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International humanitarian law, Islamic law and the protection of children in armed conflict

  • Ahmed Al-Dawoody and Vanessa Murphy

Abstract

This paper compares how rules of international humanitarian law and rules of Islamic law protect children in armed conflict. It examines areas of convergence and divergence, and areas where there is room for clarification between these two legal systems. This comparative exercise spotlights four key topics marking the wartime experience of children: the unlawful recruitment and use of children by armed forces and armed groups, the detention of children, their access to education, and the situation of children separated from their families.

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The authors can be contacted at aaldawoody@icrc.org and vmurphy@icrc.org. The views expressed in this article are those of the authors and do not necessarily reflect those of the ICRC.

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1 The UN Secretary-General's annual report on children and armed conflict documented over 24,000 violations by government forces and non-State armed groups in 2018. Report of the Secretary-General on Children in Armed Conflict, UN Doc. A/73/907-S/2019/509, 20 June 2019 (Secretary-General's Report), para. 5.

2 The term “Muslim States” is used as shorthand in this article to refer to States where the majority of the population is Muslim.

3 ICRC, The Roots of Restraint in War, Geneva, 2018, p. 34.

4 Regarding the influence of local Islamic scholars and legal institutions, as well as global Salafi-Jihadi scholars, on two non-State armed groups in Mali, see ibid., pp. 46–51.

5 For example, the United Nations (UN) Committee on the Rights of the Child has “noted with satisfaction that there were different interpretations of some aspects of the application of Sharia (Islamic law) and that Egypt has adopted an attitude consistent with the spirit of human rights in that regard”. Committee on the Rights of the Child, Consideration of Reports: Egypt Concluding Observations, UN Doc. CRC/C/15/Add.145, 21 February 2001, para. 56.

6 Saudi Arabia and Oman, for example, have stated that they find the definition of the child within Article 1 of the Convention on the Rights of the Child (CRC) to conform with Islamic law. Saudi Arabia's report to the Committee on the Rights of the Child in 1998 stated that “Article 1 of the Convention on the Rights of the Child is totally in harmony with Islamic law with regard to the definition of the child”. See Committee on the Rights of the Child, Consideration of Reports: Initial Report of Saudi Arabia, UN Doc. CRC/C/61/Add.2, 29 March 2000, paras 30–32. Regarding its law that sets the age of 18 as the age of legal adulthood, Oman reported that “[t]he Decree is in accordance with the principles of Islamic Sharia”: see Committee on the Rights of the Child, Consideration of Reports: Initial Report of Oman, UN Doc. CRC/C/78/Add.1, 18 July 2000, paras 13–14. For additional analysis of Islamic law and its relationship with international law, see, for example, Mahmood Monshipouri and Claire L. Kaufman, The OIC, Children's Rights and Islam, Danish Institute for Human Rights, Copenhagen, 2017, available at: www.humanrights.dk/sites/humanrights.dk/files/working_papers/2015._matters_of_concern_monshipouri_and_kaufman_feb2015.pdf (all internet references were accessed in November 2019); Mosaffa, Nasrin, “Does the Covenant on the Rights of the Child in Islam Provide Adequate Protection for Children Affected by Armed Conflicts?”, Muslim World Journal of Human Rights, Vol. 8, No. 1, 2011.

7 For example, a child rights bill was drafted in Somalia between 2017 and 2018. This development was noted in the Secretary-General's Report, above note 1, para. 146. Prior to the drafting of this bill, Somalia entered the following reservation when it ratified the CRC in 2015: “The Federal Republic of Somalia does not consider itself bound by Articles 14, 20, 21 of the above stated Convention and any other provisions of the Convention contrary to the General Principles of Islamic Sharia.” The principles of Islamic Sharia referenced therein are accordingly of import to the State's interpretation of children's rights.

8 This subject of the legal protection of children deprived of their liberty in NIACs was one of the topics identified for further research, consultation and discussion by the ICRC at the 32nd International Conference of the Red Cross and Red Crescent: see ICRC, Concluding Report on Strengthening IHL Protecting Persons Deprived of Liberty, Geneva, June 2015, pp. 4446, available at: http://rcrcconference.org/wp-content/uploads/2015/04/32IC-Concluding-report-on-persons-deprived-of-their-liberty_EN.pdf.

