In my previous articles on the ongoing Israeli war in Gaza, I discussed several issues, including some moral, legal, and military concepts raised during the war in statements and official comments, such as human shields, collateral damage, self-defense, resistance and terrorism, and jihad.
I clarified earlier how, in today's world, the political and military objectives take precedence over both ethics and law; since ethical justifications seem to be the crutch of politicians and military leaders, conducted according to calculations imposed by political interests and fear of legal accountability.
For example, the goal of eliminating Hamas justified waging and continuing the war for more than three months; despite the immense destruction in Gaza and the unprecedented human cost that contravenes all legal and moral codes, putting the international concepts of "human rights", children's rights, and women's rights in an unprecedented predicament.
Warfare is a characteristic that refers to both a legal and political state. Legally, the safeguarding of life and property hinges on the existence of a legal contract (such as a protection pact, treaty, or temporary safe conduct). Politically, it revolves around the relationship of war and peace between the House of Islam and the House of War.
In this article, I wish to address another quandary that complements my previous discussions: the duality of civilian and military in war, especially since it is a central concept in previous debates about human shields and collateral damage. It is also another example added to previous ones (such as jihad in Gaza, which I addressed in two previous articles), and all fall under a significant question about the challenges of reviving jurisprudential heritage in the modern context. Notably, after the events of 7th October by Palestinian resistance in the Gaza envelope, fatwas were issued rejecting the distinction between civilians and military personnel as a response to attempts to condemn Hamas for alleged war crimes and killing Israeli civilians.
Shortly after the Israeli war erupted, we saw official and unofficial Israeli statements refusing this distinction regarding the residents of Gaza and holding them — all of them — accountable for what occurred. Indeed, some Jews have talked about rejecting these modern ideas that do not align with Old Testament perceptions; to justify the indiscriminate killing of the people of Gaza, regardless of age or whether they are civilian or military. This has already happened and continues to occur.
These events and discussions raise several questions, like: Can historical ethical concepts transcend modern legal placements governing the ethics of war? If every party disregards the distinction between civilians and military recognized by international law, then on what reference do we base the standards governing the ethics of war? How can one deny the principle of distinguishing between civilian and military on one hand, and use it to condemn the other party on the other hand? How do we deal with an international reality where balances of power determine what is considered good and bad? And, is it politically and ethically correct to target all citizens of the enemy?
These are big questions that can't be fully addressed here. However, I'm keen on discussing the problem of invoking pre-modern state jurisprudence in the modern context, specifically through creating a clash between the duality of civilian and military, and that of combatant and non-combatant.
Initially, it's important to clarify that we're faced with two different, non-interchangeable dualities. The first duality (civilian vs. military) is a legal concept arising under the modern state, with international humanitarian law and the Geneva Conventions being the primary references for this distinction. There are procedural criteria for distinguishing between civilians and military related to clothing, locations, and activities.
The concept of "military" is clear to the general public; it refers primarily to the regular soldier, and extends to anyone assisting in combat tasks during war, even if they are civilian, as they lose their civilian status precisely in that case. A reservist is also a civilian but loses this status when joining a war. Therefore, the criterion here is engaging in combat work or helping in it during war, and with this, the modern concept of "military" differs from the jurisprudential concept of "combatant", which is broader.
The second duality (combatant vs. non-combatant) belongs to the law before the modern state and is part of the vision of the ancient world divided between the House of Islam and the House of War (or House of Disbelief, which was largely a House of War).
The combatant concept involves complexity, as it is contrasted, in the vision before the modern state, with two concepts: the Dhimmi and the Musta'min. The Dhimmi enjoys membership in the "House of Islam" under its jurisdiction, while the Musta'min is a member of a state that has a treaty (or peace agreement) with the "House of Islam". There is a third concept that appears here opposing the combatant—and although it is interrelated—it is the musta’man, someone from the "House of War" who enters the "House of Islam" temporarily with a safe-conduct given by the ruler of the House of Islam or any authority within it.
It is evident that "combatant" is a characteristic referring to both a legal and political state. Legally, the protection of life and property depends on the existence of a legal contract (a protection pact, treaty, or temporary safe conduct). Politically, it's all about the state of war or peace between the House of Islam and the House of War.
If a contract has occurred, it creates a necessary condition exempt from the state of war inherent to the "combatant"; hence the name combatant, meaning related to war or people of the House of War. A combatant is a non-Muslim who has not entered into the covenant of protection, does not enjoy the Muslims' safety, nor their treaty, meaning maintains a state of war without forming any of the three previous contracts that would establish a state of permanent or temporary peace.
The complexity of the combatant concept is illustrated by the "musta’man", for example, who lacks the contract of protection and there is no treaty between their country and the House of Islam, yet has obtained temporary protection (akin to a visa) which ends on a specific date, and is warned if exceeded. Their temporary safe-conduct may turn into a permanent peace relationship upon the duration's end, thus their temporary safe-conduct changes into a permanent peace relationship. Even if the musta’man leaves for their country to trade or visit (not to settle), their safe-conduct remains valid.
Today's applications of the "musta’man" concept include embassy staff, tourists, company employees, etc., even if their countries are considered among the House of War nations; because they entered the lands of Islam with a safe-conduct, they must not be harmed.
