Translated by New Age Islam Edit Desk
19 April 2021
Translated by New Age Islam group of scholars from the original Arabic Chapter on Jihad in "Al-Mausu'ah Al-Fiqhiyah" i.e., Encyclopaedia of Islamic Jurisprudence (45 volumes). This is also known as "Kuwaiti Encyclopaedia for Islamic jurisprudence," as it is the fruit of an effort of the Ministry of Awqaf (religious matters) of Kuwait to build up an encyclopaedia of jurisprudence reconciling all four Sunni mazahib (schools of jurisprudence).
Main aspects covered in Part 4:
1. The forbidden and the condemned acts during Jihad
2. Fighting in the sacred Months is forbidden
3. Prohibition of Travelling with Mushaf and the Shari’i books to Jihad
4. killing women, children, old, insane, hermaphrodite and relatives Is forbidden
5. Forbiddance of Treachery [ghadar], embezzlement [ghulul] and mutilation [Muthla]
6. Prohibition of Burning the enemy with fire or drowning him in the water
7. Damaging the enemy’s property during Jihad
The Forbidden [Haram] And The Condemned Acts [Makroohat] During Jihad
(A) Fighting In The Sacred Months
27. The sacred Islamic months are Rajab,dhul Qa’dah, dhul Hijjah and Muharram.
Fighting in these months in the early period of Islam was forbidden [haram] because Allah Almighty says, “The number of months ordained by Allah is twelve in the Book of Allah since the day He created the heavens and the earth. Of these, four are sacred; that is the established principle of Deen” (9:36). Allah Almighty says, “They ask you about the war in the Sacred Month. Tell them: “fighting in this month is a heinous offence” (2:217).
As regards the situation after that, the majority of jurists hold the view that fighting in the sacred months is Mansukh [abrogated], as referenced by Ahmed and the verse that abrogates it is “Kill the polytheists wherever you find them” (9:5). It is also that the prophet (peace be upon him) participated in the Ghazwa [battle] of Taa’if in the month of dhulQa’dah.
According to another view of the jurists, fighting in these sacred months is still forbidden. The evidence upon it is the hadith of Jaabir (May Allah be pleased with him) “The Prophet (peace be upon him) would not engage in war in the sacred month unless he was first attacked, then he would march forth. He would otherwise remain idle until the end of the sacred month”. (Related by Ibn Jarir Tabari in his exegesis (4/300 darulMaa’rif, with the authentic sanad i.e. chain of narration).
As for the defensive fighting in the sacred month, it is permitted, as proved by the consensus [ijma’] of the jurists [fuqaha] without any disagreement. (Al-Mabsoot 10/2.3, NihayatulMuhtaj 8/45, RaudatutTalibin 10/204 and KashshafulQina’ 3/37)
(b) Forbiddance of taking Mushaf [the Holy Qur’an) and the Shari’i books to Jihad
28. The majority of jurists hold the view that it is not permissible to travel with the Mushaf [the book of Allah Almighty] to the Darul Harab [the House of War] and the fighting. It is narrated by Ibn Umar (May Allah be pleased with him) that the Messenger of Allah Almighty (peace be upon him) said, “do not travel with the holy Qur’an [to the lands of the enemy], out of fear that they may harm it with their hands” (Related by Sahih Muslim -3/1491 Alhalabi- from the hadith of Abdullah ibn Umar). This is because taking it out [in the war] leads to its being in the hand of the enemy who belittles it. Belittling the Quran is haram and whatever leads to its [belittling/underestimating] is also forbidden [haram]. However, according to the Hanafis, it is not condemned [makrooh] to travel with the Mushaf [to the darulharab] when there is no fear of defeat of the army that at least should consist of four hundred. Ibnul Hammam said the great army must comprise of twelve thousand because the prophet (peace be upon him said: “The best number of companions is four, the best number in expeditions four hundred, and the best number in armies four thousand; and twelve thousand will not be overcome through the smallness of numbers” (Hadith related by Abu Dawud 3/82 and Alhakim 1/443).
