Chapter 67

the heart, in its original state, without its limbs being severed. Thus, it was concealed with soil and stones where it lay, and they did not leave it in the open field—a fact which suggests that the command to conceal the dead is one of obligation. Furthermore, one may add what is understood from the words of Ibn Hazm, that leaving a corpse without concealment exposes it to being torn apart by dogs and wild beasts, which constitutes a form of mutilation (muthla) and disfigurement for which the Muslims would be responsible. Mutilation is prohibited, as previously established. For this reason, it is strange that some Shafi'i scholars said regarding the dead belligerent infidel (kafir harbi): 'It is permissible to incite dogs upon him,' as mentioned earlier! Z - All of this applies if we assume that no harm results from leaving the enemy corpses unconcealed. However, if harm does result from that—as indicated by the jurists and pointed out by Dr. Wahba al-Zuhayli—then in this case, another reason is added that underscores the obligation of concealing enemy corpses during war. This is what we favor in this matter. With this, we conclude the third requirement (matlab) of this research, and we proceed to the final requirement, which is: Handing over the corpses of the enemy to their people. ¶

Noble Verse: {And do not say about those who are killed in the way of Allah, 'They are dead.' Rather, they are alive, but you perceive [it] not.} (Translation: And do not speak of those who are slain in the path of Allah as dead; nay, they are alive, but you do not perceive.) ¶

In this noble verse, Allah Almighty has presented a concept of the life of the martyrs (shuhada) that transcends common human understanding and intellect. The status of martyrdom (shahadah) is so exalted that it has been forbidden to call a martyr 'dead' even after death. What is the reality of this life? Is it like worldly life or of another nature? These are the questions in response to which scholars and exegetes (mufassirin) have offered various opinions, yet all agree that the martyr is alive in the presence of their Lord. ¶

Nature of the life of the Martyrs: 1. Life in the Barzakh: Many exegetes believe that this life pertains to the realm of Barzakh (the intermediary state). Just as the Prophets perform prayers in their graves, Allah Almighty grants the martyrs a special life that we do not perceive. 2. Eternal Remembrance: Another interpretation is that their legacy remains ever-living. People remember them with honor and reverence; thus, their name lives on even after their death. 3. Spiritual Consolation: The martyr is granted spiritual blessings and comforts by Allah that exempt them from the agony of death and the darkness of the grave. ¶

Conclusion: The position of the martyr before Allah is so venerable that there is no room for doubt regarding them. This noble verse is, in fact, a profound message of courage and valor for the believers. A nation that learns to honor its martyrs and recognize their status, Allah Almighty never allows it to be overcome. ¶

Fourth Discussion: Handing Over the Corpses of Enemies to Their Relatives ¶

This discussion focuses on the following question: - If the enemy asks the Muslims to hand over or allow them to retrieve the corpses of their dead, is it permissible to grant them this permission? - The answer is: Yes, it is permissible. - It is stated in Fath al-Bari, under the chapter heading "The Chapter of Casting the Carcasses of the Polytheists into the Well, and No Price Shall be Taken for Them," as follows: "His statement: 'And no price shall be taken for them,' is a reference by Imam al-Bukhari to the hadith of Ibn Abbas: that the polytheists wanted to buy the body of a man from among the polytheists, but the Prophet ﷺ refused to sell it to them. It was recorded by al-Tirmidhi and others. Ibn Ishaq mentioned in Al-Maghazi that the polytheists asked the Prophet ﷺ to sell them the body of Nawfal ibn Abdullah ibn al-Mughirah, who had fallen into the Trench (al-Khandaq). The Prophet ﷺ said: 'We have no need for its price, nor for the body.' Ibn Hisham said: It reached us from al-Zuhri that they offered ten thousand for it! The derivation of this from the hadith of the chapter is that custom testifies that if the people of Badr had understood that he would accept a ransom for their bodies, they would have offered whatever Allah willed for them.'" ¶

