1 Without referring to ontological resemblance, attempts to explore similarities between the Islamic law of war and modern IHL will probably fail in their quest for objectivity. In our view, the foremost reason underlying the identifiable points of convergence between the two legal bodies lies in the fact that decision-makers and commanders have to decide upon similar cases with similar priorities and worries. Every commander, barring only a few, strives to secure the safety and survival of his soldiers and subjects with a fairly realistic view to keeping their loyalties that will in turn enable the continuation of their power struggle. This in turn would normally cause the ruler to respect the enemy personnel in his own power, so that any retaliatory measures would not be meted to his own under enemy yoke. This decision-making modus operandi based on social fact offers a strictly secular yet practicable key to understanding the ontological resemblances without any overly idealistic or quasi-religious allusions, observance of which is just too tiresome to prove under the light of the historic experience. Herein lies the source of any resemblances between these legal bodies. Needless to say, any value attached to human dignity by Islam and/or the modern legal conception of IHL may have played a role in the formation of that praxis. Yet, these teachings also form at least partially the social fact of a given era. For a critical account of those attempts that claim that modern international law and the Islamic conception of law of nations are entirely separate fields of study that are blatantly foreign to each other, see Westbrook, David A., “Islamic International Law and Public International Law: Separate Expressions of World Order”, Virginia Journal of International Law, Vol. 33, No. 2, 1993Google Scholar.

2 What we mean is that rather than looking at the detailed content of both legal traditions (i.e. specific rules and injunctions which might be misleading), we believe that it is necessary to focus on the principles upon which these traditions are built (in other words, we argue it is safer to depart from what their ontologies tell us about what they try to achieve).

3 This study limits itself to the review of the foundational principles of the Islamic law of armed conflict. The early siyar studies did not make any distinction or classification within the subject matters that they covered; however, the main subjects covered include law of armed conflict, diplomatic immunities and treaty law. The authors deliberately study the law of armed conflict for better clarity. The same approach may also be employed to identify similarities between the Islamic understanding of law of diplomacy and the modern approach to diplomatic affairs by focusing on the foundational principles.

4 There is a vast literature focused exclusively on the Islamic law of war or armed conflict. Al-Dawoody's seminal contribution to the literature provides a comprehensive coverage of the subject, along with a detailed bibliography of previous scholarly works in the field: Ahmed al-Dawoody, The Islamic Law of War: Justifications and Regulations, Palgrave, New York, 2011.

5 For a comparative account on the Islamic and Western view of war and peace, see John Kelsay and James Turner Johnson (eds), Just War and Jihād Historical and Theoretical Perspectives on War and Peace in Western and Islamic Traditions, Greenwood Press, New York, 1991. Also see Harfiya Abdel Haleem, Oliver Ramsbotham, Saba Risaluddin and Brian Wicker (eds), The Crescent and the Cross: Muslim and Christian Approaches to War and Peace, St. Martin's Press, New York,1998.

6 See Louis M. Holscher and Mahmood Rizwana, “Borrowing from the Shariah: The Potential Uses of Procedural Islamic Law in the West”, in Delbert Rounds (ed.), International Criminal Justice: Issues in a Global Perspective, Allyn and Bacon, Boston, MA, 2000.

7 Boisard, Marcel A., “The Conduct of Hostilities and the Protection of the Victims of Armed Conflict in Islam”, Hamdard Islamicus, Vol. 1, No. 2, 1978Google Scholar.

8 See Boisard, Marcel A., “On the Probable Influence of Islam on Western Public and International Law”, International Journal of Middle East Studies, Vol. 11, No. 4, 1980CrossRefGoogle Scholar.

9 “Francisco de Victoria (1480–1546) and Suarez (16–17th centuries) were both Spanish nationals and were educated in the same country where Islamic theories had a potential influence on culture, jurisdiction and politics. Their work on the law of nations therefore benefited from the principles of Islamic international law, especially on the law of war. Similarly, the classical writer of international law Hugo Grotius (1563–1645) who is recognised by some European writers as the father of the law of nations in Europe, was a theologian and also studied Islamic law thereby benefited from the principles of Islam, especially concerning the law of war.” Farhad Malekian, Principles of Islamic International Criminal Law: A Comparative Search, Brill, Leiden, The Netherlands, 2011, p. 3.

