Chapter 98

• The dhimma contract is invalidated by espionage, and the state may, on this basis, execute him, just as it may renew the dhimma contract for him according to public interest (maslaha)................... 1168 • Why did the Shariah texts differentiate between the punishment of a Muslim and the punishment of a dhimmi for the same crime, which is espionage?....................................... 1169 Sixth Discussion: The Ruling on Fleeing from the Army in Battle..................... 1171 First Point: The most prominent Shariah texts relied upon by scholars in judging the act of fleeing from the battlefield (al-zahf) and their commentaries on them.......................... 1171 Second Point: Some of what has been mentioned in the Fiqh references regarding the issue of fleeing from the battlefield.................................................... 1178 1 - In the Hanafi school:....................................... 1178 - Summary of 'Al-Badai': With the ability to resist the enemy, fleeing is prohibited; with incapacity, it is permissible................................................ 1179 - Summary of 'Al-Siyar al-Kabir': First: If the Muslims are fewer than (12) thousand - there are two cases: A - The disbelievers do not exceed twice the number of Muslims - fleeing is prohibited... with the ability to resist. B - The disbelievers are more than twice the number of Muslims - fleeing is permissible. Second: If the Muslims are (12) thousand or more, fleeing is prohibited under any circumstance............... 1180 2 - In the Maliki school: Similar to what is stated in 'Al-Siyar al-Kabir' of the Hanafis, with further details............................................ 1180 3 - In the Shafi'i school: First: If the disbelievers do not exceed twice the number of Muslims, there are two cases: - When there is no fear of destruction, standing firm is obligatory, and fleeing is only permitted for tactical maneuvering (taharruf) or to join another group (tahayyuz). - If there is a fear of destruction, there are two views: one permits fleeing, and the correct view is: it is not permissible. Second: If the disbelievers exceed twice the number of Muslims, fleeing is permissible................... 1181 4 - In the Hanbali school: Similar to what is found in the Shafi'i school with slight differences....... 1183 1941 ¶

Point Three: Our view on the issue of fleeing from the battlefield and turning away from fighting the enemy: Considering the reality of modern warfare and in light of Shariah rulings, we observe the following: 1. If a specific position or role is assigned to a fighter or a unit in the plan, it is not permissible to deviate from the established plan. 2. If the plan allows for tactical maneuvering (taharruf) for combat or joining another group, it is permissible to move according to what the fighter or the unit deems to be in the best interest. 3. Jihad in the case of offensive combat is religiously obligatory when the balance of power is such that the enemy's strength is not more than double the strength of the Muslims. If it is less than that, Jihad is permissible but not obligatory, provided that no harm results from Jihad; otherwise, it becomes prohibited. Jihad is obligatory or permissible despite a deficiency in the Muslims' material strength because they possess spiritual power that compensates for that deficiency. Example: During the conquest of Andalusia, Muslims (1,700 men) were victorious over 70,000 of the enemy. 4. What is considered in the balance of power is not the number of individuals, but the total force that each party possesses. The discussion of the jurists on this matter. Understanding the issue of Muslims reaching 12,000 and the saying regarding its effect on the ruling of steadfastness and withdrawal from combat. 5. Regarding Jihad in the case of defense: - If a situation arises intended to erase Islam and the Muslims from existence—God forbid—one must work to fragment the enemy front by any means possible. If war becomes inevitable, the balance of power is disregarded, and fighting becomes obligatory while relying on Allah. - If the objective is not to erase Islam and the Muslims, but rather to plunder their wealth, defense is obligatory without looking at the balance of power, except when the detriments of standing firm are greater for Islam and the Muslims than the detriments of fleeing, withdrawing, and negotiating. ¶

Concessions: It is permissible for sincere leaders to decide upon a withdrawal, not with the intention of permanently abandoning what they have retreated from or conceded, but with the intention of making the necessary preparations to engage in battle once again. ¶

6 - If the enemy displays their massive military power with the intention of provoking the Muslims, and the Muslims lack the capacity to confront them, it is mandatory to refrain from giving them any pretext to intervene or ignite a war. In 'Mughni al-Muhtaj', it is stated: 'Our groups should not rush to confront a king of great power who has entered the borders of our lands, due to the immense danger involved!' ¶

Fourth Point: What is the punishment for fleeing from the battlefield (Al-Zahf)? - Texts and incidents related to this issue. - It is reported that the Prophet (PBUH) placed the tribe of 'Juhaynah' behind 'Banu Sulaym' and ordered them to use their weapons against those fleeing from Banu Sulaym. - 'Umm Sulaym' at Hunayn asking the Prophet (PBUH) to kill those among the 'Tulaqa' (those freed on the day of the conquest of Makkah) who were fleeing. - The leadership at Yarmouk ordering the Muslim women behind the lines to pelt anyone fleeing from battle with stones and kill them. - Umar ibn al-Khattab, after the martyrdom of Abu Ubayd al-Thaqafi and his men on the Persian front, saying: 'If they had returned to me, I would have been their shelter (fiah)!' - Umar ibn al-Khattab rebuking two men who fled from battle. - Our view regarding the punishment for fleeing the battlefield: The authority to determine the punishment for this matter should be left to those in charge, while taking into account all aspects and consequences related to the specific incident of fleeing. We believe the punishment should not reach the extent of execution except in extreme cases. ¶