Furthermore, this story appears in Kanz al-Ummal as follows: "From Ikrimah that Nawfal, or the son of Nawfal, fell with his horse on the day of the Trench (al-Khandaq) and was killed. So Abu Sufyan sent..." ¶

Sufyan sent one hundred camels to the Prophet ﷺ as blood money (diyah) for him, but the Prophet ﷺ refused and said: 'Take them back! For his blood money is filthy, and his corpse is filthy.' (1). ¶

- Al-Bayhaqi also recorded two narrations of this incident in his Sunan under the heading: 'A polytheist's corpse shall not be sold,' both from Ibn Abbas (may Allah be pleased with them both): The first states: 'The Prophet ﷺ forbade them from selling the corpse of a polytheist.' The second states: '... The polytheists sent a message to the Messenger of Allah ﷺ saying, "Send us his body, and we will give you ten thousand!" The Messenger of Allah ﷺ replied: "There is no good in his body, nor in its price."' (2). ¶

- Al-Tirmidhi also recorded this incident from Ibn Abbas (may Allah be pleased with them both) under the heading: 'Chapter on what has been said regarding not ransoming the corpse of a captive.' After citing the hadith, he said: 'This is a hasan gharib hadith.' (3). ¶

I say: Based on what has preceded — and as previously mentioned — it is permissible for Muslims to provide available facilities that enable the enemy to retrieve the corpses of their fallen soldiers and their affiliates. ¶

Here, we conclude the final section of this chapter, which we dedicated to discussing the enemy's corpses. With its completion, we reach the end of the second chapter of the fifth part, and proceed toward the third chapter, by the help and success granted by Allah. ¶

Chapter Three: Military Acts and Various Conducts Between Permissibility and Prohibition ¶

This chapter revolves around matters and practices that are of a nature of war, or are among its necessities and requirements. The ruling on them varies according to the differences in circumstances and surrounding conditions of each case. The ruling also differs based on the varying viewpoints of the jurists (fuqaha) who have addressed these matters through research and study. ¶

In this chapter, we have touched upon the most important of these matters and practices that can be included under the broad title of this chapter. We have addressed the most significant aspects of these matters and practices with an appropriate degree—in our estimation—of the jurisprudence (fiqh) treatments to which they have been subjected, preferring, regarding the rulings issued about them, what we see as needing preference when opinions conflict, based on the strength of the evidence. ¶

Accordingly, we will conduct the discussion in this chapter around the following sections: ¶

- Section One: The ruling on fighting the enemy if they use human shields of Muslims or non-Muslims. - Section Two: The use of weapons that cause harm to non-combatants (weapons of mass destruction). - Section Three: Shariah-based ijtihad regarding certain practices in war. ¶

Section One: Delaying prayers beyond their prescribed times. Section Two: Kidnapping (abduction) in all its forms. Section Three: Suicide or martyrdom operations. Section Four: Violation of honor (and the concept of deeming the enemy's life, honor, and property permissible). ¶

First Discussion: The ruling on killing the enemy when they use Muslims or non-Muslims as human shields. In previous studies, we were required to touch upon certain aspects related to this research, as they were necessary at that point. Now, we will address the most important aspects of this research by discussing two issues: ¶

1. First Issue: What is meant by 'Tatarrus' (using human shields) in this research? And who are the individuals intended by the term 'human shields' whom the enemy uses for protection? 2. Second Issue: The Shariah ruling on fighting the enemy when they use the aforementioned human shields. ¶

First Issue: What is meant by 'Tatarrus' in this research? And who are the individuals intended by the term 'human shields' whom the enemy uses for protection? ¶

A - First Point: What is the meaning of 'Tatarrus' in this research? - It is stated in Mukhtar al-Sihah: "Al-Tatarrus: Taking cover behind a shield (turs)." - In Al-Misbah al-Munir: "The turs (shield) is well-known... and to 'tatarrasa' with something means to make it like a shield and take cover behind it." ¶