The Malikis state that it is forbidden [haram] to travel with the mushaf to their land [the land of the kuffar], even though it is with a great army. Some jurists have measured the mushaf with the books of fiqh [jurisprudence] and hadith in this issue. (Ibn Abidin 3/223,224, AlMabsoot 10/29, HashiyatutDusuqi 2/178, Al-Mughni 1/149, 8368)
If a Muslim enters their country under an assurance of immunity [Amaan] and he is sure of their fulfilling the promise of safety, it is then permissible to take the mushaf with him, because he is not expected to face any damage.
But if there is no assurance of immunity or safety [Amaan], it will be forbidden [haram] to send the mushaf to them, even though they contrive in it, out of fear that they insult it. This ruling does not apply to the book in which the verse of the Quran is mentioned and so on. (Ibn Aabidin 3/224, Al-Dusuqi 2/178)
(c) It is not permissible to kill the following during Jihad
29. The jurists agree that it is not permissible to kill women, children, the insane [majnoo], hermaphrodite [mushkalkhuntha] because Ibn `Umar (may Allah be pleased with him) narrated: “During some of the Ghazawat of Allah's Messenger (peace be upon him) a woman was found killed, so Allah's Messenger (peace be upon him) forbade the killing of women and children” (related by Bukhari (Al-Fatah 6/148) Muslim 3/1363 Alhalabi)
Similarly, according to the majority of jurists including Mujahid, it is not permissible to kill the old man. It is narrated that the Prophet (peace be upon him) said: “Do not kill a decrepit old man, or a young infant, or a child, or a woman” (hadith related by Abu Dawud 3/86. Its Isnad Ishasan Le-Ghair-E-Hi). When asked about the command of Allah “do not commit aggression”, Ibn Abbas said, “Do not kill women, children and the old people”. The same has also been narrated by Abu Bakr and Umar (may Allah be please with them). The reason is that the women are not the people of fighting; therefore, they will not be killed. The prophet (peace be upon him) said: “This is not one with whom fighting should have taken place” (related by Abu Dawud 3/86. Its isnad is Hasan le ghairihi)
The Shaafiis, in their preferred view, and IbnulMundhir said, “it is permissible to kill the old men, because of the general application of the command of Allah Almighty, “kill the polytheists [Mushrikin]” (9:5) and that the Prophet (peace be upon him) said, “Kill the elder men among the idolaters and spare their children [Sharkh i.e. those children who did not begin to grow pubic hair)” (related by Jami’ Tirmidhi 4/145 from the speech of Samurah bin Jundab. There is a discontinuity in the chain between Samurah and the one who he has narrated from)
It is neither permissible to kill a monk in his hermitage, nor the people of churches who do not mix with the people but if they mix with them, they will be killed like the priests, nor the tourist in the mountain who do not fight the people.
The one who goes mad and recovers consciousness shall be killed [during fighting] in the state of his consciousness, even though he does not fight. (Ibn Abidin 3/225 and Al-badai 7/101)
The Hanbalis state that the ill shall be killed if he is one among those who fight after recovery because he is like the healing of the wounded. However, he will not be killed if he is despaired of his recovery, as he reaches a condition where he is incapable of fighting and there remains no fear of his returning to the state of fighting.
Similarly, the farmer shall not be killed, as mentioned by Al-Awzai that Ibn Umar (may Allah be pleased with him) said, “Fear Allah with regards to the farmers who do not wage war”.
According to the Shaafii, he shall be killed due to his entering into the general application of the polytheists. (Al-Mughni 8/478, 479)
Some jurists directed that it is not permitted to kill the emissary of the Kuffar. (RaudatutTalibin 10/244, NihayatulMuhtaj 8/64)
It is permitted to kill those of the above mentioned who fight, even though that is a woman, because in the era of the prophet (peace be upon him) on the day of Qurayza, a woman was killed because she had earlier killed Khallad bin Suwaid by throwing a grinding stone on his head (related by Ishaq in Al-Maghazi as it is also mentioned in Assirah Annabawiyyah by Ibn Kathir 3/242).
