Shaykh Muhammad Afifi al-Akiti
Defending The Transgressed By
Censuring The Reckless Against The Killing Of Civilians


Mud?fi' al-Mazlum bi-Radd al-Muh?mil
'al? Qit?l Man L? Yuq?til


Introduction by Shaykh Gibril F Haddad


Fatwa Against The Targeting Of Civilians

? 2005 Shaykh Muhammad Afifi al-Akiti

This text is also in pdf < O >



Contents


Introduction by Shaykh Gibril F Haddad
Glossary
Defending the Transgressed By Censuring
The Reckless Against The Killing Of Civilians
Initial Question
Excerpt from an Article by a Group
called 'al-Muhajiroun'
Shaykh Muhammad Afifi al-Akiti's Fatwa
Fasl I. The Target: Maqt?l
Fasl II. The Authority: ?mir al-Qit?l
Fasl III. The Method: Maqt?l bih
H?sil (Legal Outcome)
Mas?'il Mufassala (Various Questions)
Tatimma (Conclusion)
Select Bibliography



Introduction


In the Name of God, the All-Beneficent, the Most Merciful.

Gentle reader, Peace upon those who follow right guidance!
I am honored to present the following fatwa or "response by a qualified Muslim Scholar" against the killing of civilians by the Oxford-based Malaysian jurist of the Shafi`i School and my inestimable teacher, Shaykh Muhammad Afifi al-Akiti, titled Defending the Transgressed by Censuring the Reckless against the Killing of Civilians.

The Shaykh authored it in a few days, after I asked him to offer some guidance on the issue of targeting civilians and civilian centers by suicide bombing in response to a pseudo-fatwa by a deviant UK-based group which advocates such crimes.

Upon reading Shaykh Afifi's fatwa do not be surprised to find that you have probably never before seen such clarity of thought and expression together with breadth of knowledge of Islamic Law applied (by a non- native speaker) to define key Islamic concepts pertaining to the conduct of war and its jurisprudence, its arena and boundaries, suicide bombing, the reckless targeting of civilians, and more.

May it bode the best start to true education on the impeccable position of Islam squarely against terrorism in anticipation of the day all its culprits are brought to justice.

Dear Muslim reader, as-Sal?mu `alaykum wa-rahmatuLl?h:
Read this luminous Fatwa by Shaykh Muhammad Afifi al-Akiti carefully and learn it. Distribute it, publicize it, and teach it. Perhaps we will be counted among those who do something to redress wrong, not only with our hearts as we always do, but also with our tongues, in the fashion of the inspired teachers and preachers of truth.

I have tried to strike the keynote of this Fatwa in a few lines of free verse, mostly to express my thanks to our Teacher but also to seize the opportunity of such a long-expected response to remind myself of the reasons why I embraced Islam in the first place.



A TAQRIZ ? HUMBLE COMMENDATION:

Praise to God Whose Law shines brighter than the sun!
Blessings and peace on him who leads to the abode of peace!
Truth restores honor to the Religion of goodness.
Patient endurance lifts the oppressed to the heights
While gnarling mayhem separates like with like:
The innocent victims on the one hand and, on the other,
Silver-tongued devils and wolves who try to pass for just!

My God, I thank You for a Teacher You inspired
With words of light to face down Dajjal's advocates.
All?h bless you, Ustadh Afifi, for Defending the Transgressed
By Censuring the Reckless Against the Killing of Civilians!
Let the powers that be and every actor-speaker high and low
Heed this unique Fatwa of knowledge and responsibility.

Let every lover of truth proclaim, with pride once more,
What the war-mongers try to bury under lies and bombs:
Islam is peace and truth, the Rule of Law, justice and right!
Murderous suicide is never martyrdom but rather perversion,
Just as no flag on earth can ever justify oppression.
And may God save us from all criminals, East and West!

By permission of Shaykh Afifi I have done some very light editing having
to do mostly with style, spelling, or punctuation such as standardizing
spacing between paragraphs, providing in-text translations of a couple
of Arabic supplications, adding quotation marks to mark out textual
citations, and so forth.

