Fatwa on those who kill Civilians

Bi ismillahir rahmanir raheem


SHAYKH AFIFI'S TEXT

Defending the Transgressed by Censuring the Reckless against the Killing of Civilians
If you have time to address this delicate issue for the benefit of this mercied Umma which is reeling in fitna day in and day out, perhaps a few blessed words might use a refutation of the following text as a springboard?
I would like you to read the following article which highlights some of the problems we are facing, and why it is quite possible that young muslims turn to extremism. the article was issued by al-muhajiroun not long ago, headed by Omar Bakri Mohammed, and whatever our reservations about the man, it is the content I am more concerned about, and it is possibly these types of writings which need to be confronted head-on:

AQD UL AMAAN: THE COVENANT OF SECURITY

The Muslims living in the west are living under a covenant of security, it is not allowed for them to fight anyone with whom they have a covenant of security, abiding by the covenant of security is an important obligation upon all Muslims. However for those Muslims living abroad, they are not under any covenant with the kuffar in the west, so it is acceptable for them to attack the non-muslims in the west whether in retaliation for constant bombing and murder taking place all over the Muslim world at the hands of the non-muslims, or if it an offensive attack in order to release the Muslims from the captivity of the kuffar. For them, attacks such as the September 11th Hijackings is a viable option in Jihad, even though for the Muslims living in America who are under covenant, it is not allowed to do operations similar to those done by the magnificent 19 on the 9/11. This article speaks about the covenant and what the scholars have said regarding Al Aqd Al Amaan - the covenant of security. [...]

bismillahi r-rahman al-rahim

al-hamdulillah alladhi yahuddu l-harba wa-la yuhibbu l-mu'tadina wa s-salatu wa-s-salamu 'ala qa'idi l-ummah alladhi huwa asbaru 'ala adha l-a'da'i bi-futuwwatin kamilatin wa-muru'atin shamilatin wa-'ala alihi wa-ashabihi wa-jayshihi ajma'in!

{Praise be to God Who sets the boundaries of war and does not love transgressors! Blessings and peace on the Umma's leader, the most enduring of men in the face of the harm of enemies with perfect chivalry and complete manliness, and upon all his Family, Companions, and Army!}

This is a collection of masa'il, entitled: Mudafi' al-Mazlum bi-Radd al-Muhamil 'ala Qital Man La Yuqatil [Defending the Transgressed by Censuring the Reckless against the Killing of Civilians]; written in response to the fitna reeling this mercied Umma, day in and day out, which is partly caused by those who, wilfully or not, misunderstand the legal discussions of the chapter on warfare outside their proper contexts [of which the technical Fiqh terminology varies with bab: Siyar, Jihad, or Qital], which have been used by them to justify their wrong actions. May Allah open our eyes to the true meaning [haqiqa] of sabr and to the fact that only through it can we successfully endure the struggles we face in this dunya, especially during our darkest hours; for indeed, He is with those who patiently endure tribulations!

There is no khilaf that all of the Shafi'i fuqaha' of today and other Sunni specialists in the Law from the Far East to the Middle East reject outright [mardud] the above opinion and consider it not only an anomaly [shadh] and very weak [wahin] but also completely wrong [batil] and a misguided innovation [bid'a dalala]: an 'amal that cannot at all be adopted by any mukallaf. It is regrettable too that the above was written in a legal style at which any doctor of the Law should be horrified and appalled (since it is an immature yet persuasive attempt to mask a misguided personal opinion with authority from Fiqh, and an effort to hijack our Fiqh by invoking one of its many qadaya of this bab while recklessly neglecting others). It should serve to remind the students of Fiqh of the importance of forming in one's mind and being aware throughout, of the thawabit and the dawabit when reading a furu' text, in order to ensure that those principal rules have not been breached in any given legal case.

The above opinion is problematic in three legal particulars: (1) the target [maqtul]: without doubt, civilians; (2) the authority for carrying out the killing [amir al-qital]: as no Muslim authority has declared war, or if there has been such a declaration there is at the time a ceasefire [hudna]; and (3) the way in which the killing is carried out [maqtul bih]: since it is either Haram and is also cursed as it is suicide [qatil nafsah], or at the very least doubtful [shubuhat] in a way such that it must be avoided by those who are religiously scrupulous [wara']. Any sane Muslim who would believe otherwise and think the above to be not a crime [jinaya] would be both reckless [muhmil] and deluded [maghrur]. Instead, whether he realizes it or not, by doing so he would be hijacking rules from our Sacred Law which are meant for the conventional (or authorized) army of a Muslim state and addressed to those with authority over it (such as the executive leader(s), the military commanders and so forth), but not to individuals who are not connected to the military or those without the political authority of the state [dawla].  

The result in fiqh [Islamic jurisprudence] is: if a Muslim carries out such an attack voluntarily, he becomes a murderer and not a martyr or a hero, and he will be punished with that in the Next World.

I. The Target: Maqtul

The proposition: "so it is acceptable for them to attack the non-muslims in the west", where "non-Muslims" can be taken to mean, and indeed does mean in the document, non-combatants, civilians, or in the terminology of Fiqh: those who are not engaged in direct combat [man la yuqatilu].

This opinion violates a well known principal rule [Dabit] from our Law: "la yajUzu qatlu nisA'ihim wa-la SibyAnihim idhA lam yuqAtilU" [it is not permissible to kill their [i.e., the opponents'] women and children if they are not in (direct) combat], which is based on the Prophetic prohibition on soldiers from killing women and children, from the well known Hadith of Ibn 'Umar (may Allah be pleased with them both!) related by Imams Malik, al-Shafi'i, Ahmad, al-Bukhari, Muslim, Ibn Majah, Abu Dawud, al-Tirmidhi, al-Bayhaqi and al-Baghawi (may Allah be well pleased with them all!) and other Hadiths.

