CHAPTER NINE ISLAMIC PERSPECTIVE OF HUMANITARIAN LAW 9.1 Introduction S Islam, as a complete way of life, has taken care of every conceivable aspect of as provided for a detailed norms and principles of humanitarian concem, The Islamic humanitarian law has its own perspective especially in terms of regulation of the legality or otherwise of engaging in armed conflict and the regulation ofthe actual conduct ofbelligerents during armed hostilities. Islamic law Jus ad bellum is connected to the jus in bello in such a way that a war must be just and its prosecution should equally be in line with the laid down principles of Islamic humanitarian law. It has probibited the use of certain means and methods of warfare that ate perceived to be destructive and barbaric. The employment of inhumane means of warfare or the use of weapons that causes unnecessary suffering (o even combatants are forbidden. The use of weapons which are indiscriminate either because it cannot be directed at a specific military objective or it has sm indiscriminate effect which affests both combatants and civilian alike is prohibited under Islamic humanitarian law. In times of armed conflict, civilians and civilian objects are to be spared as such they deserve to be protected against the effect of hostilities. The act of war is permissible only between enemy ‘combatants alone and should not be extended to non-combatants human existence. Islamic law as its corpus juris, Therefore, this chapler discusses the Islamic perspective of the relationship between jus ad bellum and jus in bello and discloses the fraternity that exists between the two aspects of internaticnal law. It further discusses the prohibited ‘eans and methods of warfare. In doings, it discusses the various weapons that are proscribed as @ result having indiscriminate effect and causing unnecessary 203suffering which confers no military advansage as well as methods of wartig that are deemed inhumane. The chapter discusses the immunity of civilian which include women, children, old persons, infirm ete as a special eategory that deserves protection so long as they do not participate in hostilities. Te protection of civilian objects as objects that do not contribute to military succes are equally discussed. 9.2 Islamic Jus ad bellum and Jus in Bello Jus ad bellum literally means “law of wat” or justice to war, it simply refers toa set of rules that regulates the initiation of the'use of armed foree and it determines the legality or otherwise ofthe use of force, Is the law that defines the legitimate reasons a state may engage in an armed conflict and focuses on certain criteria that determine whether the conflicts just or not.’ Jus in Bell on the other hand, controls the conduct of the warring partes once armed force is used irrespective of whether the use of armed force was just or unjust? Under Islamic law, the legal doctrine regarding the concept of armed conflict has subsumed warfare into religion, and humanitarian considerations in conduct, of warfare were integrated into the concept of legitimate war This means thet Islam has introduced its peculiar norms and values to control the reasons for going to war as well as the rules regulating the actual conduct of hostilities * Consequently, the structural design of the religio-military pattern of Islamic law has made law of war (jus ad bellum) not totally unconnected to the law in war (jus in bello). It is in line with this synergy between the two branches of law that the Islamic principle of bellum justum has become necessary in view Of the fact that a justifiable reason as well as compliance with the formalities James Turner Johnson, Just War Triton and the Restrain of War: A Moral and Hitvieal “Inquiry. (New Jersey: Princeton University Press, 1981), 4 See also ICRC’s Advisory Service isved on July 2004. See slo J G. Starke, Introduction to International Law, 10° Editon, 1989, 552; G, Schwaraberer, A Manual of International Law, 5” Edition, 196%, 196; Moseley, “ust War Theor.” in The Inert Eneyelopedia of Philosophy (accessed February 2, 2003); available at: hp. atm. edufesearliepustwachm, 2. Kapoor S.K, International Lew, ed. (Cental law Ageney, Alahabad India, 1996), 638. 