9 See Al-Dawoody, Ahmed, “Islamic Law and International Humanitarian Law: An Introduction to the Main Principles”, International Review of the Red Cross, Vol. 99, No. 3, 2017; Al-Dawoody, Ahmed, “Management of the Dead from Islamic Law and International Humanitarian Law Perspectives: Considerations for Humanitarian Forensics”, International Review of the Red Cross, Vol. 99, No. 2, 2018.

10 Regarding the ICRC's approach to this dialogue with experts in Islamic law, see ICRC, above note 3, p. 51, Section 4.6; ICRC, “Niger: Seminar on Islamic Law and Humanitarianism”, news release, 25 November 2015, available at: www.icrc.org/en/document/niger-seminar-islamic-law-humanitarianism; ICRC, “Egypt: Continuous Humanitarian Dialogue between the ICRC and Al-Azhar”, news release, 24 October 2017, available at: www.icrc.org/en/document/egypt-grand-imam-dr-ahmed-al-tayyeb-al-azhar-willing-support-humanitarians. Regarding dialogue with scholars from other religions, see, for example, ICRC, “Reducing Suffering During Armed Conflict: The Interface between Buddhism and IHL”, 25 February 2019, available at: www.icrc.org/en/document/reducing-suffering-during-conflict-interface-between-buddhism-and-international.

11 Article 20 of the CRC makes reference to Islamic law. For a discussion on the significance of this reference, see Hashemi, Kamran, “Religious Legal Traditions, Muslim States and the Convention on the Rights of the Child: An Essay on the Relevant UN Documentation”, Human Rights Quarterly, Vol. 29, No. 1, 2007, p. 196.

12 Ibid., p. 196.

13 See Mayer, Ann Elizabeth, “Islamic Reservations to Human Rights Conventions: A Critical Assessment”, Recht van de Islam, Vol. 15, 1998, pp. 3637.

14 K. Hashemi, above note 11, pp. 223–224.

15 For further information regarding the ICRC's work on the protection of children in armed conflict, see ICRC, In Brief: Children in War, Geneva, 2019, available in Arabic, English, French and Spanish at: www.icrc.org/en/publication/4383-children-war.

16 This potential for mutual reinforcement is illustrated in, for example, Afghanistan's 2018 Policy for Protection of Children in Armed Conflict, approved by the minister of national defence and minister of the interior, which begins with a reference to both Islamic Law and international law as the legal basis for government responsibilities regarding the protection of children in armed conflict: “Based on inherent human rights, Islamic teachings, and established international legal standards, the Ministry of Defence (MoD) will take every necessary step to support the humanitarian treatment and protection of children in various situations arising during armed conflict. The protection of children is one of the Government's basic responsibilities.” Afghanistan, “Policy for Protection of Children in Armed Conflict”, Ministry of Defence and Ministry of Interior, Kabul, 2018.

17 For an application of this solution-oriented approach to matters related to the management of the dead, see A. Al-Dawoody, “Management of the Dead”, above note 9.

18 Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 135.

19 These notably include Articles 23(1), 24 and 50 of Geneva Convention IV (GC IV), Article 77 of Additional Protocol I (AP I) and Article 4(3) of Additional Protocol II (AP II). For an overview of the many other rules, see ICRC, “Legal Protection of Children in Armed Conflict – Factsheet”, Geneva, 2003, available at: www.icrc.org/en/document/legal-protection-children-armed-conflict-factsheet.

20 AP I, Art. 77(1).

21 On the treatment of children deprived of their liberty, including their separation from adults, see GC IV, Arts 51(2), 76(5), 82, 85(2), 89, 94, 119(2), 132(2); AP I, Art. 77(3–4); AP II, Art. 4(3)(d).

22 GC IV, Arts 23, 24(1), 38(5), 50, 89(5), 94; AP I, Arts 70(1), 77(1), 78(2); AP II, Art. 4(3)(a).

23 GC IV, Arts 14, 17, 24(2), 49(3), 132(2); AP I, Art. 78; AP II, Art. 4(3)(e).

24 GC IV, Arts 24–26, 49(3), 50, 82; AP I, Arts 74, 75(5), 78; AP II, Art. 4 (3)(b).

25 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable on Armed Conflicts, Geneva, 1974–1977, Vol. 15, CDDH/III/SR.45, para. 3.

26 Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987, para. 4544.

27 Official Records of the Diplomatic Conference, above note 25, para. 7.

28 The preamble of the OIC Covenant on the Rights of the Child in Islam also refers to the child as “the vanguard and maker of the future of the Ummah [Muslim nation]”. The Covenant was adopted by the 32nd Islamic Conference of Foreign Ministers in Sana'a, Republic of Yemen, in June 2005. The authors of the present article did not ascertain the number of States bound by the Covenant.

