IHL AND ISLAMIC LAW

♥
Muhammad Mushtaq Ahmad

The main object of International Humanitarian Law (IHL) is to limit

suffering during war. The rules of IHL, according to the International
Court of Justice, are “elementary considerations of humanity”.1 The
fundamental rules and principles of IHL can be summarized as
follows:
 Restrictions on the means and methods of warfare;
 The principle of proportionate use of force;
 Inviolability of civilian and non-combatant population and
property; and
 Protection of the wounded, sick, ameliorated and captured
combatants.2
In this paper a brief description of the rules of Islamic Law about
these issues has been given.

PART I: JIHAD – ITS MEANING AND SCOPE

The word “Jihad” is derived from the basic root of j-h-d, which
means struggle or endeavour3. Jihad, in turn, means to strive hard;
to forbear hardships for a great cause. In the legal lexicon of Islam,
the term Jihad has two meanings, one narrower and the other wider.
In wider sense, it covers every activity and struggle for making the


Lecturer, Faculty of Shariah and Law, International Islamic University, Islamabad
1
The Corfu Channel Case, 1949 ICJ Rep 4
2
See for details: Best, Geoffrey, Humanity in Warfare (Melthve & Co. Ltd. London,
1983); Claude, R. and Weston, B., “Human Rights in the World Community”
(University of Pennsylvania Press, 1992); Roberts, Q. & Gueff R., Documents on
the Laws of War (Oxford, 1982); Manner, George, “The Legal Nature and
Punishments of Criminal Acts of Violence Contrary to the Laws of War”, 27 AJIL
July 1943; Wells, Donald, War Crimes and the Laws of War (University Press of
America, 1984); Muhammad Munir, Non-Combatant Immunity in Islamic Law and
Public International Law (Unpublished LL.M. Thesis, Faculty of Shariah and Law,
International Islamic University, Islamabad, 1996).
3
Ibn Manzur, Lisan al-‘Arab, (Cairo: Dar al Hadith, 2003), vol. 2, p. 24o-41; Hans
Wehr, A Dictionary of Modern Written Arabic, (London: Macdonald and Evens Ltd.,
1974) p 233

1
Word of God supreme. It even includes one’s efforts for purification
of his soul, mujahadah. In this sense, it also includes Ijtihad i.e.
striving hard to find out and ascertain the intent of the Lawgiver.4
In its narrower sense, Jihad is used in the meaning of Qital (war) i.e.
war for the purpose of making the Word of God supreme.5
In the Qur’an we find both usages of the term. In the chapters
(suwar) of the Qur’an that were revealed before the Prophet’s
migration to Madinah, the root J-h-d is used in its wider sense.6 The
word ‘Jihad’ is used even to denote the overall missionary struggle. 7
In the chapters of the Qur’an that were revealed after the Prophet’s
migration to Madinah, the root J-h-d more often than not is used to
denote Qital.8
Muslim scholars through the ages have maintained by consensus
that Jihad is not confined to armed struggle. There is no notable
scholar who denies this. Even scholars who are generally considered
‘radical’ such as Ibn Taymiyah have acknowledged this wider
doctrine of Jihad. Elaborating the meaning of Jihad Ibn Taymiyah
states:

“Jihad is either performed by heart, such as the intention to offer every

sacrifice; or through preaching and calling towards the religion of Islam;
or making the Truth clear to the wrongdoers and answering their
objections and questions; or planning and devising means for the
benefits of Islam and Muslims; or by taking part in actual combat. So,

Jihad is obligatory through any possible means.”9

It is also evident that Muslims scholars have been using Jihad as

equivalent to Qital. So, for instance, in classical works on Hadith and
Fiqh “Kitab al-Jihad” means the Chapter that deals with the jus ad

4
Khudrawi Deeb, A Dictionary of Islamic Terms, (Beirut: Al-Yamanah Publishing,
1995), p.74-75
5
Ibid.
6
See, for instance, Qur’an, 29:69
7
Qur’an, 25: 52
8
Qur’an, 9:86
9
Ibn Taymiyah, Taqi al-Din Ahmad, al-Siyasah al-Shar‘iyah, (Beirut: Dar al-Fikr,
1983), p 238

2
bellum and jus in bello of Islam. Some books (such as al-Jami‘ al-
Sahih of Bukhari) use the phrase “Kitab al-Maghazi” or the Book of
Wars. It is also well known that the term Maghazi or Ghazwah
denoted the wars in which the Prophet personally took part.
Another related term is “al-Siyar” (such as al-Siyar al-Saghir and al-
Siyar al-Kabir of Muhammad b. al-Hasan al-Shaybani). Siyar is the
plural of Sirah, which literally means conduct, but technically
denotes biography of the Prophet or his conduct. The books that
dealt with the Islamic jus ad bellum and jus in bello were given the
name of Siyar because these rules were based on the Prophet’s
conduct during his wars against his opponents.10 It is also well
known that the earlier treatises on the Sirah of the Prophet were
called Maghazi (such as Maghazi Ibn Ishaq).
Like every obligatory act in Islamic Law, Qital becomes obligatory
when the “cause” (‘illah) of obligation is found, all the prerequisites
(shurut) are fulfilled and there remains no legal obstacle (mani‘).11
For instance, when Muslim population of a non-Muslim state is
target of religious persecution the cause of obligation is found.
However, Qital will become obligatory on Muslims living in Islamic
State only when all the prerequisites are fulfilled such as having
fulfilled some minimum standard of capability (istita‘ah). Not only
that, there must not be any legal obstacle such as having a peace
treaty with the concerned non-Muslim state.12
10
Al-Sarakhsi, Muhammad b. Abi Sahl, Sharh al-Siyar al-Kabir, (Lahore: Maktabah
Madaniyah, 1987), vol. 1, p 16
11
John Austin conceived law as “the command of sovereign”. H.L.A. Hart, on the
other hand, stressed upon the union of primary and secondary rules. Primary
rules are obligation-creating rules, while secondary rules are “right-conferring”
rules. These secondary rules include the ‘rules of recognition’, ‘rules of change’
and ‘rules of adjudication’. Professor Imran Ahsan Khan Nyazee sees something
similar in Islamic Law. He says that wujub (obligation), nadb (recommendation),
karahah (disapproval) and tahrim (prohibtion) are primary rules. Ibahah
(permissibility) is a right-conferring rule. Shart (condition), sabab (cause) and
mani‘ (obstacle) are secondary rules that facilitate the working of ahkam
taklifiyah or the primary rules. Law about an obligation can only be understood if
these primary and secondary rules are considered together. (See for details:
Nyazee, Theories of Islamic Law, Islamabad: Islamic Research Institute, 1994, pp
103-08)
12
See for details: Muhammad Mushtaq Ahmad, Use of Force for the Right of Self-
determination in Shari‘ah and International Law – A Comparative Study,
Unpublished LLM Thesis, Faculty of Shariah and Law, International Islamic