It is apparent that there's a distinction between the two; each duality has its own logic, operates within its specific framework, belonging to a particular worldview, and to different legal and ethical systems. The first duality revolves around active participation in war (termed classically as combatants) on one hand, and the protection of civilians who are not part of the war on the other.
The second duality centers on two matters: first, the membership in the House of War even when there is no active war, and second, the absence of any commitment by any type of contracts (protection pact, treaty, or safe conduct). The first point (membership in the House of War) implies that every member of the House of War is a combatant, setting the duality of combatant and non-combatant apart from the civilian and military duality, which seems narrower here.
However, the general killing of every member of the House of War is problematic since the scholars agreed on the protection of certain groups of citizens of the House of War; this adds to the three previous contracts (protection pact, treaty, or safe conduct). Among these groups are women and children if they did not fight; their protection is confirmed, and their killing in war is prohibited by consensus among scholars. However, if women engage in fighting, the majority of scholars agree that those who fight among them shall be killed, hence the cause here depended on actual combat (i.e., a woman becomes "military" by the modern definition).
There are other combatant groups where scholars disagreed. For instance, Hanafi scholars do not permit the killing of the decrepit, the paralytic, the withered and dry, the blind, those with amputated hands and feet, those with the right hand cut off, the demented, and monks in their monasteries, and those in houses or synagogues who have sequestered themselves and locked their doors. The prominent view among Maliki scholars is not to allow the killing of laborers, farmers, and artisans. This clarifies two things:
- First, it is not permissible to kill every combatant in the war according to scholars; there are considerations and standards that must be observed.
- Second, not every civilian (by modern terminology) is a combatant (by jurisprudential terminology) whose life is permissible to take in war.
"Combatant" is a descriptive concept; its bare attribute is not enough to permit shedding their blood among scholars. Instead, two criteria must be met:
- First, any legal or political commitment must be absent. As mentioned before, the combatant is not part of the protection pact, nor engaged in a treaty or safe conduct.
- Second, the combatant must truly or figuratively belong to "those who fight"; whoever is not among those who fight, their killing in war is not permissible unless they fight truly or figuratively (through opinion and incitement). It is for this reason that the pre-modern state scholars exempted the aforementioned groups (like women and children), as they were not among those who fought in that era due to the pre-state arrangements, the nature of combat, its tools, and its collectivities. Likewise, the decrepit is exempted as they lack the residual capacity for combat, as are monks and nuns, as they are secluded, so much so in Maliki jurisprudence, they are neither taken as captives nor enslaved.
All of this demonstrates the issue faced by some contemporary fatwa issuers who emerged after the events of October 7th, saying there are no civilians in Israel; this is a confusion of concepts highlighted by:
- First, the "civilian" is a modern legal concept, well-established in international custom, that applies to the people of Gaza, as well as all Israelis who have not engaged in combat or instigation and assisted therein. Mixing this concept with the concept of combatant is not permissible.
- Second, it's problematic to apply historical jurisprudential terms to all Israelis from a jurisprudential perspective; not all Israelis are combatants whose blood is free to be shed according to classic jurisprudential perspective. Some scholars clinging to the literal interpretation of jurisprudential heritage may argue that contracts have been made between authority figures and Israelis that could change the Israelis' classification from combatants to other statuses like treaty-bound and protected. This viewpoint is as problematic as completely disregarding the distinction between civilian and military; targeting children in war, for instance, is unanimously prohibited by scholars, so how is it permissible to completely void this duality?
Investing pre-modern jurisprudence in today's world may oblige investors to adhere to obligations they often disregard despite being part of the pre-modern state Sharī'ah system. This is clarified by:
- First, the lack of a systematic perspective. Applying the jurisprudential heritage to the modern context, as it stands, will lead to the rest of the pre-modern state system, such as slavery, captivity, and treaty abandonment by authority figures under the conditions mentioned in jurisprudence, among other details of the system that these investors fail to recognize the problems of and the extent of the predicament they might fall into if they were to be bound by pre-state jurisprudential laws, away from the comfort of selectively choosing what serves their limited vision, which does not align with what I call "the system of jurisprudence", nor does it agree with the modern state's concepts and laws. Instead, it presents a hybrid vision that is not tenable under any system.
- Second, such matters are political and serve common interests in the jurisprudential perspective, even if some are based on prophetic texts; they are subject to assessments of common interests according to the ruler's judgment, from the pre-modern state perspective. The ruler might grant protection to certain combatant groups or issue a command to the army to refrain from killing certain individuals based on their distinguished characteristics or a previous agreement.
Thus, we find ourselves facing a modern-day application of this classic view in the form of contemporary international agreements to which today's nations have acceded. If the classic scholars permitted giving protection to a combatant by certain individuals, what would the situation be in today's highly complex world connected by complicated legal and political agreement systems?
- Third, not considering political and military transformations from the pre-modern to the modern state and the evolution of war tools and techniques would have a significant effect on the importance of distinguishing individuals in warfare, as well as on the procedural criteria of this distinction. This changes modern concepts compared to those before the modern state, meaning the classic standard for "those who fight" will differ today in light of the formation of the regular army and the concept of war with its destructive military tools.
Neglecting these changes could lead to international legal actions for war crimes. Although trial procedures in this regard are often subject to power balances and policies of great power, this does not undermine the principle itself.