29 See Al-Dawoody, Ahmed, The Islamic Law of War: Justifications and Regulations, Vol. 2, Palgrave Series in Islamic Theology, Law, and History, Palgrave Macmillan, New York, 2011, pp. 111114.

30 Ibid., pp. 114–116.

31 al-Sāʻatī, Aḥmad ʻAbd al-Raḥmān al-Bannā, Badā'iʻ al-Manan fī Jamiʻ wa Tartīb Musannad al-Shafiʻī wa al-Sanan: Mudhayla bi-al-Qawl al-Ḥasan Sharaḥ Badā'iʻ al-Manan, 2nd ed., Vol. 2, Maktabah al-Furqān, Cairo, 1983, p. 12.

32 Ṣādīq ibn Ḥasan ibn ʻAli al-Ḥusseini al-Qannūji al-Bukhārı̄ Abū al-Ṭayyib, Al-Rawḍah al-Nadiyyah Sharaḥ al-Durar al-Munır̄yyah, Vol. 2, Idārah al-Ṭibāʻah al-Munır̄ıȳah, Cairo, p. 339.

33 Ibid., p. 339.

34 Shaybah, ʻAbdullah ibn Abī, Al-Kitāb al-Muṣannaf fī al-Aḥādīth wa al-Āthār, Vol. 6, Dār al-Kutub al-ʻIlmiyyah, Beirut, 1995, p. 478.

35 OIC, Cairo Declaration on Human Rights in Islam, 5 August 1990, available at: www.refworld.org/docid/3ae6b3822c.html.

36 This age was subsequently raised in Articles 2, 3(1) and 4(1) of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2000. The age of lawful recruitment is set at 18 years of age by Article 22(2) of the African Charter on the Rights and Welfare of the Child, 1990.

37 Committee on the Rights of the Child, “General Comment No. 24 on Children's Rights in the Child Justice System”, UN DOC. CRC/C/GC/24, 2019, paras 21–22.

38 For example, all children facing criminal charges are entitled to the rights set out in Article 40 of the CRC, as well as the other rights in this convention unless an age limit is otherwise stipulated in a given provision.

39 See GC IV, Art. 24 (identification of children under 12).

40 See ibid., Arts 14 (hospital and safety zones to protect different categories of persons, including children under 15), 23 (free passage of humanitarian assistance for some categories of persons, including children under 15), 24 (measures to ensure that orphans and children separated from their families who are under the age of 15 are not left on their own), 38 (same preferential treatment for alien children under 15 as for nationals), 50 (maintenance of preferential measures in regard to food, medical care and protection adopted prior to occupation for children under 15), 89 (additional food for interned children under 15); AP I, Art. 77, and AP II, Art. 4(3) (prohibition of recruitment and participation in hostilities for children under 15).

41 See AP I, Art. 8 (newborn babies to have the same protection as the wounded and sick).

42 GC IV, Arts 51 (prohibition of compulsion to work in occupied territory), 68 (prohibition of pronouncement of the death penalty on persons under 18 at the time of the offence); AP I, Art. 77 (prohibition of execution of the death penalty on persons under 18 at the time of the offence); AP II, Art. 6 (prohibition of pronouncement of the death penalty on persons under 18 at the time of the offence).

43 Article 1 of the CRC defines a child as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”.

44 Attesting to this disparity in the lawful age of marriage between girls and boys, the World Policy Center maintains databases on the minimum age of marriage for girls, the minimum age of marriage for boys, and gender disparity in the legal age of marriage, available at: www.worldpolicycenter.org/topics/marriage/policies.

45 The Mālikī school of law is predominant in countries such as Mauritania, Morocco, Tunisia, Algeria, Libya, Sudan, the United Arab Emirates and certain States in West Africa.

46 For a more detailed discussion of the applicable rules, see Vité, Sylvain, “Protecting Children during Armed Conflict: International Humanitarian Law”, Human Rights and International Legal Discourse, Vol. 5, No. 14, 2011, pp. 2329.

47 Article 77(2) of AP I binds parties to IACs; Article 4(3)(c) of AP II binds parties (State and non-State) to NIACs; Article 38(3) of the CRC binds States party to the CRC.

48 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2000, Art. 2.

