Islamic Law, International Humanitarian Law, and the Creation of Courts by Non-State Armed Groups in Non-international Armed Conflicts

Andrew Feinstein

 

Abstract: This article examines the creation of courts by non-State armed groups (“NSAG”) in non-international armed conflicts (“NIAC”) through the lens of classical Islamic law and its relationship to International Humanitarian Law (“IHL”). We begin with an overview of the IHL rules related to judicial guarantees and the establishment of NSAG courts. Although the creation of courts is generally the purview of States, it is possible for an NSAG to establish a parallel judicial system during a NIAC, with courts that can be IHL-compliant. We then move to a discussion of the classical Islamic law framework, and whether or not a court established thereunder would meet the relevant IHL requirements related to such a court. Classical Islamic law generally meshes with IHL in this respect, although there are some areas where the two seem to diverge (in particular, the independence of the judiciary, and potential discrimination issues due to certain jurisdictional principles). Finally, we explore NSAG courts in NIAC situations today, using the examples of two groups purporting to follow Islamic law, namely the Islamic State and Boko Haram. We find that, in relation to courts and judicial guarantees, neither group practices Islamic law as it was conceived during the classical period, and that the courts of these particular groups would be at odds with IHL. Nonetheless, the classical Islamic law framework is useful for anyone more generally attempting to ensure that courts in armed conflict are IHL-compliant, and they should not overlook it in their efforts.