In this discussion, 'tatarus' (the act of using human shields) refers to the enemy taking a group of people as a shield to protect themselves, knowing in advance that their adversary will hesitate significantly to strike them in order to reach what lies behind them. ¶

Among the modern forms that fall under the ruling of 'tatarus' is when the adversary utilizes their command headquarters or strategic military facilities by packing them with hostages, for instance. This is intended to protect these sites from being struck by the opposing side. Thus, modern weaponry has expanded the concept of 'tatarus,' making its contemporary manifestations far more potent than those of the past. ¶

In ancient times, a combatant would protect themselves by holding a person belonging to the other side in front of them to evade the adversary's blows. Similarly, an army might place a line of enemy prisoners in front of them to receive the strikes of swords or the thrusts of spears. In such cases, it was possible for the other side—if they were concerned about preventing harm to the human shield or human armor—to continue fighting while attempting to avoid hitting that shield. However today, with advanced modern weaponry—some of which can turn its target, including everything and everyone inside it, into a pile of ashes—'tatarus' in its contemporary forms compels the adversary either to abandon the idea of fighting to protect the lives of the human shield, to accept the certain sacrifice of these lives and declare war using weapons of mass destruction, or to be dragged into a long-term war using conventional weapons, which may not be in their interest as it denies them the use of their weapons of mass destruction due to their concern for the lives of the hostages held by the enemy, who would be the first victims of such weapons. This makes it difficult for that side to even consider such an option. Hence, 'tatarus' in its contemporary forms is more effective in achieving its objectives than it was in ancient times. ¶

In any case, this 'tatarus' in any of its forms consists of human shields. Are these shields of a single type, or are there several types, from the perspective of the Muslims when the enemy employs them against them? This is the subject of the next point. ¶

B - The second point: Who are meant by 'human shields'? Or what are the types of human shields intended in this research? ¶

The human shields used by the enemy against the Muslims are of two fundamental types: ¶

1. Human shields from among the Muslims, whether they are citizens of the Islamic state whom the enemy has taken hostage for this purpose, or they are not citizens of the Islamic state. ¶

The human shield from among the Ahl al-Dhimmah (protected non-Muslim subjects) is categorized under the same ruling as Muslims. That is, the non-Muslims who are subjects of the Islamic state, and those under their status who are granted security (aman) by the Muslims from other states. Whenever the enemy uses any of these as human shields to protect themselves, the same legal rulings apply to all of them. ¶

The author of 'Al-Muhadhdhab' states: "If the [infidels of the warring type] use the people of the Dhimmah as shields, or those between whom and us there is a covenant of security, the ruling regarding it is the same as the ruling if they were to use Muslims, because killing them is as forbidden as killing Muslims." ¶

2. Human shields from among the Harbi (warring) infidels, whose intentional killing is forbidden for Muslims, such as women and children. This applies whether they belong to the enemy we are fighting or to another enemy that the party we are fighting has used as shields to protect itself. ¶

With this, we conclude the first issue and proceed to the second. ¶

The second issue: The Shariah ruling on fighting the enemy when they use the aforementioned human shields. The ruling in this combat differs depending on two matters: ¶

A - The type of human shield with which the enemy is protecting themselves. B - Whether there is a necessity that calls for fighting the enemy, or continuing to fight them, or if there is no such necessity. ¶

In view of these two matters, we will address this issue through the following points: ¶

- First Point: The existence of a necessity that calls for fighting the enemy while they are shielding themselves with a human shield of Muslims and those under their ruling. - Second Point: The existence of a necessity that calls for fighting the enemy while they are shielding themselves with a human shield of enemy individuals who are, in principle, forbidden to be targeted in combat. - Third Point: The absence of a necessity that calls for fighting the enemy while they are shielding themselves with a human shield of Muslims and those under their ruling. - Fourth Point: The absence of a necessity that calls for fighting the enemy while they are shielding themselves with a human shield of enemy individuals who are, in principle, forbidden to be targeted in combat. ¶