Imam al-Subki (may Allah be pleased with him!) made it unequivocally clear what scholars have understood from this prohibition in which the standard rule of engagement taken from it is that: "[a Muslim soldier] may not kill a woman nor a child soldier unless they are in combat directly, and they can only be killed in self-defence" [al-Nawawi, Majmu', 21:57].

It goes without saying that men and innocent bystanders who are not direct combatants are also included in this prohibition. The nature of this prohibition is so specific and well defined that there can be no legal justification, nor can there be a legitimate Shar'i excuse, for circumventing this convention of war by targeting non-combatants or civilians whatsoever, and that the Hukm Shar'i of killing them is not only Haram but also a Major Sin [kabira] and contravenes one of the principal commandments of our way of life.

II. The Authority: Amir al-Qital

The proposition: "so it is acceptable for them to attack the non-muslims in the west whether in retaliation for constant bombing and murder taking place all over the Muslim world at the hands of the non-muslims," where it implies that a state of war exist with this particular non-Muslim state on account of its being witnessed as the aggressor.

This opinion violates the most basic rules of engagement from our Law: "amru l-jihAdi mawkulun ila l-imAmi wa-ijtihAdihi wa-yalzamu r-ra'iyyata TA'atuhu fImA yarAhu min dhalika" [The question of declaring war [or not] is entrusted to the executive authority and to its decision: compliance with that decision is the subject's duty with respect to what the authority has deemed appropriate in that matter] and "wa-li-imamin aw amirin khiyarun bayna l-kaffi wa l-qitAli" [The executive or its subordinate authority has the option of whether to declare war or not].

Decisions of this kind for each Muslim state, such as those questions dealing with ceasefire ['aqd al-hudna], peace settlement ['aqd al-aman] and the judgment on prisoners of war [al-ikhtar fi asir] can only be dealt with by the executive or political authority [imam] or by a subordinate authority appointed by the former authority [amir mansubin min jihati l-imam]. This is something Muslims take for granted from the authority of our naql [scriptures] such that none will reject it except those who betray their 'aql [intellect]. The most basic legal reason ['illa asliyya] is that this is a matter involving the public interest in which only the authority has jurisdiction in considering it [li-anna hadhA l-amra mina l-masAliHi l-'Ammati allati yakhtassu l-imAmi bi-n-naZari fI-hA].

All of this is based on the well known legal principle:

taSarrufu l-imAmi 'ala r-ra'iyyati manUTun bi l-maSlaHati [the decisions of the authority on behalf of the subjects are dependent upon the public good].

And:

fa-yaf'alu l-imAmu wujUban al-aHaZZa li-l-muslimIna li-ijtihAdihi [So the authority must act for the greatest advantage of (the rest of) the Muslims in making his judgement].

Nasiha: Uppermost in the minds of our authority during their deliberation over whether to wage war or not should be the awareness that war is only a means and not the end. Hence, if there are other ways of achieving the aim, and the highest aim is the right to practice our religion openly (as is indeed the case in modern day Spain, for example, unlike in medieval Reconquista Spain), then it is better [awla] not to go to war. This has been expressed in a few words by Imam al-Zarkashi (may Allah be pleased with him!) as:

wujUbuhu wujUbu l-wasA'ili lA l-maqASidi
[Its necessity is the necessity of means, not ends]

The upshot is, whether one likes it or not, that the decision and the discretion and the right to declare war or jihad for Muslims lies solely with the various authorities today represented by the respective Muslim states - and not with any individual, even if he is a scholar or a soldier � and not just anyone is a soldier or a scholar � in the same way that only an authority (such as the Qadi in a court of law: mahkamah) is the only one with the right to excommunicate or declare someone an apostate [murtad]. Otherwise, the killing would be extra-judicial and unauthorized.

Even during the period of the Ottoman caliphate, for example, another Muslim authority elsewhere such as in the Indian subcontinent could have been engaged in a war when at the same time the Khalifa's army was at peace with the same enemy. This is how it has been throughout our long history and this is how it will always be and this is what the reality is on the ground.

III. The Method: Maqtul bih

The proposition: "attacks such as the September 11th Hijackings is a viable option in Jihad," where such attacks employ a tactic � analogous to the Japanese "Kamikaze" missions during the Second World War � that have been described variously as self-sacrificing/martyrdom/suicide missions.

There is no question among scholars and there is no khilaf on this question by any Qadi, Mufti or Faqih, that this proposition and those who accept it are without doubt breaching the scholarly consensus [mukhalifun li-l-ijma'] of the Muslims since it resulted in the killing of non-combatants, and moreover, the proposition is an attempt to legitimize the killing of indisputable non-combatants.

As for the Kamikaze method and tactic in which it was carried out, there is a difference of opinion among some jurists as to whether it constitutes suicide, which is not only Haram but also cursed, or whether it does not. In this, there are further details. (Note that in all of the following cases, the target is assumed to be already legitimate � i.e., a valid military target � and that the action is carried out during a valid war when there is no ceasefire [fi hal al-harb wa-la l-hudna fihi], just as with the actual circumstance of the Japanese Kamikaze attacks.)

Tafsil I: If the attack involves a bomb* placed on the body or placed so close to the bomber that when the bomber detonates it the bomber is certain [yaqin] to die, then the More Correct Position [Qawl Asahh] according to us is that it does constitute suicide. This is because the bomber, being also the Maqtul [the one killed], is unquestionably the same Qatil [the immediate/active agent that kills] = Qatil Nafsahu.

