Research Monographs

on the Muslim World

Series No 1, Paper No 3
December 2006
HUDSON I NS TI TUTE
Center on Islam, Democracy,
and the Future of the MuslimWorld
Non-Combatants
in Muslim Legal
Thought
ELLA LANDAU-TASSERON
The views, opinions, and/ or findings contained in this report are
those of the author(s) and should not be construed as an official
Department of Defense pos ition, policy, or decision.
Center on Islam,
Democracy, and
the Future of the
Muslim World
2006 by Hudson Institute, Inc.
All rights reserved.
HUDSON INSTITUTE
1015 15th Street, NW
Sixth Floor, Washington, DC 20005
202-974-2400
www.hudson.org
Non-Combatants
in Muslim Legal
Thought
ELLA LANDAU-TASSERON
1


Non-Combatants" in Muslim Legal Tlouglt
by
Ella Landau-Tasseron


Tle law o war in Vestern tradition developed over lundreds o years, based on
Roman law, tle writings o tle Clurcl Fatlers, and medieval codes o clivalry. Tlese
codes, rules, and regulations crystallized rom tle sixteentl century CE onwards into a
doctrine known as bcllvm ivstvm, a term commonly translated into Englisl as iust
war." Since tle issues o iustice and tle iustiication o war are only part o tlis
doctrine, it would perlaps be better to understand tle Latin term as meaning war
carried out in accordance witl law." Tlis doctrine contains two well-deined categories
dealing witl dierent aspects o war. One is tlat o ivs a bcllvm, wlicl lays down tle
principles by wlicl a war is determined to be eitler legal or illegal. Tle second is tlat
o ivs tn bcllo, wlicl deines permitted and orbidden belavior toward tle enemy and
tleir property during combat and aterwards. One o tle main rules o tlis second
category is tle distinction between combatants and non-combatants (oten reerred to as
civilians). Non-combatants may not be larmed intentionally. By virtue o not being
involved in warare, tley are considered to lave immunity.
:

Tle Muslim law o war existed lundreds o years beore its Vestern counterpart.
It does not lave two clearly deined categories, but witlin it can be ound parallels o
almost all Vestern rules and principles. Tle Muslim law o war includes, among otler
tlings, a prolibition against larming various groups o people. An examination o tle
nature o tlis prolibition will slow tlat tle term non-combatants" used in tle
doctrine o iust war is not suited to Muslim law. Vlile it is true tlat all tlose wlo may
not be larmed according to Muslim law are non-combatants, not all non-combatants
are immune rom larm. For tlis reason, tle term non-combatants" will appear lere in
quotation marks, reerring to all tlose categories o people mentioned in Muslim
iurists' discussions about tlose wlo may not be larmed. Tlese categories will be
explained and discussed below.
c

Statements about non-combatants" appear in tle earliest legal works, beginning
in tle second century AH/eigltl century CE. In tlese works, tle prolibition against
larming non-combatants" is usually based on tle personal iudgment o tle iurist, or


Author`s Note: Tle original Hebrew version o tlis article was publisled in Stvtcs tn Early Islam Lcctvrcs
cltvcrc tn bonovr o/ Pro/cssor M } Ktstcr on tbc occaston o/ bts ntncttctb btrtbay Tle Israel Academy o
Humanities and Sciences, Jerusalem, cccs. Tle Englisl translation was done by Mrs. Juditl Loebenstein-
Vitztum.
:
Discussion o tle tleme o iust war" is extensive; see, e.g., Jolnson, Roots;" Valzer, Wars; Nardin, War
an Pcacc. For a comparison between tle iust war tradition and Islamic concepts o war see Kelsay, Islam
2
I lave not classiied tle various legal solutions according to legal sclools or two reasons. First, in tle
case o tle early iurists, it is not always clear to wlicl sclool tley belonged. Second, tle disagreements
witlin tle sclools are sometimes as great as tlose between tlem. Nevertleless, I lave noted in tle
bibliograply tle sclools to wlicl tle various autlors belonged (wlen tlis can be known or sure). For a
discussion o tle applicability o tle term non combatant to Islamic law see Kelsay, Islam, clapter i.
2
on a ew sayings (battbs) going back to tle Proplet and tle irst two calipls, Abu Bakr
and 'Umar. Only rarely is an attempt made to iustiy tlese sayings rationally. Ratler,
tlese battbs are usually considered in tlemselves to be tle real reason or reraining
rom killing non-combatants." Tley relect tle general principle tlat a Muslim slould
not engage in killing i tlere is neitler reason nor necessity or lim to do so. However,
tlis principle is not absolute, and tle explicit prolibition against killing non-
combatants" is conditional and signiicantly restricted by law. To use tle legal language
developed ater tle second/eigltl century, any given non-combatant," altlougl
protected to a certain extent, does not in act lave immunity (`tsma) and is not
considered to be a soul wlom Allal las orbidden to kill," (na/s barrama Allab
aatlaba). Tle concept o `tsma is tle key to understanding Muslim attitudes toward tle
otler" in general, and toward tle killing o non-combatants" in particular.
Tle prolibition against killing las tle validity o law in regard to Muslims and
tleir allies, but it is merely a general and non-binding directive in regard to otlers. Tle
category o tlose wlo lave ull immunity (`tsma), meaning tlat tley must not be
larmed, includes only Muslims and tleir allies, tle inidels wlo lave a speciic legal
treaty witl Muslims. Sucl a treaty may be eitler permanent (sucl as tle btmma
contract) or temporary (sucl as aman, given or instance to inidel merclants in
Muslim territory).
,
Tle sanctity o tle lives o Muslims and o tlose wlo lave a treaty
witl tlem is deined as bvrma and is absolute. Harm may be inlicted on tlem only in
sel-deense or as punislment or a crime committed by tlem. Muslims and tleir allies
lave measurable and substantial immunity" (`tsma mvaawwama or mvaawwtma). Tlis
means tlat wloever larms any o tlem las to pay, by enduring punislment and/or by
paying compensation as set down in tle law.
i

On tle otler land, tle lives o non-combatants" rom among tle non-Muslim
enemy are oreit to begin witl. I tley lave immunity at all, it is merely immunity
tlat incurs a sin" (`tsma mv'tbtma). A Muslim wlo larms tlem is a sinner, but no
punislment is meted out to lim, and le owes no compensation. Tlere is general
agreement regarding tle exemption rom punislment or a Muslim wlo larms non-
combatants." It is usually said tlat tlere is notling wrong" (la bas btbt) witl inlicting
larm on a non-combatant;" at most, tle person wlo inlicted tlis larm must ask or
Allal's orgiveness and express lis remorse (tsttrb/ar tawba).
s

Tle boundaries set by tle concept o immunity are also relected in tle
dierence between tle laws governing war against inidels, on tle one land, and war
against Muslim rebels (abl albarby) on tle otler. Vlereas tle lives o tle ormer are
oreit, tle latter lave immunity, and tleir lives are protected because tley are Muslim.

,
Saraklsi, Mabsvt, :c/;8; Yusu, Ab/am, ,s-6, sc.
i
See Mawsva, ,c/:,;. Jurists disagree about certain details o tlis principle. Ibn Hazm, or example,
Mvballa :c/ccc, tlinks tlat no blood-money slould be set on a Muslim wlo las larmed a btmmt or a
mvstamtn (one wlo las temporary protection), but tlat tle culprit slould be imprisoned and
reprimanded (or punisled: yv'aab). See also otler opinions on tlis matter: Marglinani, Htaya i/:6c6-
:6c;; Saraklsi, Mabsvt :c/os. One slould also look into tle dierence between intentional and
unintentional damage; tlis, lowever, alls outside tle issues tlat concern us; see, e.g., Yusu, Ab/am, ::;-
:8, :i8-c:c. For discussions about tle concept o immunity (`tsma), see Jolansen, Conttnrcncy clapters s
and 6.
5
Tabari, I/bttla/, :c; Saraklsi, Sbarb i/:i:6, Mabsvt :c/,c; Mawsva ,c/:,;; Ibn Nuiaym, Babr s/8s; Dirdir,
Sbarb c/:;;.
3
Tlose in power are allowed to iglt only rebels wlo wage war, not tlose wlo belong to
tle rebel community but take no part in tle rebellion. Tle concept o absolute
immunity or tlose wlo really are non-combatants is tlus applied only to Muslim
rebels, not to inidels. Tle reason or tlis is legal: since tle lives o all Muslims are
sacred, it is a crime to larm tlem unless tley rebel or commit a crime tlat entails
capital punislment.
6
But any act o violence against an inidel, wlose lie is basically
oreit, is not considered to be a crime at all.
;
Tle dierence between a lie tlat is oreit
and one tlat is not can also be seen in tle issue o tatarrvs tle use o luman slields. I
tle enemy uses Muslims as luman slields, tley may be ired upon only i it is
absolutely necessary, because tle lives o tlese Muslims are protected under Muslim law.
Tlere is no sucl limitation i tle luman slields are non-combatant" inidels.
8
It is
wortl noting tlat early iurists sucl as Abu Yusu and Awza'i made no distinction
between Muslim and inidel non-combatants" regarding tatarrvs.
o

Tle dierence between killing a person wlo las ull immunity and killing a
non-combatant" can be seen not only in tle steps taken-or not taken-against tle
killer, but also in tle terminology employed. Vlile tlose wlo are really immune are
masvm" (protected) or baram alam" (one wlose blood is sacred), tlere are no
speciic legal terms to designate non-combatants." Tley are sometimes reerred to as
tlose wlom it is not allowed to kill," one wlose blood is not to be spilt," one wlo
slould not be aimed at," and one wlo slould not be killed" (man la yabtll aatlvbv;
mabzvr alam mamnv` an yvasa man la yvatal).
:c
Tle prolibitions against killing
non-combatants" are not usually expressed by tle word yvbarram (orbidden), but
ratler by sucl terms as not possible," not allowed," not proper."
::
All tlese words
convey a weaker prolibition tlan tlat expressed by tle root brm.
It appears, tlereore, tlat non-combatants"-tle inidels wlo may not be
larmed-cannot be considered to lave real immunity tlat protects tlem rom larm.
:c


6
See, e.g., Slai'i, Umm 8/,6i. Abou al-Fadl, Tle Rules o Killing," tlinks tlat Muslim law is lenient
regarding Muslim rebels because tleir action is considered to be tle outcome o poor iudgment ratler
tlan o evil intentions.
;
Yusu, Ab/am, sc-s6.
8
Mawardi, Hawt, :i/:8;-:88; Zakariya al-Ansari, Fatb c/,cc; Kasani, Baat` ;/:c:; tlere is no consensus
on tlis issue, and even Slai'i voices two dierent opinions: once (Umm i/,c6) le applies tle same rules
to botl Muslim and non-Muslim slields," but on anotler occasion (Umm 8/,;8) le distinguisles
between Muslim and non-Muslim slields." See also tle disagreements in Saraklsi, Mabsvt :c/,:-,c; Ibn
'Abd al-Barr, 1ambt :6/:i,. On tatarrvs see also below, p.::
9
Abu Yusu, cited in Slai'i, Umm ;/,6o; Awza'i, cited in Fazari, Styar, ,,,. In tle itl/eleventl century
Saraklsi supported tle opinion viewing Muslims and non-Muslims as equal in regard to tle issue o
luman slields." According to lim, Muslims must ire upon tle enemy regardless o wletler tle
slields" are Muslim prisoners or inidel women and clildren; see Mabsvt :c/6s.
:c
See e.g., Slai'i, Umm i/cs,, c;i.
::
Later sources are less particular about terminology, and I lave ound use o tle word yvbarram to
denote tle prolibition against killing non-combatants" in tle ollowing sources: Saraklsi
(itl/eleventl century), Sbarb i/:i:6, Mabsvt :c/co; Ibn Mulil (eigltl/ourteentl century), Fvrv` 6/c:c,
see also c:c; Mardawi (nintl/iteentl century), Insa/ i/:,,; Zakariya al-Ansari (tentl/sixteentl century),
Fatb c/coo, ,cc. Tlis terminology does not point to a clange o attitude, because, as beore, tle iurists
lold tlat wloever kills tlese non-combatants" is not punisled. Tle exceptions are women and clildren;
since tley are considered property, a person wlo kills tlem must repay tleir price.
:c
But see Zulayli, Atbar, ios, sc,, wlere le claims tlat non-combatants" lave immunity. Tlis is iust one
illustration o tlis autlor's goal o proving tlat tle law o war in Islam is compatible witl international
law.
4
Even tle locution tley may not be larmed" is misleading, since tlis prolibition is
severely limited, and violating it does not entail any punislment.

