Over the last two weeks we discussed the treatment of civilians in times of armed conflict and pointed out the instructions given in this connection in the Qur’an and the Sunnah. We also looked at the clear statements given by the Prophet (peace be upon him) in this regard. Furthermore, we referred to the practice of the Prophet’s rightly guided successors or caliphs, and showed how Ali ibn Abi Talib was the one to set the practical example of treating Muslim rebels who fight against a Muslim ruler. In all this we have shown that all civilians and noncombatants may not be killed by Muslim armies. These days we are plagued by unjust wars leading to numerous civilian casualties. Only the other day an Israeli attack killed 18 Palestinians, all civilians, in Gaza. But fighting powers callously describe the numerous civilian casualties they cause as “collateral damage”. Nothing like this is allowed in Islam. Today, we will examine how the rights of civilians in times of armed conflict are formulated in Islamic jurisprudence.
Muslim scholars agree that civilians who take no part in fighting Muslims may not be harmed. The basis of this ruling is the total sum of the texts we have quoted from the Qur’an and the Sunnah in the earlier two articles, and how these texts were understood by Muslims in the early generations of Islam.
In his book, Al-Istidhkar, Ibn Abd Al-Barr mentions that Yahya ibn Yahya Al-Ghassani asked Umar ibn Abd Al-Aziz about the meaning of the Qur’anic verse which states: “Fight for the cause of God those who wage war against you, but do not commit aggression. Indeed, God does not love aggressors.” (2: 190) Umar answered him saying that it excludes from fighting women and children and anyone who does not take part in a war effort against Muslims. Umar ibn Abd Al-Aziz also wrote to some of his commanders giving them orders not to kill any woman, elderly person, child or monk. Umar ibn Al-Khattab frequently wrote to his commanders instructing them not to kill women and children. According to Ibn Abd Al-Barr, prohibition of killing them has been severally and authentically reported on Ibn Abbas’ authority.
The reason for prohibiting killing any of these is the fact that they are noncombatants. Hence, Ibn Hazm, a top scholar says: “It is unlawful to kill their women or anyone who has not attained to puberty yet, unless any of these take up fighting so that a Muslim would not be able to save his own life except by killing that person. In this case, the Muslim is permitted to kill such a person. The evidence supporting this is in the Hadith that reports that the Prophet saw the dead body of a killed woman and asked: ‘Who killed this one?’ A man said: ‘I did, messenger of God! She struggled with me trying to take the handle of my sword.’ The Prophet did not say anything. According to other reports, she was fighting, and that companion of the Prophet took her captive and carried her behind him on his horse or camel, but she tried to take his sword from him to kill him, but he overcame her and killed her. Hence, the Prophet did not reproach him.
In the same book, Ibn Abd Al-Barr denies any disagreement among scholars of Islamic jurisprudence, or Fiqh, on this ruling, saying: “Scholars are in agreement that it is permissible to kill any woman or old person who take part in fighting. Similarly any child who is able to fight and take part in fighting may be killed.”
Ibn Abd Al-Barr also reports the views of Imam Malik and Imam Abu Haneefah, and a number of Hanafi scholars that no blind man, nor any mentally or physically retarded person, nor those who live in hermitages closing their doors and living in isolation may be killed. Malik goes on to say: “My view is that sufficient money should be left for them to live on, except where any of these represent a real danger, in which case he may be killed.” Al-Thawri says: “No elderly man, and no woman or disabled person may be killed.” Al-Awzaie says: “No guardsman, peasant, elderly man, madman or monk may be killed.” Al-Layth says: “A monk living in his hermitage may not be killed. A sufficient amount of his money should be left to him for his living.” This view is the reported view of Malik, Al-Awzaie and Al-Layth ibn Saad.
It is agreed in the Fiqh of Imami Shia that if Muslims take away as booty some horses or cattle that belong to idolaters, and then the idolaters chase the Muslims, who may in such a case fear that their booty would be taken away from them, it is not permissible for the Muslims to slaughter such horses or cattle. The reason is the fact that the Prophet has forbidden the killing of animals except for food, and he has prohibited holding animals then killing them.
In one of the two main rulings of Shia scholars, it is not permissible to kill elderly persons who have no say with regard to war and are unable to fight, just like monks and people living in hermitages. Any unbeliever who has not heard of the Islamic message may not be killed.
It is strongly reprehensible to fell trees or to throw fire for burning or to flow waters except for emergency. It is also forbidden to spread poison, although some scholars say that this is rather reprehensible, or makrooh. If the enemy uses women and children as shields, then these are not killed unless fighting breaks out, when it is no longer possible to distinguish a fighting soldier from a person used as shield. Similarly, if they use Muslim captives as shields, and fighting breaks out, then if a Muslim captive is killed by Muslims, it is a case of emergency. It is necessary to bear such losses so that jihad can be pursued.
Likewise, it is not permissible to kill mentally retarded persons, or enemy boys, children and women, even though such women provide help to soldiers, except in a situation of emergency. It is forbidden to disfigure the bodies of enemy casualties, or to act treacherously after having made an agreement, and it is strongly reprehensible to launch an attack at night.
Islamic ethics provide a number of rules in the form of binding orders and prohibitions. They are not mere recommendations to be implemented or ignored by choice. Together they require every Muslim army to abide by what the Qur’an and the Prophet’s statements outline in time of war or armed conflict. This means that when Muslim fighters come in contact with civilians, they must hold back. In fact, Muslim fighters must make sure not to harm civilians, and to protect their property, agriculture, animals and homes. They should direct their efforts only against those who fight them. Moreover, they must abide by Islamic rules, which we will discuss in detail in the last of these four articles next week, God willing.