10 Ernest Nys, Les Origines du Droit International, Thorin & Fils, Paris, 1894, p. 201; M. Rahmi Telkenaroğlu, “Muhammed b. Hasen Eş-Şeybânî (189/804) ve Hugo Grotius'un (1583–1645) Devletler Hukukuna Etkileri, Mukayeseli Bir Çalışma”, İslâm Hukuku Araştırmaları Dergisi, Vol. 5, 2005.

11 Kelsay, John, “Religion, Morality, and the Governance of War: The Case of Classical Islam”, Journal of Religious Ethics, Vol. 18, No. 2, 1990, p. 123Google Scholar.

12 See, for instance, Ignacio de la Rasilla del Moral and Ayesha Shahid (eds), International Law and Islam: Historical Explorations, Brill, Leiden, The Netherlands, 2019.

13 For a similar approach, referring to the concern that both contemporary militant Islamist groups and the modern Muslim scholars who denounce their militancy claim to have based their arguments on original sources of Islam, and thus encouraging for a critical examination of the foundational literature, see Nesrine Badawi, Islamic Jurisprudence on the Regulation of Armed Conflict: Text and Context, Brill, Leiden, The Netherlands, 2019.

14 Mitchell, Caitlin, “When Laws Govern LAWS: A Review of the 2018 Discussions of the Group of Governmental Experts on the Implementation and Regulation of Lethal Autonomous Weapons Systems”, Santa Clara High Technology Law Journal, Vol. 36, No. 4, 2020, p. 413Google Scholar.

15 Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, Cambridge University Press, Cambridge, 2004, p. 16.

16 International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, International Court of Justice Reports, 1996, p. 257, para. 78; Chetail, Vincent, “The Fundamental Principles of Humanitarian Law through the Case Law of the International Court of Justice”, Refugees Survey Quarterly, Vol. 21, No. 3, 2002, p. 200Google Scholar; Gentian Zyberi, The Humanitarian Face of the International Court of Justice: Its Contribution to Interpreting and Developing International Human Rights and Humanitarian Law Rules and Principles, School of Human Rights Research Series, Vol. 26, Intersentia, Antwerp, Oxford and Portland, OR, 2008, p. 295.

17 International Court of Justice, ibid., p. 257, para. 78.

18 Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, 2nd ed., Cambridge University Press, Cambridge, 2010, p. 251; Jonathan Crowe and Kylie Weston-Scheuber, Principles of International Humanitarian Law, Edward Elgar Publishing, Northampton, MA, 2013, p. 71.

19 Andreas R. Ziegler and Jorun Baumgartner, “StGB 264”, in Hans Vest, Andreas R. Ziegler, Jürg Lindenmann and Stefan Wehrenberg (eds), Die Völkerstrafrechtlichen Bestimmungen des StGB: Kommentar, Dike Verlag AG, Zurich, 2014, p. 597.

20 J. Crowe and K. Weston-Scheuber, above note 18, p. 71.

21 U.S. Department of Defense, Conduct of the Persian Gulf War: Final Report to Congress, p. 3, available at: https://www.tjsl.edu/slomansonb/9.7_Conduct_PGW_I.pdf (accessed in September 2021).

22 Ochmannova, Petra, “Unmanned Aerial Vehicles and Law of Armed Conflict Implication”, Czech Yearbook of Public and Private International Law, Vol. 2, No. 1, 2011, p. 154Google Scholar.

23 Schmitt, Michael N., “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance”, Virginia Journal of International Law, Vol. 50, No. 4, 2010, p. 796Google Scholar.

24 Gabriella Venturini, “Necessity in the Law of Armed Conflict and in International Criminal Law”, in I. F. Dekker and E. Hey (eds), Netherlands Yearbook of International Law, Vol. 41, No. 1, 2010, p. 48.

