Comparing Islamic and International Laws of War: Orthodoxy, ‘Heresy,’ and Secularization in the Category of Civilians

41 Pages Posted: 11 Dec 2019

See all articles by Lena Salaymeh

Lena Salaymeh

Oxford School of Global and Area Studies; Max Planck Institute for Comparative and International Private Law

Abstract

This article investigates how contemporary laws of war rationalize civilian deaths. I concentrate on two specific legal constructions in warfare: the definition of civilian/combatant and the principle of distinction. (The categories of civilian and combatant should be understood as dialogically constitutive and not entirely distinct. In addition, the category of “civilian” is a modern one and premodern legal sources often do not use one term to refer to noncombatants.) I focus on two significant parties in contemporary warfare: al-Qāʿidah (aka Al-Qaeda) and the U.S. military. al-Qāʿidah diverges from orthodox Islamic law on these two legal issues, while remaining within the Islamic legal tradition. To scrutinize the nature of this divergence, I compare al-Qāʿidah’s legal reasoning to the legal reasoning of the U.S. military. I demonstrate that the U.S. military diverges from orthodox international law in ways that parallel how al-Qāʿidah diverges from orthodox Islamic law. Specifically, both the U.S. military and al-Qāʿidah elide orthodox categories of civilians and expand the category of combatant, primarily by rendering civilians as probable combatants. Based on this analysis, I argue that the legal reasoning of al-Qāʿidah (and other militant Islamist groups) combines secular logics and Islamic themes; I call this fusion secularislamized law.

Note: This pre-print is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, American Journal of Comparative Law/Oxford University Press. This article is forthcoming in the American Journal of Comparative Law (expected September 2020), and will be published Open Access CC-BY. © Lena Salaymeh (2019)

Keywords: Islamic law, international law, war, civilian, combatant, secular law, legal reasoning, distinction, decolonial comparative law

Suggested Citation

Salaymeh, Lena, Comparing Islamic and International Laws of War: Orthodoxy, ‘Heresy,’ and Secularization in the Category of Civilians. American Journal of Comparative Law (AJCL), Vol. 68, Forthcoming September 2020, Max Planck Private Law Research Paper No. 19/22, Available at SSRN: https://ssrn.com/abstract=3499748

Lena Salaymeh (Contact Author)

Oxford School of Global and Area Studies ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, D-20148
Germany

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