War Crimes in the light of Islamic Law and International Humanitarian Law with special Reference to Afghanistan
This article provides an overview of the principles of war in Islam, Introducing
the topic, it briefly discusses the roots, sources and features of Islamic war
law. This discussion reveals the compatibility between these Islamic principles
and modern principles of international humanitarian law, and provides insights
into how these Islamic principles can limit the devastation and suffering of
contemporary armed conflict in the Muslim realm, especially Offers conflicts in
which it helps. Islamic law has been cited as a source of reference.
Introduction:
Islamic law is the bedrock of Islam and one of the three most important legal systems in the world today. Due to its unique features, some parties to the armed conflict continue to cite Islamic law as the main source of law governing their conduct during armed conflict. The similarities between the principles underlying international humanitarian law (IHL) and Islamic martial law show that the two legal traditions have the same goals.
This brief introduction shows where and in what sources the law of Islamic warfare can be studied. He also explains that differences in the interpretation of these sources are among the reasons why there are conflicting and major violations of the rules regarding the use of force by Muslims.
Promoting the universality of these principles, which go beyond legal traditions, cultures and civilizations, is essential to ensuring IHL compliance.[1] Due to the occurrence of armed conflicts in many parts of the Islamic world, the law of Islamic war is as necessary as ever to protect civilians and others in war. Over the centuries, classical Muslim jurists have produced significant legal literature that, like International Humanitarian Law (IHL), drives humanity to war.
Emphasis on the universality of IHL principles, which transcends legal traditions, civilizations, and cultures, is essential to improving the respect and protection of victims of armed conflict in the Islamic world. Given the current situation in Afghanistan, there is a need to review the efforts of the UN International Criminal Court and its previous efforts to prosecute war crimes perpetrators.[2]
As major cities in Afghanistan fall to the Taliban, with the withdrawal of US troops from the United States, a brutal new chapter of large-scale armed conflict with humanitarian crises, massacres, and heinous crimes — especially against women and girls — is unfolding. And human misery in the face of this fleeting and complex tapestry, it is necessary to call to account for the heinous crimes committed in the past, present and possibly in the near future.[3]
From 1996 to 2001, the Taliban seized power in most parts of Afghanistan, where they interpreted very strict Islamic (Islamic) law and subjected many civilians to horrific atrocities. The Afghanistan Justice Project, in a report entitled Shadows: War Crimes and Crimes Against Humanity 1978-2001, committed war crimes and crimes against humanity at various stages of Afghanistan's political history, including during the Taliban's brutal military operations by the Taliban and forces. Afghan and foreign armed.
Recorded crimes include massacre, enforced disappearance, summary execution of tens of thousands of Afghans, indiscriminate bombing and rocket fire, torture, mass rape, sexual and gender-based violence, persecution and other serious crimes. We cannot forget the Taliban's strict laws on women and girls, which violate their civil, political, social, economic and cultural rights. Sentences them to brutal punishments such as public stoning for their perceived violations.
The defeat of the Taliban in late 2001 did not end the crimes they committed. The world has witnessed a resurgence of the Taliban since 2001, and many atrocities have been committed by the Taliban in subsequent years. In 2015, Human Rights Watch reported numerous violations of international humanitarian law by individuals in power in Afghan government forces - military officials and police personnel - or those who support them, such as local militia commanders.
UN agencies, such as the United Nations Assistance Mission in Afghanistan (UNAMA), have published annual statistical reports since 2009 that record civilian casualties (casualties) and crimes committed by all institutions. The 2020 report on civilian casualties in armed conflict, released in early 2021, attributed 62 percent of all civilian casualties to anti-government elements - including 45 percent to the Taliban - and 25 percent to pro-government forces, including 1. Item. In addition, the Sixth Periodic Report on Torture, released by the United Nations High Commissioner for Human Rights in February 2021, shows the indiscriminate torture of prisoners in Afghanistan and calls for the establishment of a mechanism.
Afghanistan became a member of the Rome Statute on May 10, 2003. The OTP has launched an initial investigation into the situation, according to numerous reports received from the ICC Prosecutor's Office from victims and human rights organizations. In Afghanistan in 2007. Its focus was on the ICC committing crimes in armed conflict between pro- and anti-government forces. These include a series of crimes against humanity and war crimes.
War crimes include gross violations of the 1949 Geneva Conventions and other serious violations of the rules and customs applicable in international armed conflicts. The Rome Statute covers acts that include war crimes, including premeditated murder, torture, mass destruction and seizure of property, unlawful expulsion, unlawful imprisonment and intentional attacks on people and civilian objects, vehicles and personnel providing humanitarian aid.
War crimes apply to both international and non-international armed conflicts, and the latter has been a major part of the conflict over the past decade around the world. Crimes against humanity are crimes that may be committed during the "time of peace" and include a list of crimes that have been committed extensively or systematically and that have been committed against civilians with the knowledge of the attack.
The purpose of the ICC Prosecutor 's initial investigation is to "gather all relevant information to reach a fully informed decision that there is a reasonable basis for continuing the investigation" required by the relevant provisions of the ICC Statute. Preliminary review is an essential step before starting a thorough investigation. During the preliminary review, the Office of the Prosecutor (OTP) is required to consider judicial issues, complementarity, gravity and the interests of justice.
Given the complexity of the situation in Afghanistan and the alleged crimes committed by several actors, national and international, the OTP took a decade to complete the initial investigation. In comparison, it completed a preliminary test on Palestine in about five years.
In November 2017, the International Criminal Court (ICC) prosecutor requested that the Court of First Instance authorize an investigation into the situation in Afghanistan. This is a necessary legal procedure that acts as a monitoring mechanism for the actions of the prosecutor. The ICC prosecutor informed the pre-trial chamber that more than 26,500 civilians had been killed since 2009. He relied on UNAMA reports to show the extent and severity of the crimes and the number of casualties.
Significantly, this call was made to launch an investigation into three sets of ICC crimes: a) crimes against humanity and war crimes by the Taliban and affiliated groups; B) War crimes committed by Afghan government institutions such as members of the Afghan National Security Forces. And (c) war crimes committed by the United States Armed Forces, including the Central Intelligence Agency (CIA), not only on Afghan soil but also in secret CIA detention facilities in Poland, Romania and Lithuania.
Fatou Bensouda, a former prosecutor at the International Criminal Court, argued in pre-trial court that he had the rationale to believe that the US armed forces had committed 54 crimes and another 24 by the CIA in Afghanistan, mostly in 2003. Done in 2004. He claimed that the CIA had used torture and sexual violence against Afghan citizens in its prisons abroad. The prosecutor claimed that the three countries had detention centers on their territory where the CIA carried out its "torture program" or "black spot detention" and committed ICC crimes.
Has been. Interestingly, the prosecutor's lack of cooperation with the Afghan government has been cited as a ground for denying the permit, which prevents a thorough investigation and successful prosecution. The agency noted budget constraints at the ICC, saying scarce resources should be used to prioritize activities that have a "greater chance of success."
Needless to say, the pre-trial chamber was a controversial issue that was heavily criticized by several human rights organizations. This showed that there is a conflict between the pre-trial chamber and the OTP over who has the primary responsibility and authority to decide on the situation[5]. Rejecting this also raised a highly contentious ideological issue: Given the limited financial and human resources, should the ICC focus on any situation where heinous crimes have been committed or on those that are likely to succeed? More (in arresting, prosecuting, convicting and punishing defendants)?
In the early years of the ICC, the situation was referred to by the governments themselves, probably because government cooperation is more likely in such cases, so research is possible and has the potential to be successful. However, after nearly two decades of its existence, should the ICC assess the "benefits of justice" by mechanically reducing whether research is possible or likely to be successful? The tension between principle and pragmatism is very real and tangible.