49 Ibid., Art. 3(1).

50 Ibid., Art. 4(1).

51 African Charter on the Rights and Welfare of the Child, 1990, Art. 22(2).

53 The Shafiʻī school of law is predominant in States such as Yemen, Jordan, Palestine, Lebanon, Somalia, Djibouti, the Maldives, Indonesia, Malaysia, Brunei, Singapore, the Philippines and Thailand.

54 The Ḥanbalī school of law is predominant in States such as Saudi Arabia and Qatar, and to a lesser extent in the other Gulf States.

55 The Ḥanafī school of law is predominant in countries such as Syria, Egypt, parts of Iraq, Turkey, the Balkan States, Pakistan, Afghanistan, Bangladesh and India.

56 For further information, see, for example, Al-Dawoody, Ahmed, “Internal Hostilities and Terrorism”, in Shah, Niaz A. (ed.), Islamic Law and the Law of Armed Conflicts: Essential Readings, Edward Elgar, Cheltenham, 2015; Badar, Mohamed, Al-Dawoody, Ahmed and Higgins, Noelle, “The Origins and Evolution of Islamic Law of Rebellion: Its Significance to the Current International Humanitarian Law Discourse”, in de la Rasilla, Ignacio and Shahid, Ayesha (eds), International Law and Islam: Historical Explorations, Brill's Arab and Islamic Laws Series, Leiden, 2018; Al-Dawoody, Ahmed, “Conflict Resolution in Civil Wars under Classical Islamic Law”, Peace Review: A Journal of Social Justice, Vol. 27, No. 3, 2015, 2015.

57 OIC, Rabat Declaration on Child's Issues in the Member States of the Organization of the Islamic Conference, 8 November 2005, available at: www.refworld.org/docid/44eb01b84.html.

58 See CRC, Art. 40(1); AP I, Arts 77(4–5); AP II, Art. 6(4).

59 Committee on the Rights of the Child, above note 37, paras 21–22.

60 In 2019, the UN Global Study on Children Deprived of Liberty estimated that at a minimum, 35,000 children were deprived of liberty in the context of armed conflict, including in Iraq and Syria. Though the number of these children facing criminal charges is not specified by the Global Study, reports have indicated that many have faced prosecution in Iraq. See Report of the Independent Expert leading the United Nations Global Study on Children Deprived of Liberty, UN Doc. A/74/136, 11 July 2019 (Global Study Report), para. 68.

61 See, notably and inter alia, CRC, Art. 40; Committee on the Rights of the Child, above note 37; UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), 1985; UN Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules), 1990. For a more comprehensive overview of juvenile justice standards, see UN Interagency Panel on Juvenile Justice, Compendium of International Instruments Applicable to Juvenile Justice, Lausanne, 2014, available at: www.eda.admin.ch/dam/Weltkongress%20zum%20Jugendstrafrecht/en/Tdh-Compendium-instruments-justice-juvenile_EN.pdf.

62 The Child Rights International Network maintains a database of States’ minimum ages of criminal responsibility; for examples of MACRs in Muslim States, among others, see: https://archive.crin.org/en/home/ages/asia.html.

63 Jiddi al-Ṣādiq, “Mas’ūliyal al-Ṭifl al-Jazā’iyyah fī al-Sharīʻah al-Islāmiyyah wa al-Taqnīn al-Jazā’irī wa al-Lībī”, Dirāsat Qānūniyah, No. 13, undated, pp. 174–175.

64 Iran, Islamic Penal Code, 20 November 1991, available at: www.refworld.org/docid/518a19404.html.

65 See, for example, Zīdān, ʻAbd al-Karīm, Al-Wajīz fī Uṣūl al-Fiqh, 5th ed., Mu'assasah al-Risālah, Beirut, 1996, pp. 201204; Khallāf, ʻAbd al-Wahhāb, ʻIlm Uṣūl al-Fiqh, Dār al-Ḥadīth, Cairo, 2003, pp. 7175.

66 Regarding the detention of children for alleged or actual affiliation with armed groups in Iraq, Syria, Nigeria and Somalia, see Secretary-General's Report, above note 1, paras 12–13. See also Global Study Report, above note 60, para. 68.

67 UNSC Res. 2427, 9 July 2018, paras 19–20; Secretary-General's Report, above note 1, paras 12–13; Global Study Report, above note 60, paras 68–71, 73, 132–143. The ICRC has also raised concerns regarding the treatment of children in the foreign fighter context in Iraq and Syria: see the sub-chapter on the status and protection of foreign fighters and their families in ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2019, p. 51, available at: https://rcrcconference.org/app/uploads/2019/10/33IC-IHL-Challenges-report_EN.pdf.

