If killing (Kaafir) civilians (my Muslims) during the war is unislamic, what is Hadd punishment for that crime?
Also: what is the punishment in the Hereafter for that? Is there a direct reference for this particular crime in Qur'an and Sunnah (not a combination of Ayahs and Hadith).
The Hadeeth of Shafa'a where Musa expresses his embarrassment to ask Allah due to a person he killed:
فيأتونه فيقول لست هناكم ائتوا موسى عبدا كلمه الله وأعطاه التوراة . فيأتونه فيقول لست هناكم ويذكر قتل النفس بغير نفس فيستحي من ربه فيقول ائتوا عيسى عبد الله ورسوله وكلمة الله وروحه
Besides killing generally without due right is
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It should be understood that there is no concept of civilian (or “non-combatant”) in Deen Al-Islam. Instead, it is generally accepted, according to Ulaama, that Deen Al-Islam makes a distinction between those people who have hurma - protection (ismah al-nafs) under Shariah - and those who do not. Those who are protected are Muslims, and those of the kuffar who have a treaty, or covenant, with the Muslims, either general, as in case of Dhimam, or particular, as in the case of Aqd Al Amaan. Those who have the benefit of protection can only be killed if they transgress a limit, or limits, which Allah Subhanahu wa Ta’ala has set, defined as these are by Shariah. Thus, a Muslim who, for instance, was found guilty in a Sharia Court of zena could be killed.
The asl (rule) is that the kuffar have no protection - and it is not forbidden to harm or kill them - unless they are covered by an exemption, such as Aqd Al Amaan, or unless they become Muslim, or unless they seek sanctuary, for as Allah Subhanahu wa Ta’ala says:
“And if anyone of the Mushrikeen seek your protection then grant him protection, so that he may hear the Word of Allah, and then escort him to where he can be secure…” 9:6 Interpretation of Meaning
Sheikh ul-Islam ibn Taymiyyah (Rahimullah) - in one of his writings regarding the Tartars - wrote that one of the primary aims of a Muslim is to defend the Deen against our enemies, and, citing a Hadith , he wrote that Jihad against the kuffar would continue until The Last day. He also wrote, in the Jihad al-Kuffar: Al-Qital al-Fasil part of his Siyasatush-Shariah, about the “glory of Jihad and those who participate in it” stating that it is the best of voluntary deeds: better than Hajj, than Umrah, than voluntary Salah and voluntary shawm. As narrated by Mu’ath Ibn Jabal, it was authentically recorded that the Prophet, Muhammad (salla Allahu ‘alayhi wa sallam) said:
“The head of this matter is Islam; the central pillar is Salah; and summit is Jihad.”
Furthermore, in Jihad al-Kuffar: Al-Qital al-Fasil ibn Taymiyyah (Rahimullah) mentioned those among the kuffar who, according to the majority opinion, should not be killed when Jihad is undertaken. These are women, children, the elderly, the blind, and those who are incapable of physically fighting, provided such persons as these do not assist or aid, through words, or deeds, or by giving assistance or encouragement to, those who are physically fighting the Muslims. Note there is no mention of “innocent people” or of “civilians”, and note the important words here: “provided such persons as these do not assist or aid, or give encouragement to…”
Hence, if such people as are mentioned do in some way assist or aid, or give encouragement to our enemies, then they may be killed. Thus, if they - for instance, a woman, or an elderly person - aid or assist or give encouragement to our enemies, then the protection afforded them by the exemption mentioned by Sheikh ul-Islam ibn Taymiyyah (Rahimullah) and other Ulaamah no longer applies.
In this respect, let us consider the example of the two servants of Abdullah ibn Khatal (ibn Taymiyyah in Al-Saarim al-Maslool names them) who were commanded to be killed by order of the Prophet (salla Allahu ‘alayhi wa sallam) and the example of the killing of Duraid ibn Al-Simma. What do these tell us? In respect of Duraid ibn Al-Simma, that those who support, in any way, our enemies, may be killed. In respect of the two servants, that those who incite or encourage or support those who fight against the Muslims can be killed, in the same way that those who insult or demean the Prophet (salla Allahu ‘alayhi wa sallam) can be killed. These are relevant examples because Duraid ibn Al-Simma was an old man, and no direct physical threat to Muslims forces, and because the servants were women.