3 Bennoune, K.,"As-Salamu Alayicum? Humanitaian Law i elamteJrispradence” (1984) Vol5, No2, MICH. J. INTL, Pp20-1 4 An-Natima, AA. Toward an Islamic Reformation: Civil Liberties, Human Rights and ‘nernational Lan; (Syracuse University Press, Syracuse, 1996) PLA2 206Islam Perspective of Hunan Law for the conduct of hostilities is necessary. Therefore, Islamic lave does not only demand that war has to be justum under jus ad bellum, but it also has to be ium at the same time under jus in bello, which signifies that war should be Waged in accordance with the sanction of religion and the implied commands of Allah as well a5 the prosecution of the war has to be in accordance with the law’. Rehman observes on the linkage between jus ad bellum and jus in bello in Islamic law thus: Siyar attempted to provide strong humanitarian precepts in warfare, the jus dn bello principles are often closely inter-linked with those of jus ad Bellum. Thus, for example, the regulations relating to the legality or otherwise of the use of force could have «substantial linkage with the mechanism in which force is used.* ‘Therefore, this discloses the importance of understanding the way a society conceives justified warfare in Islam as fundamental to a thorough examination ofits humanitarian rules for the conduct of hostilities.” ‘The aforementioned position can be supported by the provision of Quran in surah al-Bakara where the Almighty Allah says “[a}nd fight in the way of God those who fight against you but do not transgress; indeed God does not like \tansgressors."* This verse is understood to mean a prohibition against the initiation of aggression which is regulated by jus ad bellum.? While at the same time the phrase ‘Aight in the way of Allah those who fight against you" carries the meaning of ‘prohibition of targeting non-combatants, such as women, children, the aged and the clergy, or those with whom Muslims have @ peace 3 Red, M, Op it, note 17,257 § Rehman, J, Siyar(slamic Intemational Law) A Teaching and Learning Manual, UK Cen ter for Lege Education (2011) P5 2 Rennoune, K, Opt, P21 2 Quran? Verse 190 The phrase “Those who fight against you" indtes permission to ight in the way of God ‘gust those who initiate aggression agnirst Muslims, Ths, t permis Muslims to defend themselves against any aggression.’ Therefor, ‘war is permitted only in defence against ‘Aggression or fina. The Qur‘iic texts on arfre prohibit the nation of agresion and Violation ofthe Islaric jus in belle 25lovers Homann Law agreeiet, and it amounts to the prohibition of mutilation, unnecessary buming : and destruction, cutting down trees, killing animals except for food, surprising the enemy with an act of war without a declaration of war, and fighting for personal gain of glory that is the Islamic jus im Bello which regulates the ccondict of hostilities. The phrase ‘do not transgress’ is interpreted according to Ibn Kathir by al-Basri to meaning prohibition against mutilating the dead, theft (from the captured goods) killing women, children and old people who do not participate in warfare, killing priests and residents of houses of worship, ‘burning down trees and killing animals without real benefit." Islam as a religion of peace does not permit reso to unjustified force against ‘Muslims and non-Muslim countries alike except in justified circumstances and ithas sanctioned jus in bello norms that could prevent un-Islamic acts on the part of individual Muslims ducing hostilities: Thus Islam has provided clear rules concerning various aspects of both jus ad bellum and jus ad bello such as ‘notice of commencement of hostilities, unless itis a defensive war, curbing the effects of war, methods of warfare, organisation of the army and navy, modes of fighting, time of fighting, preparation, discipline and regulation of the army." 93 Prohibited Means and Methods of Warfare As earlier discussed, Islamic jus in bello provides for a detailed rules and principles relating to the pfotection of civilians and persons rendered hors de combat just as its IHL counterpart. As a prelude to achieving this protection, certain means and methods of warfare were proscribed by Islamic law based ‘on the nature and effect of the weopons. It has laid down rules that are in consonance with\Islamic tradition aiming to provide a humane conduct of warfare and avoiding the bartaric methods of warfare that was existing in Arabian Peninsula. The prohitition on the use of certain weapons is based on the issue of destruction of enemy property without distinguishing civilian objects from military objectives, as well asthe likelihood of the indiscriminate killing of non-combatants suchas women and children, as collateral damage. 