3
Majority of the Muslim jurists was of the opinion that the cause of
Jihad is not kufr (disbelief) but muharabah (aggression).13 Burhan al-
Din al-Marghinani, the author of the famous Hanafi text al-Hidayah,
states:

“Mere disbelief [in Islam] does not of itself legalise killing. Rather, it
is muharabah (aggression) that makes it permissible to kill the
muharib (aggressor). That is why, it is not allowed to kill women,
children, people of old age, handicapped and others who do not
have capability to fight.”14

Moreover, if kufr were the cause of Qital then Islamic Law would not
have given protection to non-Muslim citizens of Islamic State. And
above all, if kufr is considered the casue of war, it leads to
compulsion in matters of religion and it thus violates the basic
Qur’anic dictum “There is no compuslion in matters of religion.”15
So, Muslims should fight only with those who commit aggression
against them. Sarakhsi, one of the greatest jurists of all times16,
states:

“The purpose [of the obligation of Jihad] is to protect Muslims [from

their opponents] so that they may be able to live good worldly life in
accordance with their religion.”17

University, Islamabad, 2006, pp 200-206.

13
Ibn al-Humam, Fath al-Qadir, vol. 4, p 291; Sahnun, ‘Abd al-Salam b. Sa‘id al-
Tanukhi, al-Mudawwanah al-Kubra, (Damascus: Dar al-Fikr, 1966) vol. 3, p 6; Ibn
Taymiyah, Risalat al-Qital, p 116. Some of the Shafi‘is and Hanbalis considered
kufr (disbelief in Islam) to be the cause of Jihad. (Ibn Rushd, Abu al-Walid
Muhammad b. Ahmad, Bidayat al-Mujtahid, vol. 1, p 371)
14
Al-Marghinani Burhan al-Din ‘Ali b. Abi Bakr, al-Hidayah fi Sharh Bidayat al-
Mubtadi, (Beirut: Dar Ihya’ al-Turath al-‘Arabi), vol. 2, p 380
15
Qur’an 2: 256 See for a scholarly analysis of this issue: Muhammad Munir,
Public International Law and Islamic International Law: Identical Expressions of
World Order, Islamabad Law Review, 1: 3 & 4, Faculty of Shariah and Law,
Inetrnational Islamic University Islamabad, 372.
16
Abu Bakr Muhammad b. Abi Sahl al-Sarakhsi was one of the most renowned
Hanafi jurists. He wrote an outstanding commentary, al-Mabsut, on al-Kafi of al-
Hakim al-Shahid. Al- Kafi is the summary of the six basic texts of the Hanafi
School written by Muhammad bin al-Hasan al-Shaybani. Sarakhsi also wrote a
commentary on Shaybani’s al-Siyar al-Kabir.
17
Sarakhsi, Al-Mabsut, (Beirut: Dar al-Ma‘rifah, 1978), vol. 10, p 28

4
PART II: GENERAL PRINCIPLES FOR THE CONDUCT OF JIHAD
Islamic Law acknowledges the principle of reciprocity. Thus, for
instance, fighting in the Inviolable Place (al-Masjid al-Haram) is
initially prohibited. But Qur’an allows it in reciprocity and within the
limits of necessity.18 In the same way, fighting in the Sacred Months
(al-Ashhur al-Hurum) was initially prohibited but Muslims were
allowed to take up arms in self-defence if the opponents attack
them violating the sanctity of the Sacred Months.19 The fuqaha’
have used the principle of reciprocity on a much larger scale. So,
even the rates of tarrif and custom duties were determined on the
basis of reciprocity.20
But reciprocity alone cannot justify deviation from the norms of the
Shari‘ah.21 It is only under the doctrine of necessity that deviation
from the norms of the Shari‘ah becomes permissible. Hence, the
doctrine of necessity goes hand in hand with that of reciprocity.
Necessity is also an acknowledged principle of the Shari‘ah. For
instance, eating carrion is generally prohibited. But it becomes
permissible in necessity.22 There are several sub-principles related
to this general principle. For instance, “Necessity should be kept
within its limits.”23 It means that what became permissible due to
necessity remains so only up to the limit of necessity. Some other
related principles are:

