VOLUME
6:2
DECEMBER 2019
171-390
  • THE ISLAMIC LAW OF REBELLION AND ITS POTENTIAL TO COMPLEMENT PUBLIC INTERNATIONAL LAW ON THE USE OF FORCE

    Mohamed Elewa Badar* and Mohammad Z Sabuj**
Abstract

Political interest in territorial integrity and state sovereignty has always been to the fore in decisions made by governments faced with those who rebel. Thus, rebellion has been considered as an integral part of internal armed conflict rather than expanding it as part of external or international armed conflict. In this way, public international law has not only limited its scope of application but also failed to provide an effective legal framework for rebels who are not categorised as a party to international armed conflict. The enormous political support for “state sovereignty” and lack of necessary political will to recognise the right of rebellion at the international level have played a vital role in this failure. Attempts to overcome the failure have never been successful due to the fear of ruling authorities that recognition of the right of rebellion might provide legitimacy to opponents and put their authority at risk. The political power has always triumphed over the necessity to recognise the right of rebellion, and this has resulted in the underdevelopment of this area of law. Furthermore, the rebels have denied their accountability for asymmetrical use of force against state authorities based on their disadvantageous position under public international law. This unequal position between rebels and state authorities has created a “gap” in the current international legal framework.

Keywords
use of force; rebellion; persecution; self-determination; Islamic law; public international law; international humanitarian law
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Introduction

This paper conducts a comparative analysis of Islamic law of rebellion and public international law on the use of force. It begins with a discussion of the law of rebellion in Islam followed by a detailed account of its potential to complement public international law in relation to use of force. The detailed account includes a historical overview of Islamic law of rebellion and a systemic exposition of its relationship with international humanitarian law. It also includes an evaluation of the status and treatment of rebels during the post-charter legal framework that is adopted by the Geneva Conventions and its Additional Protocols. This paper evaluates the overall effect that the arbitrary categorisation of rebels into combatants, non-combatants and unlawful combatants has on the justification to use excessive and asymmetrical force. It argues that Islamic law of rebellion has a crucial role to play in the evolution of public international law on the use of force.