Four categories o enemies
Tle concept o non-combatants" in Muslim law can be better understood
witlin tle wider context o tle enemy in general.In Muslim legal works, rules are not
usually presented systematically and are sometimes listed in a ratler iumbled aslion.
Altlougl more oten tlan not tle distinctions underlying tle rules are not mentioned,
it is sometimes possible to reconstruct tlem. One sucl distinction is tlat made between
two categories o enemies, combatants as opposed to non-combatants"; anotler is tle
distinction between tle situations in wlicl tlese people ind tlemselves, namely
combat as opposed to captivity. Examining tlese distinctions allows us to deine our
categories o enemies, to eacl o wlom dierent rules are applied. Tlese our categories
are:
:. Combatants during combat.
c. Combatants wlo lave been taken prisoner.
,. Non-combatants" during combat.
i. Non-combatants" wlo lave been taken prisoner (witl one reservation:
tlere is a disagreement wletler it is permissible to take tlem prisoner).
Tle disagreements among tle iurists increase as we move rom one category to
anotler. Tle irst one, tlat o combatants during warare, is tle most straigltorward:
tle enemy must be ouglt by all possible means and witl no limitations wlatsoever, tle
aim being eitler to kill tlem or to take tlem prisoner. Tlere are no disagreements on
tlis matter.
In tle case o tle second category, tlat o enemy combatants wlo lave been
taken prisoner, we ind disagreements regarding tle ate o tle prisoners. Qur'an i;:i
reads: Vlen you meet tle unbelievers, smite tleir necks; tlen, wlen you lave made
wide slauglter among tlem, tie ast tle bonds; tlen set tlem ree, eitler by grace or
ransom, till tle war lays down its loads."
:,
Tlis verse clearly oers two options:
prisoners may be released eitler or a ransom or witlout any kind o remuneration.
Altlougl tle verse is clear, it seems tlat it was customary to execute prisoners o war.
Tlis is proved by tle act tlat certain early iurists denounced tlis practice. Tlere is a
report according to wlicl 'Abd Allal b. 'Umar (d. ;,/6o,) was ordered by tle governor
al-Haiiai to kill a prisoner and reused to do so, citing tlis verse. Tle sclolars Al-Hasan
al-Basri (d. ::c/;c8) and 'Ata' (d. ::i or ::s/;,c or ;,,) also opposed tle killing o
prisoners.
:i
On tle otler land some iurists, including Abu Hania, added to tle two
options given in tle verse also tlat o executing tle prisoners, basing tleir argument on
tle general Qur'anic directive Slay tle idolaters wlerever you ind tlem" (Qur'an o:s).
Anotler iustiication or tlis option was ound in tle verse stating tlat it is not or
any Proplet to lave prisoners" (Qur'an 8:6;, altlougl tle verse continues, until le
make wide slauglter in tle land"-meaning, ater wlicl it is permissible to lold
prisoners). Tlere were also iurists wlo added tle customary option o enslaving
prisoners o war, altlougl tlis is not mentioned in tle Qur'an. Otlers omitted tle
option o releasing prisoners witlout remuneration, even tlougl tlis is mentioned in

:,
All translations o Qur`anic verses are taken rom A. J. Arberry, 1bc Koran Intcrorctc (London, :oss).
:i
Ibn Qudama Mvrbnt o/:;o.
5
tle Qur'an.
:s
Tlus tle discussions move among tlese our options-release, ransom,
execution, and enslavement. It is agreed tlat tle Imam must cloose one o tlese
options (or some reason, tle title Imam" is always used in tlis context, to mean tle
calipl or lis representative). Some iurists consider all our options to be valid, wlile
otlers allow only some o tlem.
:6

Numerous points o contention can be ound concerning tle tlird and ourtl
categories, namely, non-combatants" in combat and non-combatants" wlo lave been
taken prisoner. Tlese disagreements all under tlree main leadings:
:. Lists o tle categories o non-combatants".
c. Prolibitions concerning non-combatants" during and ater combat.
,. Actions tlat constitute taking part in combat.

Lists o non-combatants"
In tle early sources, tle lists o tlose wlom one slould not larm include
women, clildren, old people, and monks. One may cite to tlis eect tle Iraqi iurist
Abu Yusu,wlo lived at tle end o tle second/eigltl century, as well as lis Syrian
contemporary Abu Islaq al-Fazari (d. :86/8cc).
:;
It seems tlat tlis list was a given and
was axiomatic. Tlose wlo would preer to adlere to tle principle stating tlat tle lives
o all inidels are oreit lad to accept tlis list too, at least partially, or to provide an
explanation. Tlis state o aairs is relected in tle opinion o tle early iurist Suyan al-
Tlawri (d. :6c/:;8): in spite o tle prolibition against killing monks, al-Tlawri insisted
on demanding tlat tley pay itzya, and on killing tlem i tley reused to do so. Tle
person asking lis opinion inquired, i tlis was so, tlen wly could monks not be killed
outriglt? Al-Tlawri replied, Because traditions were transmitted regarding tlis" (ia'a
/tbt atbar),
:8
meaning tlat tle transmitted traditions (orbidding tle killing o monks)
limited lis cloice o options. Nevertleless, al-Tlawris opinion, tlat monks slould pay
itzya, amounts to considering tlem as combatants.
Tle payment o itzya tle poll tax incumbent on non-Muslims in return or
protection by tle Muslim state, is directly connected witl tle distinction between
combatants and non-combatants". Tle latter, even i spared and given protection, are
not required to pay itzya (tle term or non-combatants" lere is man la yastabtaa alaatl
tlose wlo do not deserve to be killed", meaning women, clildren etc., see urtler
below).
:o
Tle iurist Abu 'Ubayd, wlo set down tlis rule in tle beginning o tle
tlird/nintl century, was o tle opinion tlat monks residing in monasteries lave to pay
itzya. Tlis means tlat le does not consider sucl monks to be non-combatants," and
tlat tle rules applying to tlem are tle same as tlose applying to otler (combatant)
inidels. It also means tlat Abu 'Ubayd was amiliar witl tle distinction between

:s
Abu 'Ubayd, Amwal, s:-s;, 6:-6;; Abu Yusu, Kbarai, :oi.
:6
Slai'i, Umm i/c;s, ,cs, ;/,so, 8/6c6; Mawardi, Hawi :i/:;c-:;;; Saraklsi, Mabsvt :c/ci; Ibn Qudama,
Ka/t i/c;:-c;c, Mvrbnt o/:;o-:8c; Ibn Mulil, Fvrv` 6/c:c. It slould be pointed out tlat tle prisoner's
religion may determine lis ate: tlere are tlose wlo lold tlat a prisoner wlo is not one o tle People o
tle Book must cloose between Islam or deatl, and tlat tle our options are not relevant in lis case; see,
e.g., Slai'i, Umm i/,cc-,c,. See also Friedmann, 1olcrancc, ::s-:cc. Detailed discussions concerning
prisoners and tle various options are recorded in Zulayli, Atbar, ico-iic, ii;-is;, i;:.
:;
Abu Yusu, Kbarai, :oi, :os; Fazari, Styar, c8c, ,,i.
:8
Tabari, I/bttla/, :c-::; Fazari, Styar ,,i, c. ,s8, wlere al-Tlawri witldraws lis opinion regarding tle
destruction o enemy property because o a tradition to tle contrary.
:o
See Abu 'Ubayd, Amwal, c,; Saraklsi, Mabsvt :c/;o; Razi, 1vb/a :/:88; Ibn 'Abidin, Hasbtya i/:oo.
6
monks residing in monasteries and tlose residing in cells (asbab alsawamt'): tlere were
iurists wlo leld tlat only tle latter were meant in tle list o non-combatants," wlereas
tle monks residing in monasteries were not.
cc
Clearly tle aim o tlis distinction was to
restrict tle category o non-combatant monks." An exceptional view among tle early
iurists is tlat o Slaybani, wlo omits monks altogetler rom tle list o non-
combatants" and includes in it women, minors, tle elderly, and tle insane.
c:
Abu
Hania, considered tle mentor o botl Abu Yusu and Slaybani, is cited in tle
itl/eleventl century as laving once permitted tle killing o monks and once
orbidden it.
cc
O course, it is lard to tell wlat lis opinion really was.
In any case, it appears tlat later iurists ound ways to evade traditions tlat
contradicted tleir opinions, wlereas earlier iurists, sucl as Suyan al-Tlawri, saw
tlemselves as being restricted by sucl traditions. Slai'i (d. cci/8cc), wlo took an
extreme position commanding tle killing o any and all inidels, elt limsel compelled
to accept as autlentic tle sayings attributed to tle Proplet, wlicl prolibited tle killing
o women and clildren. He ound, lowever, a rational iustiication or tlis
prolibition. Instead o viewing it as a moral imperative, wlicl would mean respecting
tle lives o inidels, le interpreted tle prolibition as a directive based on inancial
considerations. Vomen and clildren, Slai'i explains, are property, and property
slould not be damaged.
c,
Tlus Slai'i was able to resolve tle contradiction between tle
ruling in tle tradition orbidding tle killing o women and clildren and tle principle
in wlicl le believed: tlat tle lives o all inidels are oreit due to tleir idolatry.
Regarding monks, two contradictory opinions are attributed to Slai'i. On one
occasion, le accepts tle tradition attributed to Abu Bakr prolibiting tle killing o
monks. Tleir lives are oreit only i tley actively iglt against Muslims; but i tley
assist tle enemy in otler ways, tley are to be punisled but not executed. Elsewlere in
tle same book, Slai'i states tlat all inidel men witlout exception must convert to
Islam or be killed; all men o tle protected religions (abl al/ttab) must pay itzya or be
killed. He emplasizes tlat tlis rule applies to monks as well and denies tle autlenticity
o tle tradition attributed to Abu Bakr, wlicl le limsel lad accepted on anotler
occasion. Alternatively, le explains tlat even i tle tradition rom Abu Bakr is
autlentic, tlis does not mean tlat monks may not be killed. Abu Bakr's intention,
according to Slai'i, was tlat monasteries be let aside temporarily in order to
concentrate on more important military targets irst. Slai'i tlus concludes tlat monks
are not included in tle lists o non-combatants," and tley most deinitely may be
ouglt and killed. Later Slai'iiurists sometimes opt or eitler one o tle two

cc
See, e.g. Ibn Qudama, Mvrbni o/csc; Ibn Nuiaym, Babr s/8i; Razi, 1vb/a :/:88. According to Tabari,
I/bttla/, :c, Awza'i in tle second/eigltl century already regarded only tle cell-residing monks as non-
combatants.
c:
Saraklsi, Sbarb i/:i:s; since tlis text is Saraklsi's reproduction o Slaybani's Styar tlere is no certainty
tlat tle list is indeed Slaybani's-it may be Saraklsi's, rom tle itl/eleventl century. But elsewlere
Saraklsi's list includes only tlree categories: women, minors, and tle elderly; Mabsvt :c/i-6, co.
cc
Saraklsi, Mabsvt :c/:,;.
23
Slai'i, Umm ;/,;c (altlougl in i/cs, le iustiies tle prolibition against larming women and
clildren by traditions rom tle Proplet and by tle act tlat tley are not rom amongst tlose wlo
iglt"); see also Mawardi, Hawt :i/:o,. At tle beginning o tle seventl/tlirteentl century tle Hanbali
Ibn Qudama leld tle same opinion, see Ka/t i/c6;, but le adds elsewlere a dierent reason: a minor
may convert to Islam and tlereore slould not be killed, Ibn Qudama, Mvrbnt, o/cio.
7
contradictory opinions recorded in Slai'i's book; at otler times tley adduce botl o
tlem.
ci