10 Rehman, J, Op it, P59 11 See Tafseer Ibn Kasi, Vol, Pp527-8 ni 206sonic Peipective of Mumanirisa Law To begin with Islam condemns the use offre as @ weapon, The jurists rulings on the prohibition of the use of fire ere based on the Prophetic tradition which prohibits bumning of humans with fie or the use of fire to punish a person. The higith reads: “do not punish the creatures of Allah with the punishment of Allah.” It ean be deduced from this radition that the Almighty Allah prohibits ‘the deliberate burning of persons, either to overcome them in the midst of battle or to punish them after capture." The prohibition in this context is understood to bean absolute prohibition which by implication includes directing fire at enemy fortifications since burning is categorically prohibited by the Prophet (PBUH). However, some jurists opine that in a situation where the enemy starts using fire, then Muslims can use it in reciprocity, otherwise using it is forbidden, ‘This prohibition is synonymous with the prohibition of the use of incendiary ‘weapons under the Protocol Ill of Certain Conventional Weapons."* While considering the prohibition of certain weapons from the traditional war of using bow and arrow, Maliki jurists examine at length the permissiilty of using “poison-tipped arrows”, The jurists are divided on this issue, some fave made a categorical prohibition of shooting the enemy with poison-tipped aos, while others only detested the idea of using poisoned arrows simply because the enemy can reciprocate by shooting the same at the Muslims, The Prohibition of the use of chemical weapons as contained in the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, adopted by the General Assembly (on the 30 November 1992 and entered into force in 1997", and the prohibition fhe use of poisonous gas a containedin the Protocol forthe Prohibition of the ‘Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925 and entered into force on 8 February 1928" are synonymous with the prohibition under the Islamic humanitarian law. According to Hanafi jurist al-Shaybanislamic law permits the cutting of the ‘Ource of water supply to the enemy fortifications as a weapon warfare, or {2 AlBukbn, Hadith Number 2854 in Atami" al-Sohth a: Muktasar Vl 3, p 1098 '6 See Henckaens, J. and Doswald-Beck, L, Chstomary Intemational hunantarton Le, WoL: Rules, (Cambridge: Carnridege University Press, 2003), Rule 85 See UN ¢oc. A/RES/47/39 (hereinafter ‘Chemical Weapons Convention’) "twas registered inthe League of Nations Teaty Series (LNTS) on 7 September 1929 Is 16 207Interatina Homritarin putting blood or “poison in their water in oder to spoil it for them, perhaps it may force them to come out or surrender, bt that does not permit poisoning the enemy's water in order to kill them. It is apparent that al-Shaybént restice 4 “using these weapons of tactics as weapons of mass destruction’ It should be noted thatthe end result of using poison to spoil the enemy's water rust be to force them out of the fortifications in order to surrender, and must not be used forthe purpose of massive killing of the enemy. A similar prohitition is contained in the Additional Protocol I which states that itis prohibited to attack, destroy, remove or render useless objects indispensable forthe surviva of the civilian population, such a drinking water installations and supplies and imigation works, for the specific purpose of deny them for their sustenance Value tothe civilian population or to the adverse Party, whatever the motive, whether inorder to starve out civilians, to cause them to move away, oF for any other motive.” On the issue of weapons of mass destruction, there are three divergent views of contemporary Muslim scholars regarding the legality or otherwise of using ‘weapons of mass destruction. Th frst group of scholars is of the view thatthe acquisition and use of weapons of mass destruction are absolutely probibited ‘The rationale behind their prohibition is that such weapons are indiscriminate in nature which can lead tothe Kling of combatants and non-combatants alike and will inflict unnecessary destruction that has no military advantage."* ‘The second group has made @ conditional prohibition of the use of weapons of mass destruction. They allowed the use of the weapons if the enemy uses it. Thus Mustims may acquire and use weapons of mass destruetion including nuclear weapohs provided that their enemy acquires and uses them against the Muslims. The group of scholars buttresses their arguments by citing Quran provisions where Allah says “whoso commits aggression against you, then respond within the same degree of aggression waged against you"” and “if you punish, then punish with the same punishment which had been inflicted upon you." 77 Andee 54 (I)end (2), Additional Protocol I; Rules $3 and 54, ICRC Customary Sti} PIs6-189 18 Ibid, P229 19 Quran? Verse 194 20. Quran 16 Verse 126,Some jurist went tothe extent of opnining that i Muslims abstain om 208nome Perpetve of Humanitarian Le “The third group actually acknowledges the positon Islamic law which prohibits the use of weapons of mass destruction. However, they assert that Muslims ate allowed to use the weapons ever before itis used by the enemies against ‘Muslims. They based theirconvietionon