Seventh Section: The Martyr (Shaheed) and his rulings, and his family thereafter. First Issue: Defining the martyr in this research. - In the Hanafi school: 'The martyr is he who is killed by the polytheists...' (with details). - In the Maliki school: 'He is the one who is killed only in the war against the Harbi (enemy combatants)...' (with details). ¶

In the Shafi'i Madhhab: 'Whoever among the Muslims dies in Jihad against the disbelievers due to any reason related to fighting them, is a martyr (shaheed).' . . 1201 In the Hanbali Madhhab: 'Whoever dies in the battlefield against the disbelievers.' . . 1202 Second Issue: Why the martyr (shaheed) is called by this name: . . 1203 - Because it is testified that he is destined for Paradise... up to seven aspects mentioned by (al-Nawawi). . . 1203 Third Issue: Some Shar'i texts regarding the virtue of martyrdom and the honoring of martyrs. . . 1204 Fourth Issue: Types of martyrs. . . 1208 1. A martyr in the reward of the Hereafter and in the rulings of this world. 2. A martyr in the reward, but not in the rulings of this world. 3. One who has the rulings of martyrs in this world, but does not receive their full reward in the Hereafter. . . 1208 - Some authentic Hadiths regarding: Who are the martyrs of the Hereafter? . . 1209 Fifth Issue: The mandatory procedure regarding the martyr concerning preparation for burial. . . 1211 First Point: What is the ruling on washing (ghusl) the martyr? . . 1212 a- Ruling on washing the martyr if he is not in a state of janaba (major ritual impurity). . . 1212 Jumhur (Majority): He is not to be washed... and there is an opinion that it is obligatory to wash him. . . 1212 b- Ruling on washing the martyr if he is in a state of janaba. Jumhur (Majority): He is not to be washed... According to Abu Hanifa, the Hanbalis, and others: He is to be washed. . . 1214 c- Ruling on washing a woman if she is martyred while not in a state of purity due to menstruation or postpartum bleeding. According to the Malikis and Shafi'is: She is like a martyr in a state of janaba - she is not to be washed. According to others: There is detail in the matter. And we prefer the opinion that the male or female martyr should not be washed in any case. d- Ruling on washing a minor who is a martyr. Jumhur (Majority): He is not to be washed like an adult... According to Abu Hanifa: He is to be washed. We prefer the opinion of the Jumhur. . . 1217 Second Point: In what are the martyrs to be shrouded (kafan)? . . 1217 - They are shrouded in the clothes they are wearing, whether as an obligation or a recommendation, according to two opinions. . . 1218 ¶

- If the martyr's clothing is insufficient to cover his body, the required covering should be completed with whatever is available. - Items that do not fall under the definition of clothing, such as weapons, wristwatches, etc., should be removed from the martyr. Point Three: Should the funeral prayer (Salat al-Janazah) be performed for the martyr? First: Prominent Shariah texts regarding the prayer for the martyr. (Traditions negating the prayer and others affirming it). Second: Jurists' opinions on the matter along with their evidence. (The majority [Jumhur] do not advocate for the prayer over the martyr, while others do). Third: Our preferred view alongside a discussion of the evidence. (Our preferred view is that it is permissible to pray over the martyr, just as it is permissible to forgo the prayer for them). Point Four: What is the ruling on moving a martyr to be buried in a location other than where they were martyred? First: Where should the martyr be buried according to the Sunnah? (They are to be buried in the places where they fell... [including a discussion on cases where the location of martyrdom is unsuitable for burial]). Second: Jurists' opinions on the ruling of moving a deceased person in general, and a martyr to a place other than where they died. (The majority are lenient regarding the transfer of a deceased person in general from their place of death for burial elsewhere, whereas the Shafi'i school considers this prohibited according to their preferred opinion). - It appears that the majority of jurists interpreted the command to bury martyrs in their places of death as a recommendation (Istihbab). - Our view on this matter: The command to bury martyrs in their places of death, when viewed with the accompanying context, indicates certainty. If it does not imply obligation (Wajib), it at the very least implies emphasized recommendation (Nadb al-Mu'akkad), and it is not appropriate to abandon this Sunnah if it is possible to perform it. Point Five: Can multiple martyrs be buried in one grave? - This is permissible as per the Shariah texts. Point Six: The required treatment of the martyr's family after his death. ¶