Furu' If the attack involves a bomb (such as the lobbing of a grenade and the like) but when it is detonated, the attacker thinks that it is uncertain [zann] whether he may die in the process or survive the attack, then the Correct Position [Qawl Sahih] is that this does not constitute suicide, and were he to die in this selfless act, he becomes what we call a martyr or hero [shahid]. This is because the attacker, were he to die, is not the active, willing agent of his own death, since the Qatil is probably someone else.

An example [sura] of this is: when in its right place and circumstance, such as in the midst of an ongoing fierce battle against an opponent's military unit, whether ordered by his commanding officer or whether owing to his own initiative, the soldier makes a lone charge and as a result of that initiative manages to turn the tide of the day's battle but dies in the process (and not intentionally at his own hand): that soldier died as a hero (and this circumstance is precisely the context of becoming a shahid � in Islamic terminology � as he died selflessly). If he survives, he wins a Medal of Honour and becomes an honoured war hero and is remembered as a famous patriot (in our terminology, becoming a true mujahid).

This is precisely the context of the mas'ala concerning the "lone charger" [al-hajim al-wahid] and the meaning of putting one's life in danger [al-taghrir bi-l-nafs] found in all of the Fiqh chapters concerning warfare. The Umma's Doctor Angelicus, Imam al-Ghazali (may Allah be pleased with him!) provides the best impartial summation:

"If it is said: What is the meaning of the words of the Most High:
"wa-lA tulqU bi-aydIkum ila t-tahlukati"
[and do not throw into destruction by your own hands!]
(al-Baqara, 2:195) ?

"We say: There is no difference [of opinion amongst scholars] that regarding the lone Muslim [soldier] who charges into the battle-lines of the [opposing] non-Muslim [army that is presently in a state of war with his army and is facing them in a battle] and fights [them] even if he knows that he will almost certainly be killed � a case misconstruable to be against the requirements of the Verse, that it is not so. Indeed, Ibn 'Abbas (may Allah be well pleased with both of them!) says: [the meaning of] "destruction" is not that [incident]. Instead, [its meaning] is to neglect providing [adequate] supplies [nafaqa: for the military campaign; and in the modern context, the state should provide for the arms and equipment, for example, for which all of this is done] in obedience to God [as in the first part of the Verse which says: "wa-anfiqU fI sabIli LlAhi" [And spend for the sake of God] (al-Baqara, 2:195)]. That is, those who fail to do that will destroy themselves. [In another Sahabi authority:] al-Bara' Ibn 'Azib [al-Ansari (may Allah be well pleased with them both!)] says: [the meaning of] "destruction" is [a Muslim] committing a sin and then saying: 'my repentance will not be accepted'. [A Tabi'i authority] Abu 'Ubayda says: it [the meaning of "destruction"] is to commit a sin and then not perform a good deed after it before he perishes. [Ponder over this!]

"In the same way that it is permissible [for the Muslim soldier in the incident above] to fight the non-Muslim [army] until he is killed [in the process], that [extent and consequence] is also permissible for him [i.e., the enforcer of the Law, since the 'a'id (antecedent) here goes back to the original pronoun [damir al-asl] for this bab: the muhtasib or enforcer, such as the police] in [matters of] law enforcement [hisba].

"However, [note the following qualification (qayd):] were he to know [zanni] that his charge will not cause harm to the non-Muslim [army], such as the blind or the weak throwing himself into the [hostile] battle-lines, then it is prohibited [Haram] and [this latter incident] is included under the general meaning ['umum] of "destruction" from the Verse [for in this case, he will be literally throwing himself into destruction].

"It would only be permissible for him to advance [and suffer the consequences] if he knows that he will be able to fight [effectively] until he is killed, or knows that he will be able to demoralize the hearts and minds of the non-Muslim [army]: by their witnessing his courage and by their conviction that the rest of the Muslim [army] are [also] selfless [qilla al-mubala] in their loyalty to sacrifice for the sake of God. By this, their will to fight [shawka] will become demoralized [and so this may cause panic and rout them and thereby be the cause of their battle-lines to collapse]."

[al-Ghazali, Ihya', 2:354].

It is clear that this selfless deed which any modern soldier, Muslim or non-Muslim, might perform in battle today is not suicide. It may hyperbolically be described as a 'suicidal' attack, but to endanger one's life is one thing and to commit suicide during the attack is obviously another. And as the passage shows, it is possible to have both situations: an attack that is taghrir bi-l-nafs, which is not prohibited; and an attack that is of the tahluka-type, which is prohibited.

Tafsil II: If the attack involves ramming a vehicle into a military target and the attacker is certain to die, precisely like the historical Japanese Kamikaze missions, then our jurists have disagreed whether it does or does not constitute suicide.

Qawl A: Those who consider it a suicide argue that there is the possibility [zanni] that the Maqtul is the same as the Qatil (as in Tafsil I above) and would therefore not allow for any other qualification whatsoever since suicide is a cursed sin.

Qawl B: Whereas those who consider otherwise, even with the possibility that the Maqtul is the same Qatil, will allow some other qualification such as the possibility that by carrying it out the battle of the day could be won. There are further details in this alternative position, such as that the commanding officer does not have the right to command anyone under him to perform this dangerous mission so that were it to be sanctioned, it could only be when it is not under anyone else's orders other than the lone initiative of the concerned soldier (such as in defiance of the standing orders of his commanding officer).

The first of the two positions is the Preferred Position [Muttajih] among our jurists, as the second is the rarer because of the vagueness of a precedent, and its legal details are fraught with further difficulties and ambiguities, and its opposing position [muqabil] carries such a weighty consequence (namely, that of suicide, for which there is Ijma' that the one who commits suicide will be damned to committing it eternally forever).

