Chapter 63

First Section: Rulings regarding non-combatants among the enemy. Introduction: Concerning the conceptualization of the reality of ancient and modern wars, to determine who are the non-combatants among the enemy, how they are exposed to killing and combat, and against whom it is permissible to direct weapons. The First Issue: Who are the individuals among the enemy regarding whom religious texts state that they are not to be killed during war? The Second Issue: Regarding those among the enemy whose killing is textually prohibited during combat—can others be compared to them via qiyas (analogy)? The Third Issue: What are the circumstances in which it is permissible to direct weapons toward those among the enemy who are, in principle, prohibited from being killed? The Fourth Issue: Does the person in authority have the right to forbid the killing of specific individuals or groups among the enemy during war? Introduction: Regarding the conceptualization of the reality of ancient and modern wars, to know who the non-combatants among the enemy are, how they are exposed to combat or killing, who among them may be targeted with weapons, and who may not, according to the various jurisprudential (fiqhi) deductions on this subject. ¶

In ancient warfare, we can visualize this reality as follows: There are two armies clashing on the battlefield. Behind or near each army, there might be a group that, while affiliated with the army, does not participate in the fighting. This group may include women, children, and the elderly. They accompanied the army for various reasons: some as mere observers (onlookers), some for service, some to incite or increase the ranks, and some as 'usafa' (hired workers) who performed non-combatant duties such as nursing, preparing food, providing water, etc. In this context, is it permissible for a Muslim combatant to intentionally target these individuals in the enemy army, striking them with a sword, piercing them with a spear, or attacking everyone he sees—be it an elderly man, a small child, a hired employee, or a woman who has no involvement in the war, neither in its affairs nor its mobilization? ¶

Another scenario in ancient warfare is as follows: An army launches a raid on enemy territory, by night or day, roaming through the lands and storming houses. In this reality, the raiding army might encounter: places of worship where devotees have retreated, agricultural fields where farmers are at work, and women, children, and the elderly within the dwellings. Here, is it permissible for the raiding Islamic army to kill any of these people? Or must they restrict their combat activities exclusively to the combatants—those who carry arms from among the enemies? ¶

I say: This, and what resembles it, is the reality that can be imagined regarding ancient wars. As for the reality of war in the modern era, it is similar to the ancient reality in many respects, specifically regarding the matter at hand. For instance, in the event of two armies meeting, behind each army there are personnel utilized [for support]. ¶

and women, for non-combatant roles, attending to nursing, first aid, the preparation of food and drink, and the like. ¶

- In the event of a raid or invasion of enemy territory, the attackers encounter farms with their farmers, factories with their owners and workers, hospitals with their doctors and patients, schools with their teachers and students, and homes containing residents such as women, children, and the elderly—those who are not involved in combat. They also find among them young people who possess the capacity for combat. ¶

- In this reality, while the war between the two armies is still ongoing, or the resistance against the invading army has not been declared to have ceased: Is it permissible for a Muslim combatant to intentionally kill those who are not actually fighting, regardless of their category? ¶

- Or must he restrict his war activities to fighting the soldiers of the enemy army and the elements of armed resistance in the Dar al-Harb (territory of war)? ¶

- I say: This martial reality, and what resembles it, in both ancient and modern times, is what we address in this research, so that we may know the Shariah rulings related to the issues contained therein. ¶

Furthermore, the most important issues connected to this research—as we perceive them—are the following: ¶

1. The First Issue: Who are the individuals among the enemy regarding whom it has been established in the Shariah texts that they shall not be killed during war? ¶

2. The Second Issue: Regarding those among the enemy whose killing is explicitly forbidden during combat, can others be subjected to analogy (Qiyas) based upon them? ¶

3. The Third Issue: What are the circumstances in which it is permissible to direct weapons toward those among the enemy individuals who, in principle, are forbidden to be killed? ¶

4. The Fourth Issue: Does the person in authority have the right to prohibit the killing of specific individuals or certain categories of the enemy during war? ¶

These are the most important issues we will address in this research, with the assistance of Allah the Almighty. ¶

The First Issue: Who are the individuals among the enemy regarding whom Shariah texts have been revealed prohibiting their killing during war? ¶

I say: The nature of war, once it breaks out between two parties, is that each party becomes permissible [to attack] by the other, and no one is excluded from this permissibility, even if they are not among the actual combatants. This is because war is a violent act practiced to take revenge against the enemy, or to exert pressure on their will to subdue them to their opponent. ¶

Based on this, everything that satisfies the hearts of the combatants in taking revenge against their enemy, or exerts pressure on their will, is a permissible act by virtue of this motivation. ¶

Hence, weapons may sometimes be directed toward non-combatants to achieve this purpose or that. ¶