18
Qur’an 2:191
19
Qur’an 2:194 There are other verses as well that acknowledge this principle.
(Qur’an 2:190-91 and 9:36)
20
Sarakhsi while commenting on the rates of custom duties and tariffs on borders
remarked: “The matter between us and the non-Muslims is based upon
reciprocity. So much so that if they take from us 1/5th we will also take 1/5th, and if
they take 1/10th we will take 1/10th.” (Sharh al-Siyar al-Kabir, vol. 3, p 134)
21
Professor Imran Ahsan Khan Nyzaee, an authority on the classical Hanafi texts,
states: “[A]lthough reciprocity is an acknowledged principle of Islamic law, no rule
of reciprocity can set aside, suspend, or permanently remove a fundamental rule
of the Shari‘ah.” (Islamic Law and Human rights, Islamabad Law Review, Faculty
of Shariah and Law, International Islamic University Islamabad, Spring/Summer
2003, Vol. 1:1 & 2, p 30)
22
Qur’an 2: 173
23
Commission of Ottoman Jurists, Majallat al-Ahkam al-‘Adliyah, (Lahore: Idarah
Islamyat, 1981), Maxim no. 22

5
 “A wrong is not avoided by another of the same kind.”24
“What becomes lawful for a reason becomes unlawful when such
reason disappears”.25

These along with the principle of necessity give rise to the principle
of proportionality.
Moreover, the jurists allow the parties to the conflict to agree on
certain rules for the conduct of warfare. Shaybani, the father of
Muslims International Law, mentions many fictitious cases of this
kind,26 which shows that it was a common practice in those days to
agree what not to do in the conduct of war.27 Acts prohibited under
treaties are forbidden only so long as the treaties are in force,
except where the Shari‘ah also prohibits them. This forms the basis
for making the provisions of the IHL binding on Muslims.
These general principles run throughout Islamic Law of conduct of
war (adab al-qital).

Part III: THE JUS IN BELLO RESTRAINTS IN ISLAM

3.1 Inviolability of the Civilian Population and
Property
The starting point for the anlysis of Islamic injunctions about non-
combatant immunity is verse 2:90 of the Qur’an:

“Fight in the way of Allah against those who fight against you, but
do not commit transgression. Lo! Allah loveth not transgressors.”28

Some Muslim jurists believe that the command “do not commit
transgression” implies that Muslims should not initiate hostilities.29
24
Ibid., Maxim no. 25
25
Ibid., Maxim no. 23
26
Sharh al-Siyar al-Kabir, vol. 1, pp 200-05
27
Geneva Conventions and Additional Protocols thereto are modern-day examples
of such treaties.
28
Qur’an, 2:190.
29
This interpretation is upheld by Sa‘id b. Jubayr, Abu al-‘Aliyah and Abu al-Hasan
al-Basri. (Munir, Non-combatant Immunity, p. 12)

6
According to other jurists, this command also includes prohibition of
mutilation of the dead bodies of the enemy soldiers and
maltreatment of the prisoners of war.30
Another group of Muslim jurists believes that this command also
implies that Muslims must refrain from killing those who are not
capable of fighting such as women, children, old people, monks and
other non-combatants.31 They rely on two grounds for their
argument.
Firstly, the word that occurs in the verse is qatilu (fight), which
implies conflict between two people who actively engage in strife
and not between one who is a combatant and the other who is a
non-combatant.32
Secondly, there are several Prophetic traditions that prohibit killing
non-combatants.
Bukhari reports on the authority of Ibn ‘Umar that at the time of the
conquest of Makkah when the Prophet found deadbody of a woman
in the battlefield he exclaimed, “Why was she killed? She was not
fighting!” Then he prohibited the killing of women and children.33
Several other companions reported that the Prophet would not kill
women and children in wars and that he prohibited his companions
from killing women and children. Muslim reports this prohibition
from Ibn ‘Abbas34, Abu Dawud from Rabah35 and Ibn Majah from
Hanzalah36.
Then, there is the famous tradition about the Prophet’s
commandments to his commanders. This tradition has been

30
Ibid.
31
These include Abdullah b. ‘Abbas, the Prophet’s cousin whom the Prophet gave
the title of Interpreter of the Qur’an, his decsiple Mujahid and ‘Umar b. ‘Abd al-
Aziz, “the fifth rightly-guided caliph”. See below for details.
32
The basic root od the word is q-t-l ‫ ﻝ ﻝ ﻝ‬from which is the word ‫ ﻘﺎﺘﻝ‬qatala on
the meter of ‫ ﻓﺎﻋﻝ‬fa‘la which is from the group (bab) of ‫ ﻤﻓﺎﻋﻟﺔ‬mufa‘lah. It is the
characteristic of the verbs of this group, according to the Arabic grammar rules,
that it always shows participation from two parties. From that group also come
mushatamah ‫ ﻝﻝﻝﻝﻝﻝ‬, mukhasamah ‫ ﻝﻝﻝﻝﻝﻝ‬and muqatalah ‫ ﻤﻘﺎﺘﻠﺔ‬. (E. W. Lane,
An Arabic English Lexicon, (Lahore: Suhail Academy, 2003), vol. II, P.2984)
33
Bukhari, Kitab al-Jihad, Hadith no. 2791
34
Ibid., Hadith no. 3377
35
Ibid., Hadith no.2295
36
Ibid., Hadith no. 2832

7
reported by several traditionists from a number of companions that
include ‘Abdullah b. Mas‘ud, Anas b. Malik, Samurah, Ya‘la,
Buraydah, Shaddad, ‘Imran and Abu Ayyub.37 This tradition forms
the basis of Islamic jus in bello and that is why Shaybani, the father
of Muslims International Law (siyar), begins his al-Siyar al-Saghir
with this tradition.38 He also begins with it the chapter on Siyar in
Kitab al-Asl, which is his magnum opus and the primary text of the
Hanafi School.39 Among other commandments it includes:

“Do not break your pledge, do not mutilate [the dead bodies] and
do not kill the children…”

