Legal Literacy - As long as humans exist, conflicts in the world as a consequence of the freedom to choose (free will) will always exist. However, on the other hand, humans also create and/or compile a rule, whether it originates from morality God's revelation or humans themselves to limit or regulate so that the war can at least run without causing unnecessary loss of life or property. These humanitarian rules are owned by nations in the world, for example, according to Jean Pictet, as contained in the heroic poems of the Mahabharata and the laws of Manu
5 People Who Are Prohibited from Being Attacked in Conflicts According to Islam
So long before humanitarian products such as the Geneva and Hague Conventions or the Lieber Code were known, humanitarian law was already known, but it was limited to what was adhered to by each country and nation. One of these nations is the Arab nation, especially when Islam began to enter and be spread by the Prophet Muhammad SAW. In this belief, a rule is structured that forms the law Islam, one of which concerns immunity against Non-combatants in a conflict. There are 5 categories that the Prophet used as prohibitions to be attacked, namely:
- Women
- Children
- Elderly people
- Clergy
- Al-Asif (Hired Person)
Based on this prohibition, two categories of distinction arise in Islam regarding targets that are permissible and not permissible to be attacked, namely al-muqatilah/ahl al-qital/al-muharibah (combatants) and ghair al-muqatilah/ghair al-muharibah (non-combatants). The term muqatilah comes from the verb yuqatil (to fight/battle) while the term muqaribah comes from the verb yuharib (to fight in war).
Both uses of this term originated from the time of the Prophet. However, many legal experts disagree on legitimate targets in this war due to their disagreement in determining the Islamic casus belli. Therefore, al-Shafi'i (820 AD) and Ibn Hazm (1064 AD) considered that the Islamic casus belli was the enemy's infidelity, and anyone other than children and women who refused to pay jizyah was a legitimate target of war.
Meanwhile, the majority of legal experts consider that the Islamic casus belli is the enemy's aggression and not merely infidelity, expanding the list of five categories of non-combatants by applying legal analogy methodology to include other types of non-combatants. They are more focused on efforts to register categories of enemies and distinguish who qualifies as a legitimate target in war from those who do not. All these provisions are compiled with reference to the Al-Quran, hadith, and other Islamic sources as the basis for decisions. These categories are described as follows:
1. Children and Women
Women and children are included in the category agreed upon by jurists not to be targeted for attacks, although on the other hand, women are considered to be more dangerous than children. Jurists also prohibit targeting khuntsa, namely people who look like both men and women. In this case, they classify those entitled to immunity as those who have not reached the age of 15. The same age limit is also a prerequisite for Muslims to join the Muslim army.
This limitation refers to the Prophet who rejected some 14-year-old Muslim male volunteers in the battles of Badr and Uhud and accepted them when they were 15 years old. The justification for immunity for children and women also stems from al-Ghazali's words, namely “Laisa halal qital” (it is not appropriate to fight), then Ibn Qudamah, namely “amnaha la tuqatil (she does not fight). Meanwhile, as-Syakauni calls it “Li dha'fihim (because of their weakness).
However, there are some exceptions for women such as queens or princesses who participate directly in the conflict, as well as wealthy women who incite the enemy. According to Ibn Sahnun and Ibn Hajar, if a woman warns the enemy or throws stones at Muslim troops, she cannot be attacked unless the woman kills Muslim troops with stones and in a self-defense situation, but if the woman is captured, she must not be killed (Maliki, Al-Qarifi, asy-Syaibani).
2. Elderly People
Most legal experts prohibit targeting the elderly in attacks. Ash-Shan'ani defines the elderly as those who appear old or those who reach the age of 50 or 51. However, if these elderly individuals support the enemy and plan war operations, they can be targeted, as asy-Syirazi and an-Nawawi argue that planning battles has a greater influence on determining victory than directly participating in combat. This is based on the case of the assassination of Duraid bin ash-shummah while he was planning the Hunain battle operation, even though he was over a hundred years old. At that time, the Prophet did not condemn the assassination.
3. The Blind, Sick, Disabled, and Insane
Details regarding this category are scarce, but legal experts agree that Muslim forces are not allowed to target the blind, the sick, the disabled, and the insane in attacks. However, this becomes permissible if the disabled individual can still fight physically and support the enemy. According to Abu Hanifah, if an insane person regains their sanity, they can be targeted as long as that sanity persists. All of this is based on the harm that can be inflicted on Muslim forces.
4. Clergy
Legal experts refer to clergy as monks (hermits/friars). In Islamic terms, this refers to religious figures who dedicate themselves to worship. This is based on the Prophet's command in his ten commandments to Yazid bin Abu Sufyan and Abu Bakar, who repeated the Prophet's prohibition against targeting monks. Therefore, Ibn Taimiyah stated that the prohibition against targeting monks is because they do not directly participate in hostilities and only reside in places of worship. However, he also added that if these monks are known to support enemy soldiers, they can be targeted. As-Syafii also agreed with what Abu Bakar had done.
5. Al-Asif, Farmers, Artisans, and Merchants
Asif or Usaha here means someone who is paid or an employee. This refers to someone who is paid to do a specific job. In the context of this writing, this refers to anyone who works for or is paid by the enemy to provide services in the battlefield, for example, those who take care of goods/livestock but are not directly involved in combat. This is based on the prohibition in the Nabi during the Hunain conflict. Then immunity against al-harif al-masyghul bi hirfatih (artisans who are busy with their work), then farmers and merchants on the enemy's side, which is based on a report by Zaid bin Wahb based on instructions from Umar bin al-Khatthab.
References
Ahmed Al-Dawoody, Islamic Law of War, KPG: Jakarta, 2019
Ria Wierma Putri, International Humanitarian Law, University of Lampung: Lampung, 2011
*This article is the personal opinion of the writer and does not represent the views of the editors of Legal Literacy Indonesia.
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