The executive order allowed U.S. officials to freeze the assets of ICC staff and prevent ICC staff from entering the United States through visa restrictions. The order outlined the US vision for the ICC investigation - which threatens to undermine the country's sovereignty and impede its "vital work of national security and foreign policy". The US attack on the ICC undermined the only hope for justice for the thousands of Afghan victims.
Coincidentally, the Biden government revoked the executive order through Executive Order 14022 of April 1, 2021, because the imposition of sanctions on ICC personnel was "inappropriate and ineffective." This does not mean that the Biden government supports the ICC. It is aligned with its predecessors in protesting the ICC's jurisdiction over US citizens. However, he believes that its concerns can be better addressed by engaging with ICC stakeholders through sanctions.
In November 2020, a damn report in Australia - the Briton War Crimes Report - found credible evidence that 19 soldiers on the Australian Air Force Special Forces and Commando Regiment had killed at least 39 Afghan civilians and detainees illegally. , Including children, in 23 cases. This result was obtained after reviewing 57 cases through interviews with more than 423 witnesses and other evidence. The report was the product of a four-year investigation by General Paul Burton Reserve Combat General, reinforced by information received from a military whistleblower and local media reports of severe ill-treatment by Australian soldiers who served in Afghanistan from 2005 to 2016.[6]
The investigation, made possible by the Australian military leadership, led to 143 recommendations, including recommendations to initiate criminal investigations against 19 soldiers in Australian courts and to cite a competent unit awarded to the unit. Coinciding with the report, General Angus Campbell, the commander of the Defense Forces, announced his decision to accept all of the recommendations in the report, much to the displeasure of Australian veterans.
One unspoken motive was to prevent possible arrest and prosecution by the ICC.
Bertron's implications for international criminal justice are enormous. The report had a small but significant impact on the impunity of the international armed forces for years in Afghanistan. The "culture of warriors" also highlighted violence, secrecy, forgery and deception.
Britain, the United States and other governments sending troops to Afghanistan when the Afghan Independent Human Rights Commission asked them to take a page from an Australian book and begin their investigation into possible war crimes in Afghanistan, UK, US And other governments that had sent troops to Afghanistan felt a surge. By their forces in favor of the political and military leadership of those countries.
In the past, the US government, led by Barack Obama, has closed only two indicted prisoners tortured by CIA officials - an Afghan prisoner named Gul Rahman, who was being held in a secret detention center near Kabul. As a "salt pit" and another Iraqi prisoner in the CIA prison in Abu Ghraib.
In late 2012, the Obama administration aggressively and effectively whitewashed the heinous crimes committed by the CIA through its brutal interrogation techniques during the declaration of the "war on terror." Such techniques include "riding on water" and simulating drowning, which human rights activists say is torture. Obama says we should look forward, not look back.
The importance of "looking to the past" and implementing accountability mechanisms for past crimes in order to "look to the future" and prevent such crimes from being committed in the future was lost to the government.
Given its past record, the US government must demonstrate its genuine intention to investigate and prosecute its errant officials in connection with the Afghan conflict in order to investigate the impact of the ICC investigation, even if this means that many The skeletons come out of the closet.
The Complementary Principle, enshrined in the ICC Roman Charter, works to activate and encourage internal accountability mechanisms. The International Criminal Court investigates and prosecutes suspects in alleged ICC crimes only if the government concerned is unwilling or unable to do so in the domestic legal system. "Willingness" is assessed not only by initiating formal investigations, investigations or prosecutions under domestic law, but also by assessing how real the principle of such legal proceedings is. If the internal prosecution of suspects - regardless of their power - is carried out on ICC crimes, the ICC will be the most successful in its view, and will avoid the need for ICC intervention.
The principle of complementarity has also affected ICC research in Afghanistan in other ways. In April 2020, the Government of Afghanistan asked the Prosecutor to postpone its investigation in order to provide the ICC with evidence to show its ability and willingness to prosecute those who have committed war crimes and crimes against humanity. Because the International Criminal Court is thought to be the last court - and with a complementary principle to the Roman Statute - the priority is to be tried in national courts, not the ICC. The government then sent details of the cases it was investigating or prosecuting to the OTP to determine the criminal liability of the suspects.
The Afghan government has provided a list of 151 cases allegedly being investigated or prosecuted against government officials, including 36 serious crimes committed by Taliban officials and a number of crimes committed by international forces, although these do not include any cases. Be. US Army or CIA crimes[7].
In April 2021, the prosecutor announced the deferral request, essentially informing the court and the public that he would continue to evaluate the 5,000 pages of information sent to him by the Afghan government to examine whether there was tangible evidence. Specific steps are being taken to determine criminal responsibility. This was necessary to decide on the government's request to postpone the ICC investigation.
Organizations such as Human Rights Watch have observed that Afghanistan has a poor track record in the field of justice and is not accountable to senior military and police officials, as well as Taliban officials who have been charged with a range of crimes, including torture and sexual assault. Violence, extrajudicial executions and enforced disappearances. They further stated that the Afghan government has rewarded and not punished some of the biggest criminals.
The path to international justice for the serious crimes committed in the Afghan conflict is long and difficult and has a checkered history. The withdrawal of US troops from the United States, the Taliban's success in seizing power in provincial capitals, and a possible power-sharing deal between the Afghan government and the Taliban in the near future are likely to affect justice.
Recent reports of Taliban atrocities include the execution of commandos, the destruction of homes, the brutal killing of civilians, the forced marriage of girls, sexual slavery and violence against women, all of which are crimes against humanity and war crimes - some of the most serious crimes under international laws. It remains to be seen whether the Taliban can be held accountable for this in the near future.
Despite the widespread and systematic nature of heinous crimes, past attempts at accountability have not been successful. If they had succeeded, the history of crime might not have repeated itself. The ICC's intervention in recent years has been seen as a new lease on life for ten years of international and domestic efforts to determine responsibility for these crimes. But for now, international efforts are needed to reduce the humanitarian catastrophe in Afghanistan.
This aspect of the history of Islam is briefly stated in the Qur'an. This book is recorded in the literature of Surah (biography of the Prophet, the early history of Islam) in great detail, which mentions the number of killed and captives and sometimes their full names. Hadith literature (words, deeds and implicit confirmations of the Prophet) also includes thousands of reports in this regard.
To fully understand this collection of literature and derive rules from them, even experts must study other literature, including tafsir (interpretation of the Qur'an) and the method of hadith. They need to do this to determine the reliability of the different narrators and the accuracy of the various reports of the period.
Studying the points of conformity between Islamic law and modern IHL is not a luxury: it is of strategic importance to ensure that IHL principles are observed in armed conflict. All of this literature consisted of materials or texts from which the jurists or jurists prepared the law of Islamic warfare in the literature of jurisprudence or Islamic law, under such titles as al-Jihad, al-Sayyar. maghazī; Contemporary Muslim scholars add to these titles the ethics of war (ethics of war) and the law of the human state Fa al-Islam (International Humanitarian Law, or IHL, in Islam).
Because the drafting of the Islamic War Law was based on specific texts dealing with the context of the seventh-century war, and due to the nature of the tools available in the legislative process, the Islamic rules on the use of force often contradict each other. These contradictions are also due in part to the fact that Islamic law has remained unencoded throughout the history of Islam, apart from the twentieth-century formulation, which was largely family law. In addition, as a result of European colonization, Islamic law was replaced by French or British law in all Muslim countries except a handful. For this reason, Islamic law in most fields, including the law of armed conflict, remains a purely academic matter.
According to international law, including the IHL, since the founding of the United Nations, there has been a consensus among scholars and governments of the Islamic world that this set of laws is in line with the true spirit and ultimate goals of Islam, but not necessarily all rules. Formed in the past by classical Muslim jurists, they operated in a very different political context.[10] That is why all Muslim countries have signed the Geneva Convention and other relevant international treaties.