Ibn Qudamah said: we do not know any difference in this regard, as mentioned by Awzai, Al-Thauri and Al-Laith that Ibn Abbas said, “the prophet (peace be upon him) came upon a woman who had been killed on the day of the battle of Khandaq, and he said, “who killed this one?” A man said, “I, O Messenger of Allah”. The prophet said, “Why?” The man said, “she attempted to wrest my sword from”’ Ibn Abbas said, ‘At this, the prophet fell silent’ (related by Abu Dawud in Al-Maraseel as mentioned in Al-Takhlis Al-Habir 4/102)
This is because the Prophet (peace be upon him) stopped at a slain woman and said, “This is not one with whom fighting should have taken place” (the source mentioned above). This indicates that the Prophet (peace be upon him) forbade killing a woman if she does not fight.
Similarly, if any one of the above mentioned is a king or gives an opinion to support in the war, he shall be killed in the same way as Durayd ibn Al-Simma was killed on the day of the battle of Hunain, while he was an old man because they [kuffar] brought him to take help from his opinion regarding the war. “That killing was mentioned to the prophet (peace be upon him) and was not disapproved of” (the killing of Durayd ibn Al-Simma is related by Bukhari (Al-Fatah 7/41). This is because the (military) opinion is one of the biggest supports in the war.
As regards the dumb, the deaf and those whose left hand or one leg is cut off, they shall be killed, because they may fight to ride (Ibn Abidin 3/224, Fathul Qadeer 5/201, Al-Mudawwinah 3/6, Al-Dusuqi 2/176)
If the one, whose killing is not permissible such as we mentioned above, is killed, the killer needs to repent and seek forgiveness as is done in all other sins. But there is nothing like blood money [diyat] or Atonement [kafara] because the blood of kafir is only valued under the assurance of immunity [Amaan] (the previous source). This subject has been discussed in detail in the chapter of ‘Jizya’.
(D) Killing The Relatives
30. There are differences in the opinions of the jurists about killing the relatives during fighting against Kuffar.
The Hanafis opine that it is not permissible for the son to begin with the killing of his polytheist [Mushrik] father during the fighting, because Allah Almighty says, “ "But if they [parents] strive to make the join in worship with Me things of which thou hast no knowledge obey them not; Yet bear them company in this life with justice (and consideration) and follow the way of those who turn to Me (in love): in the end, the return of you all is to Me and I will tell you the truth (and meaning) of all that ye did.” (31:15). It is incumbent upon him to keep his father alive by paying his expenditure, so the application of killing him will violate the ruling of keeping him alive. Hence, if the son finds his father during the fighting, he needs to abstain till his father is killed by someone other than him. When the purpose is achieved by others, he needs not to commit a great sin by killing his father. However, if the father intends to kill his son and the son is unable to defend himself except by killing is father, then in that case there is nothing wrong with it because the purpose is to fight in defence that is fully permissible. The reason is that if the Muslim father holds the sword to kill his son in a condition that he cannot save himself except by killing him, he shall kill him. Such an act is mustahabb (commendable). (Al-Badai’ 7/101, Fathul Qadeer 5/203, Ibn Abidin 3/225)
The Shaafiis direct that it is makrooh tanzihi (improper) for any warrior to kill his relative because there is a kind of relationship and killing any mahram relative (such as father and brother etc.) is severely makrooh(condemned) because the prophet (peace be upon him) prevented Abu Bakr (may Allah be pleased with him) from killing his son Abdur Rahman on the day of the battle of Uhad. But if the mahram relative abuses Allah Almighty or mentions His name or mentions the Messenger of Allah (peace be upon him) or the name of any one of the prophets with bad words, it is then permissible without any hesitation to kill him to fulfil the right of Allah Almighty and the right of his prophets. This is also the opinion of the Hanafis because Abu U’baidah killed his father and said to the Messenger of Allah Almighty (peace be upon him) “I heard him abusing you and he (prophet) did not disapprove it” (Ibn Abidin 3/225,226, NihayatulMuhtaj 8/64, Al-Muhadhdhab 2/233 and RaudatutTalibin 10/243, and the hadith is the speech of Abu Ubaidah related by Abu Dawud in Al-Marasil as mentioned in Al-Takhsis by Ibn Hajar Al-Asqalani 4/102, from the hadith of Malik bin U’mair as a Mursal)
(e) Treachery [Ghadar], embezzlement [Ghulul] and mutilation [Muthla]
31. The majority of jurists hold the view that during Jihad it is forbidden [haram] to act treacherously, steal from the booty and mutilate the body, because the prophet (peace be upon him) said, “Do not embezzle (steal from the booty), do not be treacherous and do not mutilate” (related by Muslim 3/1357 –Al-Halabi from the hadith of Buraidah)
Embezzlement [Ghulul] during Jihad is what happens if one of the fighters hides anything from the spoils of war before it is divided up. So it is not permissible for anyone to take anything from what he has taken as war booty but he should keep it with the other spoils of war.
