Jus in Bello: Civilians’ Fundamental Rights under Islamic and Public International Law

Hilmi M. Zawati, “Jus in Bello: Civilians’ Fundamental Rights under Islamic and Public International Law,” in M. Cherif Bassiouni & A. Guellali, eds., Jihad and Its Challenges to International and Domestic Law (The Hague, The Netherlands: Hague Academic Press, 2010) pp. 167-190

29 Pages Posted: 23 Dec 2012

See all articles by Hilmi Zawati

Hilmi Zawati

International Centre for Legal Accountability and Justice (ICLAJ)

Date Written: June 22, 2010

Abstract

In the aftermath of the tragic events of September 11th, 2001, misconceptions of jihād and the consequent branding of Islam as a “violent religion” have become routine in Western literature and the media. A deluge of scholarly and journalistic works on the concept of war and human rights in Islamic legal theory found their way to the Western reader. These works, in general, have been written by persons who built their hypotheses on the acts of so-called “fundamentalist” Muslim groups; particular legal practices in some Muslim societies; misleading stereotypes; and a handful of minor secondary sources in translation. In addition, the authors of these works utterly failed to distinguish between Islamic law and the contemporary legislation of Muslim nations, which is in general not Islamic. The result has been a distortion of the term jihād to the point where it is virtually synonymous in the public mind with terrorism. In contrast to the above hypotheses, and after examining and elucidating the many human principles embodied in the primary sources of Islamic law, this paper argues that the Islamic law of nations has played a significant role in protecting the personal, judicial, and political rights of civilians during armed conflicts and introduced an ethical revolution as early as fourteen centuries before the drafting of the Universal Declaration of Human Rights in 1948. Moreover, this paper reveals that the provisions of the Islamic law of nations, and consequently the doctrine of jihād, are realistic and practical and regulate conduct during armed conflict on the basis of certain human principles compatible with those upon which modern international conventions are based. Furthermore, it asserts that Islamic humanitarian law regards civilians’ rights — particularly the right to life — as sacred, and holds that any transgression against these rights should be considered a crime against humanity.

Keywords: Islamic law of nations, jihād doctrine, Islamic jurisprudence, international comparative law, international humanitarian law, international human rights law, war crimes, crimes against humanity

Suggested Citation

Zawati, Hilmi, Jus in Bello: Civilians’ Fundamental Rights under Islamic and Public International Law (June 22, 2010). Hilmi M. Zawati, “Jus in Bello: Civilians’ Fundamental Rights under Islamic and Public International Law,” in M. Cherif Bassiouni & A. Guellali, eds., Jihad and Its Challenges to International and Domestic Law (The Hague, The Netherlands: Hague Academic Press, 2010) pp. 167-190. Available at SSRN: https://ssrn.com/abstract=2193111

Hilmi Zawati (Contact Author)

International Centre for Legal Accountability and Justice (ICLAJ) ( email )

404 - 2340 Gold Street
Montreal, Quebec H4M 1S4
Canada

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