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International humanitarian law lies between the Islamic concept and positive international law

Published online by Cambridge University Press:  13 January 2010

Said El-Dakkak
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Extract

The starting point of the present study is the clash between the warrior instinct inherent in human nature and Islamic law, the realistic character of which is unanimously acknowledged.

Islam, in fact, cannot tolerate excessive displays of this instinct, which, as Professor Muhammad Taha Badawi points out, is the strongest of all the impulses to which man is inclined. Inseparably linked to all the factors inciting man to make war, and itself at times unleashing war, the warrior instinct, in any case, arouses violence and becomes a reflex action in anyone subjected to the danger of death.

Type
The Origins of International Humanitarian Law
Information
International Review of the Red Cross (1961 - 1997) , Volume 30 , Issue 275 , April 1990 , pp. 101 - 114
Copyright
Copyright © International Committee of the Red Cross 1990

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References

1 Badawi, Muhammad Taha, Scientific hypotheses on the relations between war and peace, published by the Arab University of Beirut, 1974, pp. 3 Google Scholar et seq. (in Arabic).

2 The Sunna, or Tradition of the Prophet, is the second source for Islamic law. It is based on the words, actions and reactions of the Prophet and is the equivalent, mutatis mutandis, of the Christian gospels. The Sunna thus contains rules complementing those in the Koran, the first source of Islamic law. A third source of the law is the Ijtihad, which consists in the deduction by reasoning of all new rules essential to the living conditions of societies in perpetual evolution. On this point, see: Sultan, Hamid, “The Islamic Concept”, in International dimensions of humanitarian law, Pedone, UNESCO, Paris/Henry Dunant Institute, Geneva, 1986, pp. 47–60.Google Scholar

3 Sultan, Hamid, “The Islamic concept of international humanitarian law”, Egyptian Review of International Law, Vol. 34, 1978, pp. 6, 7 Google Scholar (in Arabic).

4 Amer, Salah, Definition of international humanitarian law, First Symposium on International Humanitarian Law, Cairo, 11 1983; published by the Egyptian International Law Society, p. 160 Google Scholar (in Arabic).

5 Al-Shaybani, Abdul-Hassan, El Seyar Al-Kabir, Vol. 1, The achievement of Dr. Salah El-Din El Mongued, 1958, p. 110 Google Scholar (in Arabic).

6 The Glorious Qu'ran, translation and commentary by Abdullah Yusuf Ali. Published by the Muslim Students' Association of the United States and Canada, 1975.

7 Victory by the Prophet Mohammed in March 624, before the wells of Badr in Arabia, against his unbelieving compatriots.

8 Mohammed had not named a successor; therefore, the first Muslims of Medina chose to take charge of the State the Prophet's father-in-law, Abu Bakr. He took the title of Caliph (Khalifa), “successor of God's Messenger”.

9 Sultan, Hamid, op. cit., p. 5.Google Scholar

10 The Glorious Qu'ran, Sura VIII (Al-Anfal), verse 58.

11 Mansour, Aly, The Islamic Sharya and public international law, published by the Supreme Council of Islamic Affairs, Book 1, 1965, pp. 325 Google Scholar et seq. (in Arabic).

12 Abu-Zahra, M., “The theory of war in Islam”, Egyptian Review of International Law, 1958, p. 30 (in Arabic).Google Scholar

13 Quoted by Al-Ghunaimi, Muhammad Tal-At, A general review of international humanitarian law in Islam, humanitarian law and humanistic law; first Symposium on International Humanitarian Law, Cairo, 11 1983, p. 35 (in Arabic).Google Scholar

14 Al-Ghunaimi, , op. cit., p. 46 Google Scholar, The Glorious Qu'ran, Sura XLVII, verse 4.

15 Al-Ghunaimi, , op. cit., p. 46.Google Scholar

16 The Glorious Qu'ran, Sura LXXVI, verse 8.

17 Ibid, Sura II (The Cow), verses 190, 192, 194.

18 Al-Ghunaimi, , op. cit., p. 35.Google Scholar

19 Quoted by Mansour, Aly, op. cit., p. 35.Google Scholar

20 Al-Ghunaimi, M. T., op. cit., p. 41 Google Scholar; The Glorious Qu'ran, Sura II, verse 205.

21 Abu-Zahra, M., op. cit., p. 23.Google Scholar

22 The Glorious Qu'ran, Sura LIX, verse 5.