In addition to this juristic preference, the first position is also preferable and better since it is the original or starting state [Asl], and by invoking the well known and accepted legal principle: al-khurUju mina l-khilAfi mustaHabbun [to avoid the controversy is preferable].

Finally, the first position is religiously safer, since owing to the ambiguity itself of the legal status of the person performing the act � whether it will result in the Maqtul being also the Qatil � and since there is doubt and uncertainty over the possibility of it either being or not being the case, then this position falls under the type of doubtful matters [shubuhat] of the kind [naw'] that should be avoided by those who are religiously scrupulous [wara']. And here, the wisdom of our wise Prophet MHMD may Allah's blessings and peace be upon him! is illuminated from the Hadith of al-Nu'man raDiy-Allahu-anhu.gif may Allah be well pleased with him!):

"fa-mani ttaqA sh-shubuhAti istabra'a li-dInihi wa 'irDihi"
[He who saves himself from doubtful matters will save his religion and his honour] (Related by Ahmad, al-Bukhari, Muslim, al-Tirmidhi,  Ibn Majah, al-Tabarani, and al-Bayhaqi with variants.)

wallahu a'lam bi-s-sawab!

Fa'ida The original ruling [al-Asl] for using a bomb (the medieval precedents: Greek fire [qital bi l-nar or ramy al-naft] and catapults [manjaniq]) as a weapon is that it is Makruh [offensive] because it kills indiscriminately [ya'ummu man yuqatilu wa-man la yuqatilu], as opposed to using rifles (medieval example: a single bow and arrow). If the indiscriminate weapon is used in a place where there are civilians, it becomes Haram except when used as a last resort [min darura] (and of course, by those military personnel authorised to do so).

From the consideration of the foregoing three legal particulars, it is evident that the opinion expressed regarding the 'amal in the above article is untenable by the standards of our Sacred Law.

As to those who may still be persuaded by it and suppose that the 'amal is something that can be excused on the pretext that there is scholarly khilaf on the details of Tafsil II from the third particular (and that therefore, the 'amal itself could at the end of the day be accommodated by invoking the guiding principle that one should be flexible with regards to legal controversies [masa'il khilafiyya] and to agree to disagree); know then there is no khilaf among scholars that that rationale does not stand, since it is well known that:

lA yunkaru l-mukhtalafu fIhi wa-innamA yunkaru l-mujma'u 'alayhi
[The controversial cannot be denied; only {breach of} the unanimous can be denied]

Since at the very least, it is agreed upon by all that killing non-combatants is prohibited, there is no question whatsoever that the 'amal overall is outlawed.

Masa'il Mufassala

If it is said: "I have heard that Islam says the killing of civilians  is allowed if they are non-Muslims."

We say: On a joking note (but ponder over this so your hearts may be opened!): the authority is not with what Islam says but with what Allah (Exalted is He) and His Messenger MHMD may His blessings and peace be upon him! - have said!

But seriously: the answer is absolutely NO, for even a novice student of Fiqh would be able to see that the first Dabit above concerns already a non-Muslim opponent in the case of a state of war having been validly declared by a Muslim authority against a particular non-Muslim enemy even when that civilian is a subject or in the care [dhimma] of the hostile non-Muslim state [Dar al-Harb]. If this is the extent of the limitation to be observed with regards to non-Muslim civilians associated with a declared enemy force, what higher standards will it be in cases if it is not a valid war or when the status of war becomes ambiguous? Keep in mind that there are more than 100 Verses in the Qur'an commanding us at all times to be patient in the face of humiliation and to turn away from violence [al-i'rad 'ani l-mushrikin wa l-sabr 'ala adha l-a'da'], while there is only one famous Verse in which war (which does not last forever) becomes an option (in our modern context: for a particular Muslim authority and not an individual), when a particular non-Muslim force has drawn first blood.

If it is said: "What about the verse of the Qur'an which says 'kill the unbelievers wherever you find them' and the Sahih Hadith which says 'I have been ordered to fight against the people until they testify ... '?"

We say: It is well known among scholars that the following verse, "fa-qtulU l-mushrikIna Haythu wajad-tumUhum" [kill the idolaters wherever you find them] (al-Tawba, 9:5) is in reference to a historical episode: those among the Meccan Confederates who breached the Treaty of Hudaybiyya [Sulh al-Hudaybiyya] which led to the Conquest of Mecca, and that therefore, no legal rulings, or in other words, no practical or particular implications can be derived from this Verse on its own. The Divine Irony and indeed Providence from the last part of the Verse, "wherever you find them" � which many of our Mufassirs understood in reference to place (i.e., attack them whether inside the Sacred Precinct or not) � is that the victory against the Meccans happened without a single battle taking place, whether inside the Sacred Precinct or otherwise, rather, there was a general amnesty [wa-mannun 'alayhi bi-takhliyati sabilihi or naha 'an safki d-dima'] for the Jahili Arabs there. Had the Verse not been subject to a historical context, then you should know that it is of the general type ['amm] and that it will therefore be subject to specification [takhsis] by some other indication [dalil]. Its effect in lay terms, were it not related to the Jahili Arabs, is that it can only refer to a case during a valid war when there is no ceasefire.

Among the well known exegeses of "al-mushrikin" from this verse are: "al-nakithina khassatan" [specifically, those who have breached (the Treaty)] [al-Nawawi al-Jawi, Tafsir, 1:331]; "alladhina yuharibunakum" [those who have declared war against you] [Qadi Ibn 'Arabi, Ahkam al-Qur'an, 2:889]; and "khassan fi mushkriki l-'arabi duna ghayrihim" [specifically, the Jahili Arabs and not anyone else] [al-Jassas, Ahkam al-Qur'an, 3:81].