I also provided the following alphabetical glossary of arabic terms not
already glossed by the Shaykh directly in the text

May All?h Subh?nahu wa-Ta'?l? save Shaykh Muhammad Afifi here and hereafter, may He reward him and his teachers for this blessed work and grant us its much-needed benefits, not least of which the redress of our actions and beliefs for safety here and hereafter.

Blessings and peace on the Prophet, his Family, and all his Companions,
wal-hamdu liLl?hi Rabb al-'?lam?n.

G.F. Haddad
Day of Jumu`a after `Asr
1 Rajab al-Haram 1426
5 August 2005
Brunei Darussalam


GLOSSARY

ahl = people; qualified adherents or practicioners
`aql = intellect, reason
Ah?dith al-Ahk?m = had?thic proof-texts for legal rulings
`amal = deed
asl = see usul
b?b = chapter
Ban? ?dam = human beings
d?bit = see daw?bit
dar?ra = necessity
daw?bit = pl. of d?bit = standard or pricipal rule
Doctor Angelicus = Angelic scholar, a title given to Thomas Aquinas,
the great theologian of the Western Church.
da`i = summoner
duny? = this world
f?'ida = benefit
Faq?h = see fiqh
fard `ayn = personal obligation
far`i = adj. from far`, see furu`
fasl = see fus?l
fiqh = Islamic jurisprudence, the expertise of the Faq?h
fitna = strife, temptation, seduction, delusion, chaos, trial and
tribulation
fitra = sane mind and soul, primordial disposition
Fuqah?' = pl. of Faq?h (q.v.)
fur?` = pl. of far`, branches (of the Law), secondary legal texts;
corollaries
had?th = saying of the Prophet Muhammad, upon him blessings and peace
hal?l = lawful, permitted
har?m = categorically prohibited, unlawful
h?sil = legal outcome
hukm shar`i = legal status
Ibl?s = Satan
ihs?n = Excellence, the pinnacle of religious practice
ijm?` = Consensus
ins?f = fairness
Jam?`a = the Orthodox Community
Jam?l al-Shuhad?' = Beauty of Martyrs, the title of the
murdered vizier Niz?m al-Mulk
Jih?d = moral or military struggle by the muj?hid
khil?f = (juridical) disagreement
khil?fiyya = fem. adjective from khil?f
= having to do with (juridical) disagreement
madhhab = school of law
makr?h = detestable, abhorrent, abominable, disliked, legally offensive
maq?sid = pl. of maqsad, objective or ends
maqsad = see maq?sid
mas?'il = pl. of mas'ala = question or legal point
mas'ala = see mas?'il
maslaha = welfare, public / general good
mub?h = indifferently permissible
mufassir = exegete
muft? = one who formulates fatw?s or formal legal responses
Muhaqqiq = The Careful Examiner, a title given to Im?m al-Kurd?,
the last great jurist of our School
muj?hid = one who does jih?d (q.v.)
mukallaf = legally-responsible Muslim
mush?raka = mutual or reciprocal matter
nafs = ego, self
nas?ha = faithful, sincere advice
qad?y? = pl. of qad?ya = issue or legal context
q?d? = judge in an Islamic court of law
q?'ida = see qaw?'id
q?til nafsahu = self-killer, suicide
qaw?'id = pl. of q?'ida = maxim or legal principle
qawl = saying or legal position
qit?l = warfare, battle
sabab al-wuj?d = raison d'?tre
sabr = patient endurance and fortitude
Sah?b? = Companions of Prophet Muhammad, upon whom blessings and peace
Salaf = Pious Predecssors, early authorities
shah?d, pl. shuhad?' = self-sacrificing believer
who dies for the sake of God alone, "martyr"
shar`i = adj. legitimate in the eyes of the
Shari`a (Islamic Law), lawful
siyar = military expeditions
sunna = way, path
s?ra = a chapter of the Qur?n
tafakkur = reflexion
tafs?l = detailed legal discussion
tahluka = self-destruction
thaghr?r bil-nafs = risking one's life
tatimma = conclusion
tawakkul = reliance upon God
thaw?bit = pl. of th?bit = axiom
Umma = the Muslim Community
us?l = pl. of asl = foundational principle. Adj. us?l?
wahm = imaginative faculty or emotions
was?'il = pl. of was?la, means
was?la = see was?'il