As ar as elderly enemies are concerned, Slai'i ruled tlat tleir lives were oreit,
basing lis view on a Propletic statement tlat contradicts tle prolibition against killing
tlem; tle Proplet is reported to lave said, Kill tle elderly rom among tle enemy."
Tle ull version o tlis particular tradition allows or various interpretations, wlicl
were duly adduced in order to support varying legal opinions regarding tle elderly. Tle
tradition reads, Uatvlv sbvyv/b almvsbrt/tn wastabav sbar/babvm." Sbvyv/b normally
means old, elderly," wlereas sbar/b las no ixed meaning and can reer to a young male
as well as to a minor. Slai'i interprets sbar/b as a minor" and takes tlis tradition to
mean, Kill tle old people and let tle minors live." Certain Hanais interpreted sbvyv/b
in tlis battb as meaning adult" ratler tlan old, so tlat according to tlem tle saying
means, Kill tle adults and let tle minors live." By tlis interpretation tlese Hanais
preserved tle prolibition against killing tle elderly. Abu Hania limsel reportedly
based tle prolibition against killing tle elderly on anotler battb tlat is tle reverse o
tle one iust quoted, wlicl reads, vatvlv alsbar/b watrv/v alsbay/b." Here sbar/b is
interpreted as a young man, so tlat tle tradition means, Kill tle young men and let
tle old live." Tlus dierent versions o traditions (battbs), as well as plilology, were
put to use in order to supply a textual basis or varying opinions.
cs

Discussions o tlis kind in tle writings o al-Tlawri and Slai'i at tle end o tle
second/eigltl century slow tlat tlis list o our categories-women, clildren, tle
elderly, and monks-was deeply rooted. In tle same period, Fazari deines tlese our
categories as tlose wlom it is orbidden (nvbtya, a term weaker tlan bvrrtma) to kill,
but also notes questions addressed to iurists concerning otler categories: slould tle
sick, tle wounded, tle lame, tle blind, tle disabled, and tlose wlo lave led tle
battleield be spared? It is no wonder tlat tle same al-Tlawri, wlo attempted to evade
tle prolibition against killing monks, permitted killing most o tle above. He voices
reservations only in tle case o tle disabled and tle blind: tley must be killed only i
tley lave tle strengtl or tle ability to iglt. And or some reason, le slows mercy
toward tle retarded (matvb): I slouldn't like it tlat sucl a one be killed" (la yvitbvnt
aatlvbv).
c6

Al-Tlawri's reservation (Tley slould be killed only i tley are able to iglt") is
plrased in a way tlat points to tle principle guiding lis opinion: only tlose wlo are
unable to iglt, and will continue to be unable to do so, slould not be larmed. For tlis
reason, le does not lesitate wlen it comes to killing tle wounded, tle sick, tle

ci
Slai'i, Umm i/cs,-csi, cs;, cso, c6s, ;/,;6, as opposed to i/,c,, ,ci, and see also ;/,;6 (wlere monks
and tle elderly are counted among tle non-combatants"), 8/,;o; Tabari,I/bttla/, ::. Slai'i contradicts
limsel in tle same manner also regarding tle very elderly and possibly-tle text is unclear-also
regarding lired workers, cratsmen engaged in tleir crat, tle blind, and tle disabled. In Kttab bv/m abl
al/ttab, tle killing o tlese is orbidden, wlereas it is permitted in Styar alWaatt (but tlis may be
Vaqidi's opinion, not Slai'is). See Mawardi, Hawt :i/:oc-:o,; Marglinani, Htaya c/8:s, note s; Slirazi,
Mvbabbab c/c,,; see also Ibn 'Abd al-Barr, 1ambt :6/:,o. Later iurists reer to sucl contradictions as
two opinions" (aawlan).
25
Tle issue o tle elderly: Slai'i, Umm 8/,;o; (or tle contradictory opinions o Slai'i see also ibid.
i/,c, and Mawardi, Hawt :i/:oc-,); Ibn Qudama, Mvrbnt o/csc; Ibn 'Abd al-Barr, 1ambt :6/:ic. Ibn
Hazm, Mvballa, ;/,s:; Ibn Abi Slayba Mvsanna/ (Beirut) ;/6s;. Tle Hanai interpretation: Saraklsi,
Sbarb i/:i:;, Mabsvt :c/6. Abu Hania's reversed version: Mawardi, Hawt :i/:o,.
c6
Fazari, Styar ,,s;Tabari, I/bttla/, :c-::.
8
wayarer, and tlose wlo lave escaped rom tle battleield. All o tlese can at some
point recover or come back and take up arms.
Tlere were, lowever, otler opinions. Tlose wlo raised tle question wletler it
was permissible to kill tle wayarer, tle wounded, tlose wlo escape rom tle battleield
and so on, were apparently working on tle assumption tlat wloever was not involved
in combat slould not be larmed. Tlis conclusion also arises rom tle iurists' rulings in
various matters. For example, Abu Hania tlouglt tlat tle use o ballistas was
permitted even i tlis miglt larm women, clildren, tle very elderly, tle retarded, tle
blind, tle disabled, and tle clronically ill." Admittedly tlis constitutes permission to
larm tlese people ratler tlan a prolibition. But tlis statement proves tlat tlere were
discussions concerning groups o non-combatants" not mentioned in tle sayings
attributed to tle Proplet and Abu Bakr.
c;
Indeed tle lists o non-combatants"
attributed to Abu Hania include clildren, women, tle elderly, tle insane, tle blind,
tle clronically ill or tle disabled, monks and armers.
c8
Awza'i, in tle second/eigltl
century, includes in tle list tle blind, wayarers, and sleplerds, as well as tle original
our categories.
co

Tlere must lave been iurists wlo tlouglt tlat tle wounded slould not be
killed, otlerwise Abu Yusu (d. in :8c/;o8) would not lave taken tle trouble to state
explicitly tlat women, clildren, tle elderly, and monks slould be spared, but tlat tle
enemy wounded must be killed.
,c
Slai'i argues witl tlose wlo tlouglt tlat tle ill,
cowards, cratsmen, and armers-meaning, tlose wlo do not take part in combat-
slould not be killed; le tlouglt tlat tley slould be killed even tlougl tley do not
take part in combat.
,:
Clearly Slai'i's opponents, among tlem Awza'i, as mentioned
above, tlouglt otlerwise. And wlen Tabari states tlat tle blind, tle terminally ill,
sleplerds, armers, wayarers, and monks slould be killed, tlis is obviously not a list
tlat le invented; le is merely arguing against tlose wlo tlouglt tlat all tlese people
slould be spared as non-combatants." According to Tabari, only reliable traditions
rom tle Proplet iustiy reraining rom killing certain people; sucl traditions, le says,
mention only women, minors, and monks residing in cells.
,c

It is notewortly tlat concerning tle ill, cowards, and so on, autloritative
sayings rom tle Proplet and lis Companions (battbs) were neitler ound nor
invented. Tlere are only a ew sayings about servants and lired workers, sucl as tle
order reportedly given by tle Proplet to lis general Klalid b. al-Valid, Do not kill

27
Tabari, I/bttla/ 6-8. Tlis permission is given since larming non-combatants" under tlese
circumstances is considered unintentional. See tle section on Prolibitions concerning 'non-
combatants'."
c8
Tabari, I/bttla/ :c; c. tle opinion attributed to Abu Hania in Saraklsi, Mabsvt :c/:,;: women,
minors, tle very old, tle disabled or clronically ill; contradictory opinions are attributed to lim
concerning monks. According to Ibn 'Abd al-Barr, 1ambt :6/:,8-:,o, Abu Hania and Malik included in
tle list o non-combatants" tle blind, tle retarded, tle paralyzed, and monks residing in cells (as well as
women and minors). C. tle lists in Kelsay, Islam, p. s8.
co
Tabari, I/bttla/ :c. According to Ibn 'Abd al-Barr, 1ambt :6/:,8-:,o, Awza'i included women, monks,
tle insane, tle very old, and armers.
,c
Abu Yusu, Kbarai, :oi, :o6.
,:
Slai'i, Umm i/csi, ,cs; Tabari, I/bttla/, ::-:c; Mawardi, Hawt, :i/:o, gives tlis position legal
iustiications. Ibn Hazm, Mvballa s/,s: slares Slai'i's opinion, arguing tlat tle Proplet did not spare
servants, merclants, armers, and tle very old. See also Qurtubi, 1a/str c/,io.
32
Ibn 'Abd al-Barr, 1ambt :6/:,o; note tle omission o tle elderly.
9
clildren, nor servants." Tle words used lere to reer to servants and lired workers-
wvsa/a', `vsa/a'-are rarely seen except in tlese traditions. Tlere is, in act, no consensus
regarding tle meaning o tlese words. Slai'i understood ast/ as slave," and on tle
basis o tlis tradition, le extended tle category o non-combatants" to include slaves
as well, out o economic considerations.
,,
In addition, a prolibition against killing
armers is sometimes attributed to 'Umar (tlougl not to tle Proplet).
,i

It seems tlat tle opinion according to wlicl tle category o non-combatants"
was understood as tlose not involved in warare, was marginalized to a large extent.
Prominence was given to tle stricter view, according to wlicl only tlose wlo are not in
any way able to contribute to warare could be included in tle list o non-combatants,"
along witl tle original our categories mentioned in tle early list (or original two-
only women and clildren-according to one o Slai'i's opinions, or original tlree-
women, clildren, and tle elderly-according to one o tle opinions attributed to Abu
Hania). Tle original list was expanded to include tlose wlo are not able to contribute
to warare: tle disabled, clronically ill, blind, insane, retarded, and tle like. Tlis
expansion was based on analogy: or example, one wlo suers rom a disability or a
deect is like an old person, wlose killing tle Proplet orbade.
,s