We may also mention the commandments of the successors of the

Prophet because for the fuqaha’, especially those of the mainstream
Muslims, they form the one of the basic sources of Islamic Law. 40
Thus, Abu Bakr is reported to have instructed the commander of his
troops in the following manner:

“I enjoin upon you ten injunctions. Remember them:

Do not embezzle. Do not cheat. Do not break trust. Do not mutilate.
Do not kill a child or an old man or a woman. Do not hew down a
date-palm nor burn it. Do not cut down a fruit tree. Do not slaughter
a goat or cow or camel except for food… May be, you will pass near

37
Muslim, Kitab al-Jihad wa al-Siyar, Hadith no. 3261; Tirmidhi, Kitab al-Siyar,
Hadith no. 1542; Abu Dawud, Kitab al-Jihad , Hadith no. 2246; Ibn Majah, Kitab al-
Jihad , Hadith no. 2848
38
Ghazi, Mahmood Ahmad, (tr.) Shorter book on Muslim International Law, with
original text of al-Siyar al-Saghir, (Islamabad: Islamic Research Institute, 1998), p
1 of the Arabic text and p 43 of the English translation.
39
Majid Khaduri, (ed) Kitab al-Siyar wa al-Kharaj wa al-‘Ushr min Kitab al-Asl,
(Karachi: Idarat al-Qur’an, 1996), p 93
40
The fuqaha’ differed on the authority of the opinion of a companion. The Shafi‘is
did not consider it important and the Hanafis considered it important in the sense
that in their opinion it was a valid commentary on the true purport of Sunnah.
However, they unanimously upheld that the consensus of the companions was a
binding source of Islamic Law. The commandments of Abu Bakr were
strengthened by the consensus of the companions. (See for details: Nyazee,
Imran Ahsan Khan, Theories of Islamic Law, pp 147-88)

8
 a people who have secluded themselves in convents; leave them
and their seclusion.”41
The same used to be the instructions of ‘Umar, ‘Uthman, and ‘Ali.
Khalid b. al-Walid, the famous general of Islam is also reported to
have given the same instruction to his subordinates. 42
The reason for excluding women, children, peasants and tradesmen
was their non-combatant status. This underlying cause (‘illah) of the
rule has been explicitly mentioned by the Prophet’s when he
exclaimed, “Why was she killed? She was not fighting!” According
to the highly developed method of qiyas (analogy) in Islamic
jurisprudence the rule can be extended to all classes of non-
combatants on the basis of this underlying cause.43 In Islamic law we
do not confine ourselves to enumerating the kinds of non-
combatants who are immune, but by analogy this will apply to
everyone who do not take part in war.44
As most of the traditions about the immunity of the non-combatants
were authentic and narrated by trustworthy narrators in accordance
with the principles of ‘ilm al-riwayah, all of them accepted these
traditions. They differed, however, on the implications of these
traditions and the extent to which they qualify the apparently
general command in the 9:5:

“Then, when the sacred months have passed, slay the idolaters
wherever ye find them, and take them [captive], and besiege them,
and prepare for them each ambush.”45

So, according to the Zahiri (Literalist) School, the command in the

9:5 is general that includes each and every non-Muslim; only women
and children are exceptions because they have been excluded from
41
Al-Tabari, Ta’rikh al-Umam wa al-Muluk, (Beirut: Dar ‘Ihya’ al-Turath al-‘Arabi,
1994) vol. 3, pp 849-50; al-Shawkani Muhammad b. ‘Ali, Nayl al-Awtar, (Beirut:
Dar al-Fikr, 1994), vol. 7, p 249
42
Munir, Non-combatant Immunity, p. 16
43
See for details: Al-Juwayni, ‘Abd al-Malik b. ‘Abdullah (d. 478 H), al-Burhan fi
‘Usul al-Fiqh, (Beirut: Dar ‘Ihya’ al-Turath al-‘Arabi, 2002), vol. 2, pp 28-76.
44
Al-Zuhayli, Wahbah, Athar al-Harb, p 74
45
Qur’an, 9:5

9
the implications of this general command by the authentic traditions
of the Prophet.46 It may be recalled here that the Zahiri School
represented a microscopic minority of Muslims and it is almost
extinct now. This school did not believe in extending the rule on the
basis of underlying cause. They denied qiyas (analogy) as valid
source of law. Moreover, they did not use the opinions of the
companions in deriving and extending the law.
Almost the same opinion has also been ascribed to al-Shafi‘i. 47 But
even al-Shafi‘i is classified among the literalists on the basis of his
original strict theory of interpretation.48
The majority of the jurists believes in the immunity of all those who
do not take part in combat (ghayr muqatilin).49 But they prove this
immunity in different ways on the basis of their theories of
interpretation. So, in the opinion of the fuqaha’, other than the
Hanafi fuqaha’, the general word (‘amm) in the Qur’an is probable
from the aspect of meaning (zanni al-dalalah). In their opinion, even
a probable source such as khabar wahid (narration of one or a few
narrators in a generation) or qiyas (analogy) can qualify it. The
traditions about the immunity of women and children are khabar
wahid but they can qualify the general command mentioned in the
9:5. Further qualification can be made through qiyas.