Defending the Transgressed By
Censuring The Reckless Against
The Killing Of Civilians


Fatwa
according to
the Madhhab of Im?m Sh?fi'?
by
Shaykh Muhammad Afifi al-Akiti



Initial Question
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.



Excerpt from an Article by a Group called 'al-Muhajiroun':


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.




Shaykh Muhammad Afifi al-Akiti's Fatwa






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!



This is a collection of mas?'il, entitled:
Mud?fi' al-Mazl?m bi-Radd al-Muh?mil 'al? Qit?l Man L? Yuq?til
; 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 , which have been used by them to justify their wrong actions. May All?h open our eyes to the true meaning of sabr and to the fact that only through it can we successfully endure the struggles we face in this duny?, especially during our darkest hours; for indeed, He is with those who patiently endure tribulations!

There is no khil?f that all of the Shafi'i fuqah?' of today and other Sunni specialists in the Law from the Far East to the Middle East reject outright the above opinion and consider it not only an anomaly and very weak but also completely wrong and a misguided innovation : 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 qad?ya of this b?b 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 thaw?bit and the daw?bit when reading a fur?' 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 : without doubt, civilians;

(2) the authority for carrying out the killing : as no Muslim authority has declared war, or if there has been such a declaration there is at the time a ceasefire ; and

(3) the way in which the killing is carried out : since it is either har?m and is also cursed as it is suicide , or at the very least doubtful in a way such that it must be avoided by those who are religiously scrupulous . Any sane Muslim who would believe otherwise and think the above to be not a crime would be both reckless and deluded . 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 .

The result in fiqh 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.


Fasl I. The Target: Maqt?l
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 .

This opinion violates a well known principal rule from our Law:




"la yajUzu qatlu nisA'ihim wa-la SibyAnihim idhA lam yuqAtilU"
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 All?h 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 All?h be well pleased with them all!) and other Hadiths.

Imam al-Subki ( may All?h 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: " may not kill a woman nor a child soldier unless they are in combat directly, and they can only be killed in self-defence" .

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'? excuse, for circumventing this convention of war by targeting non-combatants or civilians whatsoever, and that the hukm shar'? of killing them is not only har?m but also a Major Sin and contravenes one of the principal commandments of our way of life.


II. The Authority: ?mir al-Qit?l
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"
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"
.

Decisions of this kind for each Muslim state, such as those questions dealing with ceasefire , peace settlement and the judgment on prisoners of war can only be dealt with by the executive or political authority or by a subordinate authority appointed by the former authority . This is something Muslims take for granted from the authority of our naql such that none will reject it except those who betray their 'aql . The most basic legal reason 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
.

And:


fa-yaf'alu l-imAmu wujUban al-aHaZZa li-l-muslimIna li-ijtihAdihi
.

Nas?ha: 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 not to go to war. This has been expressed in a few words by Imam al-Zarkash? ( may All?h be pleased with him!) as:



wujUbuhu wujUbu l-wasA'ili lA l-maqASidi


The upshot is, whether one likes it or not, that the decision and the discretion and the right to declare war or jih?d 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 Q?d? in a court of law: mahkamah) is the only one with the right to excommunicate or declare someone an apostate . 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.


Fasl III. The Method: Maqt?l bih
The proposition: "attacks such as the September 11th Hijackings is a viable option in jih?d," 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 khil?f on this question by any Q?d?, Muft? or Faq?h, that this proposition and those who accept it are without doubt breaching the scholarly consensus 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 , just as with the actual circumstance of the Japanese Kamikaze attacks.)

