War, Islam, and the Sanctity of Life: Non-Aggression in the Islamic Code of Combat

You will find a people who claim to have totally given themselves to God. Leave them to what they claim to have given themselves… Do not kill women or children or an aged, infirm person. Do not cut down fruit-bearing trees. Do not destroy an inhabited place. Do not slaughter sheep or camels except for food. Do not burn bees and do not scatter them. Do not steal from the spoils, and do not be cowardly.

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The Prophet ﷺ himself set this precedent in a number of his actions and directives. On one occasion, after a woman was found to have been killed in the battle, the Prophet ﷺ “condemned” the killing of women and children.

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In another narration, the Prophet ﷺ explained his condemnation by saying, “She was not fighting,” demonstrating non-combatant immunity, and he further commanded his companions not to kill workers.

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The message of non-aggression was even written on the Prophet ﷺ’s sword as a reminder to all, “Verily, the worst of people in insolence are those who strike at whoever did not strike them, a man who kills those who did not fight him.”

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 There are many narrations and traditions like these that emphasize protecting the lives of civilians and noncombatants.

In light of this principle, an additional rule of engagement must be emphasized: Transgressing the limits is prohibited.

On the battlefield, the old, the weak, women, children, monks, laborers, and other civilians cannot be targeted unless they forfeit that immunity by fighting themselves. Even then, force is authorized only in proportion to the threat, so killing them should be avoided if at all possible.

Two more rules outlaw cruelty against combatants and destruction of property: 1) Mutilation and torture are prohibited; and 2) Destruction of crops, trees, livestock or civilian infrastructure is not permissible except in certain limited circumstances (explored later on).

These very principles were affirmed by Article 3 of the Cairo Declaration of Human Rights, issued and adopted at the Nineteenth Islamic Conference of Foreign Ministers in Cairo in 1990, which was based on traditional Sharia (or principles of Islamic Law):

a) In the event of the use of force and in case of armed conflict, it is not permissible to kill non-belligerents such as old men, women and children. The wounded and the sick shall have the right to medical treatment; and prisoners of war shall have the right to be fed, sheltered, and clothed. It is prohibited to mutilate dead bodies. It is a duty to exchange prisoners of war and to arrange visits or reunions of the families separated by the circumstances of war.

b) It is prohibited to fell trees, to damage crops or livestock, and to destroy the enemy’s civilian buildings and installations by shelling, blasting or any other means.

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Thus, the Quran and Sunnah clearly provide stringent protections for noncombatants during warfare. Civilians may in no way be intentionally targeted. The Quran emphasizes this rule by saying, “Do not transgress, for God does not love transgressors.” In other words, fighting is limited to combatants—those who are engaged in fighting—and killing anyone besides them is a prohibited transgression hated by God according to Islamic Law. Unsurprisingly, these rules are consistent with Walzer’s modern theory.

The Quran is very clear about the gravity of taking innocent life:

On account of [his deed], We decreed to the Children of Israel that if anyone kills a person—unless in retribution for murder or spreading corruption in the land—it is as if he kills all mankind, while if any saves a life it is as if he saves the lives of all mankind.

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Here, the Quran makes a prohibition and an order simultaneously. It declares that taking an innocent human life is tantamount to mass murder, for approving one murder is to morally approve of every murder. At the same time, the verse makes it permissible for the state to use the death penalty under the strictest of conditions (discussion of which is beyond the scope of this article). Nonetheless, the enormity of killing a single person should give every believer pause if its legality is disputable, as the Prophet ﷺ said, “The most restrained of the people regarding killing are the people of faith.”

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The Quran is also deliberately worded towards protecting all life, including the lives of non-Muslims. It does not say, “If anyone kills a Muslim, it would be as if he killed all mankind.” Rather, the word used in Arabic is nafs, meaning “a soul” or “a life,” regardless of faith or ethnicity or any other identity trait. The murder of any life is tantamount to mass murder and a crime against humanity (in the literal sense); it is absolutely prohibited in the strongest terms.

However, the Quran clearly makes it permissible to kill combatants during warfare. According to just war theory, as outlined by Walzer, enemy combatants may legitimately be killed at any point, even when they are unarmed, as long as they are not wounded or captured.

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 He makes a detailed case that it is legally and morally justified to kill enemy soldiers at any point during warfare and that even when not actively engaged in fighting at the time, designated soldiers do not regain their right to life.

In the same vein, the Quran too considers the killing of enemy soldiers during a war to be legitimate, which is the context of the verse, “Kill them wherever you encounter them, and drive them out from where they drove you out, for persecution is more serious than killing.”

