Notes on the Treatment of Non-Combatants

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August 15, 2014 by Muslim Padre

The recent ascent of IS in the Middle East and other terrorists movements prompted me to look into the sources regarding the treatment of non-combatants in Islam/Muslim tradition. It is true that jurists often times oscillated between establishing rules which seek to achieve a functional end, and those which establish a general binding moral principle or obligation. Moral obligations are immutable and impervious to the changes of time; “be righteous towards your parents”, “love for your brother what you love for yourself”. These examples are universal in scope and provide a prescriptive mandate to be adhered to in our relations with kin and our community. While functionality is apparent and the general intent known, they are not essential as the rule remains binding. Functional obligations however are different, in that they seek to achieve a clearly identifiable end or an ideal which almost always situates itself within a given context. The problem of course as Khaled Abu Fadel notes is that “a rule that might have been the product of a specific context and intended to respond to this context, by serving an identifiable interest could ascend to the status of an absolute moral imperative”. War is one of those topics where we witness a considerable amount of discussion as war is inherently chaotic and loaded with a multitude of different variables making the contention or negotiation between these two different obligations very pronounced. How to achieve an end by using the appropriate means in war posits this type of topic into a continuous ethical quandary.

In appreciating the intellectual discussions on war it is important to highlight the primary function of the Shariah as a way of life. Ibn al-Qayyim provides a useful definition of the higher objectives of the Shariah which has a direct relation to the discussion on war:

“The foundation of the Shariah is wisdom and the safeguarding of the people’s interests in this world and the next world. In it’s entirety, it is justice, mercy and wisdom. Ever rule which sacrifices justice to tyranny, mercy to it’s opposite, the good to the evil, and wisdom to triviality does not belong to the Sharia […] The Sharia’h is god’s justice and blessing among his people”

The principles that binds our relations with others and the premium placed on justice and the avoidance of tyranny and aggression it seems implausible that there could ever be a viable means to justify the killing of non-combatants, Muslim or not.

Non-Muslim non-combatants

In discussing the difference of opinion regarding the status of non Muslim civilians in wartime, Ibn Rushd in his celebrated text on comparative law cites that scholars had disagreed on the whether it was permissible to kill non Muslim civilians:

“The source of their disagreement on the matter is that they (the jurists) disagree on the legal cause for killing the unbelievers. The jurists who claimed that the legal cause for killing the unbelievers is their belief, (in other words), do not exempt from killing any of the unbelievers. Those who claim that the legal cause is the capacity (of the unbelievers) to fight, (in other words) exempt from fighting all those who are unable to fight or who are usually not inclined to fight such as peasants and serfs.”

Ibn Taymiyyah agreeing with the second opinion notes that the majority of scholars have upheld the position that Muslims may fight only those who fight them. Hamidullah lists a number of people who are exempt from fighting as they usually do not fight such as women, children, elderly, peasants, the sick, wounded, the blind, the insane, the travellers, hermits, religious functionaries, traders, merchants, and those who are indifferent to the conflict.

The Quran itself, states explicitly:

Fight in the cause of Allah those who fight you, but do not transgress limits; for Allah loveth not transgressors (2:190) further to this, a number of other verses corroborate this principle. But if the enemy incline towards peace, then you also incline towards peace, and trust in Allah: for He is One that hears and knows (all things). (8:61) , Allah forbids you not, with regard to those who fight you not for (your) Faith nor drive you out of your homes, from dealing kindly and justly with them: for Allah loveth those who are just. [60:8]

The Prophet himself rebuked a group of companions when he heard the news that children and women had died during a raid:

Al-Aswad Ibn Suraya (ra) relates in the Musnad of Imam Ahmad and in Haakim that: “I came to visit the Messenger Muhammad (saw) when we went on an expedition and we killed a lot of people and even some Zuriyyah (i.e. women and children) had been killed. When it reached Rasoul Allah (the Messenger of Allah), he said: ‘Dare those people who exceed the limit on killing until they kill women and children,’ to which one man said, ‘They are nothing but the children of the Mushrikeen (i.e. idolaters).’ The Messenger Muhammad (saw) replied: ‘The best among you were sons of Mushriks.’ Then the Messenger Muhammad (saw) said (three times thus confirming its decisiveness), ‘Don’t kill the children!’ And then, ‘Every living being is born on the fitrah (natural disposition) until its Lisaan (tongue) expresses about itself and the parents make them Jew or Christian.’”

The issue of human shields, night raids, collateral damage, and the topic of ‘double effect’ is discussed at length in the sources as well. For the purpose of this post it appears that seeking legitimacy for crimes against the civilian population is clearly not justified (as was always intuitively known). Even if some extremists apply a purely functionalist perspective and argue that harming non-combatants brings about fear and terror, subduing the population into submission and potentially conversion, such an argument will be highly contentious given the Quranic principle of ‘fighting those who fight you’ and the emphasis on justice as a primary objective of the Shariah.

Of course,  as my teacher always taught me, “The sign of ignorance upon a person, is their extremism in the religion”.

Allahu A’lim,

 

Further Reading:

The Muslim Conduct of State(1996): Muhammad Hamidullah

Islamic Ethics of Life: Abortion, War, and Euthanasia (2003): Jonathan Brokorp (ed)

Arguing the Just War in Islam (2008): John Kelsay

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