First Point: The existence of a necessity that calls for fighting the enemy while they are shielding themselves with a human shield of Muslims and those under their ruling. ¶

Before discussing the rulings of combat in this case and those that follow, it is best that we first clarify what is meant by the 'state of necessity' that calls for combat. By knowing this, we consequently know its opposing state, and thus we realize the reality to which the rulings issued regarding all the cases we will discuss apply. ¶

- What is meant by the state of necessity that calls for combat: In jurisprudential references, this state of necessity has been expressed in several ways, including: the enemy attacking the Muslims (1); the Muslims being in a state of direct engagement with the enemy in combat (2); and that the failure to fight would result in a fear of the Muslims being surrounded, annihilated, suffering a defeat, or experiencing a high number of casualties or any other harm inflicted upon them (3). ¶

(1) Ahkam al-Qur'an by al-Jassas: 5/274. (2) Al-Muhadhdhab by al-Shirazi: 2/234. (3) See: Fath al-Qadir: 5/448; Hashiyat al-Dusuqi 'ala al-Sharh al-Kabir: 2/178; al-Mughni by Ibn Qudamah: 10/505; al-Ahkam al-Sultaniyya by al-Farra': p. 27; al-Ahkam al-Sultaniyya by al-Mawardi: p. 42; Subul al-Salam: 4/49; Fatawa Ibn Taymiyyah: 4/254; al-Sayl al-Jarrar by al-Shawkani: 4/533. ¶

In my view, the state of necessity that compels the Islamic army to engage in war with the enemy—despite their use of the aforementioned human shields—is a matter to be determined by the person in authority, contingent upon varying circumstances and conditions. Sometimes, war may be a necessity in a specific situation, even if the human shield used by the enemy consists of a large number of Muslims who may face destruction as a result of that war. In other cases, the war may not be of such necessity, and the authority may deem it more beneficial to cancel the declaration of war or halt its continuation, simply because the enemy has utilized a minimal human shield—even if this shield consists of only one individual from the Ahl al-Dhimmah (protected non-Muslim subjects), or those granted asylum (musta'minin)... indeed, even if this shield consists of the enemy's own women and children! This is what is said regarding the assessment of the state of necessity that calls for combat. Now, we enter the subject of the point we are addressing: The ruling on fighting the enemy in a state of necessity when they are using Muslims or those with equivalent status as human shields. The consensus of the majority of jurists is that it is obligatory to fight the enemy if necessity demands it, even if this combat leads to the destruction of the human shield used by the enemy. However, in this situation, the Muslim combatants are bound by two requirements: First: To avoid striking the shield as much as possible, unless such a strike occurs by error or by the rule of necessity. Second: The absence of any heart-felt intention to strike the individuals of this shield; even if such intention... ¶

Sensory (1) by necessity. This means that the heart’s motivation for the strike is the desire to eliminate the enemy, not the desire to eliminate the shield itself, even if there is a state of necessity that forces the Muslims to target the shield with the strike. That is: in terms of the sensory focus, not in terms of the heart’s intent, considering that such sensory intent is a necessity indispensable for reaching the enemy and eliminating them. Whereas the heart’s intent in striking the shield is not necessitated, so it remains within the realm of the forbidden (2). ¶

This is what is said regarding the ruling on combat and striking the shield consisting of Muslims and those under their status, if necessity compels that... according to the majority of jurists. ¶

- There is also a jurisprudential view stating that even in a state of necessity to kill the infidels, such combat is forbidden as long as it inevitably results in the killing of anyone from the shield used by the enemy, even if it is only one Muslim or a Dhimmi from the Islamic citizenry. Furthermore, even if the person under threat of danger is a Musta’man (an individual granted temporary asylum) from the citizens of other states! ¶