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 This verse was revealed after the signing of the Hudaybiyyah treaty when Muslims were about to embark on a pilgrimage to Mecca. They did not know how to react if they were met with aggression. Were they allowed to fight back against those who attacked them? Were they allowed to take back land and property wrongfully taken from them by force?

This verse answered those questions. Namely, that it is permissible to attack and kill the combatants with whom you are at war and also to reclaim wrongfully taken land and property using proportional force. It would be entirely misleading to cite the clause “Kill them wherever you find them” without reference to the surrounding verses or the historical and legal context. Often some non-Muslims and even Muslims misquote this verse to justify their own agendas as if the Quran was inciting wanton violence. However, this verse is very clear when interpreted within its proper context. It defines important limits in warfare. It does not permit the unrestrained killing of people “wherever you find them.”

The Quran ends this verse by saying “this is what such disbelievers deserve,” referring to the idolaters who attacked the Muslims in Mecca. It should be noted that this clause does not make it permissible to kill non-Muslims simply because of their non-belief in Islam, as the previous verse only permitted attacking those who attacked first. Noncombatant men, women, children, elderly and so on were never targeted by Prophet Muhammad ﷺ’s army. In fact, Mecca was eventually liberated from the oppressive Quraish aristocracy and not a single drop of blood was shed, despite the fact that many of the idolaters who had persecuted Muslims for years were now vulnerable. They were all pardoned except for a few of the worst war criminals.

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Finally, the relevant passage ends with the following mitigating qualifications:

But if they stop, then God is most forgiving and merciful. Fight them until there is no more persecution, and worship is devoted to God. If they cease hostilities, there can be no [further] hostility, except towards aggressors. A sacred month for a sacred month: violation of sanctity [calls for] fair retribution. So if anyone commits aggression against you, attack him as he attacked you, but be mindful of God, and know that He is with those who are mindful of Him.

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A concise picture of just war theory comes into focus. The passage reiterates the reason for fighting: to bring an end to aggression and oppression. That “worship is devoted to God” means that God’s law of justice is upheld and the natural rights of all are protected. It does not require people to actually embrace Islam individually, but only that they uphold social justice consistent with Islamic and humanitarian values.

Moreover, if enemies desist in their fighting, such as when a soldier surrenders or a state calls for a peace treaty, then their peace offering should be accepted without any retribution (except for individuals guilty of war crimes). As the Quran states elsewhere, “But if they incline towards peace, you [Prophet] must also incline towards it, and put your trust in God.”

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Even individual combatants must be granted asylum if they request it, “If any of the idolaters should seek your protection [Prophet], grant it to him so that he may hear the word of God, then take him to a place safe for him, for they are people with no knowledge [of it].”

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The Quran emphasizes that peace should be made with the enemy, regardless of their faith or race or any other characteristic of their identity. Peace is always preferred as long as the enemy inclines towards it and quits its aggression. At that point, there is no authorization for hostility except against those who continue their aggression or who have committed war crimes. Furthermore, if an enemy combatant seeks refuge, Muslims are ordered to grant him it.

That being said, we can affirm the following rules of engagement:

• War is allowed only to end aggression or persecution.
• Peace offerings should be accepted on their face.
• Enemy soldiers who surrender should not be harmed.

Now that the basic foundation of just war has been established, we will move on to discuss its details.

Prisoners of War (POWs)

As proven earlier, enemies who surrender or stop fighting must be given safety. The Quran declares that giving charity to prisoners of war is on par with feeding the poor and needy, saying of the believers, “They give food to the poor, the orphan, and the captive, though they love it themselves.”

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According to the earliest exegete Al-Ṭabari, the “captive” in this verse is “the combatant from the land of war who has been taken by force in victory… Thus, God praised these righteous people for their feeding of these [prisoners], seeking closeness to God and His pleasure by that, and their mercy for them.”

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In other words, the early believers gave up their own food, which they desired, to the same prisoners who had previously been attacking them.

Islam prescribed an ingenious solution to the dilemma of what to do with prisoners of war. This dilemma has troubled states since the dawn of time and continues to cause moral predicaments in the modern world, as seen in the military prisons of Abu Ghraib and Guantanamo Bay. Walzer addresses this issue, writing:

A soldier who surrenders enters into an agreement with his captors: he will stop fighting if they will accord him what the legal handbooks call “benevolent quarantine”… Prisoners of war have the right to try to escape—they cannot be punished for the attempt—but if they kill a guard in order to escape, the killing is not an act of war; it is murder. For they committed themselves to stop fighting, gave up their right to kill, when they surrendered.

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While this sounds ideal, it is vague and rarely put into true practice today. What exactly constitutes “benevolent quarantine”? How long should prisoners be imprisoned? How can they attain their freedom?