This is the state of war in principle. However, for some reason, the combatants of this side, that side, or both parties, may refrain from directing weapons toward specific categories of the opponent's front. This abstention from fighting them may continue until it becomes a war custom among nations and peoples that such categories are outside the scope of killing and combat, even if they are from the enemy's ranks. This custom may be confined to a local framework or be general within an international framework. ¶

Since war is among the acts that Islam has regulated with Shariah rulings, like any other act of the accountable individuals (mukallaf), Shariah texts have been revealed to regulate this aspect of war. That is: Who are the persons whom it is forbidden to aim weapons at from the ranks of the enemy, even if war is raging between the Muslims and that enemy? ¶

So what are those texts? ¶

The Shariah texts that have been revealed in this regard are divided into two parts: ¶

- Texts that are accepted and valid for argumentation (hujjah) among scholars of Hadith science, in a general sense. ¶

- And texts that have not met the criteria for acceptance to be used as evidence according to scholars of this discipline. ¶

We will now proceed to mention these texts—both the accepted and the unaccepted—while indicating the references for the rulings passed upon them, without delving into the precise details regarding why a specific text is accepted or not. We shall suffice with referring to those sources and the judgments they have issued regarding these texts. ¶

First: Texts that meet the criteria for acceptance: ¶

1. In Sahih al-Bukhari and Sahih Muslim: "It is narrated from Ibn Umar (may Allah be pleased with them both) who said: A woman was found killed in one of the military expeditions of the Messenger of Allah (peace be upon him), so the Messenger of Allah (peace be upon him) forbade the killing of women and children." In another narration in the Sahihayn, it states: "The Messenger of Allah (peace be upon him) disapproved of the killing of women and children"(1). The Hadith, through the prohibition and disapproval it contains, indicates the impermissibility of killing women and children among the ranks of the enemy. ¶

2. In Sunan Abi Dawud, with a Sahih (authentic) chain of narration: "It is narrated from Rabah ibn al-Rabi (may Allah be pleased with him) who said: We were with the Messenger of Allah (peace be upon him) in a battle, and he saw people gathered around something. He sent a man and said: 'See what these people are gathered for?' He returned and said: 'For a killed woman!' He (the Prophet) said: 'She was not one to fight!' He said: 'And Khalid (ibn al-Walid) was with the vanguard...' He then sent a man and said: 'Tell Khalid: Do not kill a woman, and do not kill a laborer (asif)'"(2). In another Sahih narration... "Go to Khalid ibn al-Walid, and tell him: The Messenger of Allah (peace be upon him) commands you, saying: Do not kill offspring (dhurriya), and do not kill a laborer (asif)"(3). ¶

(1) Sahih al-Bukhari: No. [3014, 3015], Fath al-Bari: 148/6. Sahih Muslim: No. [1744], vol. 3, p. 1364. (2) Sunan Abi Dawud: No. [2669], vol. 3, p. 72-73. The author of the marginal notes in Jami' al-Usul stated: "Its chain is authentic [598/2], and the Hadith was graded Sahih by al-Albani - he stated in his book: Sahih Sunan Abi Dawud: 'Hasan Sahih', No: [2324], vol. 2, p. 507." (3) Sunan Ibn Majah: No. [2842], vol. 2, p. 948. And Sahih Sunan Ibn Majah by al-Albani: No. [2294], vol. 2, p. 137. He labeled it: 'Hasan Sahih'. ¶

I say: The new element in these two hadiths is the prohibition of killing the 'aseef' (hired laborer). Ibn al-Athir says: 'Al-aseef means the hired servant.' It is stated in Al-Misbah al-Munir: 'Al-aseef is the hired servant, and its plural is usafa', just as ajir is pluralized as ujara'.' In Sahih al-Bukhari, in the story of the adulterous hired laborer, it is stated: 'He said: My son was an aseef for this man. Malik said: The aseef is the hired servant...' [the rest of the hadith]. Al-Shawkani, in explaining the meaning of aseef and distinguishing it from others, says: 'As for the slave, there is no evidence to suggest that his killing is impermissible. It is not correct to draw an analogy between him and the aseef, because the aseef does not fight; he is only there to safeguard goods and livestock. If he does fight, it is permissible to kill him.' This is the definition of the aseef. Consequently, as appears from the above, for this hired aseef to gain shari'ah immunity from being killed among the enemy during war, the work for which he was hired must have no connection to combat activities. Thus, as long as everyone hired to perform non-combat duties is considered among the usafa (laborers) whom it is not permissible to intentionally target in combat, even if they are present on the battlefield with the fighters to perform the tasks for which they were hired—then the usafa hired to perform services unrelated to fighting, without being present at the battlefield... ¶