As for the meaning of "people" [al-nas] in the above well related Hadith, it is confirmed by Ijma', that it refers to the same "mushrikin" as in the Verse of Sura al-Tawba above and therefore what is meant there is only the Jahili Arabs [muskhriku l-'arab] during the closing days of the Final Messenger and the early years of the Righteous Caliphs and not even to any other non-Muslims.

In sum, we are not in a perpetual state of war with non-Muslims. On the contrary, the original legal status [al-Asl] is a state of peace, and making a decision to change this status belongs only to a Muslim authority who will in the Next World answer for their ijtihad and decision, and this decision is not divinely charged to any individuals � not even soldiers or scholars (and to believe otherwise would go against the well known rule in our Law that a Muslim authority could seek help from a non-Muslim with certain conditions, including for example that the non-Muslim allies are of goodwill towards the Muslims [la-yast'Inu bi-mushkrikin illA bi-shurUTin ka-an takUna niyyatuhu Hasanatan li-l-muslimIna]).

If it is said: "I have heard a scholar say that 'Israeli women are not like women in our society because they are militarised'. By implication, this means that they fall into the category of women who fight and that this makes them legitimate targets but only in the case of Palestine."

We say: No properly schooled jurists from any of the four schools would say this as a legal judgement if they faithfully followed the juridical processes of the orthodox schools in this bab, for if it is true that the scholar made such a statement and meant it in the way you've implied it, then not only does this violate the well known principal rule above {Section I: "It is not permissible to kill their women and children if they are not in (direct) combat"} but the supposed remarks also show a lack of sophistication in the legal particulars. If this is the case, then it has to be said here that this is not among the masa'il khilafiyya that one can afford to agree to disagree, since it is outright wrong by the principles and the rules from our Usul and Furu'.

Let us restate the Dabit again, as our jurists have succinctly summarised its rule of engagement: a soldier can only attack a female or (if applicable) child soldier (or a male civilian) in self-defence and only when she *herself* (and not someone else from her army) is engaged in direct combat (as for male soldiers, it goes without saying that they are considered combatants as soon as they arrive on the battlefield even if they are not in direct combat � provided of course that the remaining conventions of war have been observed throughout and that all this is during a valid war when there is no ceasefire).

Not only is this strict rule of engagement already made clear in our secondary legal texts, but this is also obvious from the linguistic analysis of the primary proof-texts used to derive this principal rule. Hence, the form of the verb used in the scriptures, yuqAtilu, is of the musharaka-type so that the verb denotes a direct or a personal or a reciprocal relationship between two agents: the minimum for which is when one of them makes an effort or attempt to act upon the other. The immediate legal implication here is that one of the two can only even be considered a legitimate target when there is a reciprocal/direct relationship.

In reality, this is not what happens on the ground (since the bombing missions are offensive in nature � as they are not after all targeting, for example, a force that IS *attacking* an immediate Muslim force but rather the attack is directed at an overtly non-military target, so the person carrying it out can only be described as attacking it � and the target is someone unknown until only seconds before the mission reaches its termination).

In short, even if these women are soldiers, they can only be attacked when they are in *direct combat* and not otherwise. In any case, there are other overriding particulars to be considered and various conditions to be observed throughout, namely, that it must be during a valid state of war when there is no ceasefire.

If it is said: "When a bomber blows up himself he is not directing the attack towards civilians. On the contrary, the attack is designed to target off-duty soldiers (which I was told did not mean reservists, since most Israelis are technically reservists). The innocent civilians are unfortunate collateral damage in the targeting of soldiers."

We say: There are two details here.

Tafsil A: Off-duty soldiers are treated as civilians.
Our jurists agree that during a valid war when there is no ceasefire, and when an attack is not aimed at a valid military target, a hostile soldier (whether male or female, whether conscripted or not) who is not on operational duty or not wearing a military uniform and when there is nothing in the soldier's outward appearance to suggest that the soldier is in combat is considered a non-combatant [man la yuqatilu] (and the soldier in this case must therefore be treated as a normal civilian).

A valid military target is limited to either a battlefield [mahall al-ma'raka or sahat al-qital] or a military base [mu'askar; medieval examples: citadel or forts; modern examples: barracks, military depots, etc.] but certainly NEVER at anything else such as restaurants, hotels, around a traffic light, a public bus or at any other public place, since firstly, these are not places and bases from which an attack would normally originate [mahall al-ra'y]; secondly, because there is certain knowledge [yaqin] that there is intermingling [ikhtilat] with non-combatants; and thirdly, the non-combatants have not been given the option to leave the place.

As for when the soldiers are on the battlefield, the normal rules of engagement apply.

As for when the soldiers are in a barracks or the like, there is further discussion on whether the soldiers become a legitimate target, and the Qawl Asahh [the more correct position] according to our jurists is that they do, albeit to attack them there is Makruh.

Tafsil B: Non-combatants cannot be considered collateral damage
Non-combatants cannot at all be considered collateral damage except at a valid military target for which they may be so deemed, depending on certain extenuating circumstances.

There is no khilaf that non-combatants or civilians cannot at all be considered collateral damage at a non-military target in a war zone, and that their deaths are not excusable by our Law, and that the one who ends up killing one of them will be sinful as in the case of murder, even though the soldier who is found guilty of it would be excused from the ordinary capital punishment [hadd], unless the killing was found to be premeditated and deliberate [aw ata bi-ma'siyyatin tujibu l-hadda]. If not, the murderer's punishment in this case would instead be subject to the authority's discretion [ta'zir] and he would in any case be liable to pay the relevant compensation [diya].

