Prospects and Challenges of Fiqh al-Jihad in Modern Warfare
Conference Proceeding of Konferensi Nasional Perbandingan Hukum Indonesia, Universitas Airlangga, Surabaya, Indonesia (2017)
Posted: 8 Sep 2017
Date Written: July 20, 2017
'Humanity' and 'ethics' are two words that seem foreign in times of war. Regulating the etiquette of conduct during combat, a branch of international law now known as International Humanitarian Law (IHL) aims to mitigate the destructive effects of war. Today, more than ever since a very long time ago, Islamic jihad colors numerous wars in different parts of the world. Jihadist groups denounce laws they deem non-Islamic, and claim to follow Islamic laws including Fiqh al-Jihad. Whether they in fact live up to their claim is one thing. Yet the suitability of Fiqh al-Jihad in modern warfare is another question. While Fiqh al-Jihad significantly contributed in the historical development of IHL, how does it stand today?
This paper will compare Fiqh al-Jihad and IHL. It will be found that although many rules in Fiqh al-Jihad are consistent with IHL or even – to some extent – more advanced in certain areas, yet there are some areas where Fiqh al-Jihad seems to lack in addressing certain issues. The issues explored are the following: the principle of distinction, the principle of proportionality, treatment of prisoners of war, environmental protection during armed conflict, and perfidy.
It will be found that the discrepancies with IHL are not always caused due to discrepancies of principles between Fiqh al-Jihad and IHL. Rather it is mostly due to the lack of consideration towards certain realities of modern warfare. With further academic dialogues between the moderate and radical scholarship there may be some level of agreement to reduce the discrepancy towards modern IHL.
Keywords: Fiqh al-Jihad, Modern Warfare, International Humanitarian Law
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