They are more entitled to be covered by this immunity than to have weapons directed against them, even if they were from the lands of the enemy, because the Shar'i text applies to them in their capacity as 'usafa' (hired laborers). ¶

Based on this: - Hired farmers in the fields in the land of war (dar al-harb). - Hired laborers in factories, cleaners in the streets, and hired physicians who visit the sick and wounded in hospitals to perform the duties for which they were hired... these people and those like them, from among the people of the warring lands, correspond to the description of 'usafa' in reality, because they are effectively employees. That is, they are contracted for their persons to perform certain tasks or services in exchange for a wage, regardless of the titles or social ranks that distinguish between these categories. Therefore, they enjoy Shariah immunity against being targeted with weapons, provided they have no connection to combat operations. ¶

Now, we move on to other texts. ¶

3 - It is stated in Sunan Abu Dawood, on the authority of Anas bin Malik (may Allah be pleased with him), that the Messenger of Allah ﷺ, when sending an army, would say: 'Set out in the name of Allah; do not kill an elderly man, nor a young child, nor a woman; do not commit ghulul (treachery/stealing from the spoils); gather your spoils; do good, and act kindly; for Allah loves those who do good.' ¶

Regarding this Hadith, scholars of Hadith say: 'In its chain of narration is Khalid bin al-Fizr, who narrated from Anas; he was not declared trustworthy (thiqah) by anyone other than Ibn Hibban, but the rest of its narrators are trustworthy, and it has supporting evidence (shawahid) that strengthen it.' ¶

Al-Bayhaqi states in his Sunan, while discussing a hadith regarding the prohibition of killing elderly men: 'In this isnad (chain of narration) there is an irsal (break) and weakness, but it is strengthened by its supporting narrations (shawahid) and the athar (traditions) mentioned alongside it; and Allah knows best.' ¶

I say: If this hadith is deemed acceptable based on Ibn Hibban’s authentication of the mentioned narrator and the supporting narrations that strengthen it, then we have identified a new category of residents in the lands of war (dar al-harb) whom it is not permissible to target in combat as long as they do not fight. This category is: the elderly who no longer possess the strength to carry weapons or wage war. ¶

Consequently, it is not permissible for a Muslim combatant, if he enters a house in enemy territory or encounters someone from this category, to raise his weapon against them under the pretext that they are among the people of disbelief and war whose blood is permissible; this is because the textual evidence from Shariah has excluded these weak, elderly individuals from the scope of permissibility. ¶

Therefore, if there are Shariah texts that permit the killing of the elderly from among the disbelievers, and those texts are also considered acceptable, then it is necessary to reconcile these texts in a way that provides each of them a specific scope of application that does not overlap with others. An example of this is the narration in Sunan Abi Dawud and Al-Tirmidhi from Al-Hasan bin Samurah bin Jundab, who said: The Messenger of Allah ﷺ said: 'Kill the elderly of the polytheists, and spare their youth.' ¶

Ibn al-Athir says: «Al-Sharkh» is the plural of «Sharikh», meaning a youth, analogous to «Sahib» and «Sahb». He intended by it those young ones who have not yet reached puberty (1). ¶

If this hadith is authentic, it is necessary to harmonize it with the previous text that forbids killing the frail, elderly man (shaykh al-fani). This is done in the manner mentioned by Al-Shawkani, who stated: «Harmonization between the two hadiths is that the elderly person forbidden to be killed in the first hadith is the frail one who retains no benefit for the disbelievers and poses no harm to the Muslims. This quality is explicitly stated by the words (an elderly, frail man). The elderly person ordered to be killed in the second hadith is one who still retains utility for the disbelievers, even if only through his counsel. Such was the case with (Durayd ibn al-Simma); when the Prophet (peace be upon him) finished from (Hunayn), he sent (Abu Amir) over the army of (Awtas), where he encountered (Durayd ibn al-Simma). He was over a hundred years old and had been brought to strategize the war for them, so (Abu Amir) killed him. The Prophet (peace be upon him) did not disapprove of this, as established in the Sahihayn via the hadith of (Abu Musa), and the story is well-known. Ahmad ibn Hanbal said regarding the reasoning behind the Prophet's (peace be upon him) order to kill the elderly: 'The elderly man is unlikely to accept Islam, whereas the young is closer to Islam' (2).» ¶

I (the author) say: It is mentioned in Fath al-Bari regarding the killing of (Durayd ibn al-Simma): «There is a difference of opinion regarding his killer... and it is said that when he was killed, he was twenty years old, and it is also said one hundred and sixty years old!» (3). ¶

This concerns the accepted Shar'i texts regarding the prohibition of targeting specific categories of the enemy for killing. ¶

Second: Texts that did not meet the criteria of acceptance according to scholars of hadith. ¶

