Chapter 1, contains, General introduction to Islamic law of war and international Humanitarian law, statement of the problem, objective of study, scope and limitation of research, justification and literature review.
Chapter 2, traces the origin and development of Islamic law of war as well as examining the rights of both combatants and non-combatants under this legal system.
Chapter 3, is exclusively dedicated to deal with international Humanitarian law, wherein, origin and development of the said legal system is examine, as well as the rights of both combatants and non-combatants. Chapter 4, is on the analysis of the rights of individuals both combatants and non-combatants, under both Islamic law of war and International Humanitarian laws, as well as areas of disagreement between them. Chapter 5, Summaryized the entire research work and makes some concluding remarks which include conclusion and recommendation.
TABLE OF CONTENTS:
1.0 General Introduction
1.2 Statement of problem:
1.3 Objective of study:
1.5 Scope of Limitation of Research:
1.7 Literature Review:
2.0 CHAPTER TWO:The concept of Islamic Law of war:
2.1 Origin and development of Concept of Islamic
Law of war :
2.2 Types of war under Islamic Law of war:
2.3 General Rights and obligations of combatants
and its protection (conduct of hostility)
(a) Definition of lawful combatants:
(b) Means and methods for conducting warfare:
(c) Permitted practice:
(d) Forbidden practice:
(e) The Rights of protected persons:
2.4 Prisoners of war:
(a) Definition of war crime:
(b) Penal responsibility
(c) Remedies for violation
3.0 CHAPTER THREE: General Rights and obligation of combatants and
non-combatants and its protection under
International Humanitarian Law.
3.1 Treatment of prisoners of war
3.2 Treatment of wounded, sick and shipwrecked
3.3 Special treatment accorded to, Aliens, women
and children, journalist and Refugees.
3.4 War crimes and Grave breaches
(a) Definition of war crimes
(b) Definition of Grave breaches
(c) Command responsibility
(e) Superior Orders
3.5 Treatment of the accused non-national
Military personnel of war crimes.
3.6 Establishment of International Criminal Court
4.0 CHAPTER FOUR:
Analysis of the Rights of Individuals under
Islamic and International Humanitarian Laws
5.0 CHAPTER FIVE:
Summary, Conclusion and Recommendation
5.2 Finding and Observation:
Policy of force was encouraged by disinclination of state of Europe during the dark ages through the Middle Ages, to consider any community other than one which was loosely related to them as Barbarian who did not deserve to be treated on equal footing. An example is the case of Romans who treated none but their Latin cousins as equals, while they treated the rest of the world as Barbarians who deserved to live only under Roman Dominance.1
During the period referred to above, the rights of combatants as well as non-combatants, e.g. civilians, women, children, aged persons, religious persons and injured combatants were not properly and adequately respected and protected during armed conflict situations. However, even at that period, certain individuals as well as some religious leaders tried with some greater or lesser success to limit the suffering of war among combatants and non-combatants.2
For instance, two thousand years before Christ, King
Hammurabi of Babylonia (now in Iraq) codified rules of conduct in war.3
Beside the above mentioned attempts by various scholars and statesmen, there had been so many other attempts by the states in more recent times through legally binding treaties aimed at restraining the undesirable effect of armed conflict and protection of non-combatants.
The first Islamic state was established in Medinah in the 7th Century (Rabee al-Awwal, first year of Hijra) by the Prophet Muhammad (Peace be upon Him). Since then, some basic rules and regulations governing the conduct of war were laid down by
the prophet (peace be upon him). It was reported that, whenever the prophet was sending troops to battle, he instructed them to comply with the following regulations:
This is the brief historical account of the position of the two legal systems (International Humanitarian law and Islamic law of war) during their infancy.
STATEMENT OF THE PROBLEM
(b) There is also provision under Islamic law of war similar to the above (which also violated the provision of the convention – i.e. 3rd Geneva convention Article 14 and Article 34) that permits imposing of poll tax (JIZYA) on the inhabitants of a conquered territory who decide to remain non-Muslims (Christians and Jews). How will this be practiced now-a-days, in the event of the emergence of a new Islamic government that decides to be governed strictly by the provisions of Islamic law of war instead of Geneva conventions provisions, in this and similar respects?
(c) Another problem worth addressing by this research work is that, Geneva Conventions recognize war correspondents (an issue/problem which was not discussed by writers on Islamic law of war). Can such recognition be extended by Islamic law of armed conflict?
(d) Similar problem to the above is the issue of using certain kinds of weaponry which were not in existence during the life time of the Prophet Muhammad (Peace be upon Him) as well as his companions and other classical jurists, such as weapons of mass destruction, biological and chemical weapons. What will be the ruling of Islamic law of war on using these weapons?
(e) Similarly, the issue of rules that will regulate Air warfare was not addressed by the writers on Islamic law of armed conflict despite the significant roles they are playing in the modern warfare, whereas, literature on maritime warfare rules are very minimal and scars.
These and other problems/issues necessitate the writer to embark on this project with a view to address them.
OBJECTIVE OF STUDY
The objective of this research is to provide:
(a) A comparison of Islamic and International Humanitarian laws by examining the rights of individuals, both combatants and non-combatants, during armed conflict situations.
(b) To examine the sources of the said two legal systems.
(c) The purpose of war under the said two legal systems.
(d) The definitions and different punishments for war crimes as provided under the two legal systems.
(e) The possibility of reconciling the two legal systems in case of apparent conflict particularly with respect to the
b. Rules governing the air and maritime warfare under Islamic law of war, as well as the stand point of this legal system in regard to the status of war correspondents.
permission to kill or enslave the prisoners of war in certain situations, enforcing a tax (Jizya) on the conquered people etc, by Islamic law of war, which permission still stand valid according Imam Malik, Imam Shafi’I, Imam Abu Hanifa and Imam Hambali.
(d) Punishment for violation of such rights as remedies under the two legal systems.
possibility of reconciling the existing disparities between them.