Comparing Islamic and International Laws of War: Orthodoxy, ‘Heresy,’ and Secularization in the Category of Civilians
Max Planck Private Law Research Paper No. 19/22
41 Pages Posted: 11 Dec 2019
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
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