1 - It is stated in the (Muwatta) of Imam Malik: «From Yahya ibn Sa'id (may Allah have mercy on him) that (Abu Bakr) (may Allah be pleased with him) sent armies to the Levant, and he went out to see them off, walking with (Yazid ibn Abi Sufyan)... then he said: 'You will find people who have confined themselves for the sake of Allah, so leave them to what they have confined themselves for...'» (4). ¶

Ibn al-Athir says: "By those who 'confined themselves' (hubisu anfusahum), he meant the monks who took up residence in monasteries (sawami'), stayed within them, and did not emerge. The Christians call such a person a 'habis' (hermit)." ¶

Regarding this hadith, as the experts in this field say: "It has an interruption (in'ita'); for Yahya ibn Sa'id did not live to meet Abu Bakr." Ibn Hazm states: "This report from Abu Bakr is not authentic (sahih); because it is transmitted via Yahya ibn Sa'id, 'Ata', and Thabit ibn al-Hajjaj, all of whom were born long after the death of Abu Bakr, may Allah be pleased with him!" ¶

2- In the Musannaf of Ibn Abi Shaybah, it is narrated: "...from a sheikh of the people of Medina, a mawla of Banu 'Abd al-Ashhal, from Dawud, from 'Ikrimah, from Ibn 'Abbas that the Prophet (peace be upon him), when he sent out his armies, used to say: 'Do not kill the inhabitants of the monasteries.'" ¶

Regarding this hadith, Ibn Hazm says: "As for the hadith of Ibn 'Abbas, it is from an unnamed Medinan sheikh. Some have named him as Ibrahim ibn Isma'il ibn Abi Habibah, and he is weak (da'if)!" ¶

Furthermore, despite what has been said about this hadith, Imam al-Shafi'i inclined towards the opinion of not killing monks in the land of the enemy, due to the abundance of reports (athar) narrated on this subject, even if each one individually does not reach the level of acceptance (qabul). This is notwithstanding the fact that al-Shafi'i permits the killing of all adult males among the combatants (ahl al-harb), excluding women and children, even if they did not participate in the ongoing fighting, including the elderly. ¶

It is stated in 'al-Jawhar al-Naqi': "Al-Bayhaqi narrated from al-Shafi'i that he said: 'If it were valid to object to the killing of those other than monks on the basis that they do not fight, then neither a captive nor a wounded person should be killed...' He continued: 'And I do not know of anything contrary to this being established from Abu Bakr.'" ¶

It is further stated therein: "Al-Bayhaqi narrated in his book 'al-Ma'rifah' from al-Shafi'i that he said: 'The killing of monks is to be abandoned, following the example of Abu Bakr, may Allah be pleased with him.' And in this book, he explicitly stated the permissibility of killing those who are not engaged in combat." ¶

Except for monks, and he specified that he said this regarding monks based on adherence (ittiba'an) to tradition, not by analogy (qiyas)(1). This is what has been narrated concerning monks and dwellers of hermitages. 3 - It is narrated in Musannaf Ibn Abi Shaybah: “From Jabir bin Abdullah, he said: ‘They used not to kill the merchants of the polytheists’”(2). Ibn Hazm says: “As for the statement of Jabir, ‘They used not to kill the merchants of the polytheists,’ there is no evidence for them in it; because he did not say that their refraining from killing them took place in the Abode of War (Dar al-Harb), rather he merely informed about the totality of their affairs. Furthermore, even if it were confirmed and explicit, it would still not serve as an argument for them, because it contains no prohibition against killing them, but rather it only reflects their choice to spare them” (3). In conclusion, this is the most important information regarding those among the enemies who are not to be killed, despite them being non-combatants, even when a state of actual war exists with them. We now turn to the next issue. 2 - Second Issue: As for those enemies whom the texts explicitly state should not be killed during war—can others be compared to them by analogy? The answer is that the jurists differed on this matter, following their disagreement regarding the underlying cause ('illah) that renders the blood of the enemies permissible. This is summarized for us by Ibn Rushd in his statement: “They differed concerning the dwellers of hermitages who are secluded from the people, the blind, the chronically ill(4), the elderly who do not fight, the mentally incapacitated (ma'tuh)(5), the farmers, and the laborers. Malik said: The blind, the mentally incapacitated, and the dwellers of hermitages are not to be killed, and they shall be left enough of their wealth to survive on. Likewise, the frail elderly man is not to be killed according to him.” ¶

