The Protection of Women and Children in Islamic Law and International Humanitarian Law: A Critique of John Kelsay

Abstract

Islam as a religion introduced the most humane rules in warfare before other religions or faiths could do it. Most authors acknowledge this fact, however, John Kelsay, Fredrick Donner, and few others doubt Islam’s enormous contribution to bring in humanity in warfare. These authors assume that Islam has learned humanitarian principles, such as the principle of distinction, from the pre-Islamic Arabian practices; that Imam Al-Shafi‘i allowed the killing of all women whether combatants or non-combatants; that even the Prophet Muhammad (peace be upon him) allowed the killing of women and children; and that children and women can be enslaved. This work completely rebuts all the charges leveled by Kelsay, Donner, and others against Islamic jus in bello, the Prophet (p.b.u.h.), Imam Al-Shafi‘i, and Ibn Rushd. It is argued that International Humanitarian Law has endorsed the Islamic jus in bello.

Keywords: Islamic jus in bello, John Kelsay, Fredrick Donner, Imam Al-Shafi'i, Ibn Rushd, The Prophet Muhammad, false assumptions, international humanitarian law, humanity in warfare in Islam, protection of women and children in war Islam