When Two Visions of a Just World Clash: International Humanitarian Law and Islamic Humanitarian Law
Van Engeland, Anicee, Proceedings of the Annual Meeting-American Society of International Law
With the rise of new challenges in the aftermath of September 11, the emergence of new types of war and the changing patterns of conflicts and the wars in Iraq and in Afghanistan, the uniformity of international humanitarian law is questioned; a debate about the "regionalization" of humanitarian law has spring to life. Academic discussions have become real-life issues, such as the existence of an Islamic humanitarian law. Humanitarian workers have been confronted with this reality in the field. Islamic humanitarian does indeed exist and has been shaped by the Quran and the Prophet along the wars.
What are the consequences and the risks of this regionalization for international humanitarian law? The issue is so not such with the states that do abide by international humanitarian standards but lies with transnational actors such as terrorist groups that provide a distorted version of Islamic law.
International Islamic law is made up of siyars, which are rules about war and humanitarian standards. These siyars have their origins in Islamic law: the Quran, the Sunna and the two other sources of Islamic law reached through ijtihad, ijma (consensus of learned scholars) and qyias (legal reasoning of a scholar). It is also necessary to give a definition of the notions of war and peace in Islam: the stance adopted for this paper is that Islam is a religion of peace that set up limits to war and humanitarian principles. There are three conditions that legitimate war and make it a just war: defense of Islam, self defense, and defense of the oppressed. Jihad al qital (=war) is therefore limited and peace is the normal state of life.
However, there are intellectual trends that consider Islam to be a religion of war and jihad a tool to expand Islam. For example, Islamic classicists such as al Mawdudi consider jihad as a duty and the univerzalisation of Islam as an aim. There are rules of war but only to enhance this goal; besides, humanitarian standards should be lowered as to facilitate the expansion of Islam. Orientalists respond to classicism by speaking of a clash of civilizations and the danger inherent to Islam and a lack of respect of international humanitarian law. …