Tafs?l 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 to die, then the More Correct Position according to us is that it does constitute suicide. This is because the bomber, being also the maqt?l , is unquestionably the same q?til = q?til 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 whether he may die in the process or survive the attack, then the Correct Position 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 . This is because the attacker, were he to die, is not the active, willing agent of his own death, since the q?til is probably someone else.

An example 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 shah?d - 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 muj?hid).

This is precisely the context of the mas'ala concerning the "lone charger" and the meaning of putting one's life in danger found in all of the Fiqh chapters concerning warfare. The Umma's Doctor Angelicus, Im?m al-Ghaz?l? ( may All?h 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}

(al-Baqara, 2:195)?

"We say: There is no difference that regarding the lone Muslim who charges into the battle-lines of the non-Muslim and fights 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 'Abb?s (may All?h be well pleased with both of them!) says: "destruction" is not that . Instead, is to neglect providing supplies in obedience to God (al-Baqara, 2:195).

That is, those who fail to do that will destroy themselves. al-Bar?' Ibn '?zib says: "destruction" is committing a sin and then saying: 'my repentance will not be accepted'. Ab? 'Ubayda says: it is to commit a sin and then not perform a good deed after it before he perishes.

In the same way that it is permissible to fight the non-Muslim until he is killed , that is also permissible for him for this b?b: the muhtasib or enforcer, such as the police] in law enforcement .

However, were he to know that his charge will not cause harm to the non-Muslim , such as the blind or the weak throwing himself into the battle-lines, then it is prohibited and is included under the general meaning of "destruction" from the Verse .

It would only be permissible for him to advance if he knows that he will be able to fight until he is killed, or knows that he will be able to demoralize the hearts and minds of the non-Muslim : by their witnessing his courage and by their conviction that the rest of the Muslim are selfless in their loyalty to sacrifice for the sake of God . By this, their will to fight will become demoralized .?

.

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 taghr?r bil-nafs, which is not prohibited; and an attack that is of the tahluka-type, which is prohibited.

Tafs?l 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 that the maqt?l is the same as the q?til (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 maqt?l is the same q?til, 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 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 carries such a weighty consequence (namely, that of suicide, for which there is Ijm?' 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 , and by invoking the well known and accepted legal principle:



al-khurUju mina l-khilAfi mustaHabbun
.

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 maqt?l being also the q?til - 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 of the kind that should be avoided by those who are religiously scrupulous . And here, the wisdom of our wise Prophet ( may All?h's blessings and peace be upon him!) is illuminated from the Hadith of al-Nu'man ( may All?h be well pleased with him!):



"fa-mani ttaqA sh-shubuhAti istabra'a li-dInihi wa 'irDihi"
(Related by Ahmad, al-Bukhari, Muslim, al-Tirmidhi, Ibn Majah, al-Tabarani, and al-Bayhaqi with variants.)

Wa-Ll?hu a'lam bis-saw?b!

Fa'ida: The original ruling for using a bomb (the medieval precedents: Greek fire and catapults ) as a weapon is that it is makr?h because it kills indiscriminately , 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 har?m except when used as a last resort (and of course, by those military personnel authorised to do so).




H?sil

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 khil?f on the details of Tafsil II from Fasl III above (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 and to agree to disagree); know then there is no khil?f 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


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.

The q?'ida, which is expressed very tersely above, means, understood correctly, that an action about which there is khil?f may be excused, while an action that contravenes the Ijm?' is categorically rejected.




Mas?'il Mufassala

Question I

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 All?h (Exalted is He) and His Messenger ( 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 d?bit 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 of the hostile non-Muslim state . 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'?n commanding us at all times to be patient in the face of humiliation and to turn away from violence , 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.