25 A. R. Ziegler and J. Baumgartner, above note 19, p. 588.

26 Bernhard Kempen and Christian Hillgruber, Völkerrecht, Verlag C.H. Beck, Munich, 2007, p. 264.

27 Güneysu, Gökhan, “Askeri Gereklilik İlkesi ve İnsancıl Hukuk”, Ankara Barosu Dergisi, Vol. 4, No. 1, 2012, p. 99Google Scholar.

28 International Court of Justice, above note 16, p. 257.

29 Ahmet Yaman, Introduction to Turkish Translation of Siyar al-Kabir, Sarakhsi's Commentary, Vol. 1, p. 9. See note 35.

30 For Sarakhsi's contribution to the Islamic law of armed conflict, see al-Dawoody, Ahmed, “Al-Sarakhsi's Contribution to the Islamic Law of War”, UCLA Journal of Islamic and Near Eastern Law, Vol. 14, No. 1, 2015CrossRefGoogle Scholar.

31 Ahmet Yaman, “es-Siyeru'l Kebir”, İslam Ansiklopedisi, Vol. 37, pp. 327–9.

32 Aydın Taş, İmam Muhammed'in Usul Anlayışı, Nizamiye Akademi, Istanbul, 2019, p. 55.

33 See Osman Taştan, The Jurisprudence of Sarakhsi with Particular Reference to War and Peace: A Comparative Study in Islamic Law, Unpublished PhD Thesis, University of Exeter, 1993.

34 To check authenticity, Arabic and English versions were also consulted; the annotated Turkish translation contains extensive details.

35 Muhammad b. Ahmad al-Sarakhsi, İslam Devletler Hukuku: Şerh’üs Siyeri'l Kebir, Vols I–V, edited by Ahmet Yaman, translated by İbrahim Sarmış and Sait Şimşek, Eğitaş, Konya, 2001 (referred to as al-siyar in the text).

36 A. Yaman, above note 31, p. 328.

37 Ōnuma, Yasuaki, “When was the Law of International Society Born? An Inquiry of the History of International Law from an Intercivilizational Perspective”, Journal of the History of International Law, Vol. 2, No. 1, 2000, p. 19CrossRefGoogle Scholar.

38 Ibid.

39 See, for instance, Majid Khadduri, The Islamic Law of Nations: Shaybani's Siyar, Johns Hopkins Press, Baltimore, 1966; Khadduri, Majid, “Islam and the Modern Law of Nations”, American Journal of International Law, Vol. 50, No. 2, 1956CrossRefGoogle Scholar; Jean Allain, “Acculturation through the Middle Ages: the Islamic Law of Nations and its Place in the History of İnternational Law”, in Alexander Orakhelashvili (ed.), Research Handbook on the Theory and History of International Law, Edward Elgar, Northampton, MA, 2011; Akhtar, Shameem, “An Inquiry into the Nature, Origins and Source of Islamic Law of Nations”, Islamic Studies, Vol. 10, No. 1, 1971Google Scholar; Haniff Ahamat and Mohd Hisham Mohd Kamal, “Modern Application of Siyar (Islamic Law of Nations): Some Preliminary Observations”, Arab Law Quarterly, Vol. 25, No. 3, 2011; and Mohammad Talaat al-Ghunaimi, The Muslim Conception of International Law and The Western Approach, Martinus Nijhoff, The Hague, 1968.

40 See Bassam Tibi, “Islamic Law/Shari'a, Human Rights, Universal Morality and International Relations”, Human Rights Quarterly, Vol. 16, No. 2, 1994; Shahrbanou Tadjbakhsh, “International Relations Theory and the Islamic Worldview”, in Amitav Acharya and Barry Buzan (eds), Non-Western International Relations Theory: Perspectives on and Beyond Asia, Routledge, London, 2010; Muhammad Hamidullah, The Muslim Conduct of State, Islamic Book Trust, Kuala Lumpur, 2011.

41 See Majid Khadduri, War and Peace in the Law of Islam, Johns Hopkins Press, Baltimore, MD, 1979; John Kelsay and James Johnson (eds), Just War and Jihad, Greenwood Press, New York, 1991; Hilmi M. Zawati, Is Jihäd a Just War? War, Peace, and Human Rights under Islamic and Public International Law, Edwin Mellen Press, Lewiston, NY, 2001; and S. M. Farid Mirbagheri, War and Peace in Islam: A Critique of Islamic/ist Political Discourses, Palgrave, New York, 2012.