- Moral Honor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232 - Material Honor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232 Chapter Two: Treatment of Enemies in War . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Section One: Rulings regarding non-combatants among the enemy . . . . . . . . . . . . 1241 Introduction regarding the conceptual reality of ancient and modern wars to identify who are the non-combatant enemies? How are they subjected to killing or fighting? And towards whom is it permissible to direct weapons? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1241 Issue One: Who are the individuals among the enemy regarding whom Shariah texts have provided instructions not to kill them during war? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 - Texts on this issue are of two types: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 First: Texts in which the conditions for acceptance are met... and they mention: women, children, the 'asfa' (hired servants), and the elderly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 Second: Texts in which the conditions for acceptance are not met... and they mention: monks, merchants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Issue Two: Regarding those enemies whom texts explicitly forbid killing - can others be measured against them by analogy (qiyas)? Such as the blind, the chronically ill, the mentally disabled, and the farmer? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1251 - Two schools of thought: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - Those who said: The 'illah (legal cause) for killing is kufr (disbelief), thus permitted their killing. - Those who said: The 'illah for killing is the capacity to fight, thus did not permit their killing... (with detail on this). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1251 - Our view: The first school does not permit the killing of kuffar merely for their kufr, but for kufr combined with the refusal to submit to Islamic governance and enter into the dhimmah (protection). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1252 - Clarification of the two schools on the issue: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . First: The school that rejects analogy for those whose non-killing is explicitly mentioned, such as women - it restricts the prohibition of raising weapons in war only to those explicitly mentioned, and permits killing others such as the blind, the ill, cowards, craftsmen, and those similar to them, even if they did not participate in fighting effectively - and this is the position of al-Shafi'i. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1253 ¶

Second: The school of thought that employs qiyas (analogy) regarding those whose killing is forbidden in war, based on a common 'illah (effective cause), which is: those from whom no benefit or good is expected, such as the crippled and the blind. The majority of scholars lean towards this view (generally). ¶

Note: The issue at hand is: who among the enemy individuals is it permissible to kill during war, and who is not, regardless of whether it is argued that the cause for killing the kuffar (disbelievers) is kufr (disbelief), or that the cause is their capacity for combat and warfare (muharabah). ¶

This issue differs from the question of the legitimacy of declaring jihad against the kuffar so that they may submit to Islamic rule and enter into a dhimmah (covenant of protection) if they refuse to embrace Islam. Thus, even if we posit that the cause for killing the kuffar is 'muharabah'—as the majority say—and they refrain from initiating combat against Muslims, fighting them remains legitimate if they refuse to enter into the dhimmah and accept Islamic rule—according to all parties, whether they hold that the cause for fighting is kufr or that the cause is muharabah. ¶

Ibn Taymiyyah, who is among those who hold that the cause of fighting the kuffar is muharabah, confirms the legitimacy of fighting them for the sake of establishing the religion of Allah against anyone who hinders its establishment. ¶

Third Issue: What are the situations in which it is permissible to fight those from the enemy who are, in principle, forbidden to be killed during war? ¶

First Situation: If they actually fight the Muslims, or effectively fight through counsel, obedience, or incitement. ¶

Second Situation: When carrying out raids and using weapons in such a way that it is impossible to distinguish between those who may be killed and those who may not. The evidence for this is: ¶

1. Texts permitting raids and surprise attacks on the enemy. 2. Texts regarding the legitimacy of starting fires in enemy lands. 3. Texts urging the use of projectile weapons. This generally encompasses all ancient and modern projectile weaponry, such as the mangonel (manjaniq) installed at Ta'if, and bombs in this era. ¶

Third Case: The state of 'Tatarrus' (when enemies use their children and women as human shields for protection...) with detailed discussion to follow.... 1268 ¶

Fourth Issue: Does the authority possess the right to prohibit the killing of specific individuals or groups from the enemy's country during war, other than those whose killing is already prohibited?.... 1268 - Yes, this is permissible for the sake of public interest (maslaha), or based on an international or bilateral treaty... (and its juristic application [takyif]).... 1268 ¶

Concluding Remarks:.... 1270 1. It appears to me that the reason (illa) for prohibiting the killing of women is not merely that they do not fight; rather, it is a compound reason consisting of their being women combined with their abstention from combat. That is: it is a restrictive reason (illa qasira).... 1270 2. 'Asif' (employee/servant): This does not mean just any hired worker such that it includes everyone contracted for any work in exchange for wages; rather, it refers to those belonging to the subservient class of servants. The application of this term varies from one country to another depending on the society's view of the contracted work. Therefore, the authority must designate who constitutes the 'asafa' (servant class) of the enemy country so that weapons may be avoided being directed toward them.... 1270 3. An elderly man from the land of war (dar al-harb), if he does not meet the description of 'shaykh fani' (the incapacitated elderly)—meaning one who has lost the ability to bring benefit or harm—is not covered by the Shariah immunity that prohibits his killing.... 1273 4. The authority has the right to expand or narrow the scope of those whose killing is prohibited, from among those whose killing is not originally forbidden, based on their assessment of public interest. This includes a clarification of some of the objectives sought in this regard.... 1274 ¶