Question II

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}
(al-Tawba, 9:5)
is in reference to a historical episode: those among the Meccan Confederates who breached the Treaty of 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 for the J?hil? Arabs there. Had the Verse not been subject to a historical context, then you should know that it is of the general type and that it will therefore be subject to specification by some other indication . Its effect in lay terms, were it not related to the Jahil? 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-mushrik?n" from this verse are: "al-n?kith?na kh?ssatan" ; "al-ladh?na yuharibunakum" ; and "kh?ssan f? mushkrik? l-'arabi d?na ghayrihim" .

As for the meaning of "people" in the above well related Hadith, it is confirmed by Ijm?', that it refers to the same "mushrik?n" as in the Verse of Sura al-Tawba above and therefore what is meant there is only the J?hil? Arabs 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 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 ijtih?d 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:




).

Question III

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 b?b, 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 (Fasl 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 mas?'il khil?fiyya that one can afford to agree to disagree, since it is outright wrong by the principles and the rules from our us?l and fur?'.

Let us restate the d?bit 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, yuq?tilu, is of the mush?raka-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.

Question IV

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.

Tafs?l 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 (and the soldier in this case must therefore be treated as a normal civilian).

A valid military target is limited to either a battlefield or a military base 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 ; secondly, because there is certain knowledge that there is intermingling 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 according to our jurists is that they do, albeit to attack them there is makr?h.

Tafs?l B: 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 khil?f 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 , unless the killing was found to be premeditated and deliberate:



.

If not, the murderer's punishment in this case would instead be subject to the authority's discretion and he would in any case be liable to pay the relevant compensation .

As for a valid military target in a war zone, the Sh?fi'? 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 (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 khil?f among our jurists with regard to whether the military target can be a Jewish/Christian 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 for a prayer with the outcome that the sal?t would become invalidated and useless .

This is why the means of an act 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 (may All?h sanctify his soul!):



man ashraqat bidayatuhu ashraqat nihayatuhu
.

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



wasIlatu T-TA'ati TA'atun wa-wasIlatu l-ma'Siyati ma'Siyatun
.

Hence, even a simple act such as opening a window, which on its own is only mub?h or hal?l, 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 mand?b and the son is rewarded in his 'amal account for the Next World and acquires the pleasure of All?h.

wAll?hu a'lam wa-ahkam bi-s-sawab!
(God knows and judges best what is right!)

Question V

If it is said: "In a classic manual of Islamic Sacred Law I read that "it is offensive to conduct a military expedition 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 makr?h for anyone else to call for or initiate such a jih?d, it is permissible?"

We say:


lA ghazwata illA fi l-jihAdi
!

Secondary legal texts, just as with primary proof-texts (a single Verse of the Qur'an from among the relatively few ?yat al-Ahk?m or a Hadith from among the limited number of Ah?dith al-Ahk?m), 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 in Fasl II above.

The context is that of endangering one's life when there is already a valid war with no ceasefire as seen in the above example from the Ihy?' 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 * can take place only when there is a state of jih?d not otherwise.

F?'ida Im?m Ibn Hajar ( may All?h be pleased with him!) lists the organizational structure of an army as follows: a ba'th and when together, a kat?ba , which is a part of a sariyya , which is in turn a part of a mansar , which is a part of a jaysh , which is a part of a jahfal , which makes up the jaysh 'az?m .

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:

" It is offensive to conduct an assault without the permission of the authority (: or his subordinate, because the assault depends on the needs and the authority is more aware about them. It is not prohibited {if} there is no grave endangering of one's life even when that is permissible in war.)"

Question VI

If it is said: "What is the meaning of the rule in fiqh that I always hear, that jih?d is a fard kif?ya and when the D?r al-Isl?m is invaded or occupied it is a fard 'ayn ? How do we apply this in the context of a modern Muslim state such as Egypt?"

We say: It is fard kif?ya 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 .

Furu': When it is not possible to prepare for war and someone is faced with the choice of whether to surrender or to fight , then he may fight, or he may surrender, provided that he knows that if he resisted he would be killed and that wife would be safe from being raped if she were taken. If not , then fighting becomes personally obligatory for him. .

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 maq?sid and the was?'il and the meaning of the conditions when fighting actually becomes a fard 'ayn for an individual!

