Academic journal article The Fletcher Forum of World Affairs

Doctrines of Equivalence? A Critical Comparison of the Instrumentalization of International Humanitarian Law and the Islamic Jus in Bello for the Purposes of Targeting

Academic journal article The Fletcher Forum of World Affairs

Doctrines of Equivalence? A Critical Comparison of the Instrumentalization of International Humanitarian Law and the Islamic Jus in Bello for the Purposes of Targeting

Article excerpt

One seemingly simple question has perplexed humanity for millennia: Who can be targeted in war?

Hinging on the answer, of course, is nothing less than life and death. The question goes to the very heart of the conduct of war. If an individual can be targeted by an opposing side, then lethal force is legal and justified. If not, then certain precautions must be taken to prevent such a fate. Attempts to clarify the matter shed light on the darkest sides of human existence-the recourse to force, the taking of life, and the sanctioning of destruction.

Paradoxically, however, attempts to grapple with the inevitable violence of warfare also reveal some of humanity's most laudable ambitions. Since Cain and Abel, combatants have made honest efforts to humanize the conduct of hostilities.1 Such projects have gone by many names, including chivalry, mercy, honor, benevolence, parlay, clemency and finally, in the dry recital of the International Court of Justice (ICJ), the "elementary considerations of humanity."2 At each point peaceful ideas have collided with the imperatives of battle. During the U.S. Civil War, Francis Lieber's Instructions for the Government of Armies of the United States in the Field (the "Lieber Code") recognized that military necessity "admits of all direct destruction of life or limb of armed enemies" but directed the Union Army to refrain from "the infliction of suffering for the sake of suffering or for revenge"3 and "any act of hostility which makes the return to peace unnecessarily difficult."4 The Lieber Code laid the groundwork for the Hague Conventions of 1899 and 1907, the Four Geneva Conventions of 1949 and their additional protocols, and the various arms-specific treaties that followed. In his seminal work A Memory of Solferino, Henri Dunant asked: "Would it not be possible, in time of peace and quiet, to form relief societies for the purpose of having care given to the wounded in wartime by zealous, devoted and thoroughly qualified volunteers?"5 Dunant's lamentation led to the founding of the International Committee of the Red Cross (ICRC), which later became the guardian of the Geneva Conventions and the keeper of the body of law known today as International Humanitarian Law or IHL.

Developing in parallel to the largely secular, Western-driven IHL project, other manifestations of the mortal balance between military necessity and restrictions on the use of force during times of war also emerged. Notably, the Islamic jus in bello, or the body of the law governing conduct in war, which dates to the time of the Prophet Muhammad in the seventh century, "was largely responsible for moving humanity from the darkness of Greco-Roman ideas about war to the light in which the enemy was guaranteed certain rights and the fighting man was assured of certain protections."6 It includes combatant/non-combatant distinctions, as well as prohibitions on the targeting of women, children, infirmed men, and civilian objects.7 Within Islam, armed conflict is divided into two general categories: wars of public interest and wars against polytheists and apostates. Wars of public interest equate roughly with armed conflicts not of an international character from IHL. They are fought against rebels and dissident kharijites who "rebel against the Imam, differ with the community, and adopt a reprehensible, innovated school of thought" known as the Mazhab.8 Wars against polytheists and apostates, by contrast, often occur internationally. With regard to the latter, they are fought against people who declare themselves Muslim, but later renege or are declared un-Islamic.9 Specific restrictions are applicable to each category of conflict. The concept of jihad also plays a pivotal role in Islamic thought, but not as a holy war as it is commonly portrayed.10 Rather, jihad is a term used to describe "a determined effort" to overcome Satan, oneself, or an opponent.11 There are also different sorts of jihad. The greater jihad is the struggle one has to lead against oneself and the lesser jihad is understood as war against others. …

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