As for a valid military target in a war zone, the Shafi'i school have historically considered the possibility of collateral damage, unlike the position held by others that it is unqualifiedly outlawed. The following are the conditions stipulated for allowing for this controversial exception (in addition to meeting the most important condition of them all: that this takes place during a valid war when there is no ceasefire):

(1) The target is a valid military target. (2) The attack is as a last resort [min darura] (such as when the civilians have been warned to leave the place and after a period of siege has elapsed). [wujUb al-indhAri qabla l-bad'i bi-l-qatli li-annahu lA yajUzu an yaqtula illA man yuqAtilu] (3) There are no Muslim civilians or prisoners. (4) The decision to attack the target is based on a considered judgement of the executive or military leader that by doing so, there is a good chance that the battle would be won.

(Furthermore, this position is subject to khilaf among our jurists with regard to whether the military target can be a Jewish/Christian [Ahl l-Kitab] one, since the sole primary text that is invoked to allow this exception concerns an incident restricted to the same "mushrikin" as the Verse of Sura al-Tawba above.)

To intentionally neglect any of these strict conditions is analogous to not fulfilling the conditions [shurut] for a prayer with the outcome that the Salat would become invalidated [batil] and useless [fasad]. This is why the means of an act ['amal] must be correct and validated according to the rule of Law in order for its outcome to be sound and accepted, as expressed succinctly in the following wisdom of Imam Ibn 'Ata'illah:

man ashraqat bidayatuhu ashraqat nihayatuhu
[He who makes good his beginning will make good his ending].

In our Law, the ends can never justify the means except when the means are in themselves permissible, or Mubah (and not Haram) as is made clear in the following famous legal principle:

wasIlatu T-TA'ati TA'atun wa-wasIlatu l-ma'Siyati ma'Siyatun
[the means to a reward is itself a reward and the means to a sin is itself a sin].

Hence, even a simple act such as opening a window, which on its own is only Mubah or Halal, religiously entailing no reward nor being a sin, when a son opens it with the intention for his mother's comfort on a hot summer's day before she asks for it to be opened, the originally non-consequent act itself becomes Mandub [recommended] and the son is rewarded in his 'amal account for the Next World and acquires the pleasure of Allah.

wallahu a'lam wa-ahkam bi-s-sawab!
{God knows and judges best what is right!}

If it is said: "In a classic manual of Islamic Sacred Law I read that "it is offensive to conduct a military expedition [ghazw] against hostile non-Muslims without the caliph's permission (though if there is no caliph, no permission is required)." Doesn't this entail that though it is Makruh for anyone else to call for or initiate such a jihad, it is permissible?"

We say: lA ghazwata illA fi l-jihAdi
[there can be no battle except during a war]!

Secondary legal texts, just as with primary proof-texts (a single Verse of the Qur'an from among the relatively few Ayat al-Ahkam or a Hadith from among the limited number of Ahadith al-Ahkam), must be read and understood in context. The conclusion drawn that it is offensive or permissible for anyone other than those in authority to declare or initiate a war is evidently wrong, since it violates the principal rule of engagement discussed above.

The context is that of endangering one's life [taghrir bi-nafs] when there is already a valid war with no ceasefire as seen in the above example from the Ihya' passage, but certainly not in executive matters of the kind of proclaiming a war and the like. This is also obvious from the terminology used: a ghazw [a military act, assault, foray or raid; the minimum limit in a modern example: an attack by a squad or a platoon [katiba]* can take place only when there is a state of jihad [war] not otherwise.

Fa'ida Imam Ibn Hajar (may Allah be pleased with him!) lists the organizational structure of an army as follows: a ba'th [unit] and when together, a katiba [platoon], which is a part of a sariyya [company; made up of 50-100 soldiers], which is in turn a part of a minsar [regiment; up to 800 soldiers], which is a part of a jaysh [division; up to 4000 soldiers], which is a part of a jahfal [army corps; exceeding 4000 soldiers], which makes up the jaysh 'azim [army]. [Ibn Hajar, Tuhfa, 12:4]

In our School, it is offensive but not completely prohibited for a soldier to defy or in other words to take the initiative against the wishes of his direct authority, whether his unit is strong or otherwise. In the modern context, this may include cases when soldier(s) disagree with a particular decision or strategy adopted by their superior officers, whether during a battle or otherwise.

The accompanying commentary to the text you quoted will help clarify this for you:

"[Original Text:] It is offensive to conduct an assault [whether the unit is strong (man'a) or otherwise; and some have defined a strong force as 10 men] without the permission of the authority ([Commentary]: or his subordinate, because the assault depends on the needs [of the battle and the like] and the authority is more aware about them. It is not prohibited [to go without his permission] {if} there is no grave endangering of one's life even when that is permissible in war.)" [Ibn Barakat, Fayd, 2:309]

If it is said: "What is the meaning of the rule in fiqh that I always hear, that Jihad is a Fard Kifaya [communal obligation] and when the Dar al-Islam is invaded or occupied it is a Fard 'Ayn [personal obligation]? How do we apply this in the context of a modern Muslim state such as Egypt?"

We say: It is Fard Kifaya for the eligible Muslim subjects of the state (as for non-Muslim subjects, they evidently are not religiously obligated but can still serve) in the sense that recruitment to the military is only voluntary when the state is at war with a non-Muslim state. It becomes a Fard 'Ayn for any able-bodied Muslim when there is a conscription or a state-wide draft to the military if the state is invaded by a hostile non-Muslim force, but only until the hostile force is repelled or the Muslim authority calls for a ceasefire. As for those not in the military, they have the option to defend themselves if attacked even if they have to resort to throwing stones and using sticks [bi ayyi shay'in aTAqUhu wa-law bi-HijAratin aw 'aSA].