Second Discussion: The ruling on spies from the land of war.... 1277 - The evidence cited by jurists regarding the ruling on a spy from the land of war.... 1279 - The spy of Hawazin.... 1280 ¶

Firstly: Executing the Harbi (enemy combatant) spy who is neither under a covenant (mu'ahid) nor granted asylum (musta'min) — is it obligatory (wajib) or merely permissible (ja'iz) if captured? The matter is open to both interpretations. ... 1281 - We choose the ruling that execution is mandatory, unless the harm resulting from his execution exceeds the harm of sparing him. ... 1283 Secondly: The Harbi spy — if he enters the Islamic State under an assurance of safety (aman) or a treaty with his state, then spies against the Muslims — what is the ruling concerning him? ... 1283 In Hanafi Fiqh: Abu Yusuf rules for his execution. Muhammad ibn al-Hasan rules for ta'zir (discretionary punishment) and does not permit his execution unless he entered the country specifically for the purpose of espionage, using the request for asylum as a cover. ... 1283 - In the Maliki Madhhab: The books of the school contain texts that render his execution permissible, and others that render it mandatory. ... 1284 - In Shafi'i Fiqh: The ruling is ta'zir; espionage does not constitute a breach of covenant that would permit their execution... etc. ... 1285 - In Hanbali Fiqh: A dhimmi's covenant is broken by espionage; therefore, a fortiori, the covenant of a musta'min is broken. Whoever is judged to have broken his covenant may be executed, enslaved, ransomed, or pardoned, similar to a prisoner of war. ... 1287 - Our view on this issue: ... 1288 Sentencing him to death and carrying out the execution, provided he does not embrace Islam... unless the execution results in a harm greater than the harm of not executing him. ... 1288 Third Section: Using deception and misinformation in war against enemies. ... 1291 First Point: Is the use of 'deception' (kud'ah) in war necessary? And what do military experts mean by it? With examples from the Prophetic Biography. ... 1291 - Deception: A part of military science and a necessary element in battles. ... 1291 - It is: The art of camouflage, concealing the truth, and carrying out misleading operations. ... 1292 ¶

- Examples of using ruse (khud'a) in the Prophetic Biography (Sirah): - The Prophet's ﷺ departure for the campaign against Banu Lihyan . . . . . . . . . . . . . . . . . . . . . 1292 - Khalid ibn al-Walid's ruse against the Romans at (Mu'tah) by deceiving them into believing that reinforcements had arrived for the Muslims! Consequently, they were terrified and broke ranks, and the Muslims seized more spoils than what they had with them! . . . . . . . . . 1293 Second point: The Shariah texts that permit the use of methods of deception and ruses against the enemy and the opinions of scholars in this regard . . . . . . . . . . . . . . . . . . . 1293 - The fundamental principle for a Muslim is that his behavior is based on clarity and frankness, unless this would lead to harm to the Muslims or prevent victory over the enemy . . . 1293 A - Texts on tawriyah (using ambiguous/equivocal language) when intending a military campaign . . . . . . . . . . . . . . . . . . . 1294 B - Texts on the explicit use of deception, or the encouragement of it, in dealing with the enemy during war . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1294 - Al-Nawawi: Scholars have agreed on the permissibility of deceiving the disbelievers in war... unless it involves a breach of a covenant or a guarantee of safety (aman), in which case it is not permissible . . . . . . . . . . . . . . . . . . . . . 1295 - Deception in the story of (Abu Basir) shortly after the Treaty of Hudaybiyyah . . . . . . . . . . . . . . 1295 - (Ali ibn Abi Talib's) deception of 'Amr ibn Wudd when he dueled him on the day of the Trench (Khandaq) . . . . . . 1295 C - Texts on lying in war - Al-Nawawi: The outward meaning is the permissibility of the act of lying itself, but confining oneself to 'ta'rid' (using indirect language) is better . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1295 - The authorization to lie in the story of the killing of (Ka'b ibn al-Ashraf) . . . . . . . . . . . . . . 1296 - Ibn Hajar: Included in this [i.e., this authorization] is the permission to lie explicitly and implicitly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1297 Fourth Topic: The corpses of enemies . . . . . . . . . . . . . . . . . . . . . . . . . 1299 First Requirement: Mutilation (muthla) of enemy corpses . . . . . . . . . . . . . . . . . . . . . 1300 First point: The meaning of mutilation of corpses is: severing any of their limbs or disfiguring them . . . . . 1301 Second point: The texts reported in this regard . . . . . . . . . . . . . . . . . . . . . 1302 - The polytheists' mutilation of the corpses of the Muslims at (Uhud) . . . . . . . . . . . . . . . . . . . 1302 - The mutilation of Hamzah, the uncle of the Prophet ﷺ, what was said in this regard, and the Quran that was revealed concerning it . . . 1302 ¶