Throughout history there have been a few standard options regarding the treatment of prisoners of war:

Execute Them 

Plain and simple, and perhaps the quickest and easiest solution for captors. This, of course, is morally reprehensible except as a legal punishment for bona fide war criminals. Execution as a general prescription is against both Islamic and modern just war principles.

Imprison Them 

This action is compatible with Islam and just war theory on the condition that prisoners are not mistreated. The disadvantage of this system, even when instituted appropriately, is that it hurts both the captives and captors. For the captives, it forces them to be locked up indefinitely, where they can neither benefit themselves nor society. For their captors, it imposes hardship on their society as they must pay for the prisoner’s shelter, food, medical treatment, and guards, among other things. Logistically, without the resources to construct mass systems of incarceration with appropriately staffed and furnished buildings, this would have been impossible to implement in the aftermath of a large battle. In historical practice, it has been rare that prisoners were held in ideal conditions. They were often subject to inhumane treatment with no clear end in sight but escape or execution.

Release Them 

This is the most generous solution, but it is entirely impractical and can even be dangerous. If your enemies know that they will merely be released whenever they are captured, they know that they can later regroup and attack you again.

Since none of these solutions are morally or practically viable as a general rule, Islam took an existing practice and humanized, transformed, and reformed it: the system of ruq, or bondage, sometimes incorrectly equated with chattel slavery. Each prisoner was assigned to one household of the Muslim community. That household was responsible for providing the bondsman with adequate shelter and the same quality of food and clothing shared by all members of the family. The bondsman, in turn, would assist the family with routine chores and labor. This relationship would continue until the bondsman was ransomed by his own community, he was freed by his caretaker, or he bought his own freedom. In this way, the prisoner made use of his time and benefited himself and society without being mistreated or being a burden on society. In addition, the requirement for monetary payment to be freed served as a deterrent to enemies.

The Islamic system certainly qualifies as “benevolent quarantine” in modern just war theory. The prisoner is protected from abuse and given the same quality treatment and living standards as the household master he is assigned to live with. The prisoner is also is able to pay back this good treatment with his labor, so as not to disadvantage the community.

In order to ensure the objectives of this system, the Prophet ﷺ imposed several rules and restrictions on bondage. The caretaker could not change the name of his bondsman and thereby do violence to his family lineage. The bondsman needed to be given the opportunity to work towards purchasing their own freedom, as the Quran states, “If any of your bondsmen wish to pay for their freedom, make a contract with them accordingly.”

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The bondsman had to be treated as an equal, his natural rights respected, and not be burdened with too much work. One of the companions, Abu Dharr, was seen wearing the same clothing as his bondsman. When he was asked why, he said that the Prophet ﷺ once censured him for abusing his bondsman, saying:

They are your brothers and sisters. God has placed them in your hands. Whoever has his brother under him should feed him with the same food he eats, clothe him with the same clothes he wears, and not burden him beyond his ability. If you burden him, then help him.

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Freeing bondsmen is also greatly rewarded by God and is even required for the expiation of many sins. The Quran describes the path to salvation as “to free a bondsman.”

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The Prophet ﷺ encouraged freeing captives in general, whenever possible, saying, “Feed the hungry, visit the sick, and set the captives free.”

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He also made it a rule that simply slapping a bondsman or servant in a humiliating way necessitated their freedom, “Whoever strikes his bondsman without limit or slaps him, then the expiation for the sin is to emancipate him.”

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As can be seen from the above restrictions, the system of bondage in Islam was designed to integrate prisoners of war as productive members of society. Sometimes bondsmen would convert to Islam when receiving such graceful treatment. The sign of Islam’s truth is the fact that so many of its former enemies, like Umar ibn Al-Khattab and Abu Sufyan, eventually came to accept it willingly.

The bondage system was so successful in many cases that entire classes of bondsmen or their children achieved high social status and even became rulers in the Muslim world, such as the Mamluks (“those who were owned”) in the Ottoman Empire. This system, unfortunately, has been unfairly characterized as equivalent to how Native Americans and Africans were treated by their European and American slave masters. These slaves were usually given no or little rights, mistreated, ruthlessly beaten, and sometimes killed. But the similarity between “slavery” in Islam and the European/American slavery system is only in the name people have given to it.

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Bondsmen under Islamic law were under control for completely different reasons, as prisoners of war rather than because of their race. Prisoners in Islam were treated far better and given the opportunity for upward social mobility. Furthermore, as mentioned, Islam encouraged and facilitated the freeing of bondsmen.

The Islamic system, in fact, can be a fair and benevolent alternative to the treatment of prisoners in modern times. It could be argued that the Western standard for how prisoners of war are treated—as seen at Guantanamo Bay and other “black sites”—is in reality much less humane than the traditional Islamic system.