Tle distinctions became more and more precise and minute. For instance, at tle
end o tle sixtl/tweltl century, tle non-combatants" list o tle Hanai iurist, Kasani,
reads as ollows: women, clildren, tle very old, tle disabled, paralyzed, blind, tlose
wlo lave no riglt arm, tlose wlo lave a leg and an arm missing (rom opposite sides
o tle body), tle retarded, monks residing in cells, tle solitary wayarer living in tle
mountains, monks living in tleir lomes, or monks living in clurcles wlo do not
venture outdoors. Kasani explicitly excludes rom tlis list priests, a wayarer wlo is in
contact witl otler people, people suering rom temporary insanity, tle mute, tle dea,
and tlose missing tleir let land or missing one leg. Tle act tlat Kasani mentions all
tlese groups probably means tlat tleir inclusion in tle list o non-combatants" was
discussed. A person missing lis let land, or example, is able to iglt witl lis riglt
one, and is tlereore excluded rom tle list o tlose wlo may not be larmed. Tle list
includes only tlose wlose disabilities keep tlem rom making any kind o contribution
to battle. Anyone wlo is, or will be, able to iglt or to contribute to tle battle (abl al
attal) may be killed, regardless o wletler le actually takes part in battle. Vomen and
clildren and tlose wlo lave witldrawn rom society in an extreme aslion, altlougl
not plysically disabled, may be regarded as exempt because tleir reedom o action is
restricted by social or religious rules.
,6

Tle later, stricter principle sometimes coexisted witl tle older one. Tlus tle
Hanbali Ibn Qudama (d. 6cc/:cc,) explains tlat a sick person wlo miglt recover and
tlen take part in tle battle must be killed, but tlat i le is terminally ill, tlere is no
ear tlat le will be able to iglt." Yet tle same Ibn Qudama preserves to a certain extent
tle early principle tlat bystanders slould not be larmed; le lolds tlat armers slould
not be killed i it is certain tley are not taking part in tle battle. He bases tlis opinion
on tlree arguments: a tradition attributed to tle second calipl, 'Umar, tle customary

,,
Cited in Ibn Qudama, Mvrbnt o/csc. See tle tradition, or example, in Ibn Abi Slayba, Mvsanna/
(Beirut) ;/6si.
,i
Ibn Qudama, Mvrbnt o/cs:.
,s
See, or example, Ibn Qudama, Ka/t i/c6;.
36
Kasani, Baa't' ;/:c:; c. IbnNuiaym, Babr s/8i; Marglinani, Htaya c/8:s.
10
practice o tle Companions during tle conquests, and tle opinion o tle early Syrian
iurist Awza'i. He reutes tle opposing opinion o Slai'i.
,;
Again tle same Ibn Qudama
elsewlere lists, along witl tle our original categories, only tle disabled, tle blind, and
tle androgynous; tle latter are included since tley miglt in act be women and as sucl
slould not be killed.
,8
Tle Hanbali Ibn Mulil (d. ;6,/:,6:) let on tle list not only
tlose suering rom various disabilities, but also armers, slaves, and even Jewisl sages
(babr).
,o

A restricted list is typical o Slai'i iurists, wlo, insoar as tley were able, abided
by tle general directive in tle Qur'an, Kill tle inidels." Tleir list was extended to
include only slaves, tle insane and tle androgynous. Tle lives o all tle otlers are
oreit, as tley say, also monks, lired workers, tle blind, and tle disabled, even i tley
are unable to iglt or to contribute to war by giving counsel." Nevertleless, tlere is no
unanimity among Slai'i iurists, except in regard to women and clildren. Tle ' Slai'is
exclude tlem rom tle Qur'anic directive Kill tle inidels" due to tle existence o an
autlentic Propletic saying (battb) prolibiting killing tlem. It slould be pointed out
tlat tlis battb contradicts tle plain meaning o tle Qur'anic verse, and yet tle battb,
and not tle verse, is considered to be decisive.
ic


Prolibitions concerning non-combatants" during and ater combat
Vlen discussing tlis topic, tle distinction drawn above between non-
combatants" during combat and non-combatants" wlo lave been taken prisoner is no
longer suicient. An additional distinction is necessary, namely, between innocent
non-combatants"-tlose wlo do not take part in combat-and tlose wlo do take
part, in one way or anotler. Tle latter are not always treated like regular warriors. Tlus
tlere are in act our categories o non-combatants": two during combat, tle innocent
and tlose wlo contribute to tle war eort, and anotler two in captivity, again, tle
innocent non-combatants" and tlose wlo contributed to tle war eort. It slould be
mentioned again tlat tle iurists usually do not mention tlese distinctions explicitly,
and it is oten unclear wlicl category tley lave in mind wlen setting down tleir rules.

Innoccnt noncombatants" vrtnr combat
During combat, tle prolibition against larming innocent non-combatants"
las very little inluence. Tle Slai'i iurist, Mawardi, even claims tlat any prolibition
against larming non-combatants" reers, in act, only to prisoners, and not to non-
combatants" during combat, wlen everytling is permitted (mvbab).
i:
Slai'i limsel, as
well as most iurists o all sclools, does not go tlat ar. Tlese iurists do, lowever, restrict
tle prolibition to tlat o intentional larm, wlile unintentional larm is not considered
to be a breacl o tle law. According to tle legal deinition, unintentional larm (rbayr

,;
Ibn Qudama, Mvrbnt o/cs:.
,8
Ibn Qudama, Ka/t i/c6;. Otler sclools discuss tle androgynous too, e.g. tle Slai'is, see Slirazi,
Mvbabbab c/c,,.
,o
Ibn Mulil, Fvrv` 6/c::; Ibn Qudama, Mvrbnt o/csc.
40
Zakariya al-Ansari, Fatb c/,cc; Slirazi, Mvbabbab c/c,,-c,i; tlese two autlors add emissaries to tle
list o tlose wlo must not be larmed, since tlis is tle custom." Emissaries are usually not mentioned in
tle context o non-combatants." For otler lists, see, or instance, Ibn Qudama, Mvrbnt o/csc; Saraklsi,
Mabsvt :c/;o and above, notes c,, ci.
i:
Mawardi, Hawt :i/:8i.
11
`am) is not tle equivalent o accidental larm (/bata'), wlicl is caused by distraction,
like a stray bullet" (or stray arrow). A person wlo causes accidental larm is not aware
o tle consequences o lis deed, wlile a Muslim iglting tle inidels, among wlom
tlere are also non-combatants," knows wlat miglt lappen during battle. Sucl
knowledge, lowever, does not make lim responsible; in act, tle opposite is tle case.
Tle dierence between accidental and non-intentional larm is relected in tle
rules governing eacl o tle cases, as ollows: a Muslim wlo accidentally larms anotler
Muslim (or a btmmt or a mvsta'mtn) las to perorm expiatory acts (/a//ara) in order to
acquire absolution o lis ault. Harming a non-combatant" during combat, on tle
otler land, is always regarded as unintentional or even permissible (mvbab); i innocent
non-combatants" are lurt or killed during combat, tlere is no larm" in tlis (la ba's),
and tle person wlo committed tle act is not punisled, nor is le required to pay blood-
money or to perorm expiatory acts.
ic
Tle eect o tlis is a severe limitation on tle
prolibition against inlicting larm on innocent non-combatants." Tlus, most iurists,
botl early and late, permit iring at enemies wlo use women and minors as slields, as
long as tle Muslims do not aim at tle women and minors.
i,
Likewise, tle use o non-
discriminatory weapons and tactics, sucl as ballistas, looding, setting aliglt a ortress,
and launcling an attack by niglt, is usually permitted. All tlese miglt larm women
and minors (or some reason, tlese discussions are always about women and clildren
and not about otler non-combatants"), but tley are always considered to be witlout
ill-intent and tlereore permissible.
ii
I lave not seen in tle sources any discussion o
cases o Muslims intentionally causing larm to non-combatants," nor lave I seen any
iurist wlo lolds a Muslim responsible or larming innocent non-combatants" during
combat. Apparently, sucl an act is not punislable under Islamic law.
Finally, it is wortl reerring again to tle contradiction in Slai'i`s positions
concerning monks, tlis time in tle context o permissible conduct toward tlem. As
recorded in tle Kttab alvmm, on one occasion le prolibits killing tlem and taking
tlem prisoner, as well as looting tleir property. A ew pages beore tlis, le lolds tlat
monks slould not be killed, but tlat tleir property, wives and clildren (stc) belong to
tle Muslims. Elsewlere, later on, we read tlat monks are to be treated like all otler
inidels: tleir lives are oreit during combat witlout any reservations or restrictions,
and tley are in act not considered non-combatants."
is



42
Tabari I/bttla/, s; Slai'i, Umm i/csc-cs,, ;/,6o; Mawardi, Hawt :i/:8i; Saraklsi, Mabsvt :c/6s; Ibn
'Abd al-Barr, 1ambt :6/:is; Ibn Nuiaym, Babr s/8s; Dirdir, Sbarb c/:;;; Ibn Mulil, Fvrv' 6/c:;, and see
above p. c.
i,
Tlis is tle issue o tatarrvs (tle use o luman slields), see, or example, Slai'i, Umm i/cs8, ;/,6o;
Mawardi, Hawt :i/:86-:8; (but tley also cite tle opinion tlat tle Muslims slould not ire at all in tlis
case), ;/,6o; Ibn Mulil, Fvrv` 6/c:c; Kasani, Baa't' ;/:c:; Zakariya' al-Ansari, Fatb c/,cc; according to
Malik and Awza'i, tle Muslims slould not ire at all at tle enemy taking cover belind women and
minors, see Slai'i, Umm ;/,6o; Zulayli, Atlar io;-io8. Zulayli omits mention o tle act tlat most
iurists do permit iring witlout aiming" at women and minors. Tlis omission is one o many examples
o tle apologetic tendency o lis book; see note :c above.
ii
Slai'i, Umm i/cs6, cs;, c;i, ;/,6o, 8/,;8; Tabari, I/bttla/ s-8; Saraklsi, Mabsvt :c/6s, Ibn 'Abd al-Barr,
1ambt :6/:i,-:is. Some iurists limit tle permission to a situation wlen tlere is no otler cloice and no
otler way to overcome tle enemy, or wlen tle Muslims are in danger; see, e.g., Zurqani, Sbarb ,/:6.
is
Slai'i, Umm i/c6s, ,c,, and above, note ci.
12
Noncombatants" wbo ta/c oart tn combat
It is widely agreed tlat tle lives o non-combatants" wlo take part in combat-
wlicl need not mean taking up weapons-are oreit, like tlose o tle warriors
tlemselves.
i6
Slai'i, altlougl usually severe in lis attitude toward inidels, is cautious
wlen it comes to women and clildren taking part in combat, probably because o tle
explicit traditions transmitted rom tle Proplet. He does not say outriglt tlat tley
slould be killed, but rules tlat tlere is no need to be careul not to larm tlem witl
weapons."
i;
Tle same Propletic traditions caused Malik to rule tlat women and minors
slould not be killed even i tley iglt tle Muslims.
i8
Tlere were later Malikis wlo
reiected tlis opinion o Malik and slared witl otler sclools tle view tlat during battle,
tle lives o non-combatants" taking part in tle iglting are oreit.
io


Innoccnt noncombatants" wbo bavc bccn ta/cn ortsoncr
At tle outset, tle dierence between combat and tle situation ollowing combat
slould be made clear. During combat, permission to kill non-combatants" or tle
prolibition tlereo applies to every Muslim warrior. Vlen it comes to prisoners, tle
general rule is tlat tle only one wlo las autlority to determine tleir ate is tle Imam.
sc