As regards what is needed such as food, animal feed and weapon, it is permissible to take them when needed (Ibn Abidin 3/224, Jawahar-ul-Iklil 1/254,255, Hashiyat-ud-Dusuqi 2/179 and Al-Mughni 8/494). This subject has been discussed in detail in the chapters ‘Ghanima’ [Spoils of War] and ‘Ghulul’ [embezzlement].
Treachery [Ghadar] is what happens when a person acts treacherously and breaches the treaty [A’had].
This is forbidden [haram] because Allah Almighty says, “O believers! fulfil [your] promises” (5:01). Allah Almighty says, “(But the treaties are) not dissolved with those pagans with whom Ye have entered into alliance and who have not subsequently failed you in aught nor aided anyone against you. So fulfil your engagements with them to the end of their term: for Allah loveth the righteous.” (9:04). However, if the Kuffar break the promise, it will be permissible to fight them without throwing their covenant to them. But if the signs of breaking the covenant or promise appear from the Kuffar, it will be permissible to throw their promise back to them, because Allah Almighty says, “If thou fearest treachery from any group throw back (their covenant) to them (to be) on equal terms: for Allah loveth not the treacherous.” (8:58). This subject is in detail in the chapters of ‘A’had’ [promise/covenant/treaty], ‘mua’hadah[pact/agreement/treaty] and ‘Aman’ [assurance of immunity].
As for mutilation [muthla], it is a gruesome punishment such as cutting off of the nose, ear, limb and so on. This was initially permissible without any penalty but if a person inflicted damages upon the bodies of people, the qisas (equality in punishment) would be implemented on him for disfiguring the people by mutilation.
In short, the mutilation [muthla] as retaliation upon the one who mutilates [other] is established. There is disagreement with some detail in it. This is implemented on the one who deserves killing not as a result of the forbidden muthla. On this basis, there is nothing wrong with carrying the head of the mushrik[polytheist] if it makes him resent and stops him from inflicting evil upon our hearts.
There is disagreement in carrying heads of the dead kuffar from one city to another, between its being forbidden and permissible. This has been discussed in detail in the chapter of ‘muthal’ [mutilation] (Ibn Abidin 3/225, Jawahruliklil 1/254, HashiyatudDusuqi 2/179, RaudatutTalibin 10/250 and Al-Mughni 8/494)
(f) Burning the enemy with fire, drowning him in the water and using catapult [minjaneeq] against him
32. Ibn Qudamah said, “If one can defeat the enemy, it is not allowed burning him with fire. There is no disagreement [among the jurists], because Abu Hurairah (may Allah be pleased with him) narrated, “Allah's Messenger (peace be upon him) sent us in a mission (i.e., an army-unit) and said, “If you find so-and-so and so-and-so, burn both of them with fire”. When we intended to depart, Allah's Messenger (peace be upon him) said, “I have ordered you to burn so-and-so and so-and-so, and it is none but Allah Who punishes with fire, so, if you find them, kill them (i.e., don't burn them)” (related by Bukhari (Al-Fatah 6/149 t. Assalafiyyah)
As for burning them with fire before taking them; if they can be taken captive without fire, no one is allowed to burn them with it, because they fall under the category of those over whom one has power. However, when being powerless against them without fire, one can do so following what most scholars hold, such as Imam Thawri, Awzai’, and Imam Shafi’i. Similarly, according to these scholars, it is not allowed to drown them in the water, if they can be overcome without it. (Al-Mughni 8/448, 449)
33. As regards seizing the castles: TheHanafis and the Shaafi’is say, it is permissible to seize the kuffar in the country and the castles, breach the river banks to drown them, stop water for them and using catapult against them and so on, because Allah Almighty says, “Take them captive and besiege them” (9:5). This is also because the prophet (peace be upon him) “besieged the people of Taif and used catapult against them” (mentioned by Ibn Ishaq in Al-Maghazi as in Asseerahof Ibn Kathir 3/658). Imam Ahmed agrees with the Hanafis and the Shaafiis in the permissibility of using catapult against them whether necessary or not. (Ibn Aabidin 3/223, Fathul Qadeer 5/197, NihayatulMuhtaj 8/64, MughniulMuhtaj 4/223, and Al-Mughni 8/448, 449). Al-Thauri, Al-Awzai’ and Ibn Mundhir are of the same view.