42 See Matthias Vanhullebusch, “General Principles of Islamic Law of War: A Reassessment”, Yearbook of Islamic and Middle Eastern Law, Vol. 13, No. 1, 2006–2007; and Ahmed al-Dawoody, “Islamic Law and International Humanitarian Law: An Introduction to the Main Principles”, International Review of the Red Cross, Vol. 99, No. 3, 2017.

43 For a comparative study of how POWs are treated in the Islamic law of war and IHL, see Mohamed el-Zeidy and Ray Murphy, “Prisoners of War: A Comparative Study of the Principles of International Humanitarian Law and the Islamic Law of War”, International Criminal Law Review, Vol. 9, No. 4, 2009.

44 For instance, al-siyar has a separate section on ribat (serving alongside the frontier to protect dar al-Islam — the abode of Islam): see al-siyar, Vol. 1, pp. 33–60.

45 Classical Islamic scholarship tends to offer a distinction between “greater” and “lesser” jihad, arguing that Islam is not offensive in nature because emphasis is placed on greater jihad which involves efforts to contain sinful impulses. For further details, see David Cook, Understanding Jihad, University of California Press, Los Angeles, CA, 2005, pp. 5–32. However, this distinction makes more sense in relation to a discussion on jus ad bello (the law governing the conditions to wage a war).

46 See al-siyar, Vol. 1, pp. 41 and 48.

47 Al-siyar, Vol. 1, p. 60.

48 Al-siyar, Vol. 1, p. 61.

49 In rare instances, al-siyar provides some coverage of individual punishments to those who violate the rules of law of armed conflict. For instance, if a dhimmi unlawfully kills an enemy combatant who was granted safe conduct and confiscates his assets, he not only repairs the damages but is also condemned to whipping as well as jail, the amount of time which is to be determined by the ruler. See al-siyar, Vol. 1, p. 298.

50 See, for instance, al-siyar, Vol. 1, pp. 171–6.

51 See, for instance, al-siyar, Vol. 1, pp. 177–80 and 181–97.

52 Sahih Muslim, Vol. 19, Ḥadith No. 4292.

53 Qur'an, Chapter 2, Verse 190.

54 Al-siyar, Vol. 1, p. 62.

55 Al-siyar, Vol. 1, p. 63.

56 Al-siyar, Vol. 1, p. 63.

57 Al-siyar, Vol. 1, p. 64.

58 Al-siyar, Vol. 1, p. 89.

59 Al-siyar, Vol. 1, p. 149.

60 For the concepts of dar al-harb and dar al-Islam, see Giovanna Calasso and Giuliano Lancioni (eds), Dār al-Islām / Dār al-Harb: Territories, People, Identities, Brill, Leiden, The Netherlands, 2017.

61 See al-siyar, Vol. 1, pp. 161–4.

62 Al-siyar, Vol. 4, p. 27.

63 Al-siyar, Vol. 1, p. 183.

64 Al-siyar, Vol. 1, p. 184.

65 See Lena Salaymeh, “Early Islamic Legal–Historical Precedents: Prisoners of War”, Law and History Review, Vol. 26, No. 3, 2008.

66 Qur'an, Chapter 47, Verse 4.

67 Qur'an, Chapter 76, Verse 8.

68 For further details on aman, see, among others, John Wansbrough, “The Safe-Conduct in Muslim Chancery Practice”, Bulletin of the School of Oriental and African Studies, Vol. 34, No. 1, 1971; and Mostafa Mohaghegh Damad, “The Institution of Aman in the Islamic Law of War”, International Journal of Humanities, Vol. 3, No. 1, 1991.

69 Al-siyar, Vol. 1, pp. 255–385.

70 Al-siyar, Vol. 1, p. 255.

71 Al-siyar, Vol. 1, pp. 256–7. Muslim slaves and children may grant safe conduct only if they are combatants.

72 For the legal status of dhimmis under Islamic law, see Nasim Hasan Shah, “The Concept of Al-Dhimmah and the Rights and Duties of Dhimmis in an Islamic State”, Journal of the Institute of Muslim Minority Affairs, Vol. 9, No. 2, 1988.