Furu' When it is not possible to prepare for war [and rally the army for war (ijtima' li-harb), and a surprise attack by a hostile force completely defeats the army of the state and the entire state becomes occupied] and someone [at home, for example] is faced with the choice of whether to surrender or to fight [such as when the hostile force comes knocking at the door], then he may fight, or he may surrender, provided that he knows [with certainty] that if he resisted [arrest] he would be killed and that [his] wife would be safe from being raped [fahisha] if she were taken. If not [that is to say, even if he surrenders he knows he will be killed and his wife raped when taken], then [as a last resort] fighting [jihad] becomes personally obligatory for him. [al-Bakri, I'ana, 4:197].

Reflect upon this legal ruling of our Religion and the emphasis placed upon preserving human life and upon the wisdom of resorting to violence only when it is absolutely necessary and in its proper place, and witness the conjunction between the maqasid and the wasa'il and the meaning of the conditions when fighting actually becomes a Fard 'Ayn for an individual!

If it is said today: "In the {Shafi`i} Madhhab, what are the different classifications of land in the world? For example, Dar al-Islam, Dar al-Kufr and so forth, and what have the classical ulema said their attributes are?"

We say: As it is also from empirical fact [tajriba], Muslim scholars have classified the territories in this world into: Dar al-Islam [its synonyms: Bilad al-Islam or Dawla al-Islam; a Muslim state or territory or land or country, etc.] and Dar al-Kufr [a Non-Muslim state or territory].

The definition of a Muslim state is: "Any place at which a resident Muslim is capable of defending himself against hostile forces [harbiyyun] for a period of time is a Muslim state where his judgements can be applied at that time and those times following it." [Ba'alawi, Bughya, 254]. A non-Muslim who resides in a Muslim state is in our terminology: kafir dhimmi or al-kafir bi-dhimmati l-muslim [a non-Muslim in the care of a Muslim state].

By definition, a country is a Muslim state as long as Muslims continue to live there and enjoy the political and executive authority. (Think about this, for the Muslim lands are many, varied, wide and extensive; and how poor and of limited insight are those who have tried to limit the definition of what a Muslim state must be, and whether realizing it or not thus tries to shrink the Muslim world!)  

As for a non-Muslim state, it is the absence of a Muslim state.

As for the Dar al-Harb [sometimes called, Ard al-'Adw], it is a non-Muslim state which is in a state of war with a Muslim state. Therefore, a hostile non-Muslim soldier from there is known in our books as: kafir harbi.

Furu' Even if such a person enters or resides in a Muslim country that is in a state of war with his home country, provided of course he does so with the permission of the Muslim authority (such as entering with a valid visa and the like), the sanctity of a kafir harbi's life is protected by Law just like the rest of the Muslim and non-Muslim subjects of the state. [al-Kurdi, Fatwa, 211-2]. In this case, his legal status becomes a kafir harbi bi-dhimmati l-imam [a hostile non-Muslim under the protection of the Muslim authority], in which, for all intent and purposes, he becomes exactly like the non-Muslim subject of the state. In this way, the apparent difference between a dhimmi and a harbi non-Muslim becomes only an academic exercise and a distinction in name only.

The implications of this rule for the pious, godfearing and law-abiding Muslims are not only that to attack non-Muslims becomes something illegal and an act of disobedience [ma'siya], but also that the steps taken by the Muslim authority and enforcers, such as in Malaysia or Indonesia today, to protect their places, including churches or temples, from the threat of killings and bombings, is included under the bab of amr bi-ma'ruf wa nahi 'ani l-munkar [the duty to intervene when another is acting wrongly; in the modern context: enforcing the Law], even if the Muslim enforcers [muhtasib] die in the course of protecting non-Muslims.

If it is said: "What land classification are we in the European Union, and what is the hukm of those who are here? Should they theoretically leave?"

We say: It is clear that the countries in the Union are non-Muslim states, except for Turkey or Bosnia, for example, if they are a part of the Union. The status of the Muslims who reside and are born in non-Muslim states is the reverse of the above non-Muslim status in a Muslim state: al-muslim bi-dhimmati l-kafir [a Muslim in the care of a non-Muslim state] and from our own Muslim and religious perspective, whether we like it or not, there are similarities to the status of a guest which should not be forgotten.

There is precedent for this status in our Law. The answer to your question is that they should as a practical matter remain in these countries, and if applicable, learn to cure the schizophrenic cultural condition in which they may find themselves � whether of torn identity in their souls or of dissociation from the general society. If they cannot do so, but find instead that their surroundings are incompatible with the life they feel they must lead, then it is recommended for them to leave and reside in a Muslim state. This status is made clear in the fatwa of Imam al-Kurdi (may Allah be pleased with him!):

"He (may Allah's (Exalted is He!) mercy be upon him) was asked:

"In a territory ruled by non-Muslims, they have left the Muslims [in peace] other than that they pay tax [mal] every year just like the jizya-tax in reverse, for when the Muslims pay them, their protection is ensured and the non-Muslims do not oppose them [i.e.,  do not interfere with them]. Thereupon, Islam becomes practiced openly and our Law is established [meaning that they have the freedom to practice their religious duty in the open and in effect become practicing Muslims in that non-Muslim society]. If they do not pay them, they could massacre them by killing or pillage. Is it permissible to pay them the tax [and thereby become residents there]? If you say it is permissible, what is the ruling about the non-Muslims mentioned above when they are at war [with a Muslim state]: would it or would it not be permissible to oppose them and if possible, take their money? Please give us your opinion!