In recent times, however, serious human rights violations have been justified by invoking some classical jurisprudential views or biblical interpretations, or simply by comparing them to some classical conditions of war - for example, to justify the killing of civilians. Is. It should be noted, however, that some other Muslim non-governmental armed groups have developed rules of conduct that are in accordance with Islamic law and are also in line with modern IHL principles. This shows that Islamic law is both used and abused in contemporary armed warfare in the Islamic world.
Therefore, studying the points of conformity between Islamic law and modern IHL is no longer just a matter of luxury. This issue is of strategic importance and high value in ensuring the observance of human rights principles as much as possible in this particular field of armed conflict.
Because of these features, Islamic law of armed conflict continues to be used by Muslims, or at least refers to them using Islam as their reference. In addition, due to underlying and sometimes contradictory provisions, the law of Islamic war is sometimes misused to justify harm to protected persons and objects.[11]
On the other hand, as shown below, the similarities between the principles of the IHL and the law of Islamic warfare suggest that these two legal traditions have the same objectives, and that the modern principles of the IHL are very useful in guiding hostile actions in the contemporary context. . Conflict. Emphasis on the universality of IHL principles, which transcends legal traditions, civilizations, and cultures, is essential to ensuring IHL compliance.[12]
The partnership addresses five of these contemporary challenges: the use of IHL in cyber operations that occur in armed conflict, the blurring of lines between the IHL and the pattern of terrorism, the geographical scope of IHL use, and the ability of IHL in peacekeeping operations. And the fundamental question of how to ensure respect for the IHL.
The significance here is twofold: First, the rules of the use of force in non-international armed conflicts are much stricter and more humane than the rules of international armed conflict. Second, because of certain backgrounds in early Islamic history, Islamic law identified four different categories of non-international armed conflict that have different rules on the use of force.[22]
The Islamic War Law sought to humanize armed conflict by preserving the lives of non-combatants, respecting the dignity of enemy combatants, and respecting enemy property, except in cases of absolute military necessity or, in the unintended event, as a side effect. To be considered.
However, some Islamic rulings on the use of force pose challenges to the humanization of armed conflict. This is because the Islamic law of armed conflict has not been codified at any point in the history of Islam, and also because no punishment has been imposed for violating it. However, because treaties are binding on Islamic law and the modern principles of the IHL are in line with Islamic law, the IHL fills this gap - the suppression of violations - well.
International humanitarian law that restricts the protection of all non-combatants, as well as the means and methods of warfare. The laws and regulations of war undoubtedly have deeper historical roots. They are derived from basic human values, which are an integral part of all philosophies and religions of the world.[38]
Islamic law guarantees the victims of armed conflict the right to protection, respect and honorable human behavior. It also calls for the protection of civilian facilities and property. Islamic law limits the methods and means of war to the extent of military necessity.
Conclusion:
All of this is in accordance with the provisions of international humanitarian law and the Geneva Conventions. Thus, the similarities between human rights and Islamic law are not coincidental, but rather evidence that reflects global values and an important part of most religious and other worldviews.
This brief discussion shows that the IHL and the Islamic legal-humanitarian framework are compatible and complementary. Clearly, classical Muslim jurists sought to ensure that humanitarian restrictions on the use of force did not lead to the defeat of Muslims in war. This has led to a number of conflicting laws - in many cases, due to differences between those jurists who prioritized humanitarian requirements and those who prioritized military victories, even if this meant Endangering certain protected persons and objects. The latter group of lawyers justified civilian casualties as collateral damage or as a military necessity.
Many people feel that they are more committed to their religious and indigenous traditions and are more inclined to follow them, and Islamic law is a clear example of this. This should not be discouraged if a particular group of arms holders wants to limit the use of force under traditional frameworks that do not violate the IHL. This - allowing groups to use alternative frameworks that they are willing to adhere to and respect - may be the most effective means of achieving IHL goals.
However, the challenges that such a license may face should always be considered, as not all frameworks are the same or fully compliant with the IHL. Therefore, coordination with stakeholders is a necessity to ensure that it is not later identified that these alternative frameworks have confirmed IHL violations. However, despite the possibility of divergence from the IHL in some areas, the Islamic legal tradition will continue to be used, regardless of whether we decide to deal with it or ignore it.
References:
Introduction:
Islamic law is the bedrock of Islam and one of the three most important legal systems in the world today. Due to its unique features, some parties to the armed conflict continue to cite Islamic law as the main source of law governing their conduct during armed conflict. The similarities between the principles underlying international humanitarian law (IHL) and Islamic martial law show that the two legal traditions have the same goals.
This brief introduction shows where and in what sources the law of Islamic warfare can be studied. He also explains that differences in the interpretation of these sources are among the reasons why there are conflicting and major violations of the rules regarding the use of force by Muslims.
Promoting the universality of these principles, which go beyond legal traditions, cultures and civilizations, is essential to ensuring IHL compliance.[1] Due to the occurrence of armed conflicts in many parts of the Islamic world, the law of Islamic war is as necessary as ever to protect civilians and others in war. Over the centuries, classical Muslim jurists have produced significant legal literature that, like International Humanitarian Law (IHL), drives humanity to war.
Emphasis on the universality of IHL principles, which transcends legal traditions, civilizations, and cultures, is essential to improving the respect and protection of victims of armed conflict in the Islamic world. Given the current situation in Afghanistan, there is a need to review the efforts of the UN International Criminal Court and its previous efforts to prosecute war crimes perpetrators.[2]
As major cities in Afghanistan fall to the Taliban, with the withdrawal of US troops from the United States, a brutal new chapter of large-scale armed conflict with humanitarian crises, massacres, and heinous crimes — especially against women and girls — is unfolding. And human misery in the face of this fleeting and complex tapestry, it is necessary to call to account for the heinous crimes committed in the past, present and possibly in the near future.[3]
War crimes and crimes against humanity
In the past few decades, war crimes have been committed in Afghanistan against Afghan civilians. They were carried out by the Taliban, Afghan government forces and international forces deployed in the country since the 2001 US-led invasion, including US and British forces.From 1996 to 2001, the Taliban seized power in most parts of Afghanistan, where they interpreted very strict Islamic (Islamic) law and subjected many civilians to horrific atrocities. The Afghanistan Justice Project, in a report entitled Shadows: War Crimes and Crimes Against Humanity 1978-2001, committed war crimes and crimes against humanity at various stages of Afghanistan's political history, including during the Taliban's brutal military operations by the Taliban and forces. Afghan and foreign armed.
Recorded crimes include massacre, enforced disappearance, summary execution of tens of thousands of Afghans, indiscriminate bombing and rocket fire, torture, mass rape, sexual and gender-based violence, persecution and other serious crimes. We cannot forget the Taliban's strict laws on women and girls, which violate their civil, political, social, economic and cultural rights. Sentences them to brutal punishments such as public stoning for their perceived violations.
The defeat of the Taliban in late 2001 did not end the crimes they committed. The world has witnessed a resurgence of the Taliban since 2001, and many atrocities have been committed by the Taliban in subsequent years. In 2015, Human Rights Watch reported numerous violations of international humanitarian law by individuals in power in Afghan government forces - military officials and police personnel - or those who support them, such as local militia commanders.
UN agencies, such as the United Nations Assistance Mission in Afghanistan (UNAMA), have published annual statistical reports since 2009 that record civilian casualties (casualties) and crimes committed by all institutions. The 2020 report on civilian casualties in armed conflict, released in early 2021, attributed 62 percent of all civilian casualties to anti-government elements - including 45 percent to the Taliban - and 25 percent to pro-government forces, including 1. Item. In addition, the Sixth Periodic Report on Torture, released by the United Nations High Commissioner for Human Rights in February 2021, shows the indiscriminate torture of prisoners in Afghanistan and calls for the establishment of a mechanism.
