ENGLISH: Rights of Non-Combatants in Light of Classical Islamic Thought and International Humanitarian Law

Abstract

Islamic law of armed conflict prohibits killing of non-combatants and opinion of certain jurists that cause of war in Islam is disbelief, has no relevance with the protection of non-combatants. Under Islamic international law, the issue of cause of war has been distinguished from the conduct of war by classical Muslim jurists. As international humanitarian law (IHL) has been divided into jus ad belum (cause of war) and jus inbello(conduct of war), Islamic international law made this distinction before fourteen hundred years ago, though in an informal manner. Since the rules pertaining to both types of IHL were discussed together by Muslim jurists, various contemporary scholars presumed that the rules pertaining to the jus ad belum and jus inbello are the same in Islamic law. On the basis of same presumption, they opined that for those who have stated that the cause of war in Islamic law is disbelief, justified the killing of non-combatants. This view has been reflected in writings of various contemporary scholars. Whereas, according to the principles of Islamic jurisprudence, a general command can be specified for a particular territory, community or group of people and can also be abrogated. The critiques of Islamic international law, particularly on the issue of immunity of non-combatants, have resorted tothe general principles of Islamic jurisprudence on the basis of their lack of understanding and ignorance of special commands regarding the immunity of non-combatants. Therefore, it is imperative to make the distinction, between the rules pertaining to the cause of war and conduct of war, clear in accordance with the classical Islamic thought, keeping in view the general protection available for non-combatants.