Elbakry, Mohamed Mokbel Mahmud
The legality of 'war' in Al-Shari'a Al-Islamiya (the Islamic Law) and contemporary international law.
PhD thesis, University of Glasgow.
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This thesis is a comparative study in Al-Shari'a Al-Islamiya (The Islamic Law) and contemporary international law on the subject of the legality of `lq War. It must be pointed out at the outset that the term `lq War is not the precise term to apply to the subject of this thesis, and we often put this term between quotation marks. Other terms have been used in the United Nations Charter; and the meaning of Jihad in Al-Shari'a Al-Islamiya is not compatible with the term `lq war in international law. This thesis is divided into a Prologue, four Parts preceded by an Introductory Part and followed by an Epilogue. The Prologue deals with generalities relating to the topic presented as a necessary background for the Introductory Part. The Introductory Part entitled `lq Al-Shari'a Al-Islamiya And International Law is divided into Six Chapters. The main purpose of this Part is to explain the distinction between the principles of international law in Al-Shari'a Al-Islamiya and public international law, including the different sources and the basis of the obligatory nature of the two systems of law. Part I entitled `lq War and Legality aims to distinguish between certain conceptions in Al-Shari'a Al-Islamiya and public international law. It is divided into Five Chapters dealing with Jihad and legality in Al-Shari'a; and `lq War and legality in international law. Part II entitled `lq The Limitations Of The Legality Of War is divided into three Chapters. The First Chapters deals with the limitations of Jihad in Al-Shari'a Al-Islamiya, and explains, inter alia, the nature of relations between the Islamic State and non-Islamic States; and the legality of certain aspects of the use of force in Al-Shari'a. The Second Chapter deals with the limitations of the legality of `lq War in international law. In this Chapter, we traced the evolution of international law under the League of Nations and the United Nations, and the legality of certain aspects of the use of force in international law. The Third Chapter covers the study of the consequences of the unlawful use of force in Al-Shari'a Al-Islamiya and international law. Part III is entitled `lq The Legality Of `lq War Within The Framework Of Regional Organization. This Part is subdivided into Two Chapters. The First Chapter deals with Universalism and Regionalism in Al-Shari'a Al-Islamiya and international law. A new division of regional organizations is suggested in the Second Chapter to cope with the subject of this thesis. Thus, we divide regional organizations into three categories, regional organizations of Muslim Member States; regional Organizations of Muslim and non-Muslim Member States; and regional Organizations of non-Muslim Member States. Part IV entitled `lq The Judicial Approach To The Legality Of War is divided into Two Chapters. The First Chapter deals with the judicial approach to Muslim States. Thus, we studied the different projects to establish an Arab Court of Justice and an Islamic Court of Justice. In the Second Chapter, we studied the evolution in punishment of war crimes before the First World War, and after the First and Second World Wars. The Epilogue deals with the Conclusions of this comparative study.
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