In my previous articles about the ongoing Israeli war on Gaza, I discussed several issues, including some of the moral, legal, and military concepts that were raised during the war, in official statements and comments, among others, such as the concepts of: human shields, collateral damage, the right to self-defense, resistance, terrorism, and jihad.
I explained – previously – how the political and military goal takes precedence – in today's world – over morality and law together. Because moral justifications seemed to be driven by politicians and the military, and were carried out according to calculations imposed by political interests and fear of legal accountability.
For example, the goal of eliminating Hamas has justified launching the war and continuing it so far for more than three months. Despite the massive destruction it caused in Gaza, and the unprecedented human cost that violates all legal and moral laws, which has put international statements – about “human rights”, “children's rights” and “women's rights” – in unprecedented distress.
“Harbi” is an adjective that refers to both a legal and political situation. At the legal level, the infallibility of blood and money depends on the existence of a legal contract. (Contract, treaty, or temporary security). On the political level, the issue revolves around the relationship of war and peace between the House of Islam and the House of War
In this article, I would like to address another problem that complements my previous discussions, which is the duality of civilian and military in war, especially since it is a central concept in my previous discussions about the concepts of human shields and collateral damage, and it is – at the same time – another example added to previous examples. (Like jihad in Gaza, for example, and I dealt with it in two previous articles), and they all fall under a major question related to the problems of restoring the jurisprudential heritage in the modern context, especially since fatwas were issued – after the October 7 events carried out by the Palestinian resistance around Gaza – rejecting the idea of discrimination. between civilian and military; In response to attempts to condemn Hamas on the pretext of committing war crimes and killing Israeli civilians.
Then, soon after the Israeli war broke out, we saw official and unofficial Israeli statements rejecting this discrimination with regard to the residents of Gaza and holding them – all of them – responsible for what happened. Some Jews even spoke of rejecting such modern ideas that do not fit with the perceptions of the Old Testament. To justify the killing of the people of Gaza without distinction between young and old, or civilian and military, which is what actually happened and continues to happen.
These facts and discussions raise several questions, such as: Can historical moral perceptions transcend modern legal provisions that govern the ethics of war? If each party were to deviate from the principle of distinction between civilian and military approved by international law, then according to what reference should we formulate the standards governing the ethics of war? Is it possible to deny the principle of distinction between civilian and military on the one hand, and then resort to it to condemn the other party on the other hand? How do we deal with an international reality in which the balance of power imposes good and bad? Is it politically and morally correct to target all enemy citizens?
These are big questions that cannot be addressed here, but I am interested here in discussing the problem of invoking pre-modern state jurisprudence in the modern context, specifically by creating a collision between the civil and military dichotomy, and the military and non-war dichotomy.
First, it must be made clear that we are faced with two different and incompatible dualities. The first duality: (Civil and military) law emerged under the modern state, and international humanitarian law and the Geneva Convention are the main references in this distinction between civil and military. There are procedural standards to distinguish between civilian and military personnel related to dress, places, and activities.
The concept of “military” is clear to the general public. It refers to the regular soldier as an original, and those who assist in combat missions during the war join him, even if they are civilians. Because – in this case only – he loses his civil status. The reserve soldier is also a civilian, but he loses this status only when he joins the war. The criterion here is engaging in combat action or assisting in it during wartime, and in this way the modern concept of “military” differs from the jurisprudential concept of “military,” which is broader.
As for the second duality: (Warlike and non-warlike), it belongs to the law before the modern state, and it is part of the vision of the ancient world divided into a house of Islam and a house of war (or a house of disbelief that was mostly a house of war).
The concept of “war” involves some complexity, because it is matched – in the vision of the world before the modern state – by two concepts: They are: the non-Muslim and the Mu’ahid. As for the dhimmi, he is someone who enjoys membership in “Dar al-Islam” and has entered under its authority, and as for the covenanter, he is a member of a state between which there is a covenant (or treaty) with “Dar al-Islam.” But there is a third concept that is present here in contrast to the concept of war – even if it is overlapping with it – which is the mustaman, that is, someone from the people of “Dar Al-Harb” who temporarily entered Dar Al-Islam with security given to him by the guardian in Dar Al-Islam, or any party in it.
It is clear that “war” is an adjective that refers to both a legal and political situation. At the legal level, the infallibility of blood and treasure revolves around the existence of a legal contract. (Contract, treaty, or temporary security). On the political level, the issue revolves around the relationship of war and peace between the House of Islam and the House of War.
If one of the contracts referred to above occurs, this constitutes a necessary situation that is excluded from the state of war, which is the origin of “war”; Therefore, it was called Harbiyya, meaning in reference to war or to the people of the land of war. A warlike person is a non-Muslim who has not entered into a contract of dhimmah, and does not enjoy the security or covenant of Muslims, that is, he has remained in the relationship of war without creating one of the previous three contracts that establish a state of permanent or temporary peace.
What indicates the synthesis of the concept of the war is that the “Mustamin” – for example – is a war veteran who does not have a contract of responsibility and there is no covenant linking his state to the abode of Islam, but he obtained temporary security (something similar to a visa) that expires with a specific period, and he is warned if he exceeds it, and his security may be reversed. With the passage of time, it turns into a contract of liability, and its temporary security turns into a relationship of permanent peace. Rather, if the person insured leaves for his country for trade or for a visit (not for residence and settlement), then his trust applies to him.
Among the applications of the concept of “trustee” today are workers in embassies, tourists, workers in companies, and others, even if their country is one of the countries of the people of war. Because they entered the countries of Islam safely; It is not permissible to attack them.
It now appears – clearly – that there is a difference between the two dualities. Each dualism has its own logic, operates within its own system, and belongs to a specific vision of the world and a different legal and moral system. The first duality revolves around actual participation in the war or its absence (called the combatant in the classical expression) on the one hand, and on the infallibility of the civilian who is not a party to the war on the other hand.