- Prohibition of Tamthil (mutilation of a corpse) and Muthla . . . . . . . . . 1303 - . . And do not perform Tamthil . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1304 Third Point: Views of the scholars regarding the mutilation of the enemy's corpses . . . 1304 First View: It was permissible on the condition of reciprocity (Mu'amala bil-mithl), then it was abrogated and became forbidden . . . . . . . . . . . . . . . . . . . . . . . . . . . 1304 Second View: Its ruling is only that of makruh tanzih (disliked but not sinful) . . . 1305 Third View: Permissibility of mutilating enemy corpses if public interest (Maslaha) demands . . . 1306 Fourth View: The view we prefer regarding this issue . . . . . . . . . . . . . . . 1307 - We favor the permissibility of Tamthil on the condition of reciprocity, and that the ruling remains and has not been abrogated, with an explanation of this preference . . . . . . . . . . . 1307 ¶

- Summary of our view on the issue in light of the aforementioned texts! 1 - The principle is that mutilating the corpses of enemies is haram (forbidden), due to the prohibition of doing so . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1310 2 - Tamthil is permissible as an act of reciprocity (Mu'amala bil-mithl) . . . . . . . . . 1310 3 - It is obligatory upon the Prophet (PBUH) to be patient, to refrain from Tamthil, and not to seek revenge for his uncle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1310 4 - It is recommended for Muslims to be patient, to refrain from Tamthil, and not to seek vengeance for those Muslims who have been mutilated . . . . . . . . . . . . . . . . . . . . . . 1310 ¶

Second Section: Autopsy of enemy corpses for medical research purposes . . . . . . . 1311 - From what perspective did the classical and modern jurists (Fuqaha) study this issue? . . 1311 - The Classical Jurists: They studied the autopsy of corpses generally in the context of cutting the abdomen of a pregnant woman to extract the fetus, or cutting the abdomen of a deceased person to extract swallowed valuable items - is this permissible or not? . . . . . . . . 1312 - The Modern Jurists: They studied the issue generally for the benefit of utilizing autopsies in medical research and crime detection . . . . . . . . . . . . . . . . . . . . . . . . 1312 What matters in our research is the following: First Point: Is the autopsy of a corpse a form of Tamthil or not? . . . . . . . . . . 1313 - The reality of autopsy is that it constitutes Tamthil and disfigurement, regardless of whether the intent of the dissector is to disfigure or not . . . . . . . . . . . . . . . . . . . . . . 1951 ¶

Second point: If mutilation (al-tamthil) of enemy corpses is permitted as a reciprocal measure (mu'amalat bil-mithl), is it permissible to utilize this for medical research? (p. 1313). It appears that this is permissible, because obtaining what is beneficial in medical research is a lawful objective in general, and mutilation of enemy corpses as a reciprocal measure is also lawful; therefore, there is no harm in achieving a lawful objective through a lawful means. (p. 1313). ¶

Third point: Is it permissible to mutilate enemy corpses based on public interest (maslaha), just as it is permitted based on reciprocity? (p. 1313). According to the Hanafis and Hanbalis, it is permissible. (p. 1313). According to the Shafi'is, mutilation is permissible but disliked (makruh), without being restricted to public interest. (p. 1313). Since we have linked permissibility to reciprocity—based on our preferred view—we do not see the permissibility of dissecting enemy corpses if they refrain from mutilating the corpses of Muslims. (p. 1314). ¶

Section Three: Burial (Muwara) of Enemy Corpses. (p. 1315) First point: Some views of jurists regarding the burial of enemy corpses from among the belligerents (ahl al-harb). (p. 1315). - In Al-Siyar al-Kabir: The putrefied bodies are to be buried to remove harm/offense. (p. 1315). - In Hashiyat al-Dasuqi: If a dead kafir is found... it is obligatory to bury him... even if he was a belligerent (harbi), though it is said: he may be left for dogs to eat! (p. 1315). - In Fath al-Aziz: Regarding the obligation of burying him, there are two views: first, it is obligatory; second, it is not obligatory, and it is permitted to set dogs upon him. (p. 1316). - According to Al-Farra from the Hanbalis: Whoever among them is killed shall be buried. (p. 1316). - According to Ibn Hazm: Burying the belligerent kafir and others is a duty (fard). (p. 1316). ¶

Second point: The Shariah texts regarding this issue and some comments issued regarding it. (p. 1317). - Regarding casting the polytheist dead into the well at Badr (p. 1318). - The Prophet's (PBUH) command to bury the slain kafir woman. (p. 1319). - The Prophet (PBUH): He would not pass by a human corpse without ordering its burial. (p. 1320). ¶

Third point: The opinion we prefer on this issue: The obligation to bury enemy corpses in war—whenever possible—along with the evidences. (p. 1320). ¶