68 Aside from criminal grounds for the deprivation of liberty, in exceptional circumstances, GC IV allows States Parties to deprive certain persons of their liberty for imperative reasons of security (Art. 78, applicable to persons in occupied territories) or if the security of the Detaining Power deems it “absolutely necessary” (Art. 42, applicable to aliens in the territory of a party to the conflict). On detention outside a criminal process in NIAC under Article 3 common to the four Geneva Conventions, see ICRC, Commentary on the First Geneva Convention, Cambridge University Press, Cambridge, 2016 (ICRC Commentary on GC I), paras 717–728.

69 For example, Article 82(2) of GC IV permits internees to “request that their children who are left at liberty without parental care” be interned with them, and Article 89(5) foresees the possibility that a mother may be interned with children she is nursing.

70 ICRC Customary Law Study, above note 18, Rule 120. See also GC IV, Art. 82(2); AP I, Art. 77(4–5).

71 GC IV, Art. 76.

72 Ibid., Art. 94(2–3). GC IV also encourages parties to conflicts to conclude agreements for the release, repatriation or return to places of residence or accommodation in a neutral country of certain categories of internees, including children (Art. 132(2)).

73 Ibid., Art. 89(5).

74 ICRC Commentary on GC I, above note 68, para. 553.

75 GC IV, Art. 68(4); AP I, Art. 77(5); AP II, Art. 6(4).

76 See Maḥmūd, ʻAbd al-Ghanī, Ḥimāyat Ḍaḥāyā al-Nizāʻāt al-Musallaḥah fī al-Qānūn al-Dawlī al-Insānī wa al-Sharīʻah al-Islāmiyyah, ICRC, Cairo, 2000, p. 39; al-Zayd, Zayd ibn ʻAbd al-Karīm, Muqaddimah fī al-Qānūn al-Dawlī al-Insānī fī al-Islām, ICRC, 2004, pp. 39, 77.

77 See, for example, Thomas, Troy S., “Jihad's Captives: Prisoners of War in Islam”, U.S. Air Force Academy Journal of Legal Studies, Vol. 12, 2003, p. 95.

78 Mubārikī, Dalīlah, “Ḍawābiṭ al-ʻAlāqāt al-Dawliyyah fī al-Islām Zaman al-Ḥarb”, Majallah Kulliyyat al-ʻUlūm, 4th year, 9th ed., 2004, p. 206.

79 T. S. Thomas, above note 77, p. 95. Thomas also served in the White House from 2013 to 2017 on the National Security Council as special assistant to the president for national security affairs, senior director for defence policy, and director for strategic planning.

80 Muwaffaq al-Dīn ʻAbd Allah ibn Aḥmad ibn Qudāmah, Al-Mughnī: fī Fiqh al-Imām Aḥmad Ibn Ḥanbal al-Shaybānī, Vol. 9, Dār al-Fikr, Beirut, 1984, p. 215; Mahmassani, Sobhi, “The Principles of International Law in the Light of Islamic Doctrine”, Recueil des Cours, Vol. 117, 1966, p. 306.

81 AP II, Art. 4(3)(a). See also Articles 14(1) and 14(2) of the CRC on the child's right to freedom of religion and respect for the rights and duties of parents and legal guardians in the child's exercise of that right.

82 Though some argue that they should be released when they no longer have shawkah (organized force) – i.e., when they do not constitute a danger.

83 See, for example, Muḥammad ibn Idrīs al-Shāfiʻī, Al-Umm, 2nd ed., Vol. 4, Dār al-Maʻrifah, Beirut, 1973, p. 218; Muwaffaq al-Dīn ʻAbd Allah ibn Aḥmad ibn Qudāmah, ʻUmdah al-Fiqh, ed. ʻAbd Allah Safar al-ʻAbdalī and Muḥammad Dughaylib al-ʻUtaybī, Maktabah al-Ṭarafayn, Taif, undated, p. 149; Fadl, Khaled Abou El, Rebellion and Violence in Islamic Law, Cambridge University Press, Cambridge, 2006, pp. 152, 160; A. Al-Dawoody, above note 29, pp. 163–167.

84 A. Al-Dawoody, above note 29, pp. 136–141.

85 For further detail on the protection of education by rules of IHL, see the sub-chapter on access to education in ICRC, above note 67, pp. 36–39.