The Malikis stood out as an exception to this position and said: “The enemy will be killed in the fortress without being burnt and drowned, in case the Muslims or children or women are with them” (HashiyatudDusuqi 2/177, JawaharulIklil 1/253)
The Hanbalis opine that if one can defeat the enemy without drowning him, it is impermissible to drown him if it leads to the destruction of the women and the children whose destruction is intentionally haram [forbidden]. But if one does not have the power to defeat the enemy except by drowning him, it [drowning him] is then permissible. (Al-Mughni 8/448)
If the Imam besieges a fortress, it is incumbent upon him to stay here. He should not go away from it except in three conditions:
(1) When they [kuffar] accept Islam and save their blood and wealth by [accepting] Islam, because the prophet (peace be upon him) said, “I have been ordered to fight with the people till they say, 'None has the right to be worshipped but Allah,' and whoever says, 'None has the right to be worshipped but Allah,' his life and property will be saved by me except for Islamic law, and his accounts will be with Allah, (either to punish him or to forgive him.)” (Related by Bukhari)
(2) When they pay money for protection and security, he must accept it from them, whether they give it as a whole or make it kharaj [land tax] to pay it every year continuously. If they are those who the Jizya is accepted from, it is then incumbent upon him to accept it, because Allah Almighty says, “Fight those who believe not in Allah nor the Last Day nor hold that forbidden which hath been forbidden by Allah and His apostle nor acknowledge the religion of truth (even if they are) of the People of the Book until they pay the Jizya with willing submission and feel subdued.” (9:29).
And if they [Kuffar] pay money in a way other than Jizya, he should check if there is any benefit in its acceptance and then accept it. He should not accept it if he sees no benefit in it. (Al-Mughni)
(3) When The Imam Conquers It.
(4) When the Imam sees any benefit in going away from it [fortress], either because of damage as a result of his staying here, or disrepair of it or because if he stays here he cannot gain the benefit, then in all such conditions the Imam shall go away from it [fortress], for it is narrated that the prophet (peace be upon him) besieged the people of Ta’if but he did not find anything from them, so he (peace be upon him) said, “If Allah will, we will return home tomorrow……..”(related by Bukhari (Alfatah 8/44, Assalafiyah, on the authority of ‘Abdullah Bin ‘Umar)
(5) When they [Kuffar] agree to accept the verdict of a ruler, it is permissible [for the Imam to leave the fortress], because it is narrated that when the prophet (peace be upon him) besieged Bani Qurayzah, they agreed to accept the verdict of Sa’d Bin Mu’adh. (a hadith about it is mentioned in Sahih Bukhari).
Ibn Qudamah said: “It is stipulated that the ruler must be free, Muslim, intelligent, mature, male, just and jurist, just as all that is stipulated for the ruler of Muslims. If the ruler is blind, it is permissible for the reason that blindness does not harm here, because the purpose is to take his opinion and know the’ maslaha’ [benefit], therefore blindness does not harm in it. This is on the contrary to the judgment where eye-sight is required for the ruler to recognize the claimant [muddai’] from the defendant [Muddai’ Alaihi], the witness from the witnessed [Mashoodalaihi] and the defendant [Mashhoodlahu], the acknowledged kinsman [muqirrlahu i.e. a person of unknown descent whose kinship has been acknowledged by the deceased not through himself but another] from the person who acknowledged him [Al-Muqirr] and to take into consideration the matter of fiqh [jurisprudence] related to what is permissible and what is considered for him and so on. His fiqh [jurisprudence] shall not be considered in all those rulings that have nothing to do with it. Therefore, Sa’d bin Mu’adh was appointed a judge but it did not prove that he knew all the rulings. And if they [Kuffar] choose two judges, it is permissible and the judgment must be in agreement with both of them. If they choose a judge appointed by the Imam, it is permissible, because the Imam does not choose other than the good one. If they accept the verdict of a person from among them or appoint him to them, it is not permissible, because they may choose the one who is not good. If they appoint a good person and the Imam agrees with him, then it is permissible because Bani Qurayzah agreed to accept the verdict of Sa’d Bin Mu’adh and appointed him a judge, so the prophet (peace be upon him) agreed with him and allowed his verdict and said, “You have given a judgment according to Allah’s judgment” (related by Bukhari).