In expressing this view, it is stated in 'Al-Minhaj' and its commentary 'Mughni al-Muhtaj' as follows: «... Otherwise, if necessity dictates shooting them [i.e., shooting the infidels with weapons] because they have used them [the people] as shields during the heat of battle, such that if we refrained from them, they would overcome us and cause us great harm—it is permissible to shoot them, according to the most correct (al-as'ah) opinion, provided we intend to fight the polytheists and protect the Muslims and the people of the Dhimma as much as possible; because the harm of desisting [i.e., refraining from fighting] is greater than the harm of proceeding, and the destruction of a group may be tolerated to defend the 'egg' (3) [the heartland/community] of Islam and to observe comprehensive matters. The second view: [i.e., the second opinion opposing the most correct one on this issue] is prohibition, if the infidels cannot be shot without also shooting a Muslim, a Dhimmi, or a Musta'man! (4)». ¶

It should be noted that the author did not provide a reasoning for this opinion. It appears that the rationale for prohibiting combat in this situation—despite the necessity calling for it, and despite the anticipation of great harm by the enemy against the Muslims, and their potential victory if not fought, as stated in the previous text—is that it is forbidden for Muslims to directly kill a Muslim, a Dhimmi (protected non-Muslim), or a Musta'man (one granted asylum) who is being used as a human shield. This is in accordance with the clear general evidence regarding the sanctity of a Muslim's life and those under the same legal status. The state of necessity does not permit a Muslim to shed innocent blood. Therefore, according to the proponents of this view, it is mandatory to refrain from fighting the enemy in this situation so that the Muslims do not fall into the sin of shedding unlawful blood, which is the human shield mentioned here. Then, if the enemy prevails over the Muslims as a result of adopting this opinion and commits mass killing among them, the Muslims are considered martyrs. Even if the enemy closes in on the Muslims using the shield they hid behind and kills them (the shield) as well after exhausting their purpose, the Muslims who withheld their hands from fighting are not sinful for doing so, because they did not directly kill any of the Muslims comprising this shield. ¶

I say: This is the justification that can be offered for this opinion. However, the majority of jurists, as we have mentioned, have ruled that fighting is permissible in this state of necessity, even if it results in killing the human shield of Muslims and those in their status. Here are some excerpts from Al-Qurtubi on this matter. He says: 'I say: It may be permissible to kill the human shield, and there is no disagreement regarding this, God willing. This applies when the interest is necessary and collective. The meaning of it being 'necessary' is that there is no way to reach the disbelievers except by killing the shield. The meaning of it being 'collective' is that it is critical for the entire Ummah, such that the interest of all Muslims is served by killing the shield. And the meaning of it being 'definitive' is that the interest is certainly achieved by killing the shield.' ¶

Our scholars have said: This interest, with these conditions, should not be subject to disagreement... He then added: 'It is not possible for any rational person to say that the shield must not be killed in this scenario by any means, because that would lead to the destruction of the shield, Islam, and the Muslims. However, because this interest is not devoid of harm, those who have not pondered it deeply recoil from it! Yet, that harm, compared to the benefit obtained, is non-existent or effectively non-existent. And Allah knows best.' ¶

I say: It is not our purpose here to exhaustively list the derivations regarding the permissibility of striking the [human] shield in the context we are discussing, nor to debate them or weigh the strongest among them. It is sufficient to rely on the evidence presented in the two previous texts for this opinion. It is also sufficient to know that the majority of jurists (fuqaha) hold the view that fighting and striking the shield is permissible when necessary, despite the different methods they employed to arrive at this ruling. ¶

Now, we move on to the next point. ¶

Second Point: The state of necessity in fighting an enemy that takes shelter behind a human shield from among its own people, such as women and children. ¶

There is no disagreement among the jurists regarding the permissibility of fighting in this situation, while avoiding striking this human shield as much as possible. If necessity dictates striking them, it is done under the rule of exigent necessity (idtirar), while keeping in mind and heart that the intention of the strike is the combatants of the enemy, not these women and children. ¶

It is stated in 'Al-Minhaj' and its commentary 'Mughni al-Muhtaj': 'If battle intensifies and they use women and children as a shield, it is permissible to shoot at them if necessity demands it, and we shall exercise caution regarding those mentioned; so that they do not take this as a pretext to prevent Jihad and a path to victory over the Muslims.' ¶