the reason that some countries stockpile such weapons and use them at will, notwithstanding the fact that they have signed treaties banning the use of such weapons. The use of weapons of mass destruction such as chemical and biological weapons is prohibited respectively under the Chemical Weapons Convention and the Convention on the Probbition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on their Destruction.” Mutilating the body of an enemy is prohibited Under Islamic law. The prohibition came after the battle of Uhud, when the Prophet saw the mutilated bodies of many Muslims including the his uncle's body, the Prophet and other Muslims ‘vowed to mutilate the enemies” bodies during other subsequent encounter. Then Allah revealed: And if you punish fan enemy, O believers), punish with an equivalent of that with which you were hharmed.But if you are patient ~ itis better for those ‘who are patient. And be patient, [O Muhammad], and ‘your patience is not but through Allah. And do not grieve over them and do not be in distress over what they conspire. Henceforth, the Prophet prohibited mutilation and his instructions concerning the conduct of Muslims during hostilities have been “do not betray and do not mutilate”. These instructions were subsequently passed to Muslim armies by the rightly guided caliphs down to other generations. The prohibition against ‘mutilation continues, for instance, when Abi Bakr wrote a letter to one of ‘using @ weapon which is used by their enemies, t would be suicide", which s prohibited i Islam, 21 was opened for signature on Apri 10, 1972 and entered into force March 26, 1975 22 Quran 16 Verses 126 and 127 23 Cited in Reclaiming Islam and Emboldesing Muslim Women in America: 10 Minute With ‘Ahmed Majid, in Religion, 25® October 2013 available at wwwrhuffingtonpost.cony./10- rminites-with-mobamedom_n_778585.8 oniamount to committing 209tnserafona Hamantan Law his govemors in Yemen, he states that “beware of mutilation, because iti sin and a disgusting act." It wes further reported in another tradition of prophet that the Prophet has instructed the Muslims to avoid the enemy's daring the fighting Attacking the face of a human being despite enerity j considered to be inhuman and mutilating. During the reign of Abu Bake, one of his commanders went on war andhe brought the head of the leader ofthe enemy. jjustas the Romans and Persians used to do. The Caliph warned him not o repeat it and not to follow the practice of the Romans and Persians.» The prohibition | of mutilating the enemy in Islamic law extends to mutilating animals. There was time when the Prophet saw a group of people who were shooting arrows ata.” sheep, he detested their action and added: “do not slutilate animals”. Therefore, deducing from the above tradition of the Prophet, the majority of the jurists ‘maintain that Islam imposes strict prohibition of mutilation and torture of both enemy and animals alike. 94 General Protection of Civilian Persons ‘The Islamic perspective of humanitarian rules for the conduct of warfare creates a category of the protected persons who must be spared against the effect of hostilities. Muslims in time of conflict are expected to distinguish ‘between combatants and enemy non-combatants. The ‘non-combatants who are ‘unable to participate in hostilities are classed as protected persons and cannot be attacked, killed or otherwise molested.’ Such a category persons includes children, women, the very old, blind, ctippled, mentally and the physically disabled and sick. ‘In addition to these,monks and hermits who retire to a life of solitude in monasteries or cloisters, and other priests who do not associate with other people art also to be categorised as protected persons."” For the blind, the mentally ill and disabled, there was no specific tradition addressing their statu, but jurists have analogized by extending the probibition of attack against Cited in Rehman, 1, Op cit, P60 See Mahmassuni, S. The Principles of inermational Law In the Ligh of Islamic Doctrine, (Berit Ibdem, 1966). 25. Hibab Allah fbn al-Hasan ibm Manse a-ak, Shari Us 'igdd Ah a-Surnah wa al- Jama ah min a-Kit wa a-Ssnnah wa In al Sabah, ef, Hamdan, AS, (Riyadh: Dat ‘Tibab, 1981-2/1402), Vol. 3, p. 423 26 Muhammad Muni, “The Propet (Peace be on him's Mereiful Reforms inthe Conduet of War The Prohibited Acts’ 02:2-3 (Winter 2009-Spring 2010), Sirah Special Issue, at 206, 27 Rehman, J, Op cit, P59 | |Se itis mn of the 1y's face emity is 5 one of Penemy repeat hibition vere was ws ata erefore, > jurists of both one ctv of Humanitarian Lew children and women to cover thei. These people are considered civilians and by virtue of their civilian status, they enjoy immunity against attack. “The obligation o distinguish combatants from civilians and the need to protect civilians stems from the provision of the Quran which says: ‘Fight in the way of Allah those who fight you but do not transgress. Indeed, Allah does not like transgressors.’ This verse is interpreted to mean a restriction on the choice of target in armed conflict. Fighting is permitted only between combatants alone, those who refrain or avoid taking active part in hostilities should not be attacked. In line with this verse, several traditions are ascribed to the Prophet in which he has specifically prohibited the targeting of five special categories of enemy non-combatants which include women, children, the aged, the clergy and slaves (which simply covers any man hited for work). Similarly, during the baitle of Hunayn, the Prophet saw a woman who was killed and he said she could not be one who would have fought. Then the Prophet questioned the person who killed the woman, The man replied that she was killed because she tried to seize his sword in order to kill him. In the same vein, the companions of the Prophet created guidelines conceming the protection and immunity of civilians in time of armed conflict. The first caliph Abu Bakr gave his famous ten commandment to his troops that they should not commit treachery, or depart from the right path. They must neither ‘mutilate, nor kill a child, an aged man or woman, they should not cut down trees, destroy inhabited areas, slaughter any sheep, cows or camels except for food, or bum date palms nor inundating them, ‘The secdnd caliph Umar has also made a similar prohibition to his soldiers and he wamed the commanders ofthe army thus: Do not mutilate when you have power fo do so. Do not commit excess when you triumph. Do not kill an old man or a woman or a minor, but try to avoid them at the time of the encounter of the two armies, and the Ba 28 Quran2Vesse 190 anIneratinn Homann Law time ofthe heat of vietory, and atthe time of expected attacks.” Likewise, the third caliph Ali has made a prohibition to his army during his war with Mu‘awiyah and instructed his commanders with the following words; Ifyou defeat them, do not kill aman in fight, do not finishoffa wounded man, donot uncover pudendum, cor mutilate the dead donot ip open a estan or enter a house without permission, donot take any of their property, and do net torture of harm their women even though they my insult your leaders.” ‘Therefore, the provision of Quran 2: 190, the traditions of the Prophet and the commands of the companions serve as the bases for immunity for various categories of persons who are deemed civilians for the purpose of protection. 9.4.1 Women and Children ‘Humanitarianism in warfare, forbids the targeting of the protected category of persons and indeed Muslim jurists are unanimous on the impermissbilty of ta geting women and children in aried conflict. Te approach of Jurist has often been to consider women and children as one category and to be treated as one for the simple fact that there are inviolable. They seem to focus more on women because they expect less danger 0 come from children compared to women. Even the women themselves are rot actually considered as a threat oan Islamic state, as such, directing an attack against them is not necessary. Itis significant to note that the Prophet allowed women to accompany him to war so that they can give water and help the wounded. It has been narrated on the authority of, ‘Anas b. Malik who said that the Messenger of Allah (may peace be upon bim) allowed Umm Sulaim and some other women of the Ansar to accompany him when he went to war; they would give water (to the soldiers) and would treat ‘the wounded.” $a Matanmad Mani “The Prophet (Peace be o ins Merl Refoms ite Cont of ‘War The Prohibited Acs O2 23 (Wiir 2008-Sping 2010), Siah Special Ise, a 206 31 Did, at 202 32. Sahih Muslim (Kitab AF-ihad wa’ iy) Book 19 : Hadith 4454 212Isomie Pespectve of Humanitarian Law “The age limit for the enjoyment of immunity as a child is 15 years and the same age limit is a condition precedent for enrolment into a Muslim army. Interestingly, the age limit sei by Islamic law in terms of protection and ‘enrolment into armed force corresponds with age for the protection of children in the Additional Protocol I to the Geneva Conventions. The Protocol provides that ‘[the Parties to the conflict shell take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from reeruting them into theit armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority to those who are oldest. ‘According to jurists, the age of ISyears as the bench mark is deduced from the tradition of the Prophet where he refused to accept some Muslim male volunteers who were under 15 to join the battles of Badr and Uhud.