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21 J. Transnat'l L. & Pol'y 165 (2011-2012)
Towards a Synthesis between Islamic and Western Jus in Bello

handle is hein.journals/jtrnlwp21 and id is 171 raw text is: TOWARDS A SYNTHESIS BETWEEN ISLAMIC AND WESTERN JUS IN BELLO JACOB TURNER International Humanitarian Law (IHL) has lagged behind modern warfare. This article deals with the difficulties in distin- guishing civilians from combatants in an age where most conflicts are fought between irregular combatants and full-time armies. The recent killing of Osama Bin Laden, as well as the increasing use of armed aerial 'drones' has provided publicity to these debates. It has also become apparent that many Islamist participants in warfare do not consider themselves primarily bound by traditional Western IHL sources, such as the Geneva Conventions, instead preferring religious sources. It is imperative that new provisions of IHL be developed to ac- commodate the dynamics of modern warfare. In order that these provisions attain the requisite level of moral force to bind both state and non-state actors, a new element of legitimacy must also be se- cured. This article takes the novel approach of suggesting that Is- lamic as well as Western sources of law should be taken into ac- count in re-designing the law. The article concludes by demonstrat- ing how such a synthesis may be achieved in practice, particularly in relation to the distinction between civilians and combatants. TABLE OF CONTENTS IN TRODU CTION .............................................................................. 165 I. THE TRADITIONAL APPROACH ............................................ 167 II. PROBLEMS WITH THE TRADITIONAL APPROACH ................. 171 III. THE M ORAL POSITION ........................................................ 175 IV. THE NATURE OF ISLAMIC LAW ........................................... 186 V. BUILDING A NEW CODE ...................................................... 199 C O N CLU SIO N ................................................................................. 205 INTRODUCTION In the body of international humanitarian law (IHL), there is a lacuna regarding the status of combatants engaged in asymmetric warfare. This has arisen, at least in part, out of a failure to estab- lish a satisfactory distinction between civilians and combatants reflecting the nature of such conflicts and commanding the respect of parties to them.

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