Fourth Topic: Handing over the bodies of enemies to their owners (next of kin). 1323 If the enemy requests the Muslims to hand over or allow them to collect the bodies of their dead, it is permissible to allow it, but not mandatory; it depends on what the public interest (maslahah) dictates. 1323 ¶

Chapter Three: War activities and various actions between permissibility and prohibition. 1325 ¶

Section One: The ruling on fighting the enemy if they use a human shield of Muslims or non-Muslims. 1327 ¶

First Issue: What is meant by 'tatarrus' (using human shields) in this research? And who are the individuals considered human shields that the enemy uses? 1327 Point One: What is meant by 'tatarrus' (using human shields) in this research? - It is when the enemy takes a group of people as a shield to protect themselves, knowing that their opponent will hesitate greatly to strike them. 1327 - Modern forms that fall under the ruling of 'tatarrus' (human shields). 1328 Point Two: Who are the individuals meant by human shields? Or what are the types of human shields intended in this research? 1329 - They are of two types: 1. A human shield consisting of Muslims, whether they are subjects of the Islamic state whom the enemy has taken hostage, or whether they are not subjects of the Islamic state. 1329 2. A human shield consisting of 'harbi' (belligerent) disbelievers, whom it is forbidden for Muslims to intentionally target in combat, such as women and children. 1329 ¶

Second Issue: The Sharia ruling on fighting an enemy that uses human shields depends on two factors: 1329 A. The nature of the shield being used for protection. 1329 B. Is there a necessity to fight the enemy or continue fighting them in this situation? 1329 Point One: The state of necessity requiring combat, while the enemy is using Muslims as a shield. 1330 - What is meant by the state of necessity that calls for fighting the enemy? 1330 ¶

This refers to: an enemy attack on Muslims, the entanglement of combat, or a significant loss of Muslim lives if fighting were to cease. This is left to the discretion of the authority (sahib al-sulta) based on varying circumstances. [p. 1330] ¶

Ruling in this case: According to the majority (jumhur), fighting the enemy is obligatory; however, Muslims must observe two matters: First, avoiding striking the 'shield' (human shield) as much as possible... except for what happens out of necessity or by mistake. Second, the absence of an inward intention to strike the shield, even if the physical action occurs. [p. 1331] ¶

Another opinion: Fighting here is haram (prohibited)! [p. 1332] ¶

Point two: A state of necessity to fight the enemy, while he is sheltering behind a shield from his own people, such as women. [p. 1334] ¶

Ruling: There is no disagreement among jurists regarding the permissibility of fighting, provided that striking the shield is avoided as much as possible. [p. 1334] ¶

Point three: Where there is no necessity to fight the enemy, and he is sheltering behind a shield consisting of Muslims or those with the same legal status (such as Ahl al-Dhimmah). [p. 1335] ¶

There are two opinions here: An opinion that permits it, even if the shield is harmed (the majority of Hanafis and Malikis). And an opinion that prohibits fighting, in order to protect the shield (Shafi'is and Hanbalis). [p. 1335] It is considered more sound (tarjih) to prohibit fighting in this situation, along with the evidence. [p. 1337] ¶

Point four: Where there is no necessity to fight the enemy, and he is sheltering behind a shield of his own women and children. [p. 1338] ¶

The majority (jumhur): They permit fighting here. The Malikis prohibit fighting! And we prefer the opinion of the majority. [p. 1338] ¶

Second Discussion: The use of weapons that cause harm to non-combatants (Weapons of Mass Destruction). ¶

An introduction regarding weapons in the early period of Islam, the emergence of early modern weapons during the eras of Al-San'ani, Al-Shawkani, and Ibn Abidin—such as rifles and cannons—followed by the emergence of weapons of mass destruction in our modern era. ¶

First Section: Weapons that destroy humans, animals, and vegetation, and demolish buildings—such as nuclear bombs. What is the ruling on using them in war against the enemy? ¶

First Issue: Ancient weapons that destroy manifestations of life and infrastructure, the position of the jurists (Fuqaha) regarding them, and whether modern weapons of mass destruction can be categorized under them. ¶

- Regarding ancient weapons and methods such as: catapults (manjaniq), setting fires, smoke tactics, cutting down trees, destroying crops, demolishing buildings, cutting off water supplies or poisoning them, and releasing insects upon the enemy—there is no disagreement among the jurists regarding the permissibility of using them against the enemy in general, provided that the enemy utilizes such weapons or that victory in battle cannot be achieved without them. Some jurists permitted their use even if victory could be attained without them. This includes Al-Nawawi’s statement on the permissibility of besieging the disbelievers and attacking them with these weapons. ¶

- Discussion regarding the use of fire-based weapons and the Hadith of Habbar bin al-Aswad. ¶

- Our preference for the Shafi'i school of thought, except when there is a greater interest (maslaha) that outweighs the use of these weapons—in which case one must refrain from them. ¶

