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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