conflict ◽  
Theory And Practice ◽  
Law Students ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Initial Attempt ◽  
Law Of Armed Conflict ◽  
Key Issues ◽  
The Law

The paper is a doctrinal and a dialectic endeavour to comment on LOAC/IHL from a bird’s-eye view. It is the author’s initial attempt to contribute to an ongoing discussion on the theory and practice of LOAC/IHL, reflecting on the key issues relevant to Nepal. The question-answer approach is based on the author’s interactions with law students, colleagues, members from the police, military, victims, bureaucrats and politicians in the Nepali diaspora. The paper will benefit from the readers’ critique.

19 The Law of Non-International Armed Conflict

2021 ◽  
Author(s):  
Fleck Dieter
Keyword(s):  
Twentieth Century ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Basic Principles ◽  
Progressive Development ◽  
Law Of Armed Conflict ◽  
The Law

This chapter provides an overview of the law of non-international armed conflicts and its progressive development. The law of armed conflict, as it has developed in the last part of the nineteenth and the first part of the twentieth century, deals predominantly with wars between states. Its basic principles and rules are, however, likewise relevant for non-international armed conflicts: in all armed conflicts, elementary considerations of humanity must be respected under all circumstances, in order to protect victims, to reduce human sufferings, and to minimize damages to objects vital for survival. Therefore, the parties to the conflict do not have an unlimited choice of the means and methods of conducting hostilities, nor of selecting the targets to be attacked, and they must protect the victims from the effects and consequences of war. This concept is reflected in the principles and rules of international humanitarian law, to be respected by all and, while taking military necessity into account, limiting the use of force for humanitarian reasons. Parties to the conflict respecting these principles and rules are considered as respecting the international order, while those seriously violating them will commit internationally wrongful acts and perpetrators are liable to punishment.

Tracing the Historical and Legal Development of the Levée en Masse in the Law of Armed Conflict

2017 ◽  
Vol 19 (3) ◽  
pp. 329-361 ◽  
Author(s):  
Emily Crawford
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Civilian Population ◽  
Legal Development ◽  
Law Of Armed Conflict ◽  
History Of ◽  
The Law

Levée en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regard to determining who may legitimately participate in armed conflict. The concept originated during the revolutionary wars in America and France, and was incorporated into the first codified rules of armed conflict. However, despite the prevalence of the category of levée en masse in the modern laws of armed conflict, there have been few, if any, instances of levée en masse taking place in modern armed conflicts. This article examines how and why the category of levée en masse developed. In doing so, this article situates the concept and evolution of levée en masse within the history of international humanitarian law more generally.

The Temporal Scope of the Laws of Armed Conflict in Multinational Military Operations

2019 ◽  
pp. 49-69
Author(s):  
Christian Schaller
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Military Operations ◽  
Asymmetric Conflict ◽  
Post Conflict ◽  
Law Of Armed Conflict ◽  
Degree Of Stability ◽  
State Actors

The chapter explores the temporal scope of the law of armed conflict in multinational military operations. In particular, it is discussed under which conditions armed conflicts begin and terminate as a matter of international humanitarian law (IHL). Asymmetric conflict structures, fluctuating levels of violence, and the involvement of a multitude of state and non-state actors who enter and leave the battlefield at different stages during the hostilities make it especially difficult to determine the end of an armed conflict. Often, periods of intense fighting alternate with periods of relative calm. It is therefore argued that two requirements should be satisfied before an armed conflict within the meaning of IHL ought to be considered over: the situation must fall below a certain qualitative threshold separating the armed conflict from the post-conflict phase; and the threshold must be crossed with a degree of stability and permanence.

Who Guards the Guardians: Third Parties and the Law of Armed Conflict

1976 ◽  
Vol 70 (1) ◽  
pp. 41-61 ◽  
Author(s):  
David P. Forsythe
Keyword(s):  
Armed Conflict ◽  
International Committee ◽  
Armed Conflicts ◽  
Red Cross ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
Law Of Armed Conflict ◽  
Medical Transport ◽  
Definition Of

The Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law in Armed Conflicts continues its attempts to supplement the 1949 Geneva Conventions, and in so doing to make the bulk of jus in bello consonant with factual reality. The first session of the Conference in 1974 provisionally adopted one highly important article out of 137 presented to the Conference by the International Committee of the Red Cross (ICRC). The second session in 1975 provisionally adopted 77 articles pertaining to such important subjects as the definition of a noninternational armed conflict, the protection of civilians and civilian goods, medical transport, environmental protection, and protection of journalists.

Protection of the Environment in Times of Non-international Armed Conflicts – a Gap to be Filled in

2019 ◽  
Vol 78 ◽  
pp. 184-198
Author(s):  
Maria Magdalena Kenig-Witkowska
Keyword(s):  
International Law ◽  
Environmental Protection ◽  
Armed Conflict ◽  
Environmental Law ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Regulations ◽  
International Conflicts ◽  
Law Of Armed Conflict

Environmental protection in times of non-international armed conflicts is not subject to the sectoral or particular protection categories of environmental law and to date it has not been comprehensively regulated by international law. Except for generalities, it was also ignored in the 1992 Rio Declaration Principle 24 of which is not unambiguous in its expression. In fact, only the international humanitarian law of armed conflict contains norms which address the natural environment in times of armed conflicts. On the basis of a review of legal acts addressing the issues of environmental protection in times of non-international conflicts, negative conclusions de lege lata can be drawn as part of an attempt to answer the question whether international law ensures sufficient environmental protection in such circumstances. In the Author’s opinion, in international law there is a gap relating to the protection of the environment in times of non-international armed conflicts; the existing legal regulations which could be applied in these matters have a rudimentary characters.

The Handbook of International Humanitarian Law

2021 ◽  
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Outer Space ◽  
Humanitarian Assistance ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Military Operations ◽  
Law Of Armed Conflict ◽  
The Law

This updated and revised fourth edition sets out a Black Letter text of international humanitarian law accompanied by case analysis and extensive explanatory commentary. The book takes account of recent legal developments, such as the 2017 Nuclear Weapons Prohibition Treaty, as well as the ongoing debate on many old and new issues including the notion of direct participation in hostilities; air and missile warfare; military operations in outer space; military cyber operations; belligerent occupation; operational detention; and the protection of the environment in relation to armed conflict. The continuing need to consider borderline issues of the law of armed conflict as well as the interplay of international humanitarian law, human rights law, and other branches of international law is highlighted. Certain topics, such as the law of occupation, protection of the environment in relation to armed conflicts, humanitarian assistance, and human rights in armed conflict have been made more visible in separate chapters.

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