If the man who they [Kuffar] agreed with died, they shall have to agree to the one who is fit and good for being his substitute. If they do not agree to his substitute or they demand a judge who is not good, they will be returned to their Ma’man [haven] and will come under siege till they agree [with his substitute]. If they agree to judges and one of them dies and they agree to his substitute, it is then permissible, otherwise, they will be returned to their Ma’man. Similarly, if they agree to choose a judge who does not fulfil the required conditions of being a judge and the Imam concurs with them on that matter, then it appears that he is not capable of this work, in that case, he shall not be made a judge and they will be returned to their ma’man as they were before.
34. As for the characteristic of the arbitrator: if he gives a verdict that their fighters [of Kuffar] should be killed and their offspring be seized, his verdict shall be implemented, because Sa’d bin Muaadh gave a verdict to the people of Qurayza in this regard and the prophet (peace be upon him) said: “you have judged among them according to the judgment of Allah from above the seven heavens” (related by Ibn Ishaq from Mursal of Alqama and Qaas as mentioned in Alfatah by Ibn Hajar 7/412- its origin is mentioned in Sahih Bukhari Alfatah 7/412). If he gives a verdict of releasing their fighters and children without ransom, the Qadi said, his verdict shall be adhered to, and the same is the view of Al-Shaafi’i, because the arbitrator gives his verdict in what he sees a benefit, so he will have [the authority] of manna [i.e. releasing someone without ransom] as do the Imam concerning the prisoners.
Abul Khattab opined: his verdict shall not be followed because he must give a verdict of what is related to good fortune [for Muslims] and keep in mind the Muslims while releasing them without ransom [manna]. If he gives a verdict to release their offspring without ransom, it should not be permissible because the Imam cannot release their offspring without ransom if they are taken captive, similarly, the arbitrator cannot. There is a probability of permissibility too in this regard with some conditions. If the arbitrator judges them in return for a ransom, it will be permissible because the Imam has options concerning the prisoners of war between killing, ransom, istirqaq [enslaving someone] and manna [releasing one without ransom], similarly, the arbitrator does have such options. If the arbitrator gives a verdict to them to pay Jizya, his ruling shall not be followed, because the treaty of protection is that of compensation which cannot be done except by agreement. This is why the Imam cannot force the prisoner of war to pay Jizya. If the arbitrator gives a verdict of killing and seizing [the prisoners of war], it is permissible for the Imam to release some of them, for Thabit Bin Qais asked the prophet (peace be upon him) about Zubair Bin Bata from Qurayza and his wealth, so he (peace be upon him) replied to him. There is disagreement with the war booty if Muslims possess it, for they have control over it. If they [the prisoners of war] accept Islam before the ruling is implemented upon them, their blood and possessions shall be protected because they have accepted Islam, become free and their wealth belongs to themselves, so enslaving them is not allowed. If they enter into Islam after the verdict is made for them, it will be checked whether the ruling is related to killing them, if it is so, then this ruling will be abolished because if someone accepts Islam, it is incumbent to protect his blood. It is not allowed to enslave them because they have accepted Islam before being enslaved. Abul Khattab said: it is probably permissible to enslave them if they enter into Islam after being captured, for the possession [of wealth] remains on the same condition it was ruled in, and if it is ruled that the wealth is for Muslims, then it will be Ghanimah [war booty] because they have taken it by force and by besieging them. (Al-Mughni 8/380,381)
(G) Damaging The Property
35. If the Kuffar get ready or increase their strength to fight the Muslims, we shall seek help from Allah Almighty and fight them to achieve victory over them, even though it results in damaging their property. However, if there is a strong probability of getting victory over them without any damage to their property, then it is Makrooh [disliked] to damage their wealth because it destroys without any need. Damaging their property is not permissible unless it needs [to defeat them]. The objective is to break their forces and enrage them in the war, so if it is achieved without causing damage to their property, it is essential to not damage their property. (Ibn Abidin 3/223)
As regards cutting their trees and crops, the trees and the crops are divided into three kinds:
The first kind of trees and crops are those whose damage is permitted, provided that it was dictated by military necessities, for example, if the trees or crops are near the fort and prevent the army from conducting military operations, or if the enemy is taking shelter behind them, or when the army needs to widen the way or other than that. Or if the enemy cut our trees and crops, this sort of destruction can be done in reciprocity, to desist them from it, and this is permissible without any disagreement [among jurists].