* The justification for the immunity of women and children in armed conflict is centered on the fact that they do not fight cither because of their physical weakness or because normally women and children do notengage in acts of hostility. However, when Women and children engage in activity that qualifies as direct participation in hostilities, Jursts are unanimous that such women and children certainly lose their right to non-combatant immunity if they take a direct part in the actual fighting, Furthermore, the question as to which specific act may constitute direct participation in hostilities has received attention of scholars. Muslim scholars have differed in their opinions regarding the act of direct participation in hostilities. For instance, According tc Hanafi jurists, if woman attacks a man, itis allowed to kill her in a case of selfdefence, but if he captures her, itis impermissible for him to Kill her afterwards. Other jurists such as Sufyén al- ‘ThawsT maintains that a woman can be killed if she fights, but itis undesirable to kill children, despite engaging in fighting.** Some jurists agree that a woman and child who are leaders of the enemy, they can be targeted if they come to 33 Avile77 @), API 34 ElahiM., “The Rights ofthe Child Under Islamic Law: Proibtion ofthe Child Soir” Columbia Human Rights Law Review, Val. 19, No.2, (Spring 1988), Fp 265-279. 33 ie 213the battlefield in order to disperse the enemy." In addition, ifa wealthy woman spends a large chunk of money on inciting the enemy to fight against Muslims, she loses immunity against attack. However, Malikt jurists maintain that a ‘woman’ enjoys absolute immenity even when she commits an act that qualifies as a direct participation in hostilities” Maliki maintains that the Prophet has made an absolute prohibition against targeting children and women, thus whether they support or disturb Muslim soldiers their immunity against attack remains and they cannot be attacked. 9.4.2 The Old, the Infirm and the Monks ‘The tradition of the Prophet has prohibited targeting the aged. The Prophet is reported to have said: ‘Do notkill an old man, nor a young child, ora woman’ ** Pursuant to the Prophetic tradition, the first Caliph, Abu Bakr, in his celebrated ‘address to the first Syrian expedition states thus: Stop, O people, that I may give you ten rules to keep by heart! Do not commit treachery, nor depart from, the right path. You must not mutilate, neither kill a child or aged man or woman, ‘The aged is to be protected so long as he does not assist the enemy or take direct part inthe hostilities. The loss of immunity by an old person as a result of participation in hostilities is deduced from a tradition which discloses that the Prophet did not condemn the killing of an old man who is over a hundred years. ‘The old man was assisting the enemy by rendering helpful intelligence advice in carrying its thilitary operations against the Muslims.” Jurists argue that the {justification of targeting the aged in such cases is based on the fact that planning 36 Imam Malik, A., l-Minwatta (the Approved) (Translated by Hibsh G.A., Voll, Dar Ale Kotob AL-Timiya, Lebanon, 2007) P229 37 Sultan, Op eit, p32 38 According to Ruxton,childre, imbeciles, its, old men, impotent and sick people he blind and monks living in loiter are tobe spared not because oftheir calling, for they ate plunged even deeper than the ethers in infidelity but because they live a secluded life similar to that led by women, Ruxton, FH. Op cit, P74 39 Badawi, N,‘slamie Jurspragence end the Regulation of Armed Confit,” (2008) P10, available at hp/bliblresearch org datagloballimages/Islamic_ Jurisprudence Regulaton_AC pdf 214 meI IsaniePerspeive of Hurnaitaian Law the war plays a vital role and coniributes to military success even more than engaging in actual fighting.” In addition, the silence of the Prophet concerning the killing of the old man serves as passive approval of the act. ‘Traditions of the Prophet are very clear conceming the protection ofthe sick, the blind, the old and the slaves. This category of persons such as the old, the in and the monks are entitled to varions degrees of immunity from attack based on the instructions of the Prophet and the caliphs. Muslim scholars agree that targeting the blind, the sick, the infirm and the insane is forbidden, According fo Al-Thaw, targeting anyone whe is infirm is allowed if he is still physically able to fight and he supports the enemy in their fight against Muslims. For hermits, Islamic humanitarian norms have considered religious people who devote themselves to worship as non-combatants who deserve to be protected in time of armed conflict. The