73 Al-siyar, Vol. 1, p. 259.

74 Al-siyar, Vol. 1, p. 281.

75 Al-siyar, Vol. 1, p. 261.

76 Al-siyar, Vol. 1, p. 263.

77 Al-siyar, Vol. 1, p. 265.

78 Al-siyar, Vol. 1, p. 290.

79 Al-siyar, Vol. 1, p. 79.

80 Al-siyar, Vol. 1, p. 80.

81 Al-siyar, Vol. 1, p. 82.

82 Al-siyar, Vol. 1, pp. 181–4.

83 Al-siyar, Vol. 1, p. 65.

84 Al-siyar, Vol. 1, p. 65.

85 Al-siyar, Vol. 1, pp. 71 and 73–4.

86 Al-siyar, Vol. 4, p. 58.

87 Al-siyar, Vol. 1, p. 135.

88 Al-siyar, Vol. 1, pp. 135–6.

89 Al-siyar, Vol. 1, pp 136–8.

90 Al-siyar, Vol. 1, p. 344.

91 Al-siyar, Vol. 2, p. 47.

92 Al-siyar, Vol. 2, p. 1.

93 Al-siyar, Vol. 2, p. 3.

94 Al-siyar, Vol. 2, p. 9.

95 Al-siyar, Vol. 2, p. 17.

96 Al-siyar, Vol. 2, p. 18.

97 Al-siyar, Vol. 2, p. 43.

98 Al-siyar, Vol. 5, p. 11.

99 Al-siyar, Vol. 1, pp. 113–16.

100 Al-siyar, Vol. 1, p. 124.

101 Hadith cited in M. Khadduri, above note 41, p. 106.

102 M. Hamidullah, The Muslim Conduct of State, above note 40, p. 214.

103 Abdelrahman Afifi, “Jus in Bello and General Principles Related to Warfare According to Islamic Law”, in Tallyn Gray (ed.), Islam and International Criminal Law and Justice, Torkel Opsahl Academic Epublisher, Brussels, 2018, p. 116.

104 Said El-Dakkak, “International Humanitarian Law Between the Islamic Concept and Positive Interactional Law”, International Review of the Red Cross, Vol. 30, No. 275, 1990.

105 Al-siyar, Vol. 1, p. 127.

106 A. Afifi, “Jus in Bello and General Principles Related to Warfare According to Islamic Law”, above note 103, p. 114.

107 Al-siyar, Vol. 1, p. 276.

108 Qur'an, Chapter 47, Verse 4.

109 Al-siyar, Vol. 4, p. 159.

110 Al-siyar, Vol. 3, p. 75.

111 Al-siyar, Vol. 3, p. 79.

112 Al-siyar, Vol. 2, pp. 107–11.

113 Al-siyar, Vol. 3, p. 76.

114 Al-siyar, Vol. 4, p. 50.

115 Al-siyar, Vol. 3, p. 77.

116 Al-siyar, Vol. 4, pp. 8 and 22.

117 Youssef H. Aboul-Enein and Sherifa Zuhur, Islamic Rulings on Warfare, Strategic Studies Institute, U.S. Army War College, Carlisle, PA, 2004, p. 26.

118 Al-siyar, Vol. 2, pp. 113–361.

119 Al-siyar, Vol. 2, pp. 113–45.

120 Al-siyar, Vol. 4, p. 49.

121 Al-siyar, Vol. 4, p. 55.

122 Al-siyar, Vol. 4, p. 49.

123 Al-siyar, Vol. 4, p. 53.

124 Al-siyar, Vol. 4, p. 54.

125 Al-siyar, Vol. 4, p. 53.

126 For a thorough investigation into the religious basis offered by Christianity, Islam and Judaism for limitations of war, see Sohail H. Hashmi, Just Wars, Holy Wars, and Jihads: Christian, Jewish, and Muslim Encounters and Exchanges, Oxford University Press, Oxford and New York, 2012. Also see Reuven Firestone, “Conceptions of Holy War in Biblical and Qur'anic Tradition”, Journal of Religious Ethics, Vol. 24, No. 1, 1996. For a work on the compatibility between the Islamic approach to warfare, thus an Islamic jus ad bello, with international law, see Onder Bakircioglu, Islam and Warfare: Context and Compatibility with International Law, Routledge, London, 2014.

