Civilian Rights in Armed Conflicts in Jurisprudence and Law (The Palestinian Case as a Model)

Abstract

The current thesis has aimed to shed light on the rights of civilians during times of armed conflicts from the perspective of Fiqh and comparing that with man-made law, pointing out thus the precedence of Islamic Sharia in endorsing the rights of civilians during times of armed conflicts and the comprehensive nature thereof. Reaching the extent of compatibility or disagreement with what the little human mind has reached with what has been approved by Sharia .Then, light is shed upon some of the encroachments of the Occupation in the Palestinian Territories on all that is endorsed by divine codes and man-made laws with regard to civilians' rights. The thesis' main problematic lies in the fact that students of Sharia, in particular, need to indicate the greatness of Islamic Sharia, especially, with respect to Fiqh, showing what Islamic Fiqh brought forth concerning these rights many centuries ago, compared with man-made laws, indicating the insufficiency of these laws and their belated underdevelopment and, then, pointing out, to whom it may concern, the extent of the Occupation's adherence to these basic rights as endorsed internationally, exposing the encroachments thereof on the Palestinian people. The important question summarizing this problematic is: to what extent does Islamic Sharia tend to the rights of civilians compared with international law? For the sake of examining the subject of the study and arrive at the desired results, the descriptive method is employed, deriving from both the inductive and deductive methods. As such, the thesis is comprised of an introduction, four main chapters each diverging into many sections, followed by a conclusion. The introduction includes a historical brief on wars and the conditions of civilians during them where the topic of wars and armed conflicts in Islamic Fiqh and international law is picked up, comprising two sections: the first on the nature of war in both Islamic Fiqh and international law, with a subsection for each. However, the second section has covered armed conflicts that are deemed mashru' and others that are not deemed so from the perspective of Islamic Fiqh, those that are deemed legal and others not deemed so from the perspective of international law, with a subsection corresponding to each. The third section, nevertheless, has shed light on the impact pertaining to the legality of war and armed conflicts in Islamic Sharia and international law. However, the second chapter has dealt with the research terminology and other related concepts, comprising three sections: the first has introduced the definition of 'right' in both Islamic Sharia and international law, with a subsection for each, the second has examined the concept of 'civilians' in both Sharia and international law, with a subsection corresponding to each, while the third and last has dealt with the Arab-Israeli conflict from a historical perspective. Third chapter, nevertheless, has dealt with the rights of civilians during times of armed conflicts in Sharia and international law, comprising eight sections. The first among these has dealt with the types of protected civilians, during armed conflicts, under Sharia and international law, each with a subsection corresponding to it. The second, respectively, has illustrated the personal rights of civilians in Sharia and international law, with a subsection expanding on each. The third, moreover, has illustrated the political rights of civilians in Sharia and international law, with a subsection extending each. The fourth, respectively, has illustrated the social rights of civilians in Sharia and international law, with a subsection corresponding to each. The fifth, nevertheless, has illustrated the financial rights of civilians in Sharia and international law, with a subsection elaborating each. The sixth, however, has illustrated the judicial rights of civilians in Sharia and international law, with a subsection expanding the scope of each. The seventh, respectively, has illustrated the cultural and intellectual rights of civilians in Sharia and international law, with a subsection elaborating each. Concluding this chapter is the eighth section, comprising three subsections, dealing with the reality of Palestinian civilians' rights under Israeli aggression, encroachments upon them and the role of international institutions with regard to their protection. The fourth chapter, nonetheless, has come under the title: legal guarantees, in both Sharia and law, for the protection of civilians and the rights thereof during conflicts and the role of international and religious institutions in this regard. This chapter, the fourth, has comprised four sections: the first has addressed the concept of international law, the origin, stages of development and principles thereof, in two subsections, while the second section has addressed the position of Islamic Sharia on the humanitarian principles and rules endorsed by international law during wars and armed conflicts. The third section, however, has dealt with international efforts toward the application of international humanitarian law for the protection of civilians during armed conflicts and wars and the role and mechanisms of Islamic Fiqh in this regard, folding into two subsections. Concluding chapter four with the title: the Role of International Institutions in the Protection of Civilians' Rights during Armed Conflicts and the Practical Guarantees in this regard –in two subsections, branching out into parts. Finally, the conclusion has introduced the main findings and recommendations of the study where the most important of which, findings, has been the following: - Islamic Fiqh has covered all aspects of civilians' endorsed rights in times of armed conflicts without a single shortcoming. - Such rights have remained jailed within the lines of international treaties. - International treaties have derived their principles from the spirit of Islamic Sharia given the precedence, temporally, of the latter, amounting to many centuries. - The Occupation still continues committing atrocities against the Palestinians, without being deterred by international law, exploiting the 'blind eye' of the United Nations which is controlled by the major countries. - While there are many legal guarantees, from the perspective of international law, and mashru' ones, from the perspective of Islamic Sharia for the protection of civilians and the rights thereof in armed conflicts, these continue to be inactivated in the case of the Palestinians. The thesis ends with an outline of the noble verses and Hadiths of the Prophet, peace and blessings be upon him, the sayings of the Sahabah and their followers and all other sources and references.