The question we need not ask, we should not ask - because it is irrelevant, according to Deen Al-Islam, and reveals the influence of the kuffar - is: “Is it haram to kill civilians?”
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Imām Ibn An-Nahhās (Rahimahu 'Llah) said, “And I asked a group from the Shāfi’īs about a Harbī who leaves from his country intending the countries of the Muslims for trade: “Is it allowed for one of the herd to battle him before his entering into the seaport of the Muslims or after they entered, and before their Amān or after it?’ They replied that it is allowed to attack them before their entering into the seaport of the Muslims and after it, and Allāh knows best.” [Refer to Mashāri’ Al-Ashwāq Ilā Masāri’ Al-‘Ush’shāq, Vol. 2/1053.]
Thus, the relevant question we should ask is: “What constitutes aid, assistance and encouragement, in words and deeds?” This way of reasoning, this type of question, is in accord with Deen Al-Islam: for example, Imam al-Shafi in Kitaab al-Umm writes only about those whom it is not correct to kill, without attributing to them any specific term, and without applying to them an specific concept (such as the kaffir concept of “civilian” and “innocent”).
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1 - The principles of the Shar'i texts indicate that a man is not to be taken to account for the sins of others, as in the Saying of Allah: {"...and none shall carry the burdens of another..."} [al-An'am; 16]
And this verse has been repeated five times in the Noble Qur'an in order to communicate and confirm the importance and significance of its meaning.
And it is in the hadith of Abi Ramthah that he said: "My father and I went out with the Prophet, and the Messenger of Allah said to my father: "Is this your son?" He said: "Yes, by the Lord of the Ka'bah." The Prophet asked: "Really?" My father said: "I bear witness to it." So, the Messenger of Allah smiled and laughed from the strong resemblance that I bore to my father, and from my father's oath that I was his son, and said: "Verily, he is not taken to account for your deeds, and you are not taken to account for his deeds," and he recited: {"...and none shall carry the burdens of another..."}
And in another narration: "Verily, you are not taken to account for his deeds, and he is not taken to account for your deeds."
And the Prophet said, in his farewell Hajj: "...and everyone shall reap only what they sow, and the father will not be taken to account for his son's deeds, and the son will not be taken to account for the father's deeds."
And he said: "No man is to be taken to account for his father's deeds, or his brother's deeds."
And children - especially the infants among them - of the disbelievers with whom we are at war do not have the slightest intent or understanding in regards to the actions of their fathers. Therefore, it is not allowed to to punish them for the actions and sins of their fathers.
2 - The Shar'i texts have stringently forbidden targeting the children and women of the polytheists with any type of killing or fighting, no matter what the reasons and causes for doing so, as in the hadith reported by al-Bukhari and others, and narrated by Ibn 'Umar, that a killed woman was found by the Prophet in one of the battles, and the Prophet forbade the killing of women and children.
And Handhalah said: "We went out for battle with the Messenger of Allah, and we came by a killed woman, and the people had gathered around her. They made way for the Prophet, who said: "This woman was not fighting amongst those who were fighting." He then said to a man: "Go to Khalid bin al-Walid, and say to him that the Messenger of Allah orders you to say: 'Do not kill a child, and do not kill the weak.'""
So, his saying: 'orders you' confirms the clearcut prohibition of killing children, and his saying: 'This woman was not fighting amongst those who were fighting' is the understanding of opposites, meaning: if she had been fighting, and was amongst those who were fighting, it would be allowed to fight and kill her.
And from al-Aswad bin Sari', who said: "I came to the Messenger of Allah, and I went out on an expedition with him. So, I followed the best of people on that day, until they killed children. So, this was relayed to the Messenger of Allah, who said: "What is the matter with some people, that they exceed the limits in killing today, such that they killed children?" So, a man said: "O Messenger of Allah! They are the children of the polytheists!" So, he said: "Verily, the best of you are the children of the polytheists. Do not kill a child! Do not kill a child until its parents turn it into a Jew or Christian.""