Thus, the books of the various schools of jurisprudence have presented this issue in a similar manner, and we have no need to prolong this by citing their texts... As for the argument for striking those whom it is forbidden to kill—such as the enemy’s women and children—with the goal of reaching the enemy itself in a state of necessity to fight, the evidence mentioned regarding the permissibility of striking the shield of Muslims is even more fitting to serve as an argument when the shield consists of enemy individuals, such as women and children, as is evident. ¶

Having said that, we now transition to another state of this issue. ¶

Third point: The situation where there is no exigency (darurah) calling for fighting the enemy, while the enemy is protecting itself with a human shield of Muslims or those with the same status as them. ¶

There are two opinions among the jurists regarding this situation: - An opinion that permits fighting the enemy, even if it leads to the destruction of this shield (turs) of Muslims and those in their status. This is the position of the majority of the Hanafis, the Malikis, and Imam al-Thawri. - Another opinion that forbids this fighting. This is the position of the Shafi'is, the Hanbalis, Hassan ibn Ziyad (from among the students of Abu Hanifa), and some Malikis. ¶

In Fath al-Qadir—one of the books of the Hanafis—while discussing the issue of attacking the forts of the disbelievers even if Muslims are present within them, and the issue of using Muslims as human shields (tatarrus), it is stated: '...There is no harm in firing upon them [i.e., the disbelievers in their forts] even if there is a Muslim captive or merchant among them. Indeed, even if they use Muslim captives and their children as a shield. [This is permissible] whether it is known that if they were to refrain from firing, the Muslims would be defeated, or if it is not known, provided that the intent of the firing is only the disbelievers... According to the three Imams, firing upon them in the case of a human shield is not permissible unless refraining from firing would lead to the defeat of the Muslims. This is also the view of Hassan ibn Ziyad.' ¶

I say: The madhhab of Shafi'i and Ahmad ibn Hanbal is as mentioned in this text. As for the madhhab of Imam Malik, what is mentioned in the books of the school regarding the case of tatarrus specifically is the permissibility of fighting the enemy, while avoiding the intent of hitting the shield itself, as long as there is no necessity for this fighting. ¶

In Al-Sharh al-Kabir by al-Dardir—one of the books of the Malikis—it is stated: 'If they use a Muslim as a shield, they shall be fought, and the shield shall not be targeted by shooting.' ¶

In 'Manh al-Jalil' — among their (Maliki) books — it is mentioned in the context of describing the various states of using human shields (tarass): 'The third case: that there is no fear of them [i.e., of the enemy, meaning there is no necessity for combat]. If they use a Muslim as a shield, they shall be fought, but the shield itself shall not be the target.' (1) Then, it mentions an opinion regarding refraining from this combat... ¶

Based on this, the majority of the Hanafis and Malikis state that it is permissible to fight the Kuffar in this situation, even if there is no necessity demanding combat, provided that the 'shield' (the person the enemy is using for protection) is not intentionally targeted. ¶

The argument for this view is to uphold the obligation of fighting against the enemy, so that the door of Jihad is not closed. (2) ¶

On the other hand, the Shafi'is, the Hanbalis, and those who agree with them from the Hanafis and Malikis, state regarding the case under discussion: Combat here is prohibited as long as there is no necessity for it; this is so that the lives of those who make up the human shield—Muslims and those under their status—are not put at risk. ¶

It is stated in 'Al-Minhaj' and its commentary 'Mughni al-Muhtaj': 'If they use Muslims as a shield, even one, or Dhimmis—if there is no necessity to strike them, we must refrain, as an obligation, to preserve the lives of the Muslims and the Ahl al-Dhimmah.' (3) ¶

It is stated in Ibn Qudamah’s 'Al-Mughni': 'If they use a Muslim as a shield, and there is no need to strike them—because the war is not ongoing, or because it is possible to overcome them without doing so, or because there is safety from their evil—then it is not permissible to strike them.' (4) ¶