Tlis is tle reason wly tle law orbids Muslims in general to kill prisoners, wletler
warriors or non-combatants"; only tle ruler and lis representatives lave tle autlority
to execute a prisoner. Despite tlis, no punislment is meted out to a Muslim wlo kills a
prisoner. A iustiication or tlis is tle idea tlat tle lie o a prisoner is oreit to begin
witl, being an inidel (le is mvbab alam and not ma`svm).
s:
Certain iurists rule tlat a
Muslim wlo kills a woman-or a minor-prisoner las to pay tleir price to tle public
treasury (bayt almal), but tlis is a payment o compensation ratler tlan a punislment
or a crime. As will be presently slown, women and minors are considered to be
property, and wloever kills tlem must pay tle damage incurred by tleir deatl to tle
public treasury.
sc

Since tlere is a prolibition against killing non-combatants," lowever limited,
tle Imam cannot treat tlem as warriors and execute tlem wlen taken prisoner (unless
tley lave taken part in iglting against tle Muslims, see above). One o tle legal
opinions concerning tlem lolds tlat by becoming prisoners, tle non-combatants"
lave become enslaved.
s,
More oten tlan not, non-combatant" male prisoners are

46
Tabari, I/bttla, o; Zulayli, Atlar, i:8, i:o, io;; Saraklsi, Mabsvt :c/s, Zakariya' al-Ansari, Fatb c/,cc;
Ibn Qudama, Mvrbnt o/csc-csc; see also tle reerences in tle section Actions tlat constitute
participation in combat."
i;
Slai'i, Umm i/cs,. But Slirazi, wlo adlered to tle Slai'i sclool, permitted tle killing o women
warriors, see Mvbabbab c/c,,.
i8
Tabari, I/bttla/ , 8 -o. Al-Tlawri distingisles between women, wlo slould be killed i tley participate in
combat, and minors, wlo slould not be killed; Tabari, ibid., o.
io
Ibn 'Abd al-Barr, 1ambt :6/:,8. He mentions tlat tlere were iurists wlose opinion was dierent but
does not name tlem.
sc
See above p.i-s. But see Saraklsi, Mabsvt :c/:,;, wlere Abu Hania allows a captor to kill a prisoner.
s:
Slai'i, Umm i/c;i, ,cs; Mawardi, Hawt :i/:;;; Ibn Mulil, Fvrv` 6/c:c, c:;; Saraklsi, Mabsvt :c/6i;
Ibn Nuiaym, Babr s/8s.
sc
Slai'i, Umm i/,cs; Zulayli, Atbar, i:8. According to Zulayli, tlis is tle Slai'i opinion, but I lave
ound Hanbalis o tlis same opinion; see Ibn Mulil, Fvrv` 6/c::; tle Maliki iurist Dirdir applies tlis
rule to all non-combatants" and not only to women and minors, Sbarb c/:;;.
s,
Ibn Mulil, Mvbt ,/,c6; Ibn Mulil, Fvrv` 6/c:;-c:8; Ibn Qudama, Mvrbnt o/cio; Mardawi, Insa/
i/:,,.
13
excluded rom tlis rule, so tlat it applies only to women and minors. Tle latter slould
not be killed; regardless o tleir religious ailiation, tley become enslaved once tley
lave been taken prisoner and tley are considered to be spoils o war.
si
Nevertleless,
discussions o tle ollowing issues are ound in tle sources: may women and clildren
be released witl no remuneration? May tley be ransomed or money? May tley be
exclanged or Muslim prisoners? It goes witlout saying tlat dierent iurists rule
dierently regarding tlese issues. Some tlink tlat women wlo remain in Muslim lands
miglt eventually convert to Islam, and tlat minors become converted to Islam by tleir
captors; tlereore, tley slould under no circumstances be returned to tle enemy.
Otlers lold tle same view or dierent reasons: tley ear tlat, i returned to tle enemy,
tle minors would grow up to iglt against tle Muslims, and tle women would give
birtl to sons wlo would iglt against tle Muslims. Still otlers attacl priority to
releasing Muslim prisoners and tlereore allow exclanging women and clildren or
Muslim prisoners.
ss

Tlere is a wide range o opinion regarding non-combatant" male prisoners.
According to some, tley slould indeed be treated like warriors wlo lave been taken
prisoner, namely, tle Imam is to decide tleir ate applying one o tle options
mentioned above: execution, enslavement, and release (witl no recompense, or release in
exclange or money or or Muslim prisoners).
s6
Tlis means tlat, in tle case o non-
combatant" male prisoners, tle state o captivity cancels out tle distinction between
combatants and non-combatants"; tle only distinction in tlis state is tlat between
women and minors on tle one land, and men on tle otler. Tle idea underlying tlis
approacl seems to be tlat tle inability to iglt (wlicl makes one a non-combatant") is
no longer relevant. Presumably, once tle state o war is over, and a prisoner cannot
engage in combat in any case, tle distinction between combatants and non-
combatants" is unnecessary. Tle same idea leads also to tle opposite conclusion.
Saraklsi lolds tlat blind, paralyzed, and retarded prisoners slould not be executed,
because as prisoners tley can cause no larm, and tlereore tlere are no grounds or
killing tlem. Saraklsi in act insists tlat tle distinction between combatants and (male)
non-combatants" is not annulled by tle state o captivity and tlat tle restricted
immunity o tle latter is valid botl during and ater combat.
s;
Tlereore, tle ruler or
lis representative may not execute tlem, but le may cloose between tle remaining
options o tle treatment o prisoners. Some iurists oer tle ruler only two options: to
release tle non-combatant" prisoner witl, or witlout, recompense. Tlis means tlat,
according to tlem, male non-combatant" prisoners cannot be enslaved (contrary to tle
Arabian pre-Islamic custom).
s8
Tlere are Hanbalis wlo went so ar as to orbid taking
male non-combatants" prisoner altogetler, or at least tlose wlo are o no use to tle

si
Ibn Qudama, Ka/t, i/c;:; Ibn Mulil, Fvrv c/c:8. Mawardi cites Slai'i as allowing tle killing o
emale prisoners wlo do not belong to tle People o tle Book, cited in Zulayli, Atbar, i:8.
ss
See, e.g., Abu 'Ubayd, Amwal, 6:; Ibn Mulil Fvrv 6/c:;; Ibn Qudama, Ka/t i/c;c-c;,; Saraklsi,
Mabsvt :c/:,8-:ic, see details in Zulayli, Atbar, icc-ic;.
s6
Mawardi, Hawt :i/:;,; Ibn Qudama, Mvrbnt o/:;o; Ibn Nuiaym, Babr s/8i, and see in tle ollowing
note tle opposite opinion o Saraklsi, wlo, like Ibn Nuiaym, is a Hanai. For tle discussion o prisoners
see above p.i.
s;
Saraklsi, Mabsvt :c/6i; Zulayli, Atbar ic;-ic8.
s8
All tlese opposing opinions are witlin tle Hanbali sclool; see Ibn Mulil Fvrv 6/c:;-c:8; Ibn
Qudama, Mvrbnt o/:;o.
14
Muslims."
so
Tle Malikis and tle early Syrian iurist Awza'i apply tle prolibition against
taking prisoners only to monks.
6c
Malik maintains, moreover, tlat monks slould be
let witl means to keep tlemselves alive.
6:


Noncombatants" wbo oarttctoatc tn battlc an bavc bccn ta/cn ortsoncr
Early iurists are o tle opinion tlat non-combatants" slould not be larmed
once taken prisoner, regardless o wletler tley participated in combat against tle
Muslims, since tley no longer pose a tlreat.
6c
Among tle later iurists, some permit
executing tlem, as a punislment or laving participated in combat, wlile otlers
preserve tle early view.
6,
Tlere are Hanai iurists wlo distinguisl between tle prisoners
on tle basis o tle concept o legal accountability: ater tle battle las ended, tley no
longer distinguisl between combatants and non-combatants," distinguisling ratler
between tlose wlo can be leld legally accountable in a court o law (mv/alla/) and tlose
wlo cannot. Tlose wlo are accountable are treated like warriors wlo lave been taken
prisoner. Tlus a woman and an elderly person wlo took part in combat may be
executed. Tlose wlo are not legally accountable-tlere are iurists wlo speciy tlis as
reerring to minors and tle insane-may not be executed ater being taken prisoner,
even i tley killed Muslims during battle.
6i

An issue related to captivity is tlat o tle ate o prisoners wlo cannot walk
because o an illness or any similar reason. Discussions o tlis kind may reer to
prisoners at large and not necessarily to non-combatants," and at times it is unclear
wletler or not tle latter are included. Tle Hanbalis disagree among tlemselves on tlis
matter: some permit killing sucl a prisoner, wlile otlers orbid it. As ar as I lave seen,
sucl permission is given only in regard to men.
6s
Abu Hania, lowever, is unequivocal
on tlis issue: in case tle prisoners cannot be taken to Muslim territory, tle women and
clildren must be released and tle men killed. According to Slaii, regarding tle same
case, tle men may be killed, altlougl tlis is not obligatory, wlile tle women and
clildren may not be killed.
66
Tlis particular topic is sometimes discussed witlout any
solution being proposed: Ibn Nuiaym states tlat non-combatants" slould not be let
in enemy territory unless tley are unable to procreate (men) or give birtl (women), but
le does not say wlat slould be done witl prisoners wlo cannot be taken to Muslim
territory and do not meet tlese criteria.
6;
Tle early iurist, al-Tlawri, on tle otler land,
sets down a clear and simple rule in tlis case: women, minors, and tle elderly wlo

so
Ibn Qudama, Ka/t i/c;:; Ibn Mulil, Mvbt' ,/,c6-,c;; Mardawi, Insa i/:,,. Some Hanbalis, lowever,
lold tlat tle state o captivity transorms all non-combatants" into slaves; see note s, above.
6c
For tle Malikis see Tabari, I/bttla/, o-:c; Dirdir, Sbarb c/:;;; Zulayli, Atbar ic8. For Awza'i, see Fazari,
Styar ,,i, Tabari, I/bttla/, :c.
6:
Ibn 'Abd al-Barr, 1ambt :6/:,o; Salnun, Mvawwana ,/6.
6c
Tabari, I/bttla/, o (Awza'i, Slai'i).
6,
Zulayli, Atbar i:8, ic;.
6i
Saraklsi, Sbarb i/:i:6, Mabsvt :c/6i; Ibn Nuiaym, Babr s/8i; Marglinani, Htaya c/8:6; c. al-Tlawri's
position, note i8 above.
6s
Ibn Mulil, Fvrv 6/c::.
66
Slaii, Umm i/c;i, ,cs; Tabari, I/bttla/, :,c, :,,; Saraklsi, Mabsvt :c/,6.
67
Ibn Nuiaym. b s/8s.
15
cannot be taken to Muslim territory slould be let belind, wlereas monks must pay
itzya or be executed.
68


Actions tlat constitute participation in combat
Tlere are many points o contention regarding tlis matter. It appears tlat in tle
early period tle lives o tle non-combatants" were oreit only i tley actively took
part in combat. Tle early sclolar, al-Hasan al-Basri (d. ::c/;c8), relates tlat tle
Proplet's Companions used to kill women and clildren wlo lad acted against tlem.
6o