And the Messenger of Allah, when he would place a man in command of a battalion, would advise him to have taqwa of Allah, and would advise those Muslims with him with good, and would say: "Fight in the Name of Allah, in the Path of Allah. Fight those who disbelieve in Allah. Fight, and do not betray. Do not be excessive, do not mutilate, and do not kill a child," and this was reported by Muslim.
And in a narration of al-Bayhaqi and others: "...and do not kill a small child, a woman, or an elderly person."
And in 'Sharh Ma'ani al-Athar' of at-Tahawi, with an authentic chain, that the Messenger of Allah had sent a message to his armies, saying: "Do not kill children." And in a narration: "Do not kill an old man." And in a narration: "Do not kill a child or a woman."
And Ibn 'Umar said: "'Umar wrote to his soldiers, saying: "Do not kill a woman or child.""
And from the advices of Abu Bakr to the leaders of his armies: "Do not kill a woman, a child, or an old man. Do not cut down a blossoming tree, do not destroy a building, and do not kill a sheep or camel, except for the purpose of eating it. Do not submerge or cut down a palm tree. Do not be excessive, and do not be cowardly."
And it is narrated from Yazid bin Hurmuz that Najdah wrote to Ibn 'Abbas, asking him about the killing of the children of the polytheists. So, Ibn 'Abbas wrote back to him: "Verily, you wrote to me asking about the killing of the children of the polytheists. The Messenger of Allah did not kill them. Therefore, you are not to kill them, except that you know from them what al-Khidr knew about the young boy when he killed him!"
And the ahadith and athar that forbid intentionally killing the children and women of the polytheists are more than can be collected here, and what has been mentioned is more than enough for the one who seeks the truth.
3 - Despite the numerous wars and battles that were fought by the Prophet, his Companions, the Tabi'in who followed them in good from the first three generations - whose virtue was borne witness to by the Prophet - and despite the many wrongdoings and oppressions that the Muslims of these blessed early generations faced, it is not known that either the Prophet, his Companions, or the Tabi'in ever intentionally killed the children or women of the polytheists!
And the Prophet's saying to his Companions on the day of Hudaybiyah: "Advise me, people! Do you see that I should turn towards the families and children of those who seek to prevent us from the Sacred House?..." - what is meant here is to enslave their families and children, not to kill them, as some have misunderstood!
4 - Children are not to be killed, because according to the Shari'ah, they are pure souls, and are upon the pure fitrah. They are not simply like any wealth that can be disposed of, sacrificed, or destroyed for some greater benefit, as the Prophet provided the reason for not killing the children of the polytheists, and this is because they are still pure, uncorrupted, and upon the fitrah, correct belief, and Tawhid, and have not yet fallen into sin. Because of this, the Prophet said to his Companions: "The best of you are the children of the polytheists." So, this is the reason that prevents the killing of the children of the polytheists, and they are not like any form of wealth or prize!
5 - The noble verse that was used as proof: {"...So, whoever transgresses against you, transgress in a similar manner against him..."} [al-Baqarah; 194] does not contain evidence for what it was being used for. It is a general verse. However, it is not allowed to act upon its general meaning without looking to see what the Legislator has placed as an exception to it, including those things that are forbidden in and of themselves, and cannot be done in retaliation. For example, it is not allowed to counter betrayal with betrayal, and it is not allowed to counter treachery with treachery, and it is not allowed to counter a lie with a lie, and it is not allowed to counter sin with a sin, etc. So, an act of disobedience is not allowed to be performed to counter another act of disobedience.
It has been authentically narrated from the Prophet that he said: "Fulfill your trusts to those who have given you those trusts, and do not betray those who betray you." And killing an innocent, protected life is even more severe in sin and crime than simply betraying someone. So, if it is not allowed to counter betrayal with betrayal, it is even more befitting that it is not allowed to counter the killing of innocent souls with the killing of innocent souls, resulting in wrongdoing being carried out twice, with the victims in each case being innocent, protected lives!
Likewise, it is not allowed to steal from someone simply because they stole from you, and it is not allowed to insult the father of someone simply because he insulted yours. And it is not allowed to respond to the one who violates your honor with false accusations and insults by doing the same to him, etc. If you were to do this, you would have exceeded your bounds, and would be considered a wrongdoer, and would have punished someone with the sins of someone else.