- Our discussion regarding Al-Shawkani. ¶

- Can modern weapons of mass destruction, such as nuclear bombs and the like, be legally analogized to the ancient weapons and methods that result in death and destruction? ¶

- The answer: Yes, these are analogized to those, etc. ¶

Second Issue: What is the ruling on using weapons of mass destruction against parts of the enemy's territory where those whose killing is forbidden reside, such as Muslims and the enemy's civilians including women and children from among the disbelievers? (Juridical opinions). ¶

A - It is permissible to use them to establish the obligation of Jihad, provided the condition for their use is met, which is the difficulty in overcoming the enemy without using them (Hanafi school) .... 1355 B - It is permissible to use them even if there is no pressing necessity, and even if it is possible to win battles without them, provided that the number of Muslims exposed to destruction in the enemy's land is minimal (Shafi'i school) .... 1355 C - It is forbidden to use them without necessity if Muslims or the children of the disbelievers are exposed to harm. It is permissible to use them if the only targets are the enemy combatants under threat .... 1355 - The verse ﴿If they had been separated, We would have punished those who disbelieved among them with a painful punishment﴾ [Al-Fath: 25] and the discussion regarding it .... 1356 - Our preferred position on this matter .... 1357 Second Section: Weapons of destruction for humans, animals, and vegetation, without destroying buildings and infrastructure, such as neutron bombs, chemical weapons, and biological weapons.. What is the ruling on using them in war? .... 1359 - Answer: It is permissible, like nuclear bombs .... 1359 - The legality of using these weapons does not mean that Islam prioritizes material and urban manifestations over the value of life and humanity - this may be the case in other civilizations. Furthermore, the 'predominant interest' (maslaha rajihah) is a condition for their use .... 1361 Third Topic: Practices of combatants and the position of Shari'ah jurisprudence regarding them .... 1363 Introduction .... 1363 First Section: Delaying prayers from their prescribed times due to war .... 1365 First Point: Jurisprudential opinions on this issue with evidence .... 1365 1 - Hanafis: It is obligatory to delay the prayer from its time when there is a necessity due to being occupied with combat activities .... 1365 2 - The Majority (Jumhur): It is not permissible to delay the prayer from its time due to being occupied with war; rather, it must be performed in whatever way possible .... 1367 ¶

The majority's evidence that prayer is valid however possible, even while engaged in warfare such as fighting and movement, etc. ... 1368 'If you fear, then pray on foot or riding' [Al-Baqarah: 239] (The hadith of Abdullah bin Unays and his performing prayer while walking during the mission to kill Khalid bin Sufyan al-Hudhali) ... 1370 (The prayer of the Muslims during the era of the Companions, in a state of fear, while on mounts, and the disapproval expressed towards al-Ashtar for dismounting and praying on the ground, thereby contradicting the congregation of the Muslims) ... 1370 - The majority's response to the Prophet (PBUH) delaying several prayers on the Day of the Trench (Khandaq) ... 1371 - The Hanafis: The Battle of Dhat al-Riqa', in which the prayer of fear (Salat al-Khawf) was performed, took place before the Trench, and prayer was delayed therein ... 1371 Second Point: The opinion we prefer regarding the issue ... 1373 1 - When fearing the enemy, there are two types of prayers: A - Salat al-Khawf, performed in congregation in specific formats, and this type was approved by the majority of jurists, including the Hanafis. B - Salat Shiddat al-Khawf (prayer of intense fear), in which one is occupied with acts of war and movement... The Hanafis rejected this and made it mandatory to delay the prayer for this reason ... 1373 We prefer the legitimacy of both prayers ... 1374 2 - We prefer the view that Salat al-Khawf was legislated before the Trench, because the Battle of Dhat al-Riqa' preceded it ... 1374 3 - It was not reported that the Prophet (PBUH) performed the prayer of intense fear at the Trench; rather, he delayed several prayers there ... 1376 4 - The Prophet (PBUH) ordered the Companions not to pray Dhuhr or Asr except in Banu Qurayza, and some performed them after the time had elapsed ... 1377 5 - During the siege of (Tustar), the army delayed the morning prayer until after sunrise, and among them were a number of the Companions ... 1378 - After all that has been presented, we prefer the following: - In a state of war, the prayer of fear or the prayer of intense fear is permissible at its appointed times, provided it does not lead to harm ... 1379 ¶

It is permissible to delay prayers from their prescribed times, and they are to be performed as qada (make-up) afterwards. It is permissible for Islamic leadership to order fighters not to be preoccupied with prayer to the exclusion of necessary war tasks if military exigencies demand it. Among contemporary scholars who advocate for the delay of prayer due to war are Sheikh Muhammad al-Ghazali and Dr. Wahbah al-Zuhayli. ¶

