Praise be to Allah, Lord of the worlds, and the most honorable prayer and peace be upon the master of the first and the last, our master, Muhammad, the chosen, the trustworthy, and upon his pious and pure family, his faithful companions, and those who followed them in goodness until the Day of Judgment, may Allah Almighty be pleased with them all.
In their arguments, traditional Muslim scholars who taught in the past about jihad’s conditions and restrictions explained many imaginary situations as a practical way for brainstorming with their students and to set forth the juristic principles used to deal with similar issues. These juristic examples are called hypothetical jurisprudence, and the specific samples are called branches, and they are related to certain principles called ‘stems’, so, the process of brainstorming is mainly pertaining to relating each branch to its correct stem. Let us now bring some samples, one of which is a famous one which was brought by Abu Hanifa, may Allah have mercy on him, as he asked his companion Qatadah, “O Abu al-Khattab,” which was the kunya of Qatadah, “what would you say about a man who was absent from his wife for years, and his wife thought that her husband is dead so she got married, then after that her first husband came back, what would you say about her dowry?” Qatadah said, “Woe to you, did this incident happen? Abu Hanifa said, “We get ready for the test before it happens, so that when it happens we know its ins and outs.” This was the basic pillar from which the idea of hypothetical jurisprudence came.
This idea was adopted by most traditional scholars, not mentioning all the modern ones, and they infer to it in some situations in which the Prophet himself, peace be upon him, was asked about many hypothetical issues in many situations. In those situations, the Prophet, peace be upon him, did not deny that, instead, he answered them and did not complain, “You are asking about something which has not happened yet!” One of these incidents is the hadith narrated by Al-Muqdad Bin al-Aswad, may Allah be pleased with him, in which he asked the Prophet peace be upon him, “Tell me, O Messenger of Allah, if I meet an infidel, and we fight together, and he cuts off my hands with his sword, then hides from me behind a tree and (then) says he has submitted himself to Allah. Shall I kill him after he has said it?” He, peace be upon him, replied, “Do not kill him.” I submitted, “But O Messenger of Allah, he cut off one of my hands and only then he said it.” The Messenger of Allah peace be upon him then replied, “Do not kill him, for if you do so, he will be in the position in which you were before you killed him (i.e., he will be considered a Muslim and thus his life will be inviolable), and you will be in the position in which he was before he made his testimony (i.e., your life will not be inviolable, for his heirs can ask for Qisas)” (Riyad al-salihin, 392).
Another famous example refers to the idea of ‘tatarrus’. It is similar to the idea human shields discussing when Muslims are taken as prisoners by the non-Muslims who are at war with the Muslims, and they put them at the frontlines of their army so that Muslims will stop shooting the army because the innocent Muslims will be killed first. In our modern world the same idea is exhibited at times, and sometimes the shield might be the enemy’s civilians. This concept was practiced by ISIS during the downfall of Mosul for instance. Likewise, even in modern wars, when militants, for instance, intentionally embed themselves and launch rockets from civilian areas they knowingly attract reciprocal attacks. Then, when rockets or bombs are launched to hit a civilian area which contains their target, the target is often killed but with significant civilian casualties coldly referred to as collateral casualties nowadays. All of these practices, from using enemy soldiers or innocent civilians as human shields, or embedding militant units among civilians knowing the enemy may attack causing massive civilian casualties are haram because preserving innocent lives is a priority when compared to getting rid of enemies and war is guided by moral principles in Islam. This same principle also applies to those who attack a militant target embedded among civilians knowing full well that they will cause massive civilian casualties even if they hit their target as well. Both sides are committing haram. Preserving innocent lives is the priority and is what makes these practices haram.
ISIS and groups alike, such as al-Qaeda and Al-Shabaab, extend this idea and stretch it to be an umbrella of their actions. They kill civilians intentionally when they target their alleged enemy, and they justify this wrong doing claiming it is ‘tatarrus’. I believe that the best way to deal with this matter is to read what the traditional prominent scholars have written about this concept and its many thorny manifestations in times of war. In his book ‘Majmu’ al-fatawa’, Ibn Taimiyah, a prominent Hanbali scholar said, “Scholars have agreed upon that if the non-Muslim army captured Muslim prisoners and put them in the frontlines of the army as a shield, and we were afraid of the damage that might occur for the Muslim fighters if they did not fight, then they are entitled to fight even if that led to the death of the Muslims taken as a shield” (28/546-537, 20/52). Al-Ghazali, a prominent Shafi’i scholar, also said, “A similar example is if the unbelievers shielded themselves by a group of Muslim prisoners; if we didn’t shoot them they will attack us and kill all Muslims (prisoners and fighters), and if we shoot the shield we would kill Muslims and then the enemy will attack and kill us and kill the prisoners. Someone might ask if this prisoner would be killed in each situation, so preserving all the Muslims is closer to the purpose of the shari’ah, because we know for sure that its purpose is to decrease killing as well as eliminating its route whenever possible, so, if we couldn’t accomplish elimination of killing we could at least decrease it, which would be regarded as turning to the interest, thus, it would be by necessity that it is the goal of shari’ah not with one evidence and one principle only, but with an abundance of evidences, but understanding this matter, which is killing someone who did not commit a sin, is totally strange and has no clear evidence” then he continued, “and this is unlike when the unbelievers are shielding themselves by a Muslim in a fortress, for it is not halal to shoot the shield for there is no necessity for taking that fortress, then we leave it, because we can’t confirm our ability to take it, but we think that” (Al-Mustasfa, 1-176).