Likewise, it is not allowed to respond to one who has killed your child by killing his child. Rather, you are to kill the killer, because if you were to kill his child, you would have killed an innocent life based on the mistake of a completely different person, and this has nothing to do with the legislated form of revenge and retaliation. Rather, it is nothing but excessiveness and oppression! With this, you would have exceeded the limits in revenge and retaliation, and would end up punishing with more than you were punished with!
And there is not a single scholar who permits the killing of the children of a killer in retaliation for his own oppression and killing of the children of others. Rather, there is consensus that only the killer is to be killed.
Based on this, we say that the verse generally allows the committing of aggression in response to aggression, in the same way that it was originally performed, and no matter what type of aggression this is...except in regards to that which the Legislator has placed as an exception, and has forbidden to be used as a form of revenge or retaliation, such as the texts that make specific that which is general. From these texts are those that forbid the killing of children and women, the punishment of one for the sins of another, and other actions that are forbidden in and of themselves.
So, such actions are specific exceptions to this generality, and the reported texts in this regard restrict this generality. So, pay attention to this!
6 - Regarding this statement that has been put forth despite its strangeness and weakness: it is not from proper wisdom or the politics of the Shari'ah to act upon it in our times, or to circulate it. And this is for two reasons:
First: even if it had the Shar'i factors in place that would justify it, if this door were to be opened, the enemy - with its massive military equipment that the Muslims lack - is the one more capable of aggression, and is more capable of bringing down harm upon the Muslims, their children, and their women!
Second: the enemy possesses massive media influence that the Muslims lack, and through which he is able to twist the virtues of the Muslims - in light of public opinion - to bad characteristics. So, how much more would it be if the Muslims were to act upon this ruling? How would their reputation and image be in front of the public? How would the people look at them and their religion? What would their position be towards them?
This is a factor that is given consideration in our religion, and it is not proper for those who work for this Religion to ignore it, as the Prophet refrained from killing the head of nifaq - Ibn Ubayy - simply so that it would not be said that Muhammad kills his companions!..."
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In the ‘Sahihayn,’ it is narrated on the authority of Usamah bin Zayd that the Messenger of Allah sent a party to raid the tribe of Juhaynah in the morning. So, Usamah caught hold of a man who said: ‘There is none worthy of worship but Allah,’ and Usamah then attacked him with a spear, thinking that he had said this only to save himself. When he informed the Messenger of Allah, he said: “Did he not profess that there is none worthy of worship but Allah, and even then, you killed him?” I said: “O Messenger of Allah, he said it out of the fear of the weapon!” He then said: “Did you tear his heart open in order to see whether it had professed or not?” And (Usamah said) he went on repeating it to me till I wished I had embraced Islam that day. Sa’d then said: “By Allah, I would never kill any Muslim so long as Usamah would not kill him.” Upon this, a person remarked: “Did Allah not Say: {“And fight them until there is no more fitnah, and the Religion is all for Allah…”}?” Sa’d replied: “We fought so that there would be no fitnah, while you and your companions wish to fight so that there would be fitnah!”
Sahih al-Bukhari,’ Ibn ‘Umar said: “Verily, from the most entangled of situations that one can fall into and cannot remove himself from is the spilling of forbidden blood without any right.” Ibn ‘Umar also reported that the Messenger of Allah said: “The believer is within the confines of his religion so long as he does not spill forbidden blood.”
Commenting on this, Ibn Hajar said: “And it has been authentically established that Ibn ‘Umar said to the one who intentionally killed someone wrongfully: “Take your share of cold water now, as you will never enter Paradise.”"
And at-Tirmidhi reported that Ibn ‘Umar said: “The destruction of the entire world is lighter with Allah than the killing of a Muslim.” at-Tirmidhi then commented: “This is a hasan hadith,” and an-Nasa’i reported it with the wording: “The killing of a believer is greater with Allah than the destruction of the entire world.” Commenting on this, Ibn al-‘Arabi said: “The prohibition of wrongfully killing an animal is authentically established, as is the severe threat for doing so.
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