46
Ibn Hazm, ‘Ali b. Ahmad, Al-Muhalla bi al-Athar, (Cairo: Idarat al-Taba’ah al
Muniriyah, 1934), vol. 7, p. 296-97
47
Al-Ramli, Shams al-Din Muhammad, Nihayat al-Muhtaj li-Sharh al-Minhaj, (Cairo:
Dar al-Kutub al-‘Arabiyah, 1967), vol. 7, p 205
48
It has been suggested that the only difference between al-Shafi‘i’s theory and
that of the Zahiris is that the former acknowledged the validity of qiyas and the
later denied it. But this difference may be a superficial one because all the
examples of qiyas mentioned in al-Risalah of al-Shafi‘i are those of qiyas al-ma‘na
(analogy on the basis of the meaning of the text, also called dalalat al-nass),
which is included in literal methods of extending the rule and the Zahiris accept it
to be valid. There is no example in al- Risalah of al-Shafi‘i, which is based on qiyas
al-’illah (analogy on the basis of the underlying cause). Nyazee suggests that the
later Shafi‘i jurists, particularly Juwayni the master of the famous philosopher-
cum-jurist Ghazali, developed an extended theory of qiyas that resembled the
theory of the majority schools more than it resembled that of al-Shafi‘i himself.
See for details: Nyazee, Theories of Islamic Law, pp 177-78.
49
Al-Sarakhsi, al-Mabsut, vol. 10, p 29; Ibn Qudamah, Muwaffaq al-Din, Al-Mughni
fi Fiqh Imam al-Sunnah Ahmad ibn Hanbal al-Shaybani, (Cairo: Dar al-Kutub
al-‘Arabiyah, 1962), vol. 8, p 477; Al-Shawkani, Nayl al-Awtar, vol. 7, p. 201

10
The Hanafi jurists believed that a general word conveys its meaning
(generality) in definitve way. So, specification of a general word can
be done only by definitive evidence such as a verse of the Qur’an or
a khabar mutawatir (narration that has been narrated by so many
people in each generation that it seems impossible to conceive that
so many people may have agreed to fabricate a false report). Once,
the general word is qualified by defintive evidence it becomes
probable from the aspect of meaning. In other words, further
qualification of this word through khabar wahid or qiyas becomes
possible. Now, the general command of 9: 5 has been qualified by
the very next verse:

“And if anyone of the idolaters seeketh thy protection, then protect

him so that he may hear the word of Allah; and afterward convey
him to his place of safety. That is because they are a folk who know
not.”50

This verse has qualified the general command mentioned in 9: 5

and gave immuity to a class of non-Muslims, those who seek
protection from Muslims (musta’minin). Hence, the command in 9: 5
is not defintive. It can be further qualified by khabar wahid and
qiyas.
It may be noted here that the rules about Jihad were revealed
gradually, which is why the later revelations were more severe and
strict in tone. But it in no way suggests that the later revelations
abrogated the earlier ones. What it simply means is that initially
Muslims were not allowed to take up arms against their oppressors.
Later, they were allowed to fight against them. When as a result of
several encounters Muslims were able to destroy the force of the
enemies they got into a position where the initiative was in their
hands. Now, they were allowed to give the final fatal blow to the
enemies. It is important to note that even when Muslims were

50
Qur’an 9: 6

11
allowed to initiate a military campaign it was, in fact, a continuation
of the previous hostilities, which were imposed upon Muslims by
their opponents.51 After the conquest of Makkah the final verdict
about the opponents was declared in 9:5. It must also be appriciated
that 9:5 is absolute (mutlaq) and 2: 190 is conditional (muqayyad).
Hence, there is no conflict between these verses. The Muslim jurists
unanimously hold that if two texts relate to one subject and they
explain one rule the absolute will be interpreted in the light of the
conditional, i.e., the absolute will also be considered conditional
(haml al-mutlaq ‘ala al-muqayyad). In other words, the command in
9:5 is apprently absolute; but in fact it is conditional; it pertains to
those non-believers who impose war on Muslims.
The conclusion is that in the opinion of the overwhelming majority of
the fuqaha’ all calsses of non-combatants enjoy immunity from the
effects of war.

3.2 Exceptional Cases

As discussed earlier, non-combatant immunity stems from the fact
that the cause for war is aggression (muharabah) and not disbelief
in Islam (kufr). When they take part or assist in actual combat they
lose the status of being non-combatant and become one of the
aggressors. Hence, it becomes legitimate to kill them during
combat.
In an age when there were no organized armies, every adult male
member of the commuity would take part in combat and hence
would be considered a potential, if not actual, combatant. On the
other hand, women, children and the old would be presumed
potential non-combatants. They would be considered combatants
only when they would take part in actual combat. In modern time,
however, every state has an organised and well-trained army.

51
The Muslim Conduct of State, p 153 and 182

12
Hence, the presumption about all civilians, male and female, is that
they do not take part in combat.52
The second case in which civilians and non-combatants lose
immunity is that of idtirar (duress). Thus, the Prophet allowed the
night raid (igharah) on enemy even if there was a possibility that
women and children could become targeted because they were in
close vicinity to the combatants.53 But again, ‘necessity should be
kept within its limits’. So, it will be a prerequisite to establish the
absolute necessity of the attack and that the object of attack was a
military one and not civilian.
Muslim jurists have generally agreed on the issue that if the enemy
uses non-combatants as a human shield to protect themselves and
attack Muslims then the non-combatants can be killed with
combatants, even though there are the Muslim women, children and
prisoners of war. Their killing is allowed under necessity. But again
necessity has its own limitations.54 Muslim jurists further
unanimously agree that there will be no compensation in material
terms for the killing of non-combatants in such a situation.55

3.3 Weapons of Mass Destruction

It is reported that the Prophet used mangonel during the siege of
city of Ta’if, and that he knew that there were women, children and
others like them inside the city56. Hence, according to the majority