127 For a brief discussion, see Achour, Yadh Ben, “Islam and International Humanitarian Law”, International Review of the Red Cross, Vol. 20, No. 215, 1980Google Scholar.

128 See, for instance, Hilmi M. Zawati, “Theory of War in Islamic and Public International Law”, in Niaz A. Shah (ed.), Islam and the Law of Armed Conflict, Edward Elgar, Cheltenham, 2015.

129 See, for instance, Rudolph Peters, Jihād in Mediaeval and Modern Islam, E.J. Brill, Leiden, The Netherlands, 1977.

130 There is also visible tendency in modern times, particularly geared by the 9/11 attacks and violent activism of Islamist groups, to associate Islam (and jihad) with an idea of permanent warfare. See, for instance, John Laffin, Holy War: Islam Fights, Grafton, London,1988. See also Glenn E. Robinson, Global Jihad: A Brief History, Stanford University Press, Redwood City, CA, 2020.

131 There are in addition to accounts of general nature, scholarly works addressing specific issues of the Islamic law of armed conflict. See, for instance, Thomas, Troy S., “Prisoners of War in Islam: A Legal Inquiry”, The Muslim World, Vol. 87, No. 1, 1997CrossRefGoogle Scholar; John Kelsay, Islam and War, Westminster/John Knox Press, Louisville, KY, 1993; and Elahi, Maryam, “The Rights of the Child Under Islamic Law: Prohibition of the Child Soldier”, Columbia Human Rights Law Review, Vol. 19, No. 2, 1987–1988Google Scholar.

132 For an Islamic view of jus ad bello, see, amongst others, Shah, Niaz A., “The Use of Force under Islamic Law”, European Journal of International Law, Vol. 24, No. 1, 2013CrossRefGoogle Scholar.

133 For a study that argues otherwise, suggesting that the construction of Islamic belief presents a sense of humanism, see Marcel A. Boisard, Humanism in Islam, American Trust Publications, Oak Brook, IL, 2014.

134 For such attempts at presenting an Islamic political worldview, see, amongst others, J. Harris Proctor (ed.), Islam and International Relations, Frederick A. Praeger Publishers, New York, 1965.

135 Al-Dawoody notes, “modern Muslim scholars unlike their predecessors who were mainly concerned with the Islamic jus in bello (rules regulating the conduct during war), stress that peace is the Normal State of Relations with non-Muslims.” See al-Dawoody, Ahmed, “Armed Jihad in the Islamic Legal Tradition”, Religion Compass, Vol. 7, No. 11, 2011, pp. 477–8Google Scholar.

136 Cockayne, James, “Islam and International Humanitarian Law: From a Clash to a Conversation Between Civilizations”, International Review of the Red Cross, Vol. 84, No. 847, 2002Google Scholar.

137 See Vesselin Popovski, Gregory M. Reichberg and Nicholas Turner (eds), World Religions and Norms of War, United Nations University Press, Tokyo and New York, 2009.

138 An-Na'im, Abdullahi Ahmed, “Islamic Law, International Relations, and Human Rights: Challenge and Response”, Cornell International Law Journal, Vol. 20, No. 2, 1987, p. 320Google Scholar.

139 See, for instance, Ahmed al-Dawoody, “From Tripartite Division to Universal Humanism: Alternative Islamic Global International Relations”, in Deina Abdelkader, Nassef Manabilang Adiong and Raffaele Mauriello (eds), Islam and International Relations: Contributions to Theory and Practice, Palgrave Macmillan, Basingstoke, 2016.

140 For an example of search for a common ground by a renowned contemporary Muslim scholar, see al-Zuhili, Sheikh Wahbeh, “Islam and International Law”, International Review of the Red Cross, Vol. 87, No. 858, 2005CrossRefGoogle Scholar.