Al-Qurtubi from the Malikis also holds this view. After narrating from Imam Malik that it is not permissible to cast fire on the ships of the Kuffar if they contain Muslim prisoners, he commented: 'Likewise, if a Kafir uses a Muslim as a shield—it is not permissible to shoot at him.' (5). Now, what is the argument of those who hold the view that combat is prohibited in this case? ¶

They say in this regard: Our fighting the enemy here, where there is no necessity for combat, and exposing the life of the 'shield' to danger, is—in reality—committing a forbidden act, which is the killing of the 'shield' consisting of Muslims and those in their status. ¶

Their ruling is for the purpose of reaching the permissible end, which is the killing or combatting of the enemy, after removing the shield (human shield) behind which they have taken cover. It is an established principle that committing a prohibited act to achieve a permissible one is not permissible according to Shariah. ¶

Furthermore, the harm (mafsadah) of killing the Muslim—i.e., the one used as this shield—outweighs the benefit (maslahah) of killing the disbeliever hiding behind the shield. This means that the Shariah maxim, 'The warding off of harms takes precedence over the acquisition of benefits,' dictates the prohibition of combat in the case before us. ¶

That said, what we consider most preponderant here is the opinion of those who hold that combat which inevitably leads to striking the forbidden 'shield' is prohibited, given that there is no necessity compelling such combat in the scenario presented here, and given the strength of the evidence cited by the proponents of this view. ¶

As for the argument of those who permit combat in our current scenario—stating that combat is the establishment of an obligatory duty, and that treating the shield as an impediment to this duty amounts to closing the door of Jihad, i.e., suspending a Shariah ruling that must remain in effect until the Day of Judgment—the answer is that the existence of the mentioned shield is merely a situational obstacle to performing the obligation of Jihad, not a closing of the door of Jihad, nor a permanent suspension of this duty. There are, moreover, other obstacles that stand between Muslims and the performance of the duty of Jihad that are not considered 'closing the door of Jihad,' such as the weakness of the Muslims and waiting for the strength to perform this duty, or peaceful treaties that the Islamic state deems necessary to conclude with other states if interests demand it. Jihad against such countries is forbidden as long as the treaties remain in effect, and this is not considered closing the door of Jihad. ¶

Furthermore, the enemy who uses Muslims, or those with the same status, as a human shield only does so at certain times, on certain fronts, or at specific points they deem important to protect, as is the reality. Consequently, the door of Jihad remains open beyond those specific times, fronts, or points mentioned. ¶

In any case, the argument regarding the necessity of keeping the door of jihad open does not conflict with halting combat against an enemy that has taken shelter behind a human shield of Muslims—or those of similar status—while waiting for a better opportunity to fight, provided that the enemy cannot be engaged without endangering the lives of those being used as a shield. ¶

With this, we conclude the third point and proceed to the next. ¶

- The Fourth Point: The case where there is no necessity to fight the enemy, and the enemy is shielding itself with its own members, such as women and children. ¶

- The majority of scholars here, including the Hanafis, the Shafi'is (according to their relied-upon position), and the Hanbalis, permit combat in this situation. ¶

- Conversely, the Malikis prohibit this combat when it inevitably leads to the killing of the disbelievers' children and women, and they make it mandatory to cease combat altogether when those children and women are at risk of perishing. ¶

- As for the Hanafis among the majority, there is no need for us to search for their evidence in this specific case; since they hold that combat is permissible when the shield consists of Muslims, it follows a fortiori that they would hold it permissible when the shield consists of enemy disbelievers, such as women, children, and the like, because they are, in any case, less sacred than Muslims. ¶

- Regarding the Shafi'is, the relied-upon position in their school is the permissibility of combat in this situation, although there is another opinion among them that prohibits it. ¶