Preliminary review by the International Criminal Court
The International Criminal Court (ICC), established by the Rome Statute, is the first permanent international judicial body capable of prosecuting individual perpetrators for war crimes, crimes against humanity, genocide and rape. The case can be reviewed by the ICC in three ways: referral by the party concerned, investigation by the prosecutor on their own initiative, and referral by the UN Security Council. In order for an ICC prosecutor to begin an investigation into a situation, a pre-trial chamber must authorize it based on the evidence provided beforehand.[4]Afghanistan became a member of the Rome Statute on May 10, 2003. The OTP has launched an initial investigation into the situation, according to numerous reports received from the ICC Prosecutor's Office from victims and human rights organizations. In Afghanistan in 2007. Its focus was on the ICC committing crimes in armed conflict between pro- and anti-government forces. These include a series of crimes against humanity and war crimes.
War crimes include gross violations of the 1949 Geneva Conventions and other serious violations of the rules and customs applicable in international armed conflicts. The Rome Statute covers acts that include war crimes, including premeditated murder, torture, mass destruction and seizure of property, unlawful expulsion, unlawful imprisonment and intentional attacks on people and civilian objects, vehicles and personnel providing humanitarian aid.
War crimes apply to both international and non-international armed conflicts, and the latter has been a major part of the conflict over the past decade around the world. Crimes against humanity are crimes that may be committed during the "time of peace" and include a list of crimes that have been committed extensively or systematically and that have been committed against civilians with the knowledge of the attack.
The purpose of the ICC Prosecutor 's initial investigation is to "gather all relevant information to reach a fully informed decision that there is a reasonable basis for continuing the investigation" required by the relevant provisions of the ICC Statute. Preliminary review is an essential step before starting a thorough investigation. During the preliminary review, the Office of the Prosecutor (OTP) is required to consider judicial issues, complementarity, gravity and the interests of justice.
Given the complexity of the situation in Afghanistan and the alleged crimes committed by several actors, national and international, the OTP took a decade to complete the initial investigation. In comparison, it completed a preliminary test on Palestine in about five years.
In November 2017, the International Criminal Court (ICC) prosecutor requested that the Court of First Instance authorize an investigation into the situation in Afghanistan. This is a necessary legal procedure that acts as a monitoring mechanism for the actions of the prosecutor. The ICC prosecutor informed the pre-trial chamber that more than 26,500 civilians had been killed since 2009. He relied on UNAMA reports to show the extent and severity of the crimes and the number of casualties.
Significantly, this call was made to launch an investigation into three sets of ICC crimes: a) crimes against humanity and war crimes by the Taliban and affiliated groups; B) War crimes committed by Afghan government institutions such as members of the Afghan National Security Forces. And (c) war crimes committed by the United States Armed Forces, including the Central Intelligence Agency (CIA), not only on Afghan soil but also in secret CIA detention facilities in Poland, Romania and Lithuania.
Fatou Bensouda, a former prosecutor at the International Criminal Court, argued in pre-trial court that he had the rationale to believe that the US armed forces had committed 54 crimes and another 24 by the CIA in Afghanistan, mostly in 2003. Done in 2004. He claimed that the CIA had used torture and sexual violence against Afghan citizens in its prisons abroad. The prosecutor claimed that the three countries had detention centers on their territory where the CIA carried out its "torture program" or "black spot detention" and committed ICC crimes.
Refusal of the interrogation room to confirm the investigation
In April 2019, the chamber unanimously rejected the investigation permit on the grounds that such an investigation by the prosecutor was not in the interests of justice. Acknowledging that the evidence presented earlier indicated that ICC crimes may have been committed in Afghanistan, he noted that it had been a long time since the initial investigation began in 2006 and that the political scene in Afghanistan had changed dramatically since then.Has been. Interestingly, the prosecutor's lack of cooperation with the Afghan government has been cited as a ground for denying the permit, which prevents a thorough investigation and successful prosecution. The agency noted budget constraints at the ICC, saying scarce resources should be used to prioritize activities that have a "greater chance of success."
Needless to say, the pre-trial chamber was a controversial issue that was heavily criticized by several human rights organizations. This showed that there is a conflict between the pre-trial chamber and the OTP over who has the primary responsibility and authority to decide on the situation[5]. Rejecting this also raised a highly contentious ideological issue: Given the limited financial and human resources, should the ICC focus on any situation where heinous crimes have been committed or on those that are likely to succeed? More (in arresting, prosecuting, convicting and punishing defendants)?
In the early years of the ICC, the situation was referred to by the governments themselves, probably because government cooperation is more likely in such cases, so research is possible and has the potential to be successful. However, after nearly two decades of its existence, should the ICC assess the "benefits of justice" by mechanically reducing whether research is possible or likely to be successful? The tension between principle and pragmatism is very real and tangible.
The role of the United States in Afghanistan
After the ICC Appeals Chamber announced its decision to allow the prosecutor to investigate the Afghan conflict, the United States made shameful efforts to protect its military, intelligence, and other personnel, thereby undermining the rule of law. The Trump administration issued Executive Order 13928 on June 11, 2020, which sanctioned ICC officials investigating the complicity of American citizens.The executive order allowed U.S. officials to freeze the assets of ICC staff and prevent ICC staff from entering the United States through visa restrictions. The order outlined the US vision for the ICC investigation - which threatens to undermine the country's sovereignty and impede its "vital work of national security and foreign policy". The US attack on the ICC undermined the only hope for justice for the thousands of Afghan victims.
Coincidentally, the Biden government revoked the executive order through Executive Order 14022 of April 1, 2021, because the imposition of sanctions on ICC personnel was "inappropriate and ineffective." This does not mean that the Biden government supports the ICC. It is aligned with its predecessors in protesting the ICC's jurisdiction over US citizens. However, he believes that its concerns can be better addressed by engaging with ICC stakeholders through sanctions.
In November 2020, a damn report in Australia - the Briton War Crimes Report - found credible evidence that 19 soldiers on the Australian Air Force Special Forces and Commando Regiment had killed at least 39 Afghan civilians and detainees illegally. , Including children, in 23 cases. This result was obtained after reviewing 57 cases through interviews with more than 423 witnesses and other evidence. The report was the product of a four-year investigation by General Paul Burton Reserve Combat General, reinforced by information received from a military whistleblower and local media reports of severe ill-treatment by Australian soldiers who served in Afghanistan from 2005 to 2016.[6]
The investigation, made possible by the Australian military leadership, led to 143 recommendations, including recommendations to initiate criminal investigations against 19 soldiers in Australian courts and to cite a competent unit awarded to the unit. Coinciding with the report, General Angus Campbell, the commander of the Defense Forces, announced his decision to accept all of the recommendations in the report, much to the displeasure of Australian veterans.
One unspoken motive was to prevent possible arrest and prosecution by the ICC.
Bertron's implications for international criminal justice are enormous. The report had a small but significant impact on the impunity of the international armed forces for years in Afghanistan. The "culture of warriors" also highlighted violence, secrecy, forgery and deception.
Britain, the United States and other governments sending troops to Afghanistan when the Afghan Independent Human Rights Commission asked them to take a page from an Australian book and begin their investigation into possible war crimes in Afghanistan, UK, US And other governments that had sent troops to Afghanistan felt a surge. By their forces in favor of the political and military leadership of those countries.
In the past, the US government, led by Barack Obama, has closed only two indicted prisoners tortured by CIA officials - an Afghan prisoner named Gul Rahman, who was being held in a secret detention center near Kabul. As a "salt pit" and another Iraqi prisoner in the CIA prison in Abu Ghraib.
In late 2012, the Obama administration aggressively and effectively whitewashed the heinous crimes committed by the CIA through its brutal interrogation techniques during the declaration of the "war on terror." Such techniques include "riding on water" and simulating drowning, which human rights activists say is torture. Obama says we should look forward, not look back.