86 GC IV, Arts 13, 24.

87 Ibid., Arts 94, 108, 142.

88 Ibid., Art. 50.

89 AP I, Art. 78.

90 Geneva Convention III, Arts 38, 72, 125.

91 AP II, Art. 4(3)(a).

92 ICRC Customary Law Study, above note 18, Commentary on Rule 135.

93 Hadith 224, in Muḥammad ibn Yazīd ibn Mājah, Sunan Ibn Mājah, ed. Muḥammad Fū’ād ʻAbd al-Bāqī, Vol. 1, Dār Iḥyā’ al-Kutub al-ʻArabiyyah, Cairo, undated, p. 81.

94 Accordingly, they benefit from the general protection that IHL extends to civilians and civilian objects, as laid out in a number of treaty and customary law provisions: Common Art. 3 to the Geneva Conventions; AP I, Arts 48, 49 50, 52, 53, 57, 58; AP II, Arts 4, 13, 16; 1954 Hague Convention and 1999 Second Protocol; ICRC Customary Law Study, above note 18, Rules 1–24, and see also Rules 38, 40.

95 AP I, Art. 51; ICRC Customary Law Study, above note 18, Rule 6. See also Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009.

96 AP I, Art. 52; ICRC Customary Law Study, above note 18, Rule 10.

97 AP I, Arts 51, 57; ICRC Customary Law Study, above note 18, Rules 14–21. See also Rome Statute of the International Criminal Court, 1998, Arts 8(2)(b)(ix), 8(2)(e)(iv).

98 AP I, Art. 58; ICRC Customary Law Study, above note 18, Rules 22–24.

99 GC IV, Art. 24(1).

100 Pictet, Jean S. (ed.), The Geneva Conventions of 12 August 1949: Commentary, Vol. 4: Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, Commentary on Art. 24(1), p. 187.

101 For other rules relevant to the maintenance and restoring of family links, see GC IV, Arts 25, 49(3), 50, 82(2); AP I, Arts 75(5), 78.

102 AP II, Arts 4(3), 4(3)(b).

103 ICRC Customary Law Study, above note 18, Rule 105.

104 Ibid., Commentary on Rule 105.

105 In addition to the provisions regarding the facilitation of the reunion of dispersed families, see GC IV, Arts 49(3), 82(2–3), and AP I, Art. 75(5), regarding the duty to avoid, as far as possible, the separation of family members.

106 Hadith 1566, in Muḥammad ibn ʻIsā Al-Tirmidhi, Sunan Al-Tirmidhi, wa huwa Al-Jāmiʻ al-Ṣaḥiḥ, Vol. 4, Maṭbaʻah al-Ḥalabī, Cairo, 1962, p. 134.

107 See, for example, Muḥammad ibn Abī Bakr ibn Qayyim al-Jawziyyah, Jāmiʻ al-Fiqh, ed. Yusrī al-Sayyid Muḥammad, Vol. 4, Dār al-Wafā’, Al-Manṣūrah, 2000, p. 70; Z. ibn ʻAbd al-Karīm Al-Zayd, above note 76, pp. 39–40, 77; Ḥammīdullāh, Muḥammad, Muslim Conduct of State: Being a Treatise on Siyar, That Is, Islamic Notion of Public International Law, Consisting of the Laws of Peace, War and Neutrality, together with Precedents from Orthodox Practice and Preceded by a Historical and General Introduction, rev. & enl. 5th ed., Sh. Muhammad Ashraf, Lahore, 1968, p. 215; Thomas, Troy S., “Prisoners of War in Islam: A Legal Inquiry”, The Muslim World, Vol. 87, No. 1, 1997, p. 50; T. S. Thomas, above note 77, p. 95; Marsoof, Saleem, “Islam and International Humanitarian Law”, Sri Lanka Journal of International Law, Vol. 15, 2003, p. 26; Weeramantry, C. G., Islamic Jurisprudence: An International Perspective, Macmillan, Basingstoke, 1988, p. 135.

108 See, for example, Ghassan Maârouf Arnaout, Asylum in the Arab-Islamic Tradition, Office of the UN High Commissioner for Refugees (UNHCR), Geneva, 1987; Abou-El-Wafa, Ahmed, The Right to Asylum between the Islamic Shari'ah and International Refugee Law: A Comparative Study, UNHCR, Riyadh, 2009, available at: www.unhcr.org/4a9645646.pdf.

* The authors can be contacted at and . The views expressed in this article are those of the authors and do not necessarily reflect those of the ICRC.

Keywords

International humanitarian law, Islamic law and the protection of children in armed conflict

  • Ahmed Al-Dawoody and Vanessa Murphy

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