Question VII

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 , Muslim scholars have classified the territories in this world into: D?r al-Isl?m and D?r al-Kufr .

The definition of a Muslim state is: "Any place at which a resident Muslim is capable of defending himself against hostile forces for a period of time is a Muslim state where his judgements can be applied at that time and those times following it." . A non-Muslim who resides in a Muslim state is in our terminology: k?fir dhimmi or al-k?fir bi-dhimmati l-muslim .

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 D?r al-Harb , 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: k?fir harb?.

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 k?fir harb?'s life is protected by Law just like the rest of the Muslim and non-Muslim subjects of the state. . In this case, his legal status becomes a k?fir harb? bi-dhimmati l-Im?m , 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 dhimm? and a harb? 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 , 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 b?b of amr bi-ma'ruf wa nahi 'ani l-munkar , even if the Muslim enforcers die in the course of protecting non-Muslims.

Question VIII

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-k?fir 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 the Muhaqqiq, Imam al-Kurdi ( may All?h be pleased with him!):

"He ( may All?h's (Exalted is He!) mercy be upon him) was asked:
"In a territory ruled by non-Muslims, they have left the Muslims other than that they pay tax 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 . Thereupon, Islam becomes practiced openly and our Law is established . If they do not pay them, they could massacre them by killing or pillage. Is it permissible to pay them the tax ? If you say it is permissible, what is the ruling about the non-Muslims mentioned above when they are at war : 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 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 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 , is that it would not be permissible for the Muslims to murder them or to steal from them."


The d?bit 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
.

Furu': Our Sh?fi'? 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. Har?m: It is prohibted for them to leave when they are able to defend their territory from a hostile non-Muslim force or withdraw from it (as in the case of a border state, buffer area or disputed territory) and do not need to ask for help from a Muslim state. The reason is that their place of residence is already, technically , a 'Muslim state' even though not in name , since they are able to practice their religion openly even though the political or executive authority is not Muslim; and if they emigrated it would cease to be so. This falls under the fiqh? classification of D?r Kufr S?ratan L? Hukman, which is equivalent to D?r Isl?m Hukman L? S?ratan.

2. Makr?h: it is offensive to leave their place of residence when it is possible for them to practice their religion openly and they wish to do so openly.

3. Mand?b: leaving becomes recommended only when it is possible for them to practice their religion openly but they do not wish to do so.

4. W?jib: it becomes obligatory to leave when it is the only remaining option, that is, when practicing their religion openly is not possible. A legal precedent is the case after the Reconquista in Spain (which is no longer the case today) when the Five Pillars of the Faith were actively proscribed, so that for example, the Muslim houses were required to keep their doors open after sunset during the fasting month of Ramad?n in order that the authority could see that there was no breaking of the fast.

Question IX

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-Ghaz?l? would say:



idh? `urifa l-ma`n? fal? mush?hhata f? l-asm?m?


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: jih?d, muj?hid and shah?d. 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 with the rest of creation. Just as the sabab al-wuj?d 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 Mawl?n? R?m? (may All?h 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 mas?'il section.







Tatimma
It is truly sad that despite our sophisticated and elaborate set of rules of engagement and in spite of the strict codes of warfare and the chivalrous disciplines which our soldiers are expected to observe, all having been thoroughly worked out and codified by the orthodox jurists of the Umma from among the generations of the Salaf, there are today in our midst those who are not ashamed to depart from these sacred conventions in favour of opinions espoused by persons who are not even trained in the Sacred Law at all let alone enough to be a Q?d? or a Faq?h--the rightful heir and source from which they should receive practical guidance in the first place. Instead they rely on engineers or scientists and on those who are not among its ahl yet speak in the name of our Law. With these "reformist" preachers and da'?s comes a departure from the traditional ideas about the rules of siyar/jih?d/qit?l, i.e., warfare. Do they not realise that by doing so and by following them they will be ignoring the limitations and restrictions cherished and protected by our pious forefathers and that they will be turning their backs on the Jam?'a and Ijm?' and that they will be engaging in an act for which there is no accepted legal precedent among the orthodoxy in our entire history? Have they forgotten that part of the original maqsad of warfare/jih?d was to limit warfare itself and that warfare for Muslims is not total war, so that women, children and innocent bystanders are not to be killed and property not to be needlessly destroyed?