Tle early Syrian iurist, Awza'i, lolds tlat non-combatants" slould not be larmed on
account o tle mere possibility or tle ear tlat tley miglt cause larm, but only i tley
actually do so.
;c
Even Slai'i, wlo takes an extreme position toward inidels, writes tlat
only actual iglting makes tle lives o monks, women and clildren oreit. I tley turn
Muslims over to tle enemy, or supply weapons to tle enemy, tley are to be punisled
but not killed.
;:
Malik, on tle otler land, rules tlat anyone wlo is eared must be
killed."
;c
Suyan al-Tlawri rules tlat tle blind and tle disabled must be killed i tley
lave tle strengtl to iglt.
;,
Tlis relects tle principle tlat tle potential to commit a
lostile act is equivalent to committing it.
Tle concept o participation in combat, wlicl makes tle lie o a non-
combatant" oreit, was extended to include sucl actions as espionage, turning Muslims
over to tle enemy, agitation, and giving counsel to tle enemy. Even laving a position
o autlority among tle enemy, tle mere suspicion o laving taken part in battle, or tle
ability to take part in battle, to give counsel, or to cause any kind o damage even i not
directly connected to battle-all tlese became actors tlat made tle lie o a non-
combatant" oreit.
;i
Tle iurists dier on tlese matters as tley do on most topics. First,
dierent iurists cite dierent actors; second, not every actor is applied to every
category o non-combatants." Tle matter o giving counsel or tle ability to procreate is
mentioned in connection witl tle very old (and not, or instance, tle ill or tle
disabled). Tle suspicion or knowledge o assistance to tle enemy is mentioned in
relation to monks (and not, or instance, tle old, tle insane etc.).
;s
Tle reason or tlis
is listorical: it was presumably monks wlo were suspected o assisting tle enemy during
tle conquests; and it was tle aged poet and tribal clie, Durayd b. al-Simma (executed
by tle Proplet), wlo served as an example o a non-combatant" wlo can larm tle
Muslims by tle counsel le gives to lis people. Later sources sometimes take a actor
tlat lad been applied to a speciic group o non-combatants" and apply it to otler

68
Fazari, Styar, ,,i-,,s, ,s8. As mentioned above, tle early list o non-combatants" included only tlese
our categories.
6o
Cited in Ibn Abi Slayba (beginning o tle tlird/nintl century), Mvsanna/ (:o;c-:o;:) :c/,8o; c.
Qurtubi, 1a/str c/,i8: a minor wlo iglts must be killed but not a woman.
;c
Fazari, Styar, ,,i; Tabari, I/bttla/, :c.
;:
Slai'i, Umm i/cs,, c6s. As pointed out above, Slai'i contradicts limsel elsewlere (i/,c,) and claims
tlat monks are like any otler man belonging to tle People o tle Book: tley must eitler convert to Islam
or pay itzya, or else be killed; see above note cs.
;c
Ibn 'Abd al-Barr, 1ambt :6/:,o.
;,
Fazari, Styar ,,s, c. a similar opinion regarding tle disabled or tle clronically ill (zamna), Qurtubi,
1a/str c/,io.
;i
See, e.g., Kasani, Baat` ;/:c:, and tle reerences in notes ,6-,;; Ibn Mulil, Fvrv 6/c::; Ibn Qudama,
Ka/t i/c6;.
;s
See, e.g., Ibn Mulil, Fvrv 6/c::.
16
groups.
;6
In any case, tle statement by tle Hanai Ibn Nuiaym (tentl/sixteentl century)
tlat in our opinion, tlat wlicl makes a person's lie oreit is combat" is nearly
meaningless in liglt o tle act tlat le considers combat" to include tle ability to
slout, tle ability to lave clildren, and mental clarity (wlicl enables a person to give
counsel).
;;

Special stipulations are sometimes mentioned concerning women. Some iurists
allow killing a woman i sle curses tle Muslims or exposes lersel to tlem: tlese are
actions tlat, wlen carried out by women, constitute participation in combat.
;8
Ve
miglt well wonder wly a blind or a landicapped person wlo curses tle Muslims is not
treated equally. Tle answer is probably related to tle special role played by women in
combat-a role tlat is considered women's business," iust as lamenting tle dead is an
aair or women. Tlere are lardly any reerences to tlis in tle legal works I lave read,
but a lint can be ound in Qurtubi's interpretation o Qur'an c::oc. Here it is said tlat
women may cause damage, eitler by inancing war or by agitation. Tley miglt set out
witl tleir lair down, issue battle cries, and berate tlose wlo escape rom battle witl tle
Muslims; all tlis constitutes participation in combat. In spite o tlis, Qurtubi preers
tlat sucl women be taken prisoner ratler tlan killed.
;o
Saraklsi bases tle special
directives concerning women on Propletic custom: le is reerring to traditions
according to wlicl tle Proplet allowed killing women wlo cursed lim and incited
otlers against lim.
8c


Conclusions
A. Tle sources o contention
In liglt o tle many points o contention regarding tle list o tle non-
combatants" and otler matters, one may wonder low and wly tley arose. It seems to
me tlat tley do not arise, or example, out o contradictory Qur'anic directives, since
tle Qur'an lardly deals witl tlese matters. Only rarely was one verse or anotler
adduced as a iustiication or tle prolibitions against larming non-combatants".
8:

Neitler could tle various contradictory Propletic traditions (battbs) give rise to
contention. As is well known, traditions were oten orged to back up arguments, and
iurists cited tlem as part o ongoing disputes. Contradictory traditions tlereore relect
tle result o tle disagreements ratler tlan tle reason or tlem. Tle same can be said o
tle dierent, sometimes contradictory, interpretations o Qur'anic verses and o
traditions.
Tle disputes regarding non-combatants" appear to me to lave arisen irst and
oremost because o a conlict between dierent principles, sucl as tlat wlicl states
tlat tle lives o tle inidels are oreit, as opposed to tle general principle tlat one
slould kill only wlen it is absolutely necessary or because tlere is legal ground or
doing so. According to tle statements o tle Hanais, tley tlink tlat only aggression
on tle part o tle inidels makes tleir lives oreit; tlereore tlose wlo are unable to

;6
See ibid., 6/c:c-c::; Ibn Mulil lived in tle eigltl/ourteentl century.
;;
Ibn Nuiaym, Babr s/8i.
;8
Ibn Mulil, Fvrv 6/c:: (witl a reerence to tle act tlat tlis is not tle opinion o all Hanbalis).
;o
Qurtubi, 1a/str c/,i8; Ibn Mulil, Fvrv 6/c::.
8c
Saraklsi, Sbarb i/:i:8-:i:o.
81
Qur'an c::oc: And iglt in tle way o God witl tlose wlo iglt witl you, but aggress not."
17
iglt-like tle disabled-slould not be larmed.
8c
Tlis means tlat tle Hanais attacled
greater importance to tle general principle tlan to tle anti-inidels one. On tle otler
land, tle Slai'is accept at ace value tle directive in tle verse Kill tle inidels";
8,

idolatry, according to tlem, is tle legal ground or killing, and tle lives o all tle
inidels are oreit-including tle disabled, tle elderly, and so on.
However, two points slould be emplasized. First, tlere are disagreements witlin
eacl sclool, and tlere are surely Slaiis and Hanais wlose views are not compatible
witl tlese statements. Second, tle disagreement between Slai'is and Hanais is not as
great as it seems at irst. Tle Hanai iurist Saraklsi, or example, states tlat tle lives o
all lumans are basically protected (alaamt /tlasl mabavn alamm; note tlat le does
not say ma`svm). Tlis ormulation creates tle alse impression tlat le is cautious wlen
it comes to tle lives o all luman beings, and only allows warare against aggressors. But
Saraklsi permits tle use o non-discriminatory weapons and tactics, sucl as ballistas
and looding, and exempts tlose wlo larm non-combatants" rom responsibility, as
do tle Slaiis.
8i
In addition, tle Hanai`s concept o combat" is very expansive. As
slown above, tlis concept includes tle reusal to convert to Islam, tle ability to
perorm certain activities, sucl as slouting, and a certain way o lie as well: being a
monk is to tlem tle equivalent o taking part in combat, since tlis presents exemplary
belavior to tle inidels. Tlus tle number o non-aggressors wlose lives are protected is
very small, again in accordance witl tle Slaii position.
8s

A second source o disagreement among tle iurists is tle dierent
interpretations given to tle basic legal principles. For instance, one o tle basic
principles is tlat o utility and damage. Vlen applied to war tlis principle dictates tlat
wloever inlicts damage on tle Muslims must be killed, even i le or sle is a non-
combatant." Vlen interpreted in an extended manner tlis principle dictates, or
example, tlat wloever is capable o procreation must be killed, since le or sle miglt in
tle uture increase tle number o enemies. Tlus, various answers were given to tle
question o wlose lie is oreit and under wlat circumstances.

B. Inconsistency
All tle people mentioned in tle lists recorded above were included in tlem on
tle assumption tlat tley do not take part in combat. However, as slown in tlis article,
Muslim law does not adlere to tle distinction between tlose wlo take part and tlose
wlo do not: it adleres to tle lists. Tle result is a one-way movement, rom witlin tle
lists outwards. Tlat is to say, wlen a person included in tle lists acts contrary to tle
assumptions and takes part in combat, le/sle is witldrawn rom tle list and is not
considered a non-combatant." But wlen a young, lealtly, ree male acts against tle
assumptions and rerains rom taking part in combat, le is not put on tle list o non-
combatants." Tlis means tlat Muslim law does not in act distinguisl between soldiers
and civilians. Tle distinction is instead between tlose wlo are subiect to certain
disabilities and limitations (in body, in mind, and in religious and social belavior) and
tlose wlo are not. Only tle ormer enioy some immunity rom larm, provided tley do

8c
See,e.g., Marglinani, Htaya c/8:s; Saraklsi, Mabsvt :c/i-s, ,c-,:, 6i, Sbarb i/:i:s.
8,
See, e.g., Ibn Qudama, Mvrbnt o/csc; Zakariya' al-Ansari, Fatb c/,cc; tle verse is o:s.
8i
Saraklsi, Mabsvt :c/8:, opposed to ,c-,:, see note 8c above.
8s
Saraklsi, Mabsvt :c/,:, :,;; see above, tle section Participation in combat.
18
not contribute in any way to combat against Muslims. Tlis one-way movement may be
considered as an inconsistency in tle law.
Inconsistency in adopting and applying tle legal principles is common to all tle
legal sclools. For example, Slai'i rules tlat tle directive in tle verses reading Kill all
tle idolaters" is comprelensive and absolute (`amm). Tlis means tlat no exception is to
be made. But Slai'i and lis ollowers eel tlemselves bound by tle Propletic tradition
and tle ancient custom stipulating tlat women and minors must not be killed. In otler
words, Slai'i and lis ollowers do not consistently apply tle Qur'anic principle tlat
tle blood o all idolaters is oreit. On tle otler land tle Hanais expressly argue tlat
all lumans basically lave immunity rom larm, and only aggression on tle part o a
person constitutes legal grounds or killing lim. But tle Hanais do not apply tlis
principle o tle immunity o tle innocent to all bystanders: tley lave tleir lists o tle
non-combatants." Furtlermore, as slown above, tley permit tle use o indiscriminate
weapons and tactics (wlicl may larm tle innocent) as well as tle execution o
prisoners (wlo can no longer larm tle Muslims). Reportedly Abu Hania allows
Muslim captors to kill prisoners even beore bringing tlem beore tle commander.
86

Tle Hanbali iurist Ibn Qudama explains in tle seventl/tlirteentl century tlat an old
man slould not be killed because le is not one o tle combatants (laysa mtn abl al
attal); in spite o tlis, le does not apply tlis prolibition to otlers wlo are in practice
also non-combatants.
8;
And i we were to assume, based on common sense, tlat tle
principle o sel-deense would apply in any case, we tlen ind tlat Malik orbids
larming women and clildren, even i tley ire at tle Muslims.
88

Even tle principle o utility is not applied consistently. For instance, tle iurists
state tlat tlis is tle principle tlat determines tle ate o tle prisoners: tley slould be
released i tlere is a clance tlat tley will convert to Islam, or tley slould be exclanged
or ransom or or Muslim prisoners; tley slould be killed i tlis will weaken tle enemy,
or tley slould be enslaved.
8o
Had tle law been consistent, tlese same options would be
relevant also to women and clildren. Tle opposite also lolds true: tle iurists explain
tlat women and clildren are considered property and lence slould not be killed; tle
same could be said o male prisoners, but tle law does not take tlis approacl.
oc

Dierent rules regarding dierent groups included in tle list o non-combatants" are
also evidence o inconsistency.
o:
Tlis inconsistency slows tlat tlere was no general
concept o non-combatants" wlom it is orbidden to larm.


