A Comparative Study on the Concept, Nature and Conditions of Proportionality in International Humanitarian Law and Islamic Law

Abstract

The principle of proportionality is codified as a customary rule in the Additional Protocol 1 and the statute of International Criminal Court as well. However, its concept, nature and conditions for exercise are subject to some ambiguities. Under Islamic law and specifically as regards defense, there are some rules that are compatible with the newly-emerged term of "principle of proportionality". It seems necessary to study this principle comparatively in order to investigate the differences and similarities between these two legal systems and trying to decrease the ambiguities of principle of proportionality. The question is that what are the similar and distinguished aspects of two aforementioned legal systems in this regard? Employing the qualitative method of researching, using principles of legal and jurisprudential deduction and interpretation, and applying comparative techniques demonstrated that there are fundamental differences between these two legal systems as to the concept and some conditions of principle of proportionality. It is due to the fact that Islamic law, because of the significance of lives of human beings, authorises the application of the principle of proportionality in a more limited scope rather than what international law does.

Keywords

• principle of proportionality
• islamic law
• international humanitarian law
• rule of necessity
• rule of separation