The importance of "looking to the past" and implementing accountability mechanisms for past crimes in order to "look to the future" and prevent such crimes from being committed in the future was lost to the government.
Given its past record, the US government must demonstrate its genuine intention to investigate and prosecute its errant officials in connection with the Afghan conflict in order to investigate the impact of the ICC investigation, even if this means that many The skeletons come out of the closet.
The Complementary Principle, enshrined in the ICC Roman Charter, works to activate and encourage internal accountability mechanisms. The International Criminal Court investigates and prosecutes suspects in alleged ICC crimes only if the government concerned is unwilling or unable to do so in the domestic legal system. "Willingness" is assessed not only by initiating formal investigations, investigations or prosecutions under domestic law, but also by assessing how real the principle of such legal proceedings is. If the internal prosecution of suspects - regardless of their power - is carried out on ICC crimes, the ICC will be the most successful in its view, and will avoid the need for ICC intervention.
The principle of complementarity has also affected ICC research in Afghanistan in other ways. In April 2020, the Government of Afghanistan asked the Prosecutor to postpone its investigation in order to provide the ICC with evidence to show its ability and willingness to prosecute those who have committed war crimes and crimes against humanity. Because the International Criminal Court is thought to be the last court - and with a complementary principle to the Roman Statute - the priority is to be tried in national courts, not the ICC. The government then sent details of the cases it was investigating or prosecuting to the OTP to determine the criminal liability of the suspects.
The Afghan government has provided a list of 151 cases allegedly being investigated or prosecuted against government officials, including 36 serious crimes committed by Taliban officials and a number of crimes committed by international forces, although these do not include any cases. Be. US Army or CIA crimes[7].
In April 2021, the prosecutor announced the deferral request, essentially informing the court and the public that he would continue to evaluate the 5,000 pages of information sent to him by the Afghan government to examine whether there was tangible evidence. Specific steps are being taken to determine criminal responsibility. This was necessary to decide on the government's request to postpone the ICC investigation.
Organizations such as Human Rights Watch have observed that Afghanistan has a poor track record in the field of justice and is not accountable to senior military and police officials, as well as Taliban officials who have been charged with a range of crimes, including torture and sexual assault. Violence, extrajudicial executions and enforced disappearances. They further stated that the Afghan government has rewarded and not punished some of the biggest criminals.
Peace versus justice?
Continued ICC investigations into the Afghan conflict may disrupt the peace process and lead to further hostility from all actors, possibly leading to heinous crimes in the short term. Given the rapidly changing political landscape in Afghanistan, this possibility is clear. This raises a heated debate about peace versus justice. However, for a lasting peace in Afghanistan, the perpetrators of serious crimes, whoever they may be, must be brought to justice.The path to international justice for the serious crimes committed in the Afghan conflict is long and difficult and has a checkered history. The withdrawal of US troops from the United States, the Taliban's success in seizing power in provincial capitals, and a possible power-sharing deal between the Afghan government and the Taliban in the near future are likely to affect justice.
Recent reports of Taliban atrocities include the execution of commandos, the destruction of homes, the brutal killing of civilians, the forced marriage of girls, sexual slavery and violence against women, all of which are crimes against humanity and war crimes - some of the most serious crimes under international laws. It remains to be seen whether the Taliban can be held accountable for this in the near future.
Despite the widespread and systematic nature of heinous crimes, past attempts at accountability have not been successful. If they had succeeded, the history of crime might not have repeated itself. The ICC's intervention in recent years has been seen as a new lease on life for ten years of international and domestic efforts to determine responsibility for these crimes. But for now, international efforts are needed to reduce the humanitarian catastrophe in Afghanistan.
The origin of the laws of Islamic war:
The rise of Islam in 610 AH threatened the religious, political, economic and social systems that existed in Saudi Arabia. The enmity with the followers of the new religion gradually increased and they were forced to flee twice from the birthplace of Islam, Mecca: first to Abyssinia (today, Ethiopia) in 615 AD and then to Yathrib, today Medina in Saudi Arabia, in 622 AD. After Christ, this hostility continued even after the flight to Medina, and a number of violent clashes took place, including war between the Muslims and their enemies.This aspect of the history of Islam is briefly stated in the Qur'an. This book is recorded in the literature of Surah (biography of the Prophet, the early history of Islam) in great detail, which mentions the number of killed and captives and sometimes their full names. Hadith literature (words, deeds and implicit confirmations of the Prophet) also includes thousands of reports in this regard.
To fully understand this collection of literature and derive rules from them, even experts must study other literature, including tafsir (interpretation of the Qur'an) and the method of hadith. They need to do this to determine the reliability of the different narrators and the accuracy of the various reports of the period.
Studying the points of conformity between Islamic law and modern IHL is not a luxury: it is of strategic importance to ensure that IHL principles are observed in armed conflict. All of this literature consisted of materials or texts from which the jurists or jurists prepared the law of Islamic warfare in the literature of jurisprudence or Islamic law, under such titles as al-Jihad, al-Sayyar. maghazī; Contemporary Muslim scholars add to these titles the ethics of war (ethics of war) and the law of the human state Fa al-Islam (International Humanitarian Law, or IHL, in Islam).
Sources of Islamic Law
The sources or tools used by Muslim jurists to draft the law of Islamic war include the following:- the Qur'an;
- Sunnah (Sunnah of the Prophet);
- Islamic prototypes, mainly until about 661 AH.
- Consensus among jurists;
- The rulings of the jurists through analogy; And
- public interest.[8]
Because the drafting of the Islamic War Law was based on specific texts dealing with the context of the seventh-century war, and due to the nature of the tools available in the legislative process, the Islamic rules on the use of force often contradict each other. These contradictions are also due in part to the fact that Islamic law has remained unencoded throughout the history of Islam, apart from the twentieth-century formulation, which was largely family law. In addition, as a result of European colonization, Islamic law was replaced by French or British law in all Muslim countries except a handful. For this reason, Islamic law in most fields, including the law of armed conflict, remains a purely academic matter.
According to international law, including the IHL, since the founding of the United Nations, there has been a consensus among scholars and governments of the Islamic world that this set of laws is in line with the true spirit and ultimate goals of Islam, but not necessarily all rules. Formed in the past by classical Muslim jurists, they operated in a very different political context.[10] That is why all Muslim countries have signed the Geneva Convention and other relevant international treaties.
In recent times, however, serious human rights violations have been justified by invoking some classical jurisprudential views or biblical interpretations, or simply by comparing them to some classical conditions of war - for example, to justify the killing of civilians. Is. It should be noted, however, that some other Muslim non-governmental armed groups have developed rules of conduct that are in accordance with Islamic law and are also in line with modern IHL principles. This shows that Islamic law is both used and abused in contemporary armed warfare in the Islamic world.
Therefore, studying the points of conformity between Islamic law and modern IHL is no longer just a matter of luxury. This issue is of strategic importance and high value in ensuring the observance of human rights principles as much as possible in this particular field of armed conflict.
Characteristics of Law of war in the light of Islamic law;
Because of the uniqueness of the texts and sources, and the contexts (past and present) from which it is derived, the law of Islamic warfare - used to regulate hostile behavior in armed conflict - has a number of features that must be taken into account. Consider:- Religious principles: Because Islamic rules on hostilities originate from the Islamic Bible.
- Religious motives: Believers are encouraged to follow the Islamic law of hostility in order to receive God's reward in the Hereafter and also to avoid God's punishment, let alone the punishment of the state.
- Self-imposed: For the reasons mentioned above, and regardless of the behavior of the enemies, although jurists sometimes used the reciprocal principle to remove restrictions on certain weapons or tactics. (It should be noted that at the time of the drafting of the Islamic War Law, there was no international treaty governing the use of force.)