To put it plainly, there is simply no legal precedent in the history of Sunni Islam for the tactic of attacking civilians and overtly non-military targets. Yet the awful reality today is that a minority of Sunni Muslims, whether in Iraq or Beslan or elsewhere, have perpetuated such acts in the name of jih?d and on behalf of the Umma. Perhaps the first such mission to break this long and admirable precedent was the Hamas bombing on a public bus in Jerusalem in 1994--not that long ago. (Reflect on this!)

Immediately after the incident, the almost unanimous response of the orthodox Sh?fi'? jurists from the Far East and the Hadramawt was not only to make clear that the minimum legal position from our Sacred Law is untenable, but also to warn the Umma that by going down that path we would be compromising the optimum way of Ihs?n and that we would thereby be running a real risk of losing the moral and religious high ground. Those who still defend this tactic, invoking blindly a nebulous us?l? principle that it is justifiable out of dar?ra while ignoring the far'? strictures, must look long and hard at what they are doing and ask the question: was it absolutely necessary, and if so, why was this not done before 1994, and especially during the earlier wars, most of all during the disasters of 1948 and 1967?

How could such a tactic be condoned by one of our rightly guided caliphs and a heroic fighter such as 'Al? (may All?h ennoble his face!), who when in the Battle of the Trench his notorious non-Muslim opponent, who was seconds away from being killed by him, spat on his noble face, immediately left him alone. When asked later his reasons for withdrawing when All?h clearly gave him power over him, answered: "I was fighting for the sake of God, and when he spat in my face I feared that if I killed him it would have been out of revenge and spite!" Far from being an act of cowardice, this characterizes Muslim chivalry: fighting, yet not out of anger.

In actual fact, the only precedent for this tactic from Muslim history is the cowardly terrorism carried out by the "Assassins" of the Nizari Isma'?l?s. Their most famous victim was the suicide mission in assassinating the wise minister and the Defender of the Faith who could have been alive to deal with the fitna of the Crusades: Niz?m al-Mulk, the Jam?l al-Shuhad?' (may All?h encompass him with His mercy!) on Thursday, the 10th of the holy month of Ramadan 485/14 October 1092.

Ironically, in the case of Palestine, the precedent was set not by Muslims but by early Zionist terrorist gangs such as the Irgun, who, for example, infamously bombed the King David Hotel in Jerusalem on the 22nd of July 1946. So ask yourself as an upright and godfearing believer whose every organ will be interrogated: do you really want to follow the footsteps and the models of those Zionists and the heterodox Isma'?l?s, instead of the path taken by our Beloved (may All?h's blessings and peace be upon him!), who for almost half of the {twenty-three} years of his mission endured Meccan persecution, humiliation and insults? Is anger your only strength? If so, remember the Prophetic advice that it is from the Devil. And is dar?ra your only excuse for following them instead into their condemned lizard-holes? Do you think that any of our famous Muj?hid from history, such as 'Ali, Sal?h al-D?n, and Muhammad al-F?tih (may All?h be well pleased with them all!) will ever condone the article you quoted and these acts today in Baghdad, Jerusalem, Cairo, Bali, Casablanca, Beslan, London and New York, some of them committed on days when it is traditionally forbidden by our Law to fight: Dh? l-Qa'da and al-Hijja, Muharram and Rajab? Every person of fitra will see that this is nothing other than a sunna of perversion.

This is what happens to the Ban? Adam when the wahm is abandoned by 'aql, when one of the maq?sid justifies any was?la, when the realities of fur?' are indiscriminately overruled by generalities of us?l, and most tragically, as illustrated from the eternal blunde