Abu Hanifa and his companions held this view. Al-Thawri and al-Awza'i stated: Only the elderly should not be killed. Al-Awza'i added: Farmers should not be killed. Al-Shafi'i's most authentic position is that all these categories may be killed. Then Ibn Rushd states: The reason for their disagreement, in general, lies in their differing views on the legal cause (illah) that makes killing permissible. Those who argued that the cause is 'kufr' (disbelief) did not exempt any polytheist. Those who argued that the cause is 'capacity for combat'—due to the prohibition against killing women despite them being disbelievers—exempted those who lack the capacity for combat, or those who have not engaged in it, such as farmers and laborers. This is what Ibn Rushd says in explaining the cause of the disagreement among jurists regarding the permissibility of bearing arms against non-combatant disbelievers—within the context of our subject—while war is raging between Muslims and their enemies. In reality, what makes killing disbelievers permissible, according to the strict school represented by Imam al-Shafi'i, is not merely disbelief alone, but disbelief combined with a refusal to submit to the rulings of Islam, i.e., refusing to accept the 'dhimma' (covenant of protection). However, if the disbelievers agree to enter into the 'dhimma'—meaning to submit to the rulings of Islam—then it is not permissible to bear arms against them, even if they remain in their state of disbelief (this will be detailed in due course), even if these disbelievers were originally among the combatants (ahl al-harb). What we have mentioned is what al-Shafi'i's words indicate. It is stated in his book 'Al-Umm': 'And if the Imam surrounds a territory... and they offer him jizya on the condition that he applies the rulings of Islam upon them, it is incumbent upon him to accept it from them.' It is also stated: 'If they say: We will pay the jizya on the condition that the ruling is applied upon us, the Imam has no choice but to accept it from them.' Regarding the permissibility of shedding an enemy's blood conditional upon their refusal of jizya—that is, their refusal to enter into the 'dhimma' and accept Islamic rule—Imam al-Shafi'i also says in his book 'Al-Umm': 'Every adult polytheist shall be killed if he refuses Islam or the jizya.' ¶

Accordingly, and following the understanding of the hardline faction which argues that the cause ('illah) for fighting the enemy is kufr (disbelief) rather than active hostility (muharaba)—when individuals from the dar al-harb (enemy territory) announce their acceptance of dhimma (protection)—whether it be an armed battalion that has surrendered to the Muslims, a region that has seceded from its state to join the Islamic State, or individuals who have sought refuge in the Muslim camp declaring their acceptance of dhimma—regardless of whether they are armed combatants or non-combatants, such as scholars, doctors, and others—in such a case, it is not permitted to aim weapons at them under the pretext that they are kuffar (disbelievers) in whom the cause necessitating death, namely kufr, is present. This is not permitted, even according to those who argue that the cause for fighting the enemy is kufr. This is because what makes killing permissible according to these jurists, in reality—as we have seen—is the refusal of the kuffar to live with the Muslims under the shade of the Islamic governing system, not merely the fact that they are in a state of kufr. ¶

We conclude from the above that there are two schools of thought regarding the issue before us: regarding those enemies whom the shariah texts indicate should not be killed, can others be compared (qiyas) to them? These two schools are as follows: ¶

First: The school that rejects the use of qiyas in this matter. This school restricts the prohibition of aiming weapons during combat to those individuals from the enemy who have been specifically designated by category or description. These are those for whom specific shariah texts exist forbidding their targeting, as long as they do not fight, such as women and children—this is the extent upon which the schools of law are in agreement. Differences have arisen regarding others based on the varying opinions on the acceptability of the texts (nusus) in this regard. For example, their disagreement over farmers from the dar al-harb—whether they are to be killed or not depends on whether one accepts or rejects the athar (report/tradition) transmitted on this matter. ¶

Ibn Rushd, while discussing the opinions of the jurists from the school that does not employ qiyas in this issue, and who rely solely on the texts and reports and what they explicitly indicate on the subject, states: 'As for the one who held the view that a farmer should not be killed, he argued that...' ¶

This is based on the narration from Zayd ibn Wahb, who said: A letter from Umar (may Allah be pleased with him) reached us, stating: 'Do not misappropriate the spoils of war, do not commit treachery, do not kill a child, and fear Allah regarding the farmers.' ¶

I (the author) say: This text is recorded by al-Bayhaqi as follows: 'From Zayd ibn Wahb, from Umar ibn al-Khattab (may Allah be pleased with him), who said: Fear Allah regarding the farmers; do not kill them unless they take up arms against you.' ¶

Furthermore, Imam al-Shafi'i explains why he does not apply analogy (qiyas) in this matter—that is, equating non-combatant male disbelievers with women regarding the prohibition of killing them, based on the shared rationale of 'not engaging in combat.' Imam al-Shafi'i argues against this analogy by implying that if the sole reason for prohibiting the killing of women from the enemy were simply the absence of combat, then this prohibition would necessarily apply to all non-combatant disbelievers, such as cowards who are terrified at the mere sight of weapons, and those even more passive than women regarding war. Yet, no one has claimed that killing such individuals is forbidden; this indicates that 'not fighting' is not, by itself, a valid legal cause (illah) to prohibit the use of arms against them. This is what is understood from Imam al-Shafi'i's words in his book, al-Umm, where he states: ¶

