Lack of Explicit Text and the Challenges of Islamic Jurisprudence in Addressing New Forms of Harm to Children in Modern Warfare

Abstract

Islamic jurisprudence, relying on traditional sources, has established protective frameworks for children in armed conflicts. However, modern warfare—with characteristics such as advanced technologies, asymmetric tactics, and indirect forms of harm—has introduced instances of harm to children for which no explicit textual references exist in classical jurisprudential literature. This absence of specific textual provisions has limited the jurisprudential system’s ability to offer practical solutions for child protection and has posed fundamental challenges to aligning traditional legal rules with contemporary realities. Using a descriptive-analytical method, this study demonstrates that concepts such as "direct participation" or "military necessity" in classical Islamic jurisprudence are insufficient to address the indirect roles of children (such as cyber espionage) or widespread consequences like economic blockades and psychological trauma. Consequently, the necessity of developing a dynamic jurisprudence grounded in the maqāṣid al-sharīʿah (objectives of Islamic law), such as the preservation of life and justice, is emphasized. This requires a redefinition of key concepts and constructive engagement with international legal instruments in order to fill interpretive gaps and ensure tangible protection for children.