traditions of the Prophet and the command of the first caliph extend protection to the monks and clergy persons who are in seclusion from the people. Caliph Abu Bakr in his famous command said: * As you move on, you will meet hermits who live in monasteries and serve Allah in seclusion. Leave them alone; do not kill them and do not destroy their monasteries.” Thus the justification behind the prohibition of the targeting of monks in time of hostilities is that they are secluded in their monasteries and do not participate in acts of hostility against Muslims. Thus, it is agreed that if such hermits engaged in hostilities or support the army of the enemy against Muslims, they lose their immunity and have become legitimate targets.” Generally, when protected persons such as women, children, the aged, and the clergy decide to take an active part in the conduct of hostilities, such people automatically lose the immunity ‘hey enjoy by virtue being civilians. This position of Islamic humanitarian lnw is akin to the position of international humanitarian law. Additional Protocol I provides that “the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations."* The Protocol then goes further to state that ‘civilians oa 41 Ramadam, T In the Footsteps of the Prophet: Lessons from the Life (Oxford: Oxford University Press, 2007) F201 42 Rehman, J, Op cit, PS 43 AntcleS1(1),AP 1 ara 21sIeteraton| Haast La shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities." The same provision reappeared in the provision of Article 13 of the Additional Protocol II which is applicable to non- international armed conflict. 95 Protection of Civilian Objects Just as the civilian population is immune from direct attack unless for such time as they directly participate in hostilities, civilian objects equally deserve protection againstthe effects of hostilities. In Islamic law, the Quran has provided for the protection of civilian property such asplaces of worship*schools, market places, residential houses etc in time of war. The Quran provides that ‘And were How it not that Allah checks the people, some by means of others,there would have obje ‘been demolished monasteries, churches, synegogues, and mosques in which the aci name of Allah is much mentioned."* In addition, when Allah mentioned ‘fight fol those who fight you” in Quran 2 Verse 190, He further said ‘do not transgress the limit? which is interpreted by some scholars to mean prohibition against ‘mutilating the dead, theft (from the captured goods), killing women, children ‘and old people who do not participate in warfare, killing priests and residents of houses of worship, bumning down trees and killing animals without real benefit: Thus destruction of civilian objects forbidden. Furthermore, traditions have shown that when the Prophet issued commands to the Muslim troops who were deployed against the advancing Byzantine army, he gave the instruction in the following worcs: in avenging the injuries inflicted upon us molest not the harmless inmates of domestic seclusion; spare the weakness of the female sex; injure not the infant at the breast or those who are ill in bed. Refrain from demolishing the houses of the unresisting inhabitant; destroy not the means of their subsistence, nor their Ig, Arisle $1 2) 45 Quran22 Verse 40 46 Tafbilba Kathir, VoL1, Pp 527-8 216sam Pepetveo Humanitarian Law fruit trees and touch not the palm and do not mutilate bodies and do not kill children.” Sifnilary, Caliph Abu Bakr in his instructions to his commanders he forbade them in strong terms from cutting dawn trees, destroying inhabited areas, slaughtering any sheep, cow or eamel except for food, burning date palm or inundating them. Therefore, these prohibitions from the authoritative sources have made it conclusive that Muslim participants in the course of Jihad are to avoid unnecessary destruction of civilian objects which is not demanded by niltary necessity However, there are divergent views of scholars on the inviolability of civilian ‘objects in times of armed conflict. According to some jurist the inviolability of a civilian property depends on the sacredness ofits owner. Thus it necessarily follows that if the life ofthe owner ofthe property is not immune, his property cannot possess such immunity and the conviction is logical. Accordingly, they allow the destruction of enemy property including all fortresses, houses, water supplies, palms and other fruit trees an¢ all other plants and crops. The scholars buttress their position with the Quranic verse where Allah says “Whatever you have eut down of [thet] palm tres or left standing on their trunks ~ it was by permission of Allah.”