'The killing of monks is to be avoided, whether they are monks of monasteries, or those in the deserts and wilderness, or anyone who restricts themselves to monasticism. We refrain from killing them by following (ittiba') Abu Bakr (may Allah be pleased with him). If it is permissible for us to refrain from killing combatant men even when we have the upper hand, and to refrain from killing men in certain situations, then we will not be sinful by sparing the monks, God willing. We said this as a matter of following [the precedent], not by analogy. If we claimed that we spared the monks because they fall under the same meaning as those who do not fight, then we would also have to refrain from killing the sick, the monks, the cowardly, the free, the slaves, and the craftsmen who do not engage in combat...' ¶

Imam al-Shafi'i intends to say in this text: It is permissible for us to kill the men of the enemy, including the sick, monks, cowards, and those of the crafts... even if they are not fighting the Muslims and are not accustomed to engaging in matters of combat. We chose not to kill the monks specifically—not because they do not fight, by analogy to the women of the dar al-harb (enemy territory)—but rather we did so in following Abu Bakr, may Allah be pleased with him, who chose not to kill them due to a benefit (maslaha) he perceived. This is permissible for the Waliy al-Amr (the ruler); he may kill those among the disbelievers whose killing is permitted, and he may refrain from killing them. As long as the matter is as we have stated, the mere fact that women do not usually engage in combat is not the sole cause ('illah) for the prohibition of killing them, such that we could analogize everyone who does not fight or is not accustomed to fighting—from among the enemy's men—to them. ¶

This is what the aforementioned words of al-Shafi'i indicate regarding the reason he did not adopt analogy in the issue under discussion. ¶

Furthermore, it is appropriate to mention here that there is another opinion in the Shafi'i school, which is that one who has no role in fighting and offers no opinion should not be killed. However, the more apparent (al-azhar) position is the permissibility of directing weapons toward all people of war, whether they are combatants or non-combatants, except for women and children. The insane person is categorized with the child because he is not legally responsible (mukallaf), and the hermaphrodite (khuntha mushkil) is categorized with the woman due to the possibility of being female. Regarding this, it is stated in 'Al-Minhaj' by Al-Nawawi: 'It is forbidden to kill a child, a madman, a woman, and a hermaphrodite; and it is permissible to kill a monk, a hired worker, an old man, a blind man, and a disabled person—even if they do not fight and have no opinion, according to the more apparent view.' The author of 'Mughni al-Muhtaj', in mentioning the evidence for this, says: 'Due to the generality of His saying, the Most High: "Kill the polytheists" (Surah At-Tawbah: 5), and because they are free and legally responsible, so it is permissible to kill them like others. The second view—that is, the opinion opposite to the apparent one—is that they do not fight, so they resemble women and children.' ¶

Al-Mawardi also says in this regard: 'It is permissible for a Muslim to kill whoever he overcomes among the polytheist combatants, whether they are actively fighting or not! There is disagreement regarding the killing of their elders and their monks...' ¶

This concludes the first perspective which does not employ qiyas (analogy) regarding the prohibition of killing non-combatant enemy individuals during war. Now, we move to the second perspective. ¶

Second: The perspective that adopts qiyas in this matter, which is the position held by the majority (jumhur). Imam al-Shawkani explains the viewpoint of the proponents of this school in the following text: ¶

'From Ibn Abbas, who said: When the Messenger of Allah (ﷺ) sent his armies, he would say: Go forth in the name of Allah, fight in the path of Allah those who disbelieve in Allah. Do not act treacherously, do not betray, do not mutilate, do not kill children, and do not kill the occupants of hermitages (monasteries)'(1). Al-Shawkani comments after citing this hadith: ¶

'In the chain of the hadith of Ibn Abbas is Ibrahim ibn Ismail ibn Abi Habibah, and he is weak, although Ahmad authenticated him... He then says: His statement 'and not the occupants of hermitages' is evidence that it is not permissible to kill those among the disbelievers who have withdrawn for worship, such as monks, because of their abstention from harming the Muslims. Although this hadith contains the aforementioned criticism (i.e., it is weak due to the weakness of one of its narrators), it is supported by analogy (qiyas) to children and women, based on the shared factor (jam') of the absence of benefit or harm, which is the rationale (manat). By this same rationale, it is analogized that those who are incapacitated, blind, or similar individuals from whom no permanent benefit or good is expected, are to be included' (2). ¶

