A COMPARATIVE ANALYSIS OF ISLAMIC AND INTERNATIONAL HUMANITARIAN LAWS
A COMPARATIVE ANALYSIS OF ISLAMIC AND INTERNATIONAL HUMANITARIAN LAWS
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Date
2007-09
Authors
MUHAMMAD, MUNTAQA MAHBOUB
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Abstract
The fundamental target of both Islamic law of war and
international Humanitarian law is to protect the Rights and Persons
of both combatants and non-combatants during and after the
hostilities thus, the amount and extent of violence applied in war
must be limited to achieving military objective, that is to subdue
the enemy, such an action/violence should be proportionate, in
other words, there should be a clear distinction between
combatants and non-combatants, meaning, the law restricts both
the means and method of waging war and object against which
such means may be employed. Thus, civilians and civilian
objectives must not be made the object of direct attack, they
should be accorded necessary protection against the dangerts
arising from military operation, such as indiscriminate attack that is
expected to cause incidental less of civilian life, injury to civilians,
damage to civilian objects or a combination thereof which would
be excessive in relation to the concrete and direct military
advantage anticipated.
In the same vein, a combatant who can no longer take part in
hostility due to sickness or surrender should not be attacked or
killed, but should be accorded all necessary protection as provided
under protocol, and by extension all other prisoners of war, as
contain under the third Geneva convention of 1949 as well articles
14 and 75 (2) of protocol 1 of 1977 additional to Geneva
convention.
So in essence, both Islamic law of war and International
Humanitarian law granted protection to all civilian population, i.e.
women, children, religious personnel aged persons and all other
categories of persons who did not take part in hostility through
any other means as well as their objects. They also extended such
protection to combatants who are incapable to continue with
hostility as a result of injury or surrender.
Violation of any forbidden act or non-performance of any required
act under both Islamic law of war and International Humanitarian
law is considered as war crime.
The main objective of this research work is therefore to provide:
A comparison of Islamic law and International Humanitarian Laws
by examining the rights of individuals both combatants and noncombatants,
during and after armed conflict situations.
To examine the sources of the said two legal systems.
To examine the purpose of war under the said two legal systems.
To determine war crimes under the two legal systems as well as
their punishment.
To examine the differences between the two legal systems.
To fill in the vacuum left by learned jurists in the two legal
systems, and to offer some suggestions on how to fill the said
vacuum as well as to further develop same.
Chapter 1, contains, General introduction to Islamic law of war and
international Humanitarian law, statement of the problem,
objective of study, scope and limitation of research, justification
and literature review.
Chapter 2, traces the origin and development of Islamic law of war
as well as examining the rights of both combatants and noncombatants
under this legal system
Chapter 3, is exclusively dedicated to deal with international
Humanitarian law, wherein, origin and development of the said
legal system is examine, as well as the rights of both combatants
and non-combatants.
Chapter 4, is on the analysis of the rights of individuals both
combatants and non-combatants, under both Islamic law of war
and International Humanitarian laws, as well as areas of
disagreement between them.
Chapter 5, Summaryized the entire research work and makes
some concluding remarks which include conclusion and
recommendation
Description
Being a thesis in the Department of Public Law,
Faculty of Law, Ahmadu Bello University, Zaria
Submitted to the Post Graduate School,
Ahmadu Bello University, Zaria
In partial fulfillment of the requirement for the
award of Masters of Law (LL.M) Degree
of Ahmadu Bello University, Zaria
Ramadan, 1426
September, 2007
Keywords
COMPARATIVE,, ANALYSIS,, ISLAMIC,, INTERNATIONAL,, HUMANITARIAN,, LAWS