"The answer: Insofar as it is possible for Muslims to practice their religion openly with what they can have power over, and they are not afraid of any threat [fitna] to their religion if they pay tax to the non-Muslims, it is permissible for them to reside there. It is also permissible to pay them the tax as a requirement of it; rather, it is obligatory [Wajib] to pay them the tax for fear of their causing harm to the Muslims. The ruling about the non-Muslims at war as mentioned above, because they protect the Muslims [in their territory], is that it would not be permissible for the Muslims to murder them or to steal from them."

[al-Kurdi, Fatawa, 208]

The Dabit for this mas'ala is: wa-in qadara 'ala iZhAri d-dIni wa-lam yakhfi l-fitnata fi d-dIni wa-nafsihi wa-mAlihi lam tajib 'alayhi al-hijratu [if someone is able to practice his religion openly and is not afraid of trouble to his religion, life and property, then emigration is not obligatory for him].

Furu' Our Shafi'i jurists have discussed details concerning the case of Muslims residing in a non-Muslim state, and they have divided the legal rulings about their emigration from it to a Muslim state into four sorts (assuming that an individual is capable and has the means to emigrate):

1. Prohibited to leave: when they are able to defend the territory from a hostile non-Muslim force and withdraw from it and they do not need to ask for help from a Muslim state, since their place is a Muslim state: if they emigrated it would become a non-Muslim state.

2. Offensive: when it is possible for them to practice their religion openly and they wish to do so openly.

3. Recommended: when that is possible but they do not wish to do so openly.

4. Obligatory: when in the only remaining option, that {to practice their religion openly} is not possible.

If it is said: "Would you say that in the modern age with all the considerations surrounding sovereignty and inter-connectedness, these classical labels do not apply any longer, or do we have sufficient resources in the school to continue using these same labels?"

We say: As Imam al-Ghazali would say: "once the real meaning is understood, there is no need to quibble over names". Labels can never be relied upon; it is the meaning behind them that must be properly understood. Once they are unpacked, they immediately become relevant for all times; just as with the following loaded terms: Jihad, Mujahid and Shahid. The result for Muslims who fail to notice the relevance and fail to connect the dots of our own inherited medieval terms with the modern world may be that they will live in a schizophrenic cultural reality and will be unable to associate themselves with the surrounding society and will not be at peace [sukun] with the rest of creation.
Just as the sabab al-wujud of this article is a Muslim's misunderstanding of his own medieval terminology from a long and rich legacy, the fitna in the world today has been the result of those who misunderstand our Laws.

Pay heed to the words of Mawlana Rumi (may Allah sanctify his secrets!):

Go beyond names and look at the qualities,
so that they may show you the way to the essence.

The disagreement of people takes place because of names.
Peace occurs when they go to the real meaning.

Every war and every conflict between human beings
has happened because of some disagreement about names.

It's such an unnecessary foolishness, because just beyond the arguing
there's a long table of companionship, set and waiting for us to sit down.

End of the Masa'il section

Edited by rami

Bi ismillahir rahmanir raheem

If you would like to start a discussion on this issue and you are not able to post in the section please do so in the general or interfaith section.

Bi ismillahir rahmanir raheem

This fatwa is a formal legal ruling which is binding on those who follow the shafii madhhab, but as the fatwah also indicats the other four schools of thought in islam Hanafi, Maliki, Hanbali have a similar view.

It serves as a guidance for those who havent fallen into the trap and wrong ideology of these people and gives the average muslim a weapon with which to defend themself against there alegation and ideas but more importantly it tells muslims in what light there actions should be viewd.

This war is a war of ideas first then action not the other way around becouse it is there ideology which drives them to there acts.

One thing i hope comes out of the above fatwa apart from its main aims and puropses is that people are enlightened about the depth of analysis that a proper muslim scholar goes through before coming to a decision about a matter and why it is esential to follow established and traditional understanding of islam. Many people think the matter is as simple as looking at a few verses and hadith but that is only becouse they havnt been exposed to real scholarship.



Edited by rami

Bi ismillahir rahmanir raheem

You need to have an understanding of the schools of thought in Islam.

Sunni Islam has 4 acceptable schools of thought, meaning a muslim can follow any of these and he will be considered to be following right guidance. This authority and guidance comes from certain commands in the Quran and Prophetic tradions of the prophet, such as the command by Rasul allah (sallah llahu alaihi wa sallam) to stick to the main body of the Ummah as it will never go astray. Main body here meaning major group of scholars, now looking back on Islamic History the main body of Scholars as well as muslim have always adhered to the Four schools of thought.

There are other evidences and the issue is not just based on what i said but i am trying to give a general answer.

Khoimani is a Shia muslim his auhtority in Sunni Islam does not exist,  his Fatwa is null and void. A muslim can not order the execution of another person for the reasons they have given and on top of that in a place and country where they have no authority to do anything. Basicly it doesnt hold water in Sunni Islam.

The last Muslim authority to exist was the Ottoman Khalifah in 1920, but the colonial powers took care of it so the kind of authority you are asking about to implament publicise this does not exist.

Today each muslim has to learn and understand and implament Islam for them self based on these schools of thought this is the state we are in there is no global muslim authority to take care of the affairs of the ummah.

We dont have an organisation like the catholic church if that is what you are asking, the closest thing are these Madhhabs and the system in place to ensure that each scholar is qualafied to give a ruling according to each school.


Edited by rami