Meaning: This school of thought, which advocates for qiyas in this matter, builds its argument as follows: ¶

It is established that women are not to be killed, and the Prophet (ﷺ) said regarding a slain woman, 'She was not one to fight,' as previously mentioned. This implies that if she had fought, she would have been killed, and the rationale for the prohibition of killing her is that she does not fight. Therefore, everyone who is in the same state as women among the men of the enemy, whose condition is such that no benefit to the enemy is expected from them, nor any permanent harm to the Muslims, they are to be joined with women via qiyas, and it is forbidden to raise weapons against them, even if they are in the ranks of the enemy and war is raging between us and them. ¶

This is what al-Shawkani elucidates in support of the school of thought that employs qiyas (analogy) in the issue we are addressing. However, it appears that the aforementioned criterion—namely, 'one from whom no benefit to the enemy nor harm to the Muslims is ever expected'—as the defining characteristic that must be present in non-combatant enemies for it to be valid to analogize them to women, leaves room for a plurality of viewpoints regarding to whom this description applies. For, based on this, some non-combatant disbelievers might be spared from killing according to one specific ijtihad (legal reasoning), while those same individuals might fall under the sword according to another ijtihad, even though both approaches belong to the school of thought that applies analogy to women in this matter. ¶

To shed more light on this trend and the diversity of opinions within it, we present some texts from the three [other] schools of Islamic jurisprudence, excluding the Shafi'i school, which has already been mentioned as relying strictly on texts in this matter and not employing analogy. ¶

In Hanafi Fiqh: It is stated in Bada'i al-Sana'i as follows: 'During combat, it is not permissible to kill a woman, a child, an elderly person who has reached the state of physical decay, one who is bedridden, one who is hemiplegic, one who is blind, one who has had their hand and foot cut from opposite sides, one whose right hand is cut off, a mentally incapacitated person, a monk in his cell, a hermit in the mountains who does not mix with people, or people who have secluded themselves in a house or church and locked the door behind them... As for women and children, it is due to the saying of the Prophet (peace be upon him): "Do not kill a woman or a child"... because they are not among the people of combat, so they shall not be killed.' Then he says: 'The foundational principle is that anyone who is among the people of combat, it is permissible to kill him, whether he has fought or not! And anyone who is not among the people of combat, it is not permissible to kill him unless he has fought in reality, or metaphorically: through counsel, obedience, incitement, and the like. Thus, the priest, the traveler who mixes with people, the one who suffers from periodic insanity, the deaf, the mute, the one whose left hand is cut off, and the one whose one leg is cut off are all killed, even if they have not fought, because they are considered among the people of combat!' ¶

I say: It is evident from this jurisprudential text that the analogy drawn to women regarding the prohibition of killing men from the 'Ahl al-Harb' (people of war) is strictly confined to cases where those men are unable to carry weapons or engage in combat, such as the bedridden or those afflicted with paralysis. It also applies to cases where it is inconceivable for them to carry weapons or consider war under normal circumstances, such as a hermit living in the mountains who does not interact with people. This implies that even such a hermit, if he descends to mix with the people, it is not forbidden to take up arms against him, even if he is not an active combatant, as understood from the aforementioned text. Consequently, the analogy in this matter, according to this school of thought, is conducted according to the standard mentioned by al-Shawkani—as previously stated—which is: 'Anyone from whom no benefit or lasting good is expected.' Although some examples mentioned by al-Kasani previously allow room for debate, as appears to the contemplative mind. ¶

Moving on to another jurisprudential text.. ¶

In Maliki Fiqh, in 'Mukhtasar Khalil' and its commentary 'Manh al-Jalil', regarding the infidels, the following is stated—with some brevity—: 'They shall be invited to Islam, then if they refuse, they shall be invited to pay the Jizya... if they do not respond to the Jizya... they shall be fought... and if they are captured, they shall be killed. Meaning: It is permissible to kill them, except for seven who may not be killed: a woman, a child, a mentally incapacitated person, an old man, a weakling, a cripple, a blind person, and a monk who remains isolated in his monastery or cell, without providing opinions (on war).' ¶

In 'Hashiyat al-Dasuqi' on 'al-Sharh al-Kabir', it is stated: 'The author’s limitation to seven implies that laborers, farmers, and craftsmen among them may be killed. This is the opinion of Sahnun, which contradicts the well-known position that they should not be killed but rather taken as prisoners of war, as is the position of Ibn al-Qasim.' ¶

And Ibn al-Arabi, among the Maliki jurists, in 'Ahkam al-Quran', when discussing those from the people of war who are prohibited from being killed, regarding hired laborers ('usafa'), stated: ¶

