CHAPTER ONE

INTRODUCTION

The history of human kind right from antiquity testified that, conflict or rather armed conflict between individuals, families, tribes and nations has been part of the nature of human persons.

Policy of force was encouraged by disinclination of state of Europe during the dark ages through the Middle Ages, to consider any community other than one which was loosely related to them as Barbarian who did not deserve to be treated on equal footing. An example is the case of Romans who treated none but their Latin cousins as equals, while they treated the rest of the world as Barbarians who deserved to live only under Roman Dominance.

During the period referred to above, the rights of combatants as well as non-combatants, e.g. civilians, women, children, aged persons, religious persons and injured combatants were not properly and adequately respected and protected during armed conflict situations. However, even at that period, certain individuals as well as some religious leaders tried with some greater or lesser success to limit the suffering of war among combatants and non-combatants.

For instance, two thousand years before Christ, King Hammurabi of Babylonia (now in Iraq) codified rules of conduct in war.

In India, the text of Maharabati and Manu Codes provided that, mercy be shown to the disarmed and wounded enemy.

Over fourteen hundred years ago (7th Century, A. D.), the religion of Islam laid down comprehensive rules of war, in order to alleviate the suffering of war to both combatants and noncombatants.

In the 17th Century, the Dutch legal scholar and diplomat, Grotius, wrote his book entitled De juri Belli – Acpacis, which was considered to be the first attempt to draw up rules of international law, protecting the victim of armed conflict.

However, the first modern attempt to draw up a binding code for the conduct of armed forces in the field was that prepared by Professor Francis Libber of the United States of America, promulgated as law, by President Lincon in 1868, during American Civil War. This code though only binding upon United States of American forces was based on what Libber regarded as the generally accepted law of his day.

Beside the above mentioned attempts by various scholars and statesmen, there had been so many other attempts by the states in more recent times through legally binding treaties aimed at restraining the undesirable effect of armed conflict and protection of non-combatants.

Significant among them are the Hague conventions and the four Geneva conventions of 1949 with their additional protocols of 1977, aimed at protecting non-combatants.

All the four Geneva conventions of 1949 are to apply to any international armed conflicts, while common Article 3, common to all Geneva conventions to apply to non-international armed conflict.

Before and after the birth of Prophet Muhammad (Peace be upon him), the Arabian peninsular was in Jahiliyya (Dark Age or period of ignorance). Barbarism, individualism, communal clashes and wars were the order of the day.

The Qur’anic verses allude to the full scale invasion of Hijaz (presently Saudi Arabia) by the Babylonian army prior to the birth of the prophet Muhammad (Peace be upon him), in 57 C.E.11 During His (Prophet Muhammad) adolescence, the sacrilegious war (Harbal-Fujjar), a four year old war was fought, which was ended by the conclusion of a treaty of peace. This usher in the new solidarity of the various clans of Arabia known as “Hilafu of Fuduli”, which in essence united the clan of Hashimites, Zuhrah and that of Ta’am. They took an oath to fight on behalf of the oppressed, be he a traveler, resident or even settler, and to compel the oppressor to pay compensation. Though other tribes did not accede to this agreement, but rather opted to remain in hostility, still the treaty marked a remarkable development heralding a new era in the Arabian peninsular.

These were some of the efforts made at that period by some Arab tribal leaders to curtail the number of wars, but there were no attempts to protect the rights of combatants and non-combatants in the event of war.

Islam was the first religion to provide Arabian peninsular with comprehensive rules and regulations governing the conduct of war, as well as protection of rights of combatants and noncombatants during armed conflict situations.

The first Islamic state was established in Medinah in the 7th Century (Rabee al-Awwal, first year of Hijra) by the Prophet Muhammad (Peace be upon Him). Since then, some basic rules and regulations governing the conduct of war were laid down by the prophet (peace be upon him). It was reported that, whenever the prophet was sending troops to battle, he instructed them to comply with the following regulations:

Be just, do not act treacherously, and do not act disloyally or negligently. Do not mutilate, do not kill little children, old men or women. Do not cut off palm tree or burn it. Do not fell any fruits bearing tree. Do not slaughter – sheep, cow or camel, except for food, perchance, you will come across men who retired to monasteries (Priest or clergymen) leave them and their devotion in peace.14

This is the brief historical account of the position of the two legal systems (International Humanitarian law and Islamic law of war) during their infancy.

STATEMENT OF THE PROBLEM

The 1949 Geneva Conventions are said to apply in any armed conflict whether international or non-international by virtue of Article 3, Common to all Geneva conventions. The conventions are said to bind all parties in armed conflict, whether signatory to it or otherwise. The necessary implication of this statement is that, any other legal system that goes contrary to any provision of the said conventions will not be tolerated or accommodated. In other words, the conventions attained a supremacy status, so that, if