52
Munir, Non-combatant Immunity, p. 48
53
Muslim, Kitab al-Jihad, Hadith no. 4321
54
Mushtaq, Use of Force for the Right of Self-determination, p. 179 Dr. Hamidullah
says: “It appears that in classical times of Islam, it was a prevalent practice
among non-Muslim to take shelter behind enemy prisoners. I have not found a
single instance where Muslims were accused of this cowardly act when they
forced their prisoners to fight against their own nation.” (The Muslim Conduct of
State, p 213)
55
Al-Zuhayli, Wahbah, al-Fiqh al-Islami wa Addilatuhu, (Damascus: Dar al Fikr,
1984), vol. 6, p. 424 See also Art. 51 (7) of Additional Protocol 1 to the Geneva
Convention relating to the Protection of victims of International Armed conflicts,
1977)
56
The reason for disagreement is that within the chain of narrators of the above
tradition is Abdullah bin Kharash, and it is said about him that his narratioin was
not acceptable to the scholars of Hadith. Technically, he was termed as Munkar
al-Hadith, i.e., the one whose narration has been rejected. (Munir, Non-
combatant Immunity, p. 57)

13
of jurists the use of mangonel is allowed in war.57 The reason they
provide is that of necessity. Thus, Sarakhsi states that attacking the
enemy fort is allowed even if a Muslim captive is there in the fort
who may be injured or killed during the attack. His line of argument
is:

“If we prohibit Muslim army from attacking the fort the result would
be that attacking the enemy and dominating them will become
impossible because the enemy forts more often than not have some
Muslim captives. Moreover, the prohibition of killing a captive is
similiar to the prohibition of killing women and children of the
enemy. But it is allowed to burn the enemy forts even if it may
result in killing women and children. The same is the rule when
there is a Muslim captive in the fort.”58

The use of nuclear weapons, particularly, violates certain basic

norms of Islamic and international humanitarian law.59 These norms
are:
• Inviolability of civilians and other non-combatants;
• Prohibition of indiscriminate attacks;
• Prohibition of unnecessary injury to combatants;
• The principle of proportionality;
• Inviolability of the territory of neutral states;
• Prohibition of long term and widespread damage to environment;
and last but not least
• Prohibition of the use of poisonous substances.60
One may add here that, from the perspective of the Shari‘ah, the
same holds true of other WMD’s, such as biological and chemical
weapons as well as conventional weapons like missiles and bombs.

57
Ibid, p.57-58
58
Al-Mabsut, vol. 10, p 33
59
Mushtaq, Use of Force for the Right of Self-determination, p. 179
60
See for details: Advisory Opinion on the Legality of the Use of Nuclear Weapons
(WHO Case), ICJ 1996 Rep 66

14
But, as noted above, the principles of reciprocity, necessity and
proportionality may allow the use of these weapons.61

3.4 War Captives

3.4.1 Either Grace or Exchange
Before analysing the rules of Islamic Law regarding the POWs, we
will briefly mention the classification of the war captives in the
manuals of Fiqh. Muslim jurists have classified the war captives into
three kinds:
1. Asra (POWs): People captured while they were taking part in
actual combat. In other words, they are enemy combatants.
2. Saby: Women and children of the enemy.
3. ‘Ajazah: Older and disabled people. Hermits, monks and
priests are also included in this category.
The general rule about war captives is to treat them humanely.
Thus, the Qur’an states the qualities of righteous Muslims as follows:

“And [they] feed with food the needy wretch, the orphan and
the captive, for love of Him, [Saying]: We feed you, for the
sake of Allah only. We wish for no reward nor thanks from you;
Lo! We fear from our Lord a day of frowning and of fate”.62

The Prophet gave the following imperatives on the day of victory of

Makkah:

61
Mushtaq, Use of Force for the Right of Self-determination, p. 180 Whether or not
there may arise a situation where the use of nuclear weapons becomes necessary
is doubtful, as indicated by the controversial opinion of the International Court of
Justice (ICJ) on the issue. One thing is certain though: Muslims must strive to
possess these weapons if their opponents have them. Defence of din and ummah
is after all a communal obligation (fard kifayah) of the ummah. The Qur’an is
explicit in this regard: “Make ready for them all thou canst of [armed] force and of
horses tethered, that thereby ye may dismay the enemy of Allah and your enemy,
and others beside them whom ye know not. Allah knoweth them. Whatsoever ye
spend in the way of Allah it will be repaid to you in full, and ye will not be
wronged. And if they incline to peace, incline thou also to it, and trust in Allah. Lo!
He is the Hearer, the Knower.” (Qur’an, 8: 60-61)
62
Qur’an, 76:8-10.

15
 “Do not attack an injured person; do not follow the one who
leaves the battlefield; and do not kill anyone who is
captured.’63

Scores of other Prophetic traditions emphasize good treatment of

the POWs.64
The holy Qur’an gives only two options about the war captives:
either grace or ransom.

“Now when ye meet in battle those who disbelieve, then it is

smiting of the necks until, when ye have routed them, then
making fast of bonds; and afterward either grace or exchange
till the war lay down its burdens.”65

‘Grace’ may take the form of gratuitous release. Hence, the Prophet
is reported to have released lots of captives gratuitously.66 This may
also take the form of making them citizens of Islamic State.67 Thus,
the Prophet imposed upon the Jews of Khaybar a tax – kharaj – and
thereby they became citizens of Islamic State.68
Similarly, ‘exchange’ may take several forms. It includes exchange
of prisoners and release after accepting ransom as well as release
for any any other consideration. The Prophet exchanged some of
the prisoners with the opponents.69 He also accepted ransom for