- Textual and textual: It is obvious that throughout the history of Islam, jurists have differed in the interpretation of texts and contexts related to the law of Islamic war,
- Conflicting rules on the use of force. These contradictory rulings also resulted in jurists having to balance Islamic restrictions on the use of certain weapons and methods of indiscriminate warfare - to humanize so-called armed conflict - with the military necessity of winning the war.
- The wide gap between theory and practice: While Islamic law contains detailed provisions that are largely in line with modern IHL principles, some Muslims are now in serious violation of the IHL.
Because of these features, Islamic law of armed conflict continues to be used by Muslims, or at least refers to them using Islam as their reference. In addition, due to underlying and sometimes contradictory provisions, the law of Islamic war is sometimes misused to justify harm to protected persons and objects.[11]
On the other hand, as shown below, the similarities between the principles of the IHL and the law of Islamic warfare suggest that these two legal traditions have the same objectives, and that the modern principles of the IHL are very useful in guiding hostile actions in the contemporary context. . Conflict. Emphasis on the universality of IHL principles, which transcends legal traditions, civilizations, and cultures, is essential to ensuring IHL compliance.[12]
Contemporary Challenges or International Humanitarian Law
International Humanitarian Law (IHL) is one of the oldest bodies in international law. Its compilation began in the late 19th century. And over the years it has had to deal with various developments in the nature of war. Today, technical advances and the changing nature of the parties to the conflict and other factors have changed the landscape of armed conflict and posed new challenges to the existing IHL framework.[13]The partnership addresses five of these contemporary challenges: the use of IHL in cyber operations that occur in armed conflict, the blurring of lines between the IHL and the pattern of terrorism, the geographical scope of IHL use, and the ability of IHL in peacekeeping operations. And the fundamental question of how to ensure respect for the IHL.
Ability to use IHL in CYBER WARFARE
With the constant advancement of technology, a new trend in hostilities is emerging, namely the use of cyber operations in armed conflict. The term "cyber warfare" describes operations against a computer or computer system over a stream, when used as a means and method of warfare in armed conflict. Cyberwarfare has not yet had significant humanitarian consequences.
However, there are concerns about the widespread impact of future cyber attacks:
For example, if cyberattacks are carried out on transportation systems, power grids, dams and chemical or nuclear power plants, it can lead to civilian casualties. It has long-term consequences and consequences for the daily lives of the affected people. The resonant effects of cyber attacks on military targets can also have important consequences for civilians. For example, power outages could prevent medical services from being provided to civilians and potentially deprive many of them of essential medical care.
The NIAC requires long-term armed violence between government armed forces and organized armed groups or between such organized armed groups. Accordingly, unlike IACs, the existence of a NIAC requires a certain level of intensity of violence and a minimum degree of organization in a non-governmental armed group:
For example, it has a command structure, disciplinary rules, and a standard organizational headquarters not only when That a typical armed group engages in cyber activities, but also according to the ICRC, when a group is purely online, depending on The level of organization of the group members is organized, met. However, in situations where cyber operations do not produce kinetic effects, the need is not severely met. In addition, under the First Additional Protocol, a number of rules - including the principles of distinction and proportionality in the conduct of war - apply to "attacks" as defined in Article 49 of Additional Protocol 1.
Another question: Under what circumstances can such attacks be considered as such attacks? In this regard, the ICRC believes that the use of any type of cyber capability in armed conflict must comply with all IHL principles and rules.[14]
As in the case of any other weapon, means or method of warfare. In any case, hostile behavior is governed by the rules and principles set forth in the ordinary IHL, including the principle of distinction, the prohibition of indiscriminate attacks, and the commitment to precautionary measures to save civilians.
As in the case of any other weapon, means or method of warfare. In any case, hostile behavior is governed by the rules and principles set forth in the ordinary IHL, including the principle of distinction, the prohibition of indiscriminate attacks, and the commitment to precautionary measures to save civilians.[15]
Non-governmental armed groups:
blurring the lines between terrorism and the IHL In response to the increasing use of terrorist tactics by some non-governmental armed groups, governments have intensified existing counter-terrorism measures and introduced new measures in recent years. There is no doubt that it is legitimate to take measures to ensure the security of the government. These counter-terrorism responses, coupled with the strong anti-terrorism discourse in the domestic and international forums, have increasingly blurred the lines between armed conflict and terrorism, and have potentially adverse consequences for the use of IHL in NIACs. In the first place, there is no universally accepted definition of "terrorism" and the IHL does not define the term.
In addition, governments have shown a growing tendency — based on a combination of patterns of conflict and terrorism — to define any act of violence by non-governmental armed groups in an armed conflict as defined as "terrorist." However, the two legal regimes are fundamentally different: the IHL considers some acts of violence to be legal and others to be illegal, while any acts of violence as "terrorist" are always illegal.[16]
The rapid proliferation of armed groups exacerbates the challenges of using IHL in such groups. Traditionally, non-governmental armed groups were organized in a manner similar to the state armed forces: hierarchically, with a level of organization that was directly visible. However, especially in recent conflicts, there is a growing tendency to disintegrate and thus proliferate armed groups. The growing number of armed groups makes it increasingly difficult to determine how organized they are and how they interact with each other. This, in turn, has exacerbated problems in determining whether a group of organizations has the qualifications to qualify as a NIAC member.
Geographical scope of IHL application
Armed conflict, which involves non-governmental armed groups, raises another issue: Because some groups can move easily between several different territories, violence between them and the armed forces of one state can enter the territory of the state. A third that has not been involved in this country before. Conflict[17]. There are at least three different options for thinking about the geographical application of the IHL in such circumstances: First, the geographical scope of the IHL can be limited to the country where the conflict is rooted. Second, it can be extended to additional countries or governments that control the armed group in that region. And third, it can be assumed that the IHL is following the members of the group.[18]
IHL and peacekeeping operations
In recent decades, several peacekeeping operations have taken place in the context of armed conflict. Increasing the "strength" of UN Security Council peacekeeping orders has increased the likelihood of the use of military force by peacekeepers - and has raised questions about when and how the IHL will act.[19]
According to the International Committee of the Red Cross, military forces employed by peacekeepers are automatically illegal under their auspices, apparently by law of the Security Council. Rather, the legitimacy of the peacekeepers' actions depends on their compliance with the IHL. This is due to the distinction between ius ad bellum and ius in bello, according to which legal recourse to the use of force (ius ad bellum) is distinguished from the legality of the force actually used (ius in bello).
According to the ICRC, the determining factor is which entity has control over operations. For example, in cases where the participating countries have high control over the behavior of their forces, these countries can become parties to armed conflicts. In contrast, where an organization maintains control of operations, it is the organization that becomes the party to the conflict.
- Ensuring respect for the IHL
Like many branches of public international law, the IHL lacks direct enforcement mechanisms to address or prevent violations of its laws by governments. In recent years, international criminal law has helped address human rights violations, but processes under this set of laws do not necessarily have a direct impact on the ground, as they often occur only long after that fact.[20]
The ICRC therefore uses the countries and parties to the armed conflict in a confidential bilateral dialogue to discuss measures they can take to ensure the use and compliance of the IHL during armed conflict. It also regularly encourages governments to publish the IHL through meetings and training courses and other means to ensure that their obligations under the IHL are known to all concerned and that violations are prevented.[21]
Regardless of recent episodes of armed conflict, and despite the fact that international and domestic discourse in recent years has focused on allegations of human rights abuses, the ICRC is also conducting research to gain a fuller understanding of what the IHL Has done, does. Respected Not only does this help us understand patterns of behavior, but the behavioral sciences also show that increasing public awareness of respect for the law can actually boost self-confidence in this set of laws.