As for the second duality, it revolves around two matters: the first: membership in Dar al-Harb, even if there is no actual war in that case, and the second: the absence of any commitment to any type of contract: (the obligation, covenant, and security). The first matter (membership in Dar al-Harb) would make every member of Dar al-Harb a warrior, and in this way the dichotomy of war and non-war differs from the dichotomy of civil and military, which seems more specific here.
However, the permissibility of every member in Dar al-Harb is problematic. Because the jurists agreed on the infallibility of categories of citizens of Dar al-Harb, and this is something that is added to the previous three descriptions or contracts: (dhimma, covenant, and security). These groups include: women and boys; If they do not fight, then they are infallible and it is forbidden to kill them in war according to the consensus of scholars. However, if women fight, the majority of scholars are of the opinion that those who do fight will be killed. The problem here revolved around actual combat (i.e., the woman’s transformation into a “military” in the modern sense).
Rather, there are other categories of warriors over which disagreement has occurred among jurists. For example, the Hanafi jurists do not permit the killing of a mortal old man, a paralyzed old man, a crippled person, a blind man, a man with a hand or a leg cut off from opposite sides, a man with his right hand cut off, an imbecile, a monk in his cell, a traveler in the mountains who does not mix with people, or anyone in a house or church. They were terrified and the door was closed on them. What is well known from Maliki jurists is that it is not permissible to kill labourers, ploughmen, and craftsmen. This explains two things:
- The first: Not every warrior may be killed in war according to jurists. There are considerations and standards that must be taken into account.
- The second: Not every civilian (in modern terminology) is a warrior (in jurisprudential terminology), and it is permissible to shed blood in war.
War is a descriptive concept. It is not enough – on its own terms – to make the blood of its owner permissible according to jurists. Rather, two criteria must be met here:
- The first: that there is no legal or political obligation, as we have said; A warlike person is someone who is not among the people of the Dhimmah and has not entered into a covenant or a security.
- Second: This warrior must be “among the people of war” in reality or meaning. Anyone who is not among the people of war is not permissible to kill in war. Unless he fights a fact or a meaning (by opinion and incitement). For this reason, pre-modern state jurists excluded the previously mentioned categories. (such as women and children); Because at that time they were not people of war; Given the pre-modern state arrangements and the nature of combat, its tools and organizations. Likewise, the mortal sheikh was excluded. Because there is no remainder in it for fighting, as the monk or nun is excluded; Because they are so isolated that they are not captured or enslaved in Malik's doctrine.
All of these matters illustrate the problem faced by some contemporary fatwa practitioners who came out – after the events of October 7 – and said: There is no civilian in Israel. This confusion between concepts is evident through the following:
- The first: The civil concept is a modern legal concept that is established and established in international custom, and applies to the people of Gaza, just as it applies to all Israelis who did not engage in, or assist in, a combat or incitement act. It is not permissible to confuse this concept with the concept of war.
- Second: Applying historical jurisprudential terms to all Israelis is problematic from a jurisprudential standpoint. Not all Israelis are permissible warriors according to the classical jurisprudential perspective, and perhaps some scholars – who adhere to the literalism of the jurisprudential heritage in its integrity – will argue that there are contracts concluded by guardians with the Israelis, which would affect the description of the Israelis themselves, such that they may move from describing the warrior to describing them as warlike. Another of the descriptions corresponding to it, such as institutes and trustees? This is a problematic perspective, just as the perspective of completely eliminating the distinction between civilian and military is equally problematic. Since targeting children in war – for example – is not permissible according to consensus among jurists, how can this duality be completely wasted!
Investing in the jurisprudential heritage in today’s world may impose obligations on its investors that they usually ignore. Although these obligations are part of the pre-modern Sharia system; It is evident through:
- The first: the absence of systemic vision. Revealing the inherited in the modern context, despite its integrity, will lead to the rest of the system before the modern state, such as slavery, captivity, and the rejection of the covenant (for those among whom the covenant was established) by the imam with its conditions mentioned in jurisprudence, and other details of the system whose problems and the extent of the dilemma these investors do not pay attention to. Which they could fall into if they were bound by the laws of pre-state jurisprudence; Away from their comfortable fragmentation; To serve a limited vision that is not consistent with what I call the “jurisprudence system,” and is not consistent with the variables of the modern state: concepts and laws, but it presents a hybrid vision that is not consistent with any system!
- Second: These issues are political and self-interested in the jurisprudential perspective, and even if some of them are mentioned in hadith texts, they are subject to the calculations of public interests according to the imam’s assessments, according to the perspective of the pre-modern state. The guardian may grant protection to categories of soldiers, and he may issue an order to the army not to subject certain people to death or with specific descriptions that distinguish them from others. Based on an interest or adherence to a previous agreement.
Here we find ourselves facing a modern application of this classic perception, which is the international agreements signed by today's countries. If the classical jurists allowed some individuals to give security to a warrior, then what is the situation like in today’s highly complex world, which is linked by complex legal and political agreements and systems?
- Third: Not taking care of the political and military transformations in the transition from the pre-modern state to the modern state, and the development of war tools and techniques, which will leave a significant impact on the importance of distinguishing between individuals in war, and the criteria for that distinction also from a procedural standpoint, as well as the changes in modern concepts compared to Pre-modern state concepts, that is, the classic criterion for “people of war” will differ today in view of the formation of the regular army, the concept of war and its destructive military tools.
Failure to take care of these variables may lead to international legal prosecutions for committing war crimes, even if the litigation procedures in this matter are subject to the balance of power and the policies of major powers, but that does not prejudice the principle itself.