Double Effect

In war, sometimes military actions must be taken that will invariably take civilian lives and destroy property. Can such actions be considered just?

The doctrine of “double effect” takes into consideration that any military action might have two elements, a positive effect and a negative effect, with the positive effect being what is intended. A negative effect can be justified as the lesser of two evils. Walzer asserts that this doctrine is the basis for accepting a reasonable degree of collateral damage:

[I]t is permissible to perform an act likely to have evil consequences (like the killing of noncombatants) provided the following four conditions hold: 1) The act is good in itself or at least indifferent, which means, for our purposes that it is a legitimate act of war. 2) The direct effect is morally acceptable—the destruction of military supplies, for example, or the killing of enemy soldiers. 3) The intention of the actor is good, that is, he aims only at the acceptable effect; the evil effect is not one of his ends, nor is it a means to his ends. 4) The good effect is sufficiently good to compensate for allowing the evil effect; it must be justifiable under Sidgwick’s proportionality rule.

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In other words, Walzer argues that it is just and acceptable to take military actions that may have harmful unintended consequences, like the deaths of civilians, as long as the initial act is legitimate and the positive outcome (repelling a threat) is the primary motive. The evil consequence must not be the purpose and aim of the action and, importantly, the evil effects must be sufficiently outweighed by the positive outcome(s) of the action.

This understanding is consistent with Islamic law principles that allow a greater harm to be removed by a lesser harm, to attempt to calculate as much as possible the net benefit and harm of an action. As a rule, it was clear that the Prophet ﷺ absolutely forbade the intentional targeting and killing of civilians in all circumstances, particularly women and children. Even so, due to the generally accepted principle of military necessity and choosing the lesser of two evils, as limited by the four conditions of double effect, the Prophet ﷺ conceded to the permissibility of taking military action when it might result in harm to civilians, but only if such actions were necessary and unavoidable.

The condition remained that civilians could not be targeted purposefully, but legitimate military actions realistically expected to result in collateral damage need not be prohibited altogether. Of course, this does not justify direct attacks against civilians or any action that is likely to cause disproportionate harm. This understanding was expressed by Imam Muslim in a chapter of his entitled, “Permissibility of killing women and children in night raids if it is not deliberate.” He cites an incident in which the Prophet ﷺ conducted a night raid against the enemy and some women and children were found later to have been killed accidentally. The Prophet ﷺ was asked about them and he said, “They are from them.”

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It was considered the fault of the enemy for putting their civilians in proximity to a legitimate military target.

This incident established the principle of military necessity in Islam, as limited by the conditions of double effect. Though the killing of noncombatants is terribly reprehensible, it may at times be unavoidable while taking action to push back against the enemy’s aggression. If the prohibition of killing civilians was absolute in each and every circumstance, even when unavoidable and unintended, it would essentially allow the enemy to use human shields to advance their campaign. No reasonable military leader would accept such a disadvantage. To be clear, this concession may not be stretched to the point of directly targeting civilians or causing disproportionate destruction. Islam and just war theory do not allow the concept of the “greater good” to be manipulated for demonstrably evil results.

Under the same principle of military necessity and double effect, Islam generally prohibits the destruction of enemy fields, farms, and infrastructure, as mentioned by the command of Abu Bakr cited previously. However, this rule too is subject to the principle of double effect. The Quran permitted the burning of enemy trees if necessary, yet at the same time did not obligate or recommend such tactics, “Whatever you may have done to [their] palm trees—cutting them down or leaving them standing on their roots—was done by God’s leave, so that He might disgrace those who defied Him.”

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This verse revealed regarding a specific Jewish tribe in Medina, Banu Nadir, who had betrayed the Muslims in violation of the Medina Charter by aiding the Quraysh’s war efforts. It was not an attack on them simply because they were Jewish. During the attack, it was suggested that their palm trees, which offered Banu Nadir protection and resources to continue fighting, should be burnt down. The Muslims disagreed over whether this action should be taken, but the verse validated an attack on their palm trees. It was an action that was normally prohibited, but which became lawful due to necessity.

As a result of this verse, the Muslim scholar Shaykh Ibn Humam rules that attacking enemy plant life and infrastructure is legitimate during war “only if the enemy cannot be vanquished or overpowered without resorting to the above measures.”

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 Once again, a normally prohibited action is only allowed as a concession to military necessity. The concession is not something good in itself, rather it is only made permissible when the only alternative is worse.

The unlawful expansion of such concessions, to the point of intentionally causing wanton death and destruction, is the essence of terrorism to which we now turn our attention.

Link : https://yaqeeninstitute.org/read/paper/war-islam-and-the-sanctity-of-life-non-aggression-in-the-islamic-code-of-combat