scholarly journals Fiqh al-Jihād in Modern Warfare: Analyzing Prospects and Challenges with Reference to International Humanitarian Law

2018 ◽  
Vol 26 (2) ◽  
pp. 241
Author(s):  
Fajri Matahati Muhammadin ◽  
Thara Kunarti Wahab
Keyword(s):  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Jus In Bello ◽  
Literature Research ◽  
Modern Times ◽  
Jus Ad Bellum ◽  
Modern Warfare ◽  
The Way

In discussing the compatibility of the Islamic concept of jihād and international law, most researches focus on the jus ad bellum (justifications of war) of fiqh al jihād and less on the jus in bello (lawful conducts of war). This article observes the relation between fiqh al-jihād and modern international humanitarian law, and sets out both the prospects and challenges of such a concept in modern times. It is argued that some challenges are due to the lack of emphasis on the principles of fiqh al-jihād that are shared with modern International Humanitarian Law, or the existence of differing opinions between Islamic scholars. Using a literature research, this article finds that the way to address this is to make a unified code of fiqh al-jihād, involving scholars from all schools of thoughts, to agree on a common set of rules.

Automatic Cyber Defence and the Laws of War

2018 ◽  
Vol 60 (1) ◽  
pp. 203-237
Author(s):  
Nicholas Tsagourias ◽  
Russell Buchan
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Use Of Force ◽  
Computer Hardware ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Cyber Attack ◽  
Armed Attack ◽  
Jus In Bello ◽  
Jus Ad Bellum

Automatic cyber defence describes computer operations to neutralise a cyber attack. Once a system detects that it is under cyber attack, it automatically launches offensive cyber operations that pursue the attacker back to its own network with the objective of rescuing stolen data or disabling or destroying the computer hardware and software that is responsible for hosting and distributing the attacking code. The aim of this article is to examine the legality of automatic cyber defence under the law regulating the use of force in international law (jus ad bellum) and under international humanitarian law (jus in bello). Thus, the first part of this article examines automatic cyber defence in the context of the jus ad bellum by considering the legal requirements of an armed attack, necessity, and proportionality. In the second part, it examines the jus in bello aspects of automatic cyber defence and, in particular, whether it triggers an international or a non-international armed conflict and, if so, whether it can comply with the principles of distinction and proportionality.

And Yet It Exists: In Defence of the ‘Equality of Belligerents’ Principle

2013 ◽  
Vol 26 (2) ◽  
pp. 449-472 ◽  
Author(s):  
VAIOS KOUTROULIS
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
Legal Basis ◽  
Jus In Bello ◽  
Customary International Law ◽  
International Court

AbstractThe equal application of international humanitarian law (jus in bello) to all parties to an international armed conflict is a cornerstone principle of jus in bello. In his article, Professor Mandel casts doubt on the legal basis of this principle. Reacting to this claim, this contribution demonstrates that the ‘equality of belligerents’ is a principle firmly grounded in both conventional and customary international law. Moreover, its legal force withstands the test of international jurisprudence, including the International Court of Justice's controversial Nuclear Weapons advisory opinion.

The Relationship between Jus Ad Bellum and Jus In Bello

2016 ◽  
Author(s):  
Okimoto Keichiro
Keyword(s):  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Expert Opinions ◽  
Legal Implications ◽  
Law Of Armed Conflict ◽  
The Relationship ◽  
Self Defence

This chapter discusses the relationship between jus ad bellum (international law regulating the resort to force) and jus in bello (law of armed conflict). It examines state practice, international decisions, and expert opinions to determine how the relationship has been addressed in practice. The chapter considers the question of whether jus in bello applies equally to the unlawful and lawful parties to an armed conflict before turning to the legal implications of the cumulative requirements of the law of self-defence and international humanitarian law (IHL) imposed on a use of force in self-defence. Finally, it considers the legal implications of the concurrent application of Chapter VII of the UN Charter and IHL with respect to use authorized under Chapter VII.

Aggression and the symmetrical application of International Humanitarian Law

2015 ◽  
Vol 7 (1) ◽  
pp. 1-32 ◽  
Author(s):  
Pablo Kalmanovitz
Keyword(s):  
Just War ◽  
Just War Theory ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Hard Choice ◽  
Recent Scholarship ◽  
Causes Of War ◽  
Widespread View

Recent scholarship in just war theory has challenged the principle of symmetrical application of International Humanitarian Law (IHL). This revisionist work, which is increasingly dominating the field of contemporary war ethics, rejects the idea that the rules of conduct of war (jus in bello) should be agnostic about the justice of the decision to go to war (jus ad bellum). Just wars are perceived to be inherently at odds with the principle of symmetrical application of IHL, which appears to create a hard choice between justice and legality. I show that this challenge to IHL is misplaced. It derives from a widespread view among just war theorists according to which only one side in a just war can be justified in using force. By looking closely at the nature of adjudication of just causes of war, I show that there can be cases of war in which both sides are justified in using force, and cases in which, though not objectively justified, both sides may be excused for fighting. On the basis of this understanding of jus ad bellum, I argue that the principle of symmetrical application of IHL in fact best reflects the uncertainty and complexity that should characterize the practical doctrine of jus ad bellum.