'Do you not see that a male adult who does not fight is still considered part of the combatant category, given that he possesses a physical structure suitable for fighting, even if he does not engage in combat? As for those with disabilities, such as the blind and the crippled... if they engage in combat, they are part of the combatants; if they do not engage in it, they are not considered combatants.' ¶

"Al-Asafa": meaning hired laborers and farmers... There is a difference of opinion regarding them; Malik said in the book "Muhammad": They shall not be killed... However, the correct view in my opinion is that they should be killed; because even if they do not fight, they serve as support for the combatants... (1). ¶

This is what is stated in Maliki Fiqh... ¶

- Regarding Hanbali Fiqh, it is stated in Ibn Qudama’s "Al-Mughni" the following: "When the Imam gains victory over the disbelievers, it is not permissible to kill a child who has not reached puberty, by unanimous agreement (2)... Neither shall a woman, nor a decrepit old man be killed, and this is the view of Malik and the Ashab al-Ra'y (the Hanafis)... Imam Shafi'i, in one of his two opinions, and Ibn al-Mundhir said: It is permissible to kill the elderly... Our argument—that is, the evidence for our position—is that the Prophet (ﷺ) said: 'Do not kill a decrepit old man, a child, or a woman' (Narrated by Abu Dawood in his Sunan)... and because they are not among those who fight; therefore, they should not be killed, just like a woman. The Prophet (ﷺ) alluded to this reasoning regarding a woman when he said: 'Why was this one killed when she does not fight?'... and the elderly man falls under this same meaning, so we draw an analogy to it... Also, a disabled person, a blind person, or a monk shall not be killed... Our argument regarding the disabled and the blind is that they are not combatants, so they resemble a woman. Regarding the monk, there is the narration from Abu Bakr al-Siddiq (RA) who said: 'You will pass by people in hermitages who have confined themselves therein, so leave them until Allah causes them to die in their misguidance,' and because they do not fight out of religious devotion, they are like those incapable of fighting... Then he says: 'As for the sick, they are to be killed if they are the type who would have fought had they been healthy; because this is like finishing off a wounded person, unless there is no hope for their recovery, in which case they are like the disabled and shall not be killed; because there is no fear that they will reach a state in which they can fight...' (4). ¶

In conclusion, these are some of the various jurisprudential (Fiqhi) interpretations regarding the issue of whom it is permissible to target for killing and whom it is not among the enemy factions during war. ¶

And all these ijtihadat (legal deductions) fall within the framework of the opinion that employs qiyas (analogy) in this matter by drawing parallels with those whose killing is unanimously considered prohibited among the people of the state of war (dar al-harb), namely children and women. ¶

However, it must be noted here that this issue—although it revolves around the permissibility of killing enemies, specifically whether the 'illah (effective cause) is kufr (disbelief), as Imam al-Shafi'i stated, or whether the 'illah is their 'muharabah' (active belligerence) against the Muslims, as the majority of scholars held—is distinct from the issue of the legitimacy of declaring jihad against non-Islamic countries and states when they refuse the invitation to Islam or refuse to accept Islamic governance and enter under the dhimmah (protection) of the Muslims, even if there is some connection between the two issues. ¶

Therefore, it is not permissible to argue that jihad is only legitimate in the case of defense against aggression, on the grounds that the 'illah for fighting the enemies, according to the majority, is active belligerence and not merely disbelief. Consequently, to claim that jihad is not legitimate as long as the kuffar (disbelievers) are not fighting the Muslims—that is, as long as they have not brought about the 'illah which makes it permissible for Muslims to fight them, namely aggression and belligerence—is not a valid position. ¶

This is because, even according to the argument that the 'illah for fighting the kuffar is belligerence and not disbelief, and even if we go to the furthest extent in prohibiting the targeting of all kuffar who are not actually combatants during war, whether they are disabled or healthy—that is, those generally called 'civilians' (1)—this does not negate the other issue: the legitimacy of jihad against peoples and countries that refuse to accept the Islamic system if they do not wish to convert to Islam after being invited to do so. This is because if this refusal is passive, meaning these peoples and countries did not resist the Muslims by force while the Muslims were taking measures to incorporate these lands into the Islamic State and make their peoples Ahl al-Dhimmah, then there is naturally no room for the use of weapons against those countries and their peoples. ¶

(1) Our teacher, Dr. Wahba al-Zuhayli, preferred this broad meaning regarding the concept of non-combatants from the lands of war. He said: 'Combatants are all those who dedicate themselves to fighting directly or indirectly, such as conscripted soldiers and volunteers. As for civilians who have laid down their arms, turned to their own affairs, and anyone who has a truly neutral status regarding assisting the enemy—such as foreign military attaches, press correspondents, and religious personnel attached to military forces—these are not considered combatants whose blood is permitted.' (Athar al-Harb, p. 480). ¶