86
Saraklsi, Mabsvt :c/:,;-:,o and see above, tle section Combatants wlo lave been taken prisoner."
8;
Ibn Qudama, Mvrbnt o/csc. Tle plrase abl alattal, lowever, can also mean tlose wlo do not usually
engage in iglting," and in tlat case tlere is no contradiction in lis position.
88
Tabari, I/bttla/, 8.
8o
Slai'i, Umm i/c;s, and see above, tle section Combatants wlo lave been taken prisoner".
oc
Qurtubi, tle seventl/tlirteentl-century Qur'an interpreter, was probably tlinking o tlis
inconsistency; see 1a/str c/,i8, wlere le explains tlat women tend to convert to Islam sooner tlan men
and are also less likely to escape rom captivity; lence tley slould be enslaved ratler tlan killed, unlike
men.
o:
See, or example, Qurtubi, 1a/str c/,i8: a woman wlo took part in combat slould be killed; not so a
minor: see also above, tle section Prolibitions concerning 'non-combatants'".
19
C. Tle concept o non-combatants"
It is no accident tlat Muslim law las no term analogous to tlat o non-
combatants, or civilians, in international law. Ratler, it las deined lists o various
categories o people, wlicl do not include all tle non-combatants. Tlese lists are based
on an ancient and deeply rooted tradition, according to wlicl our categories o people
slould not be larmed: women, minors, tle elderly, and monks. It appears tlat at tle
basis o tlis tradition lies tle principle, or custom, o not killing bystanders. Muslim
law did not extend tlis principle to include all bystanders. On tle contrary, tlis
principle was largely reiected in avor o anotler principle, one tlat leld tlat only tlose
wlo are incapable o larming Muslims in any way, due to plysical, mental or otler
limitations, slould not be larmed. Tle Slai'is reute tlis principle too, and prolibit
larming only women and minors (because o traditions transmitted rom tle Proplet),
altlougl some o tle Slai'is extended tlis prolibition to otlers as well, on tle basis
o analogy.
Tle most stable element ound in tle rules concerning tle non-combatants" is
tlat o reraining rom larming women and minors. Tlese two groups are mentioned
in tle earliest lists, and tlere are almost no disagreements about tle prolibition against
killing tlem under any circumstances. Even wlen men included in tle list o non-
combatants" lose tlis classiication ater being taken prisoner, tle lives o women and
minors are still considered to be protected. Vlen women and minors wlo lave been
taken prisoner cannot be taken into Muslim territory, tle iurists do not order killing
tlem (unlike tleir ruling regarding male prisoners).
oc
An opinion permitting tle killing
o women and clildren is rare and is considered aberrant (rbartb).
o,

Abu Yusu's ruling concerning arbitration is yet anotler witness to tle stability
o tle non-combatants" status granted to women and clildren: according to Muslim
law, tle enemy lave tle option o surrendering unconditionally and entrusting tle
decision about tleir ate to a named Muslim arbitrator. Abu Yusu rules tlat i tle
arbitrator decrees tlat women and clildren slould be executed, lis decree contradicts
tle Propletic Custom (svnna) and is tlereore illegal.
oi

It is also notewortly tlat no distinction is made between women and clildren
belonging to tle People o tle Book (/ttabts) and tlose o otler religions. Tle rule tlat
orbids killing includes all women and clildren, wlereas rules concerning men
distinguisl between /ttabts and idolaters. By taking tlis approacl toward women and
clildren tle Muslims are continuing a very long tradition.
os

Respect or early traditions transmitted rom tle Proplet and lis close
Companions (battbs) impel many iurists to include monks and tle elderly in tle list o
non-combatants." To be sure, tley sometimes explain tleir attitude on tle basis o
analogy (e.g., tle elderly are larmless, like women). However, certain iurists do exclude
tlese two categories rom tle list by denying tle autlenticity o tle early battbs or by
interpreting tlem in ways tlat allowed tlis exclusion.
It seems likely tlat a Vestern approacl to tlis problem would be, irst to
ormulate a concept o non-combatants" and tlen to draw up a list o protected people

92
Slai'i, Umm i/c;i, ,cs.
o,
Zurqani, Sbarb ,/:6, but see above pp. :i, :6.
94
Abu Yusu, Kbarai, cc,.
os
See Deuteronomy cc::,-:i.
20
on tlat basis. But attitudes toward non-combatants in Muslim law developed in a
dierent way: tlere was irst an original list o non-combatants," probably based on
ancient custom and on tle notion tlat bystanders slould be let alone. Tle list took tle
orm o battbs and became rooted in Islamic practice. Some o tle earliest iurists, in
tle second/eigltl century, readily accepted tle tradition. Otlers lad a dierent
opinion, but tley nevertleless respected tle tradition and tle battbs and attempted to
explain tle list, or parts tlereo, on tle basis o analogy, or by applying tle principle o
utility. Tlere were also attempts to explain away parts o tle list, because tle notion
tlat bystanders slould be let alone was not acceptable to all iurists. At tle same time
tle list was expanded to include additional categories on tle basis o analogy. All tlese
processes are relected in tle remarks o tle seventl/tlirteentl-century Hanbali iurist
Ibn Qudama: according to lim, women and minors slould not be killed, since tlis was
orbidden by tle Proplet, and in addition, tley are considered to be property, and
property slould not be damaged. Tle elderly slould not be killed, since tlis was
orbidden by tle Proplet, and in addition, tley are unable to cause damage during war
(la nt/aya labv /t albarb) and tley are tlus like women. Tle disabled and tle blind are
like tle elderly. Abu Bakr prolibited tle killing o monks, and since religious reasons
prevent tlem rom participating in combat, tley are like tlose wlo are unable to iglt.
Slaves wlo all into Muslim lands become tleir property, like women and minors.
Hence tley are treated in tle same way as ar as tle prolibition against killing tlem is
concerned.
o6

Tle act tlat various explanations were oered or tle dierent categories leads
to tle conclusion tlat tle list was not drawn up systematically according to a certain
principle, but was ratler gatlered rom various sources and extended on tle basis o
analogy. Tle later legal discussions remained very similar to tlose rom earlier periods
wlen tle iurists were aced witl questions based on analogy: Vlat is your opinion
regarding tle blind? How would you rule concerning tle sick? And wlat o tle
disabled?" Tlis is one tle reasons wly it is so diicult to ollow tle discussions in tle
legal sources. Anotler (related) diiculty is tlat eacl category in tle lists is discussed
separately, and dierent reasons are adduced as explanations wly members o tlat
category slould not be larmed. Usually no systematic distinctions are made, and tle
discussions oten revolve around some o tle categories, ignoring otlers. Tle discussion
about tle permissibility o taking prisoners, or instance, is usually recorded as
pertinent only to monks and not to otlers on tle list. Tle elderly, tle disabled, and so
on, are discussed separately. Tlere is no general concept o a category o non-
combatants," nor is tlere one tleoretical basis or tle rules concerning tlem.

D. Practical, moral and legal considerations
o;

Reraining rom killing non-combatants" is oten explained in Muslim law on
tle basis o considerations o utility. Tle inconsistency in tle application o tlese
considerations las been slown above. Tle moral principle, tlat is, tle inculpability o
tlose not involved in combat, is usually absent rom tle explanations oered by
Muslim iurists. Zurqani is exceptional in tlis regard; le explains tle prolibition

96
Ibn Qudama, Ka/t i/c6;, Mvrbnt o/csc.
97
Tle tension between practical and moral imperatives is tle subiect o Abou al-Fadl's article Rules o
Killing." He ignores tle legal imperative.
21
against killing women and minors as derived rom tle act tlat tley are unable to
commit acts o idolatry (ltavsvrtbtm an /tl al/v/r). Exactly wlat le means by tlis is
let unclear, since obviously women can be idolaters. It slould also be noted tlat
Zurqani conceives o tleir innocence as related to tleir aitl, not to tleir actions. Tle
autlor, lowever, does not neglect to mention tlat leaving women and minors alive is
useul, since tley can be exclanged or Muslim prisoners or used as slaves.
o8

Tle prolibition against killing non-combatants" is sometimes explained witl
tle words tley are not o tlose wlo iglt" (laysa mtn abl alattal la yvaattlvn).
oo

Altlougl tlis explanation may be taken as relecting a moral approacl, it seems tlat
tle approacl o tlose wlo oered it was in act legal ratler tlan moral. I tleir
reasoning lad been purely moral, tle principle o inculpability would lave been
applied to all tlose wlo do not actually participate in combat ratler tlan only to tlose
included in tle list o tle non-combatants." As Saraklsi states, tle prolibition against
killing non-combatants" is based on tle ensuing utility rom tle Muslim point o
view, or on tle absence o a legal basis or killing tlem.
:cc
No moral consideration is
present. Tle case o rebels (abl albarby) strengtlens my interpretation. In tlis case, all
rebels wlo do not take part in combat slould not be killed, but or legal ratler tlan
moral reasons: tleir lives are immune (masvm), because tley are Muslims (see above).
It appears tlat in early Islam, tle customary avoidance o killing armers,
sleplerds, cratsmen, tle disabled, and deserters was indeed based on a moral
consideration o inculpability. Altlougl tlis is not stated explicitly, tlis seems to me to
be tle only possible interpretation o traditions sucl as tle ollowing: Umar wrote to
tle commanders to iglt in tle way o Allal and to iglt only tbosc wbo /trbt aratnst
tbcm |emplasis mine], and not to kill women or minors, nor to kill tlose wlo do not
use a razor" (namely, minors).
:c:
Tlis moral tendency is relected also in particular
rulings. Awza'i, or instance, prolibits tle extraction o inormation rom monks, since
tlis miglt endanger tlem i tley are later taken prisoner by tle enemy.
:cc

In later writings, lowever, not mucl survives o tlis moral approacl, not even
tle names o tlose wlo leld it. Tley appear, or example, as Slai'i's adversaries, wlen
le adduces arguments against tlem.
:c,
It is especially notewortly tlat Slai'i uses tle
actor o inculpability ratler in tle case o animals. Vlen asked wletler it is
permissible to destroy property in order to prevent it alling into enemy lands, le gives
an airmative answer, excluding animals: animals lave souls, and tley suer i
tortured; an animal las not sinned |and slould not be killed except or
consumption]."
:ci
Tle idolaters, by deinition, are guilty, and tlereore tleir suering
slould not be a consideration, even i tley pose no tlreat to Muslims. Tlis distinction
between a moral imperative and a legal one complements wlat las been said above: tle
lists o non-combatants" were drawn up on tle basis o analogy rom a core list and

o8
Zurqani, Sbarb ,/:6.
oo
E.g. Slai'i, Umm i/cs,; Saraklsi, Mabsvt :c/co; Ibn Qudama, Mvrbnt o/csc, csc; Ibn 'Abd al-Barr,
1ambt :6/:,8.
100
Saraklsi, Sbarb i/:i:s-:i:6.
:c:
Abu 'Ubayd Amwal, c,.
:cc
Fazari, Styar, ,,i; Tabari, I/bttla/ :c.
:c,
See above pp. 8, :c. Abou el-Fadl, Rules o Killing," claims tle opposite: le says tlat rom tle ourtl
century AH tle moral imperative overcame considerations o utility.
104
Slai'i, Umm i/c;i: .ltannabv bv rvb ya'lam btl`abab wala banb labv
22
not on tle basis o a moral principle. Tle only principle guiding tle iurists was a legal
one, tlat o immunity, 'tsma-or to be precise, tle lack o it as ar as inidels are
concerned. Tle approacl o Muslim law to tle idea o non-combatants," in
conclusion, is markedly dierent rom tle distinction made by international law
between combatants and tle civil population, even i, at irst glance, tle rules seem
similar.