Administering the Territories: An Inquiry into the Application of International Humanitarian Law by the IDF in the Occupied Territories

2005 ◽  
Vol 38 (3) ◽  
pp. 24-79 ◽  
Author(s):  
Amichai Cohen
Keyword(s):  
International Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The Core ◽  
Occupied Territories ◽  
Six Day War ◽  
New Perspective ◽  
Israeli Army ◽  
The Way

This article seeks to evaluate Israel's implementation of the international law of occupation in the territories which it came to control after the Six-Day War, from a new perspective. Many scholars have criticized or justified specific Israeli policies by comparing them to specific norms of international law. Contrary to this scholarship, this article addresses the questions at the core of current debates over the implementation of international law: Why has Israel chosen to implement some specific rules of international law and to ignore others? And what caused the changes in Israel's implementation of international law?Some of the answers to these questions can be found by examining the interests of various institutions involved in the implementation of International law, and the interplay between them. I suggest that in order to understand Israel's initial behavior one must look at the interests, goals and culture of the Israeli army, the IDF, the institution initially responsible for administering the territories. I shall further argue that subsequent changes in policies are a result of the struggle between the IDF and other Israeli institutions attempting to gain influence over the way the territories were controlled.

Unjustifiable War and the Means to Avoid It

1916 ◽  
Vol 10 (4) ◽  
pp. 689-705 ◽  
Author(s):  
Heinrich Lammasch
Keyword(s):  
International Law ◽  
Roman Law ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
The One ◽  
The Right ◽  
The Way

In the beginnings of international law, in Grotius and his predecessors and immediate successors, discussion of the Right of War, the jus ad bellum, takes up a great deal of room by the side of the Right in War, the jus in bello. Today, however, the question, When is war justified? has almost ceased to be discussed. The so-called predecessors of Grotius, like himself and his immediate followers, accepted from the Roman law the notion of the bellum justum piumque. This concept was purely formal. To make a war a bellum justum piumque nothing more was required than compliance with the precepts of the fetial law as to the formalities of declaring war. To be sure, these, at least originally, required a resolution of the Senate and its ratification by the Centuriate Comitia. Later, however, this requisite, to which one could perhaps not always deny some material significance, completely disappeared behind the empty ceremony which the Pater Patratus performed at the boundary of the enemy country with the “hasta ferrata aut sanguinea prœusta” hurled across the same. Nay, in the war with Pyrrhus, a deserter from the former’s army was allowed to buy a piece of ground in Rome, into which the spear was flung as into hostile territory, in order that the Pater Patratus might not have to go all the way to the frontier. On these formalities, which naturally became more and more futile, Roman historians based their country’s reputation of never having waged an unjust war. Still, the fetial law had at least the one advantage of giving the adversary a 33 days’ respite for deliberation.

Corporate actors: the legal status of mercenaries in armed conflict

2006 ◽  
Vol 88 (863) ◽  
pp. 599-611 ◽  
Author(s):  
Katherine Fallah
Keyword(s):  
International Law ◽  
Significant Role ◽  
Armed Conflict ◽  
Legal Status ◽  
Conventional Approach ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Military Industry ◽  
The Law ◽  
Modern Warfare

AbstractCorporate actors are taking on an increasingly significant role in the prosecution of modern warfare. Traditionally, an analysis of the law applicable to corporate actors in armed conflict commences with inquiry into the law as it applies to mercenaries. As such, the rise of the private military industry invites a reconsideration of the conventional approach to mercenaries under international law. This article critically surveys the conventional law as it applies to mercenaries, and considers the extent to which corporate actors might meet the legal definitions of a “mercenary”. It demonstrates that even mercenaries receive protection under international humanitarian law.

Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities: The End of Jus in Bello Proportionality as We Know It?

2012 ◽  
Vol 45 (1) ◽  
pp. 35-52 ◽  
Author(s):  
Jann K Kleffner
Keyword(s):  
International Law ◽  
Present Article ◽  
Armed Conflict ◽  
Use Of Force ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Jus In Bello ◽  
Direct Participation ◽  
Direct Attack

Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities asserts: ‘In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances’. The present article scrutinises arguments that have been, or can be, advanced in favour of and against a ‘least harmful means’ requirement for the use of force in situations of armed conflict as suggested in Section IX. The principal aim of the article is to examine the question whether such an additional proportionality requirement forms part of the applicable international lex lata.

Non-govemmental human rights organizations and international humanitarian law

1998 ◽  
Vol 38 (324) ◽  
pp. 531-536
Author(s):  
Rachel Brett
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Humanitarian Law ◽  
State Responsibility ◽  
Humanitarian Law ◽  
International Level ◽  
Abuse Of Power ◽  
Human Rights Organizations ◽  
The Government ◽  
The Way

At the heart of human rights work is the attempt to protect individuals from the abuse of power or neglect on the part of their own governments. At the international level, this translates into State responsibility for the way in which the government treats its own people, supplementing the older international law regarding the treatment of aliens and the law of war which also (originally) addressed only the treatment of non-nationals.

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