It is stated in 'Al-Minhaj' and its commentary 'Mughni al-Muhtaj', in explaining the ruling on this situation and what is the relied-upon view along with its evidence: 'And if they [the disbelievers] defend themselves using them [meaning: the disbelievers shield themselves with their own women and children to defend against attack] and there is no necessity to fire upon them, then the most apparent (azhar) view is that it is mandatory to leave them, so as not to lead to killing them without necessity, for we have been forbidden from killing them...' – he then mentioned... ¶

The other opinion states: 'The second, which is the relied-upon view, is: the permissibility of firing upon them, just as it is permissible to set up a catapult against a fortress, even if they (the innocents among them) are hit, lest they use this as a pretext to suspend jihad or as a ploy to retain the fortresses for themselves.' (1) ¶

In this regard, the author of Al-Mughni among the Hanbalis has definitively asserted the permissibility of combat in this scenario, without disagreement, citing evidences similar to those found among the Shafi'is. (2) ¶

What remains truly astonishing is the opinion of the Malikis: they forbid this fighting here, where there is no necessity to fight the enemy, so as not to expose the human shield of the enemy's children and women to danger. Yet, they—as mentioned in the previous point—permit this fighting when the shield consists of Muslims, even though there is also no necessity to fight there! Although, naturally, it is required in that case not to intentionally target the Muslims with shooting and striking. ¶

Such a strange paradox in the ruling between these two cases might suggest that the sanctity of the children and women of the infidel enemies is greater than the sanctity of the Muslims themselves; for when the enemy protects themselves with their women and children, the Islamic army is prevented from fighting altogether, whereas this Islamic army is not prevented from fighting when these enemies protect themselves with Muslims! We merely suffice by ordering the army not to target the Muslims with fire! ¶

Regarding this ruling among the Malikis, it is stated in 'Manh al-Jalil'—this text was cited previously in the context of listing various cases of human shielding—it says: 'Third: If there is no fear from them [i.e., the enemy], then if they use a Muslim as a shield, they are to be fought, but the shield is not to be intentionally targeted. And if they use their offspring as a shield, they are to be left alone.' (3) Meaning: left without fighting. 'Offspring' (dhurriyyah) here refers to their children, and their women are equated with them. (4) And in 'Fath al-Bari' it is stated: 'Malik and al-Awza'i said: It is not permissible to kill women and children under any circumstances, even if the people [of the enemy] use them as a shield...' ¶

In the case of war involving women and children, or if the enemy takes refuge in a fortress or on a ship and keeps women and children with them, it is not permissible to shoot at them or set them on fire. (1) ¶

As for the Maliki perspective regarding the distinction between these two cases: - The case of using Muslims as a human shield (turs), where fighting is permitted! - The case of using the enemy’s women and children as a human shield, where fighting is forbidden! ¶

The distinction, as it appears from the Maliki school, is that the souls of Muslims are naturally inclined toward animosity against the disbelieving enemy. If we were to permit fighting this enemy while instructing our soldiers to avoid harming the women (used as shields), there is a fear that, given their inherent animosity, the soldiers might be negligent in restraining themselves from attacking the shield. Therefore, we block the path for the Islamic army entirely and prohibit the combat to prevent them from falling into this forbidden act. ¶

- However, when those serving as a human shield for the enemy are fellow Muslims, there is a strong, natural impulse within the soldiers of the Islamic army to sincerely avoid striking them, accompanied by strict internal vigilance to avoid any error. Thus, there is no fear in this instance that the soldiers would be negligent in avoiding harm to their fellow Muslims. Based on this, the Malikis hold that it is permissible to fight the enemy while taking care to avoid harming the Muslim shield. (2) ¶

I say: While this analysis delves deep into the inner workings of the Muslim soul, uncovering its prevailing emotions, the restraints that govern it, and the fleeting impulses that may sometimes overcome its self-control, it is nonetheless based on a singular conception of human nature that may not be universally applicable at all times or in every generation. The safer approach, regarding our objective of elucidating the rulings of combat, is not to base these rulings on psychological analysis. ¶