® Therefor, this group of scholars permits the Muslim amy to slaughter any animals belonging to the enemy such as sheep, cows, and poultry of any kind. They also permit the transfer of animals and weapons belonging to the enemy to Islamic teritory, if it is not feasible, “the animals may be slaughtered and burnt, whereas weapons may be destroyed to prevent the enemy from using them. The second group of scholars have purtly shared the same view as the first scholars, however they disagree with them concerning the killing of animals, ‘xcept those slaughtered for food or by necessity such as Killing the horse of an enemy in battle, They further assert that killing the bees or any other animal, except for food or if the enemy is using it fr fighting, will amount to what is 47” Cited in Bemnoune, K.,Op cit, P629 48 Imam Malik, A., A/-Mhewaua Malt, Boos 21, Hath 21: 3:10 4 Quran 59 Verse 5 50 Rehman, J, Op cit, P62 airImesatonal Humartaran Law meno in the Ques a casing comption onthe earth The Aimigty, | 5.6 Ala says ‘And when he goes aay, he sive tuoughou the i o eau comiption therein and destoy cops ané animals, And Aah doesnot ite ql) Th corruption."*! aby Bo There are other scholars who hold the third view which is quite distinct from the wit views of the fist and scond group of sls. The moet respected view we (MY 20! the one held bythe ist Callph Ab Bes bis eebraed tn commandnet it th address where he stated thus: Stop, © people, that I may give you ten rules to keep by heart! Do not commit treachery, nor depart from the right path. You s ‘must not mutilate, neither killa child or aged man or womaf: Do not destroy a mi palm-iee, nor burn it with ie and donot eat any fruitful re. You must nt slay ab any of the flock or the herds or the camels, save for your subsistence, You are re likely to pass by people who have devoted their lives to monastic services; leave by them to that to which they have devoted their lives. You are likely, likewise, to ta find people who will present to you meals of many kinds. You may eat; but do by not forget to mention the name of Allsh.® The third view is worth noting since si Abt Bakr gave these commands based on his knowledge of the practice of the a Prophet and he would not have given any instructions which are inconsistent a with the Prophet's practice because he was the most knowledgeable person & » concerning the Prophet’s practice and the interpretation of the Qur'an. It is obvious that the Islamic humanitarian norms are positive in terms of the protection of civilian objects which appear to be in pari materia with the protection envisaged under IHL. Article 52 of the Additional Protocol 1 that Civilian objects shall not be the object of attack or of reprisals. Likewise the protection of places of worship is equally arovided for inthe Protocol. It states that itis prohibited to commit any acts of hostility dicected against the historic ‘monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, to use such objects in support ofthe military effort, andor to make such objects the object of reprisals. 51 Quran? Verse 205, 52. Khalifa Abu Bakr - Encouater with the Tribes, Alin biography KhalfvcontensKABY8/pdt 53 Amicle 53, APT ialable at wwwalim onglibray 218Islanie Perpetive of femsnitaran Lae 9.6 — Conetusion ‘The primary aim of LHL principles is tc protect innocent and guiltless civilians ais well as civilian objects so is the main purpose ofthe Islamic humanitarian law. Both laws value human life and both advocate for its protection in accordance with law. Targeting defenseless civilians and thereby murdering them is surely not in accordance to either IHL or the Islamic law. The Islamic humanitarian law prohibits targeting and killing of civilians, especially women, children, the élderly, religious clergy and’ unnecessary or excessive suffering. So long as civilians are not participating in the armed conflict, they are immune from military attacks and must be kept out of harm for if the Warring parties do not abide by this clear ruling they would violate the Islamic humanitarian rales relating to civilian protection. Civilians will ose the protection afforded to them by both the IHL and Islamic humanitarian law and become a legitimate military target once they pick up arms, but once “hey are captured they have to be treated humanely. All the detailed provisions conceming civilian protection extend to civilian objects unless and until the objects are used for military purpose. Thus the obligations created under IHL as envisage in the Geneva Conventions and the Protocols are humanitarian in nature and are inline with the spirit of Islamic law and the letter contains even richer and well developed principles for the Muslims to follow and protect civilians and civilian objects in times of armed confit 219