Many other scholars did not agree on this issue of killing human shields used by the enemy and said it is haram. These include al-Awzai’i, al-Laith Bin Sa’ad, Imam Malik, the founder of one of the four Islamic schools, and many others. They inferred from the following evidences,
- The Qur’an, in which Allah said, “If it had not been for certain believing men and certain believing women whom you did not know, you might have trampled upon them, and so sin reached you because of (killing) them while you did not know. In order that Allah admits into His Mercy whom He will, had they (the believers) been easy to distinguish, We would have punished the unbelievers among them with a painful punishment” (Surah 46, Ayah 25). We can infer from the previous ayah that it contains an evidence to consider the unbeliever by the presence of the Muslim, for it is impossible to harm the unbeliever without harming the Muslim.
- The hadith in which the Prophet, peace be upon him, said, “The extinction of the whole world is less significant before Allah than killing a single Muslim man” (Sunan al-Nasa’I, 3987).
- Al-Laith Bin Sa’ad said, “leaving a fortress which is possible to conquer is better than killing a Muslim unlawfully” (Al-Qurtubi, 16-286).
- Ibn al-Qasim said, “I heard Imam Malik when he was asked about people of the polytheists in their boats, is it permissible to shoot them with fire with Muslim prisoners aboard with them? He replied “I don’t see that, because Allah said, ‘had they (the believers) been easy to distinguish, We would have punished the unbelievers among them with a painful punishment”’ (Al-Qurtubi, 16-286).
Let us now investigate those who allow killing the Muslim shield as well as the condition which set forth in order to do that. Imam al-Qurtubi, who is a prominent Maliki scholar said, “It may be permissible to kill the shield with no diversity, disagreement with other scholars, inshallah, that is when the interest is necessary, absolute, and peremptory.” (Al-Qurtubi, 16-286). Al-Izz Bin Abdussalam said, “Example number 39, killing sinless Muslims is a corruption, unless the non-believers took them as a shield, and we feared the annihilation of Muslims, then killing them is controversial, because killing ten Muslims is less corruption that killing all Muslims,” (Qawa’id al-ahkam fi masalih al-anam, 1-95). Imam al-Nawawi said, “If there is a necessity to shoot them, because they took them as a shield in the battle, and if we did not shoot them they would win and hurt us badly, then there are two opinions; the first, “It is not permissible to shoot if we could not hit the unbelievers unless we hit the Muslim, because the ultimate result is that we are afraid on ourselves, and the spilling the blood of a Muslim is not justified by fear, an evidence for that is coercion. The second, “Which is the right one and the Iraqi scholars confirmed it, is that shooting is permissible with the intention of killing the polytheists, and the shooter has to evade hitting Muslims as much as possible, because the corruption of not hitting is much bigger than shooting” (Rawdat al-Talibin, 10-246). Thus, we have four conditions:
- Leaving the shield leads to the defeat of the Muslim army, or conquering Muslim cities and the violations against their civilians.
- Killing the shield is necessary leading to victory, not at a guesswork.
- Killing the shield is going to happen in every situation, if the Muslims did not kill them, the enemy will do after defeating the Muslim army, which will lead to further spilling Muslims’ blood and violating their premises and cities and then the enemy will kill the shield.
- The leader of the Muslim army has to exhaust all the means and procedures which might release the Muslim or evade killing him.
Another aspect we have to consider, which is extremely important, is that these hypothetical situations which our traditional scholars talked about were totally built on the environment, traditions, international relations, states status and the scholars’ views regarding these matters at that time. We may find many of these opinions and issues totally strange to our views and traditions. Some people may even condemn some of these opinions as being trivial and absurd. This might be because we judge these opinions according to our views and understandings which are built on the nature of the modern state and the national and international relations set forth by the United Nations under the consensus of every state in the world. This new situation brings forth the necessity to renew some of the traditional opinions which were said depending on the traditions of these old times, but it seems that our modern scholars are too busy dealing with other issues. But if we review these opinions with the image of the nature of the states and their national and international relations at that time in history we will definitely find that they are coherent and in harmony, in short, they make total sense and the core moral principle put forward in Islam about causing collateral damage and using human shields is that it’s forbidden to do so as avoiding killing innocents is a priority in Islam and killing Muslims and putting Muslim lives in danger is particularly forbidden.
Now, compare the total traditional image, i.e. the rules and nature of war and the conditions set forth by traditional scholars, and the actions of ISIS and Al-Shabaab which they commit nowadays, of killing countless innocent civilians claiming they are righteous in doing so because these civilians are unbelievers and in using even believers as human shields for their leaders to escape capture. As you examine these different situations and different nature and rules of war, you can see for yourself if they are practicing the essence of the Islamic shari’ah, and if they ever meet one or more conditions which our prominent scholars have put for their generation and the following generations for actually killing innocents or risking their lives, and risking killing Muslims or even innocent unbelievers being used as human shields. Our traditional scholars did not permit using non-believers’ prisoners of war as human shield, on the contrary the essence of the Islamic laws is against that. Allah said in the Qur’an, “They give food, for the love of Him to the needy, the orphan, and the captive” (Surah 76, Ayah 8). Prophet Muhammed peace be upon him told his companions to treat the prisoners of Badr battle with good treatment and he instructed them, “Act kindly toward prisoners” (Al-Tabarani). The issue of war and prisoners in Islam will be discussed further in another article. I hope that this article is enough to explain this important issue.
Praise be to Allah, the Lord of all worlds.