DIRECT PARTICIPATION IN HOSTILITIES:A COMPARATIVE STUDYOF THE NORMS OFISLAMIC LAW AND INTERNATIONAL HUMANITARIAN LAW

Abstract

The principle of distinction is one of the fundamental principles of International humanitarian law (IHL). The principle is described in “Article 51(3) of Additional Protocol 1 to the Geneva Conventions”. Although, there is a general agreement among IHL experts that whoever is taking a direct part in hostilities will be subjected to attack, but it is itself not clear as to what is meant by the notion of ‘direct participation in hostilities’. In this regard, the definition and status of civilians needs attention, because the the term ‘civilian’ has not been made clear, particularly in Non International Armed Conflict (NIAC). For that purpose, International Committee of the Red Cross (ICRC) endevoured to clarify the notion of “direct participation in hostilities” as formulated under IHL. However, unlike prevailing International Law, Islamic Law, centuries ago, has prescribed detailed rules regarding ‘conduct of hostilities’. Rules of Islamic law in this regard are very much clear and there is need to make them part of prevailing international law.