The challenge of fragmentation of international law regarding the protection of civilians: an Islamic perspective

Authors' draft. Final version published in Jihad and its challenges to international and domestic law; ed. by M. Cherif Bassiouni, and Amna Guellali. Hague Academic Press, 2010. pp. 136 - 166.With the rise of new challenges in the aftermath of 9/11 and the changing patterns of conflicts, the uniformity of international law has been questioned: a debate about the “regionalization” of humanitarian law has sprung to life. Questions have been raised about the validity of an Islamic particularism in the field of humanitarian law. In addition, extremists have presented a version of jihad that violates the Islamic interpretation of humanitarian law and justifies indiscriminate targeting of civilians. For these extremist intellectuals or ideologists of terrorism, civilians have become legitimated targets. The task of the modernist and liberal Islamic intellectuals is to deal with these distorted interpretations of Islam. This duelling between Islamic experts is illustrated in this article by looking at the distinction between civilians and combatants in law. This article clarifies firstly the concept of Islamic humanitarian rules. It then explains the protection of civilians in Islamic humanitarian law. Eventually, the article analyzes the debate about permissible killings that has been fuelled by fundamentalists by referring to several concrete situations: the use of weapons of mass destruction; terrorism; and suicide attack. The author then seeks possible solutions to put an end to distorted warmongering interpretations of Islam by looking at the theory of the new hermeneutics of the Shari’a