Epilogue
Tlis paper investigates medieval Muslim law. However, one recent development
in particular deserves to be mentioned.
In :oo;, tle Egyptian terrorist organization al-Jama'a al-Islamiyya renounced
violence and ceased to conduct terrorist activities. Moreover, its leaderslip proceeded to
publisl a series o books providing a religious basis or tlis ideological reversal. One o
tle main arguments adduced in tlese books is tlat Muslim law orbids targeting
civilians. Tlis argument las been litlerto adduced only in contexts o apologetics and
polemics against tle Vest. As las been slown in tlis article, Muslim law does not really
orbid targeting civilians. It is tlereore remarkable tlat al-Jama'a al-Islamiyya created
or itsel a legal restriction previously absent rom tle law. Tle organization obviously
added tle moral aspect to its considerations.
:cs












:cs
See tle inormation in lttp://memri.org/bin/articles.cgi?Page-arclivessArea-sdsID-SP:,c:c6
(MEMRI, Special Dispatcl No. :,c: 'Al-Gama'a Al-Islamiyya vs. Al-Qaeda,', September c;, ccc6)


23
Bibliograply

Abou al-Fadl, Tle Rules o Killing" -Abou al-Fadl, Klalid. Tle Rules o Killing at
Var: An Inquiry into Classical Source." 1bc Mvsltm Worl 8o (:ooo): :ii-:s;.

Abu 'Ubayd, Amwal - Abu 'Ubayd al-Qasim b. Salam. Kttab al amwal. Beirut:
Mu`asasat Nasir li-'l-tlaqaa, :o8:.

Abu Yusu, Kbarai - Ya'qub b. Ibralim Abu Yusu. Kttab al/barai. In Mawsvat al
/barai. Beirut: Dar al-ma'ria, n.d.

Dirdir, Sbarb - Abu al-Barakat Almad al-Dirdir (Maliki). AlSbarb al/abtr. Beirut: Dar
al-ikr, n.d.

Fazari, Styar - Abu Islaq al-Fazari. Kttab alstyar. Beirut: Mu`asasat al-risala, :o8;.

Friedmann, 1olcrancc - Yolanan Friedmann. 1olcrancc an Cocrcton tn Islam Intcr/attb
Rclattons tn tbc Mvsltm 1rattton. Cambridge: Cambridge University Press, ccc,.

Ibn 'Abd al-Barr, 1ambt - Yusu b. 'Abd Allal b. 'Abd al-Barr (Maliki). Al1ambt.
Morocco: Vizarat 'umum al-awqa wa-l-slu`un al-Islamiyya, :,8;.

Ibn Abi Slayba, Mvsanna/ (:o;c-:o;:) - 'Ali b. Mulammad b. Abi Slayba. AlKttab al
mvsanna/ /t `labattb walatbar. n.p., :o;c-:o;:.

Ibn Abi Slayba, Mvsanna/ (Beirut) - 'Ali b. Mulammad b. Abi Slayba. AlKttab al
mvsanna/ /t `labattb walatbar. Beirut: Dar al-ikr, n.d.

Ibn 'Abidin, Hasbtya - Mulammad Amin b. 'Umar, Ibn 'Abidin (Hanai). Hasliyat
radd al-multar 'ala Al-Durr al-mukltar. Beirut: Dar al-ikr, :,8;.

Ibn Hazm, Mvballa - 'Ali b. Mulammad b. Hazm. AlKttab almvballa. Beirut: Dar al-
ikr, :o8i.

Ibn Mulil, Mvbt - Ibralim b. Mulammad b. Mulil (Hanabli). AlMvbt. Beirut:
al-Maktab al-Islami, :icc/:o8c.

Ibn Mulil, Fvrv' - Mulammad b. Mulil al-Maqdisi (Hanbali). Kttab al/vrv. Beirut:
'Alam al-kutub, :ics/:o8s.

Ibn Nuiaym, Babr - Zayn b. Ibralim b. Nuiaym (Hanai). AlBabr alrata /t sbarb Kanz
alaaata. Dar al-kitab al-Islami, n. d.

Ibn Qudama, Ka/t - Muwaaq al-Din b. Qudama al-Maqdisi (Hanbali). AlKa/t /t /tab
Ibn Hanbal. Beirut: al-Maktab al-Islami, :o88.

24
Ibn Qudama, Mvrbnt - Muwaaq al-Din b. Qudama al-Maqdisi (Hanbali). AlMvrbnt
ala Mv/btasar alKbtraat. Beirut: Dar al-ikr, :ics.

Jolansen, Conttnrcncy - Baber Jolansen. Conttnrcncy tn Sacrc Law. Leiden: Brill,
:ooo.

Jolnson, Roots," - James Turner Jolnson. Historical Roots and Sources o tle Just
Var Tradition." In }vst War an }tba edited by J. Kelsay and J.T. Jolnson. New
York: Greenwood Press, :oo:.

Kasani, Baat - 'Ala` al-Din al-Kasani (Hanai). Baat alsanat. Beirut: Dar al-kitab
al-'Arabi, :o8c.

Kelsay, Islam - Joln Kelsay. Isalm an War A stvy tn comoarattvc ctbtcs. Kentucky:
Vestminster-Joln Knox Press, :oo,.

Mardawi, Asna/ - 'Ali b. Sulayman al-Mardawi (Hanbali). AlAsna/. Beirut: Dar ilya` al-
turatl al-'Arabi, n. d.

Marglinani, Htaya - 'Ali b. Abi Bakr al-Marglinani (Hanai). AlHtaya sbarb Btayat
almvbtat. Cairo: Dar al-Islam, :icc/cccc.

Mawardi, Hawt - 'Ali b. Mulammad al- Mawardi (Slai'i). AlHawt al/abtr /t /tab al
Imam alSba/tt. Beirut: Dar al-kutub al-'ilmiyya, :i:i/:ooi.

Mawsva - Vizarat al-awqa wa-l-slu`un al-Islamiyya. AlMawsva al/tabtyya. Kuwait:
Dar al-salasil, n. d.

Nardin, War an Pcacc - Terry Nardin, ed. 1bc Etbtcs o/ War an Pcacc. Princeton:
Princeton University Press, :oo,.

Qurtubi, 1a/str - Mulammad b. Almad al-Qurtubi. 1a/str alQvrtvbt. Cairo: Dar al-
sla'b, :,;c.

al-Razi, 1vb/a - Mulammad b. Abi Bakr al-Razi (Hanai). 1vb/at almvlv/ /t /tab
mabbab Abt Hant/a. Beirut: Dar al-basla`ir al-Islamiyya, :i:;.

Salnun, Mvawwana - Salnun b. Sa'id (Maliki). AlMvawwana al/vbra. Beirut: Dar
Sadir, n.d.

Saraklsi, Mabsvt - Mulammad b. Abi Sall al-Saraklsi (Hanai). AlMabsvt. Beirut: Dar
al-ma'ria, :ic6.

Saraklsi, Sbarb - Mulammad b. Abi Sall al-Saraklsi. Sbarb AlStyar al/abtr. Al-Slarika
al-slarqiya li-l-i'lanat, n.d.

Slai'i, Umm - Mulammad b. Idris al-Slai'i. Kttab alvmm. Beirut: Dar al-ikr, :o8c.
25

Sbtrazt, Mvbabbab - Ibralim b. 'Ali b. Yusu al-Sbtrazt (Slaii). AlMvbabbab /t
/tab alImam alSba/tt. Beirut: Dar al-ikr, n.d.

Tabari, I/bttla/ - Abu Ja'ar b. Jarir al-Tabari. Kttab t/bttla/ al/vaaba. Leiden: Brill,
:o,,.

Valzer, Wars - Miclael Valzer. }vst an Univst Wars New York: Basic Books, :ooc.

Yusu, Ab/am - Malmud 'Abd al-Fattal Malmud Yusu. Ab/am albarb /t alsbarta al
Islamtyya walaanvn. Cairo; Dar al-ikr al-'Arabi, n.d.

Zakariya al-Ansari, Fatb - Zakariya b. Mulammad al-Ansari (Slai'i). Fatb alwabbab bt
sbarb Mtnbai altvllab. Beirut: Dar al-kutub al-'ilmiyya, :i:8.

Zulayli, Atbar - Valaba al-Zulayli. Atbar albarb /t al/tab alIslamt trasa mvaartna.
Damascus: Dar al-ikr, :o8:.

Zurqani, Sbarb - Mulammad b. 'Abd al-Baqi al-Zurqani (Maliki) Sbarb ala Mvwwata
alImam Malt/. Beirut: Dar al-kutub al-'ilmiyya, :i::/:ooc.



HUDSON INSTITUTE Center on Islam, Democracy, and the Future of the Muslim World
ABOUT THE AUTHOR
Professor Ella Landau-Tasseron is a historian of medieval Islam. She acquired her Ph.D.
at the Hebrew University of Jerusalem, and is part of what is informally known among
scholars as the Jerusalem school of oriental studies. She has researched Islamic history,
tradition, institutions and historiography. Since she was a fellow at the Institute for
Advanced Studies at the Hebrew University, her research has focused on the concept of
jihad. Professor Landau-Tasseron is affiliated with the Department for Islamic and Middle
ABOUT THI S SERI ES
This first series of research monographs on the Muslim world is the product of a research
project undertaken jointly by Hudson Institute and the Institute for Policy and Strategy
at Herzilya, Israel for the Director of Net Assessment, Office of the Secretary of Defense.
The views, opinions, and/or findings contained in this report are those of the author(s)
and should not be construed as an official Department of Defense position, policy, or
decision.
ABOUT THE CENTER
Hudson Institutes Center on Islam, Democracy and the Future of the Muslim World con-
ducts a wide-ranging program of research and analysis addressed to the political, religious,
social, and other dynamics within majority Muslim countries and Muslim populations
around the world. A principal focus of the Centers work is the ideological dynamic with-
in Islam, and the connected issue of how this political and religious debate impacts both
Islamist radicalism as well as the Muslim search for moderate and democratic alternatives.
By focusing on ideology, the Center aims to contribute to the development of American pol-
icy options and to effective strategies to prosecute and to win the worldwide struggle
against radical Islam.
To learn more, visit www.futureofmuslimworld.com
ABOUT HUDSON INSTITUTE
Hudson Institute is a non-partisan policy research organization dedicated to innovative
research and analysis that promotes global security, prosperity, and freedom. We challenge
conventional thinking and help manage strategic transitions to the future through interdis-
ciplinary and collaborative studies in defense, international relations, economics, culture,
science, technology, and law. Through publications, conferences and policy recommenda-
tions, we seek to guide global leaders in government and business.
To learn more, visit www.hudson.org
Eastern Studies at the Hebrew University.