63
Al-Baladhuri, Futuh al-Buldan, (Cairo: Maktabat al-Nahdah al-Misriyah, 1957) p.
47 One must bear in mind, as Munir says, that these were the rules of war
fourteen hundred years ago when revenge was the custom of the day and the
victorious people were free to do what they wanted with the conquered subjects.
(See Munir, Non-combatant Immunity, p. 3)
64
Muslim, Kitab al-Nadhr, Hadith no. 3099 See also: Ibn Hisham, ‘Abd al-Malik, al-
Sirah al-Nabawiyah, (Beirut: Dar al-Kutub al-Islamiyah, 1994), vol. 2, p 215-17.
65
Qur’an 47:4
66
Eighty POWs were released gratuitously at the eve of the conquest of Makkah.
(Muslim, Kitab al-Jihad Hadith no. 3373; Tirmidhi, Kitab al-Tafsir, Hadith no. 3187;
Abu Dawud, Kitab al-Jihad Hadith no. 2313) Similarly, all of the captives in the
Battle of Hawazin as well as Banu al-Mustaliq were freed gratuitously. (Al-Sirah al-
Nabawiyah, vol. 3, p 231ff and 453ff)
67
It is to be noted that under Islamic Law dhimmi is a free (hurr) citizen of Islamic
State enjoying its protection.
68
Al-Mabsut, vol. 10, p 29
69
Tirmidhi, Kitab al-Siyar, Hadith no. 1493

16
some of them.70 Some of the prisoners in the Battle of Badr were
released on the condition that they would teach writing and reading
to ten children.71 A poet was released on the condition that in future
he would not compose blasphemous poems against the Prophet.72
There are a few instances of the enslavement of the POWs in the
lifetime of the Prophet. For example, the Prophet accepted the
decision of the arbitrator regarding the enslavement of the women
and children of the Jewish tribe Banu Qurayzah.73 Similarly, a few
POWs were decapitated. For examples, all of the combatants of
Banu Qurayzah were killed in accordance with the decision of the
arbitrator.74
Decapitation and enslavement are apparently in conflict with the
above-mentioned Qur’anic injunction. This caused disagreement
among the classical jurists regarding the options available to the
government about the POWs.75 We will discuss this issue in a bit
detail.

3.4.2 Decapitation of the War Captives

Some of the scholars say that 47: 4 is not exclusive.76 It mentions
just two of the options that are available to the Muslim ruler. But
this does not seem correct because the word imma (either… or) in
the verse makes it exclusive.77
Some jurists were of the opinion that verse 47: 4 has been
abrogated by the later general command to kill the non-believers in
verse 9: 5. But abrogation is sought for only when reconciliation

70
Ibn Sa‘d, Muhammad b. ‘├sa, al-Tabaqat al-Kubra, (Lahore: Maqbool Academy,
1978), vol. 2, p 22; al-Sirah al-Nabawiyah, vol. 2, p 221
71
Ibid.
72
Al-Sirah al-Nabawiyah, vol. 2, p 228
73
Qur’an 33:26; Bukhari, Kitab al-Maghazi, Ghazwat al-Ahzab, Hadith no. 3804.
See also: al-Sirah al-Nabawiyah, vol. 3, pp 187-88
74
Ibid.
75
Abu ‘Ubayd, al-Qasim b. Sallam, Kitab al-Amwal, (Cairo: ar al-Fikr, 1988) p 121;
Nayl al-Awtar, vol. 7, p 306; Sharh al-Siyar al-Kabir, vol. 2, p 261
76
Al-Umm, vol. 4, p 68; al-Muhalla, vol. 7, p 309 Al-Dasuqi, Muhammad b. Ahmad,
Hashiyah ‘ala al-Sharh al-Kabir, (Cairo: Dar al-Kutub al-‘Arabiyah, 1984), vol. 2, p
169
77
Ibid.

17
between two texts is not possible.78 Here, it is obvious that these
verses relate to different stages of warfare. Thus, the 9: 5 relates to
those polytheists who are at war with Muslims while 47: 4 relates to
treatment of the war captives.79 Moreover, if the cause of Jihad is
not kufr (disbelief) but muharabah (aggression), then those non-
Muslims who surrender and who no more take part in hostilities
cannot be killed.
It must also be noted that the fuqaha’ unanimously hold that saby
(enemy children and women) cannot be killed after captivity. 80 This
is true according to the Hanafis, even when these people take part
in combat either physically or through their advices and planning.81
About ‘ajazah (older and disabled people as well as priests and
monks) the jurists maintain that if their role in war planning was
important they have the status of asra or POWs. Otherwise, they
cannot be decapitated after the end of hostilities.82
The instances of decapitation from the Prophet’s life are really very
few.
The combatants of the Jewish tribe of Banu Qurayzah were
decapitated in accordance with the decision of the arbitrator. It is
worth noting that not only the arbitrator who was appointed by the
Jews themselves but also he applied the provisions of the Jewish
Law on them.83
78
Al-Suyuti, Jalal al-Din, Al-Itqan fi ‘Ulum al-Qur’an, (Karachi: Dar al-Isha‘at, 1986)
vol. 2, pp 21-22
79
Al-Tabari, Jami‘ al-Bayan, vol. 26, p 24
80
Sharh al-Siyar al-Kabir, vol. 3, p 196; al-Mudawwanah, vol.3, p 6 This is because
the Prophet prohibited the killing of women and children. (Muslim, Kitab al-Jihad,
Hadith no. 3261; Tirmidhi, Kitab al-Siyar, Hadith no. 1532)
81
Al-Mabsut, vol. 10, p 64 The majority jurists consider them like ordinary asra in
this situation. (Bidayat al-Mujtahid, vol. 1, p 371; al-Umm, vol. 4, p 157)
82
Kasani, Bada’i‘ al-Sana’i‘, vol. 7, p 101 This is the opinion of overwhelming
majority of the jurists. Only the Shafi‘i jurists allow their decapitation for the
crimes committed before captivity. (Al-Shirazi, Abu Ishaq, al-Muhadhdhab, (Cairo:
Dar al-Fikr, 1981), vol. 2, p 233)
83
The Jewish Law says: “When you draw near a city to fight against it, offer terms
of peace to it. And if its answer to you is peace and it opens to you, then all the
people who are found in it shall do forced labour for you and shall serve you. But
if it makes no peace with you, but makes war against you, then you shall besiege
it; and when the LORD your God gives it into your hand you should put all its males
to the sword, but the women and the little ones, the cattle and everything else in
the city, all its spoils, you shall take as booty for yourselves; and you shall enjoy
the spoil of your enemy, which the LORD your God has given you.” (Deuteronomy

