War and Law in the Islamic World

Abstract

Fees are subject to change.This book is printed on acid-free paper.This is an open access title distributed under the terms of the prevailing CC-BY-NC License at the time of publication, which permits any non-commercial use, distribution, and reproduction in any medium, provided the original author(s) and source are credited.To arms he rushes at all times and in all places; no bounds to his fury, no end to his destructive vengeance. Together they engage, nation with nation, city with city, king with king; and to gratify the folly or greedy ambition of two poor puny mortals, who shortly shall die by nature, like insects of a summer's dayall human affairs are disarranged, and whirled in confusion. I will pass over the sad tragedy of war, acted on the bloody stage of the world in times long past.Desiderius Erasmus, Querela Pacis (1521) ∵ Preface This book explores the genesis and development of International Humanitarian Law (IHL) and Islamic Law of War (ILW), from their origins to today's conflicts in the Islamic and Middle Eastern world. From a positivist perspective, it compares the different principles pertaining to protection, i.e. distinction and proportionality, as opposed to military necessity. A historical analysis will expose the ideological foundations and contexts that have influenced IHL and ILW throughout the ages. In doing so, it highlights that strategies of divide and rule and of the dehumanisation of the enemy Other are reflected accordingly in the interpretation and application of the principles of protection. The conflictual reading of protection v. necessity and of the Self v. the enemy Other is inherent in the respective systems and establishes that both are designed to consolidate power. Beyond the positivist and historical approaches to the laws of war and the principles of protection, a naturalist legal reading will foster the spirit of the laws, which is, obviously, the saving of human life. In order for humanity as a whole to survive, both the Western and Islamic legal traditions on warfare have always had the potential to serve that end. However, throughout history, polarisations have prevented to challenge traditional positivist and historical readings of the laws which themselves are denouncing each other for respectively the absence and/or lack of agency and of contextualisation in the interpretation and application of those principles of protection. This undermines the humanitarian spirit of the laws of armed conflict which the naturalist legal approach seeks to promote. In order to transcend the vicious circles of violence across the Islamic world, it offers a unique perspective to interpret and apply the laws of war when grounding humanity in the biological and creationary realm of existence and belonging in favour of humanitarian protection.This book project-whose roots can be traced back to my master studies in International Politics (CERIS-Paris Sud-XI/2006), International Law (Leiden/2007) and my PhD thesis (SOAS/2011)-wouldn't come to fruition without the continued support of m...

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