Second of them are those which, if damaged or cut off, will inflict harm on the Muslims who get benefit from the existence of such trees and crops, such as receiving food or seeking shelter or eating their fruits. Therefore, cutting such trees and crops are forbidden [haram], for it leads to inflicting damage upon Muslims.
A third of them are other than the aforementioned which neither harm the Muslims nor benefit, except for enraging the Kuffar and inflicting damage upon them. The Hanbali jurists give two opinions concerning whether or not it is permissible to cut them:
First: it is permissible [to cut them]. The same is the view of Malik, Shaafi’i and so on. Ibn Umar (may Allah be please with him) narrated that the Messenger of Allah Almighty [peace be upon him] burnt the palm-trees of Banu An-Nadir” (related by Bukhari-Al-Fatah 8/629 from the hadith of Abdullah bin Umar) and Allah Almighty says, “Whether ye cut down (o ye Muslims!) The tender palm-trees or ye left them standing on their roots it was by leave of Allah and so that He might cover with shame the rebellious transgressors.” (59:5).
Second: it is not permissible [to cut them] because it is narrated by Ibn Masood (may Allah be pleased with him) that his cousin came to him from a battle in which he fought. So he said: “perhaps you have burnt corps? He said “yes”. He said: ‘perhaps you have drowned the palm-tree?’ He said, ‘yes’. He then said, ‘perhaps you have killed a child?’ He said, ‘yes’. [then] He said: your battle should be free from [such] sins” (Athar of Ibn Mas’ud related by Saeed bin Mansoor in his Sunan vol 2 p. 257 Ilmi press)
The reason is that there is purely damage, it is, therefore, not permissible. This is also the view of Al-Awzai, Al-Laith and Abu Thaur.
As for the animals, we do not see any disagreement in the permissibility of killing them during the war, because killing their beasts results in their killing and defeat. The Malikis opine that following the more preferred view, it is Wajib to burn the animals after killing them, provided that they [Kuffar] consider eating the dead as legal in their faith. If they return to it before its decay, it is wajib to burn it otherwise not, because it aims at desisting them from benefitting from it.
As for during other than the state of war: according to the Hanafis and the Malikis, it is permissible to cut off their animals, as this will humiliate and weaken them, so killing it will be identical to the case of their fighting.
The Shaafiis and the Hanbalis opine it is never permissible because “the Messenger of Allah (peace be upon him) forbade killing beasts of burden in cold blood” (Sabran; the expression Qutila Sabran is used to refer to someone who was not killed in battle but massacred after having fallen into the hands of the conqueror) (the hadith related by Muslim -3/1550 on the authority of Jabir bin Abdullah). This is also because Abu Bakr as-Siddiq (may Allah be pleased with him) said to Yazeed bin Abi Sufyan, “No fruit-bearing trees are to be cut down and no crops should be set on fire. No animal should be killed except those slaughtered for eating”.
The reason is that it is a corruption [Fasad] that is included in the general meaning of the words of Allah Almighty:
“When he turns his back his aim everywhere is to spread mischief through the earth and destroy crops and cattle. But Allah loveth not mischief.” (2:205)
It is permissible to cut off the animals to eat if needed because the necessity makes even the property of the infallible permissible, so the property of the kafir is more appropriate. In case there is no need as such, then we will have to see: if the animal is intended only for eating purposes such as chicken, pigeon and other birds, its ruling will be like that of food because it is not for anything other than eating purpose. If the animal is from what is required during the fighting, it is impermissible to slaughter it, except for eating. (Al-Mughni 8/451)
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5:40 AM
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