18
Among the captives of the Battle of Uhud, only one was decapitated.
This was the same poet who was first captured in Badr but was
released on the condition that he would not compose blasphemous
poems against the Prophet. He broke his promise. It is well known
that in the Arabian society poets played very important role in
mobilizing the people. So, this time when he was captured he was
decapitated.
At the time of the conquest of Makkah the Prophet declared general
amnesty for all of the Makkans, except six persons. Among those
six, only two were killed. One was ‘Abdullah b. Khatal who initially
embraced Islam and the Prophet appointed him on Zakah collection.
He killed his servant and fled to Makkah. There, he bought two girls
who would sing songs against the Prophet. He along with one of the
girls was killed. The rest were again pardoned.
Hence, these were exceptions from the rule and the basis for these
exceptions was that those who were decapitated deserved this
punishment by virtue of their crime, which they committed before
their captivity.84

3.4.3 Enslavement of War Captives

Enslavement was not envisaged by the Shari‘ah. It was an
institution that pre-existed the advent of the Prophet. The fuqaha’
have declared unequivocally that ‘original rule in human beings is
freedom’.85 Hence, the Shari‘ah allowed slavery only as an
exception. It did not at once abolish it altogether for several
practical reasons. It, however, not only gave a detailed scheme for
its gradual abolition but also ensured religious freedom for slaves

20: 10-14 Revised Standard Version)

84
Athar al-Harb, 436-41. Article 85 of the Geneva Convention III Relative to the
Treatment of Prisoners of War gives the Detaining Power the authority to
prosecute a POW for acts committed before hi captivity against the law of the
Detaining Power. Article 100 mentions the provisions about awarding death
penalty to a POW.
85
Sharh al-Siyar al-Kabir, vol. 4, p 71

19
during the transitional period before the complete abolition of this
institution.86
Enslavement of the captives was based on the principles of
reciprocity and necessity.87 If the other party was not ready to
exchange POWs and instead enslaved Muslim captives, Islamic
State could not take the risk of gratuitous release, as it would have
strengthened the enemy. So, instead of keeping them in jails or
camps Islamic State distributed the war captives among its citizens
so that they may take care of them and in response would get
benefit from them. Islamic law, however, ensured certain rights for
them in this transitional period.
Now, as the world has reached a consensus on outlawing this evil
there is no room in the scheme of the Shari‘ah for enslavement of
the war captives. As noted earlier, the jurists allow the parties to the
conflict to agree on certain norms for the conduct of warfare by
concluding treaties. Acts prohibited under such treaties are
forbidden so long as the treaties are in force.
To conclude, there are only two options regarding war captives:
either grace or exchange.88

Conclusions
Following are some of the important findings of the present astudy:
1. The doctrine of Jihad is not confined to armed struggle only.
Jihad is a lifelong struggle against the evil – even against the
evil inclination within one’s own self. Armed struggle is just
one aspect of Jihad, although sometimes it becomes the most
important aspect of Jiahd.

86
For an analysis of the institution of slavery in Islam see: Athar al-Harb, pp 441-
47, Mawdudi, Tafhimat, (Lahore: Islamic Publications, 1978), vol. 2, pp 348-84.
See also: al-Mahmasani, Subhi, Hikmat al-Tashri‘ wa Falsafatuh (Karachi, Dar al-
Isha‘at, n.d.), vol. 2, pp 380ff.
87
Athar al-Harb, 441-47; Non-combatant Immunity, pp 110-11
88
This is also the opinion of some of the prominent students of the companions of
the Prophet. These include al-Hasan al-Basri, Hammad b. Salamah, Mujahid and
Muhammad b. Sirin. (Kitab al-Amwal, p 121)

20
2. The cause of war in Islamic Law is muharabah (aggression)
from the other side. Mere disbelif in Islam does not justify war.
If the opponents commit muharabah against Muslims, Qital
becomes obligatory provided the other conditions are fulfilled
and no legal obstacle exists.
3. The primary rule for the conduct of war is that the norms of
the Shari‘ah must be complied with. Islamic Law
acknowledges the principle of reciprocity but deviation from
the norms of Islamic Law on the basis of reciprocity is not
allowed except in case of absolute necessity, and that too
within the constraints of necessity. So, propotionality is
another parallel principle. Islamic State may conclude treaties
with other parties to lay down certain binding rules for the
conduct of war.
4. According to overwhelming majority of the Muslim jurists, all
persons who do not take part in combat have immunity. They
lose their immunity when they take part in actual combat or
when it is not possible to distinguish them from the
combatants (what is known as “collateral damage”).
5. The use of weapons of mass destruction in general and
nuclear weapons in particular violates some of the basic
norms of the Shari‘ah regarding the consuct of war. It can be
allowed only in case of extreme necessity on the basis of
reciprocity and proportionality.
6. Ordinarily war captives cannot be decapitated. In some
exceptional cases, a war captive can be awarded death
punishment for a crime committed before his captivity against
the captors. Enslavement preexisted Islam. Islamic Law,
however, gave a detailed scheme for abolition of slavery. It
tolerated enslavement of war captives only on the basis of
reciprocity and necessity. The Qur’anic teachings and the
Prophetic conduct clearly lay down that generally there are
only two options for war captives. They should either be

21
released gratuitously or after taking some consideration.
Muslims are allowed to conclude a treaty with others for
making gratuitous release of the war captives obligatory.
While in custody the prisoners should be treated humanely.

22