Principles of Islamic International Humanitarian Law
The extensive and comprehensive legal literature of Islam on the regulation of armed conflict shows that classical Muslim jurists followed more or less the same philosophy and principles that inform the modern IHL. It is interesting to note that the classical Islamic legal literature distinguishes between international and non-international armed conflicts.The significance here is twofold: First, the rules of the use of force in non-international armed conflicts are much stricter and more humane than the rules of international armed conflict. Second, because of certain backgrounds in early Islamic history, Islamic law identified four different categories of non-international armed conflict that have different rules on the use of force.[22]
The Islamic War Law sought to humanize armed conflict by preserving the lives of non-combatants, respecting the dignity of enemy combatants, and respecting enemy property, except in cases of absolute military necessity or, in the unintended event, as a side effect. To be considered.
The following are the basic principles of Islamic international humanitarian law
Protection of civilians and non-combatants
Islamic law makes it very clear that all battles on the battlefield must be fought solely against enemy fighters.[23] Civilians and non-combatants should not be intentionally harmed during hostilities. According to Qur'an 2: 190: "And fight in the way of God those who fight you and do not aggress, for God does not love the aggressors."
Several reports attributed to the Prophet (pbuh) in which he specifically mentioned five groups of people who enjoy non-combat immunity under Islamic law: women, children, the elderly, clerics, and, to a considerable extent, Yusafi. (Slaves or people hired to run. Special services for the enemy on the battlefield, but do not take part in real fights).
وَ قاتِلُوا في سَبيلِ اللَّهِ الَّذينَ يُقاتِلُونَکُمْ وَ لا تَعْتَدُوا إِنَّ اللَّهَ لا يُحِبُّ الْمُعْتَدينَ سوره بقره آیه 190
و در راه خدا با کسانی که با شما می جنگند بجنگید و ( وقت جنگ از حدود شرعی و قوانین عقلایی جنگ ) تجاوز نکنید ( بدون عذر قانونی حمله ننمایید ، با هم پیمان متارکه نجنگید ، ضعیفان بی آزار را مکشید ، کشته ها را مثله نکنید و اموال را بی جهت اتلاف ننمایید ) که خداوند تجاوزکاران را دوست ندارد.
Hasfa's various duties on the battlefield at the time included caring for the animals and personal belongings of the warriors. Equivalent to modern warfare are medical personnel - military and civilian - military reporters and other groups of people in the opposing army who do not take part in real conflicts. These people also can not be targeted.[24]
The companions of the Prophet and the next generations of jurists understood the rationale of guiding the prohibition of targeting these five groups, and created war immunity for other groups of people, such as the sick, the blind, the disabled, and ordinary people. Crazy, farmers, merchants and artisans.[25]
However, members of this protected group will lose their non-combat immunity if they engage in hostilities. Classical Muslim jurists examined various interesting cases involving protected individuals in hostilities and consulted on the permissibility of targeting them.[26]
These included: a woman who is actually fighting on the battlefield, or throwing stones at Muslim army soldiers, or patrolling enemy forces, or using her own money to fund the enemy army. And hermaphrodite (whose appearance offers no definite reason for gender) was encountered during the battle. Other cases involved a child or an elderly person in direct disputes, and an elderly person being brought to the battlefield to plan enemy operations.[27]
Despite the subtle differences in their arguments and different rulings on the permissibility of targeting these protected individuals, the fact that they have considered and pondered these cases undoubtedly proves that The principle of distinction and doctrine has been the main non-combat immunity. Concern of the majority of classical Muslim jurists.
Prohibition of the use of illegal weapons
In order to preserve the lives and dignity of protected civilians and non-combatants - even if the weapons used by Muslims were primitive in the seventh and eighth centuries and their destructive power was limited - classical Muslim jurists debated the permissibility of their indiscriminate use. Various weapons, such as manganese (a weapon for catapults of large stones) and arrows with the tip of a poison or the tip of fire.
According to Qur'an 5:32: "Because We decreed for the Children of Israel that whoever kills a person except for retribution for corruption (destruction, harm) on earth, it is as if he killed everyone. Humanity, and everyone's "The fact that these unbridled weapons were the subject of debate also reflects a real concern for the enemy's property and a desire to protect it, as shown below."[28]
مِنْ أَجْلِ ذَلِكَ كَتَبْنَا عَلَى بَنِي إِسْرَائِيلَ أَنَّهُ مَنْ قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الْأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا وَمَنْ أَحْيَاهَا فَكَأَنَّمَا أَحْيَا النَّاسَ جَمِيعًا وَلَقَدْ جَاءَتْهُمْ رُسُلُنَا بِالْبَيِّنَاتِ ثُمَّ إِنَّ كَثِيرًا مِنْهُمْ بَعْدَ ذَلِكَ فِي الْأَرْضِ لَمُسْرِفُونَ . از اين روى بر فرزندان اسرائيل مقرر داشتيم كه هر كس كسى را جز به قصاص قتل يا [به كيفر] فسادى در زمين بكشد چنان است كه گويى همه مردم را كشته باشد و هر كس كسى را زنده بدارد چنان است كه گويى تمام مردم را زنده داشته است و قطعا پيامبران ما دلايل آشكار براى آنان آوردند [با اين همه] پس از آن بسيارى از ايشان در زمين زياده روى مى كنند.
إِنَّمَا جَزَاءُ الَّذِينَ يُحَارِبُونَ اللَّهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا أَنْ يُقَتَّلُوا أَوْ يُصَلَّبُوا أَوْ تُقَطَّعَ أَيْدِيهِمْ وَأَرْجُلُهُمْ مِنْ خِلَافٍ أَوْ يُنْفَوْا مِنَ الْأَرْضِ ذَلِكَ لَهُمْ خِزْيٌ فِي الدُّنْيَا وَلَهُمْ فِي الْآخِرَةِ عَذَابٌ عَظِيمٌ.
سزاى كسانى كه با [دوستداران] خدا و پيامبر او مى جنگند و در زمين به فساد مى كوشند جز اين نيست كه كشته شوند يا بر دار آويخته گردند يا دست و پايشان در خلاف جهت يكديگر بريده شود يا از آن سرزمين تبعيد گردند اين رسوايى آنان در دنياست و در آخرت عذابى بزرگ خواهند داشت.
It should be added here that the permissibility of the use of such weapons indiscriminately in connection with situations other than those involving combat between individuals was examined. For example, jurists considered whether such weapons could be used against an enemy fighting from a strong position. In such situations, it is very difficult to avoid damaging people and protected objects.
All this again shows that the principle of logical distinction was to discuss the permissibility of the use of these indiscriminate weapons.
Balancing this humanitarian principle with military necessity, most jurists allowed Mangunel to fire at enemy fortifications, but they strongly disagreed on whether firearms were allowed to be fired at enemy fortifications: some forbade it, others expressed it. They hated it. This method of warfare, and one-third of it, is permissible in cases where it requires military necessity or when it is retaliated in some way. Contradictory rulings create fundamental problems when the law of Islamic warfare is used as a source of reference for contemporary armed conflict, as it can be selectively used to justify attacks on civilians and protected objects.
Prohibition against indiscriminate attacks
Classical Muslim jurists, motivated by the same concerns that led them to investigate the use of manganese and poison beams or firearms (weapons of war), about the permissibility of two potentially unbridled methods of warfare that could lead to killing. They discussed. Protected people and damage to protected objects: Al-Bayat (attacks at night) and Altarus (use of human shields).
The rationale for studying the legitimacy of night battles - a topic that first arose in the debate between the Prophet and his companions - was that it did not involve conflicts between people because they could not see each other at night. Mangals and similar weapons were used mainly at night against the enemy, increasing the risk of injury to protected persons and objects. [29]
Similarly, they found that attacking human shields may cause accidental harm in two of the cases studied: those defending against the enemy or Muslim prisoners of war.[30]
Time and time again, the need to balance the humanitarian principles of discrimination, proportion and caution with the principle of military necessity has led jurists to issue conflicting sentences: some have banned night raids or against human shields, others have disliked them. And others still wanted their permission, but only when there was an absolute need for the military. They also disagreed on military necessity. However, there was no theoretical difference between them on the fundamental point: that protected persons and objects should not be intentionally damaged.