Second Section: The method of abduction directed against citizens of hostile states and taking them as hostages. First Point: Is the method of abducting enemy nationals, whether individuals or groups, through any means, considered a legitimate method in Islam? What is its status from a Shariah perspective? And what are the limits of its legitimacy? - Said abduction is a legitimate act because it is an act of war. - Its reality is the forceful or sudden capture of belligerent infidels (kuffar muharibun) and holding them captive. - The limits of the legitimacy of abduction and taking them as hostages or prisoners are that they must not belong to the following categories: 1. Ambassadors of states (evidence for this exists). 2. Those from belligerent states who entered the Dar al-Islam (Abode of Islam) through a legitimate method. 3. Nationals of states that have peaceful treaties with the Muslims. 4. Nationals of belligerent states if they are residing in countries that have peaceful treaties with the Muslims. 5. Individuals or groups that have not yet been reached by the Islamic call (Da'wah), or have been reached but are still within the period granted to them to study the call, and have not yet made an official decision regarding it. - The method of abduction is subject to the authority of the leader in the Islamic state; he may prohibit it, or determine its scope and objectives according to the requirements of the public interest (maslahah). ¶

Muslims who are subjects of other states are permitted to use the tactic of kidnapping against those who have declared war against them in their own lands, and the Islamic state is not responsible for their actions, even if it is linked by a peace treaty with their states. (The group of Abu Basir...) 1389 Second Point: Some objectives sought by resorting to this tactic, based on the events mentioned in the books of Sunnah and Prophetic Biography: 1389 1- The kidnapping of several people from Quraish by the Companions at Hudaybiyyah... before the peace treaty was concluded. 1390 2- The kidnapping of several people from Quraish by the Companions at Hudaybiyyah... after the peace treaty was concluded, and the killing of the Companion (Ibn Zunaym). 1390 3- The kidnapping of (Thumamah ibn Uthal). 1392 4- The kidnapping of (al-Uqayli), the companion of the Hajj caravan leader! 1395 5- The kidnapping of some young servants belonging to Quraish, just before the Battle of Badr. 1396 - Conclusion: The legitimacy of kidnapping and taking hostages for various purposes: military, peaceful, security-related, ethical, scientific, material... or any other legitimate purpose. 1397 Third Topic: Suicide or martyrdom operations - What is the Shariah ruling on them? 1399 - First Category: That which is undoubtedly considered accepted martyrdom (Istishhad). 1399 - A Muslim individual, or a small group, resolves to attain martyrdom while confronting a large number of enemies... for a legitimate interest. 1399 - The martyrdom of seven of the Ansar in the presence of the Prophet (PBUH) at (Uhud). 1400 - Second Category: That which requires a detailed ruling, depending on the circumstances in which these operations take place, such as whether a necessity exists for carrying them out or not. This includes a fighter wrapping themselves in a belt of explosives. 1401 - A: If necessity dictates, it is permissible. 1401 - B: If there is no necessity, it is not permissible. 1402 - Third Category: That which falls under the category of forbidden suicide (Intihar). 1403 ¶

Such as a fighter resorting to suicide to avoid falling into enemy hands, or to escape existing or anticipated torture. 1403 - A discussion with Sheikh Hassan Ayyub on the potential permissibility of suicide in this case. 1404 - Escaping suffering through suicide—this is among the 'nullified interests' (al-masalih al-mulghat) in Islamic Shariah. 1404 - Fourth Type: Actions involving suicidal or 'istishhadi' (martyrdom) operations regarding which viewpoints differ. 1406 Such as a fire breaking out on the fighters' ship, and them jumping into the water without knowing how to swim. 1406 - Jurists' opinions on this: Some say there is no harm in it; others say it is not permissible. 1406 - My view on this matter: 1407 - If their intention is to escape the fire, there is no harm, even if they have no hope of survival by jumping into the water. - If their intention is suicide and to hasten death by drowning, then it is not permissible. 1408 Fourth Discussion: Violation of the honor of the 'Ahl al-Harb' (people of war)—does this fall under the general permissibility of their lives, honor, and property? 1411 - The violation of honor here refers to permitting zina (adultery/fornication) with the women of the combatant kuffar. 1411 - The intention behind the general permissibility of their honor in the context of combatant kuffar is taking their women as captives (sabaya) and the fighters cohabiting with them just as one cohabits with wives. 1411 First Point: Is it permissible to commit zina with the women of the combatant kuffar? 1412 First: The Shariah ruling on zina—it is among the major sins (kaba'ir), with evidence provided. 1412 Second: Is there any ambiguity regarding the permissibility of zina with the women of the combatant kuffar? - '...nor do they tread any path that enrages the disbelievers, nor do they inflict any injury on an enemy...' [At-Tawbah: 120]. 1413 Al-Suyuti narrated from Abu Hanifa that he used this verse to argue for the permissibility of zina with the women of the people of war, within Dar al-Harb. 1414 Third: The truth regarding this matter. 1414 ¶