Property protection
In the Islamic worldview, everything in this world belongs to God, and human beings - as his successors on earth - are responsible for protecting property and helping human civilization. Therefore, even during the war, unintentional destruction of enemy property is strictly prohibited.
Abu Bakr al-Khalifa I (d. 634) commanded his army commander: "Do not cut down fruit trees. Do not destroy buildings; do not slaughter sheep or camels except for food; do not burn palms and do not drown."
The eighth-century jurisprudence of al-Awzi (d. 774) declared: "It is forbidden for Muslims to carry out any kind of destruction, unintentional destruction, [during hostilities] in the lands of the enemy." This destruction was forbidden because, like the crime of terrorism under Islamic law, this criminal crime is metaphorically described in the Qur'an as "actual corruption" (literally, destruction in the land).[31]
It is interesting to note that a small number of jurists distinguish between inanimate and inanimate property belonging to the enemy: Al-Shafi'i (d. 820), the famous founder of the Shafi'i school of law, said that all living beings are capable of feeling pain and therefore any harm to them. It is as unjustifiable as torture. For Ibn Qadmah (d. 1223), harm to living beings was within the scope of fasad fī al-arḍ. It is permissible to target similar horses and animals during the war, but only if the enemy soldiers are riding on them during the war.[32]
There are numerous examples in the classical Islamic legal literature regarding the sanctity of the enemy's private and public property. It may be enough to give an example here. Classical Muslim jurists considered the legitimacy of consuming enemy food or using its fodder to feed their animals. They concluded that this was permissible, but only to the extent necessary in accordance with military necessity, thus confirming the inviolability of enemy property. Therefore, as a rule (except in cases of military necessity), attacks on enemy property should be considered for two purposes: to force the enemy to surrender or to end the war. Avoid deliberate attempts to destroy property.
Prohibition of circumcision
Islamic law strictly prohibits termination of membership. The Prophet's commands regarding the use of force include: "Do not steal, do not betray, and do not be mutilated." The Prophet also instructed the Muslims to refrain from deliberately attacking the enemy.
Such attention to human dignity requires that the slain soldiers killed by the enemy be buried or their bodies handed over to the enemy after the end of hostilities. Early Islamic historical and legal literature records that the Prophet buried the bodies of slain soldiers without asking whether they belonged to the Muslim army or to its enemies.
The Andalusian jurist Ibn Azam (d. 1064) emphasized that Muslims were obliged to bury the dead bodies of their enemies, and that failure to do so was tantamount to mutilation.[33]
Treatment of prisoners of war
Some of the features of Islamic law discussed above are very evident in the case of prisoners of war. There are two main issues here: what to do with prisoners of war and how to treat them. The laws in both cases are based on biblical and historical material and on specific examples in early Islamic history.
Classical Muslim jurists were divided into three groups on what to do with prisoners of war.
The first, citing his position in Qur'an 47: 4, believed that prisoners of war should be released unilaterally or in exchange for captured Muslim soldiers.
The second group, made up of some of Shanaf's lawyers, argued that the government should decide on its own interests whether to execute or enslave prisoners of war. But several others from the same school said the captives may be released, but must remain in the Muslim government because allowing them to return to their country strengthens enemy forces.
The third group, the majority of lawyers, also argued that the government should make decisions based on its own interests. However, they also said that prisoners of war may be executed, enslaved, released unilaterally, or released in exchange for captured Muslim soldiers, but forced to remain in the Muslim state[34].
It should be noted here that the jurists who allowed the execution of prisoners, based on their report on the execution of three prisoners in the wars between Muslims and their enemies during the life of the Prophet (PBUH). However, a review of historical records shows that if all or some of these reports are true, these three prisoners of war were identified as crimes committed before joining the war.
Emphasis on the universality of IHL principles, which transcends legal traditions, civilizations, and cultures, is essential to ensuring IHL compliance.
In dealing with prisoners, Islamic law requires that they be respected and treated humanely. They should be fed and watered, clothed if necessary, and protected from heat and cold and oppressive behavior. Torture of prisoners of war for military information is prohibited, as Molik (d. 795), the famous founder of the Molika's school of law, points out.
Safe behavior and a quarter
The subject of Amen (Safe and Fourth Behavior) offers some interesting insights into Islamic law. Amen, meaning safe behavior, to the special protection and rights granted to non-Muslim nationals of an enemy state temporarily residing in a Muslim country, or for visiting business, tourism, education, or a brief visit to this Muslim country.[35] Do, is granted. Or other peaceful purpose Due to the nature of their profession, diplomats enjoyed amen privileges from pre-Islamic times. Classical Islamic legal literature may define amen as meaning a quarter: "A protection contract, granted during the actual course of war, to cover the person and property of a hostile enemy, all in one regiment, all inward. One strength "The whole army or city of the enemy."[36]
According to classical jurists, it is bloodshed (prevention of bloodshed, protection of life). Therefore, if enemy warriors are laying down their weapons during the battle with Amen on the battlefield - whether orally or in writing, or with a gesture or other sign - they should be given permission. After that, they must be protected and enjoy the same rights as the temporary civilian residents of the Muslim state. They should not be treated as prisoners of war. Nor should their lives be restricted in any way during their stay in the Muslim state. This protection continues until they return safely to their country.[37]
In fact, classical Muslim jurists have succeeded in presenting a vast legal literature that humanizes armed conflict. They also expressed great concern for non-combatants and civilians, as well as for specific civilian targets: they argued that all of these should be protected and that no accidental harm to any of them would be justified except in the case of absolute military necessity.
However, some Islamic rulings on the use of force pose challenges to the humanization of armed conflict. This is because the Islamic law of armed conflict has not been codified at any point in the history of Islam, and also because no punishment has been imposed for violating it. However, because treaties are binding on Islamic law and the modern principles of the IHL are in line with Islamic law, the IHL fills this gap - the suppression of violations - well.
International humanitarian law that restricts the protection of all non-combatants, as well as the means and methods of warfare. The laws and regulations of war undoubtedly have deeper historical roots. They are derived from basic human values, which are an integral part of all philosophies and religions of the world.[38]
Islamic law guarantees the victims of armed conflict the right to protection, respect and honorable human behavior. It also calls for the protection of civilian facilities and property. Islamic law limits the methods and means of war to the extent of military necessity.
Conclusion:
All of this is in accordance with the provisions of international humanitarian law and the Geneva Conventions. Thus, the similarities between human rights and Islamic law are not coincidental, but rather evidence that reflects global values and an important part of most religious and other worldviews.
This brief discussion shows that the IHL and the Islamic legal-humanitarian framework are compatible and complementary. Clearly, classical Muslim jurists sought to ensure that humanitarian restrictions on the use of force did not lead to the defeat of Muslims in war. This has led to a number of conflicting laws - in many cases, due to differences between those jurists who prioritized humanitarian requirements and those who prioritized military victories, even if this meant Endangering certain protected persons and objects. The latter group of lawyers justified civilian casualties as collateral damage or as a military necessity.
Many people feel that they are more committed to their religious and indigenous traditions and are more inclined to follow them, and Islamic law is a clear example of this. This should not be discouraged if a particular group of arms holders wants to limit the use of force under traditional frameworks that do not violate the IHL. This - allowing groups to use alternative frameworks that they are willing to adhere to and respect - may be the most effective means of achieving IHL goals.
However, the challenges that such a license may face should always be considered, as not all frameworks are the same or fully compliant with the IHL. Therefore, coordination with stakeholders is a necessity to ensure that it is not later identified that these alternative frameworks have confirmed IHL violations. However, despite the possibility of divergence from the IHL in some areas, the Islamic legal tradition will continue to be used, regardless of whether we decide to deal with it or ignore it.
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