Opinions on the Civil-Military Duality between Jurisprudence and International Law

In my previous article on Israel's ongoing war in Gaza, I discussed several issues, including some of the moral, legal, and military concepts raised in official statements and comments during the war, including: human shields, collateral damage, self-defense rights, resistance, terrorism and jihad.

I have explained before how in today’s world political and military goals take precedence over ethics and law. Because the moral justification seems to be driven by politicians and the military, based on calculations imposed by political interests and fears of legal liability.

For example, the war was launched with the goal of eliminating Hamas and lasted for more than three months. Although it caused massive destruction in Gaza and caused unprecedented human casualties, violating all legal and moral laws, it put international declarations on “human rights”, “children's rights” and “women's rights” in unprecedented trouble .

“Harpy” is an adjective that refers to both a legal situation and a political situation. At the legal level, the absolute right of blood and money depends on the existence of a legal contract. (contract, treaty or temporary security).At the political level, issues surround the relationship between war and peace between the Islamic House of Representatives and the War House

In this article I would like to address another issue that complements my previous discussion, namely the duality of civilian and military in war, especially since it was a central concept in my previous discussion on the concept of human shields and collateral damage, And at the same time, it's another example to add to the previous examples. (like the jihad in Gaza, for example, which I discussed in two previous articles), they all belong to a major issue related to the question of recovering the legal legacy in a modern context, especially since the issuance of the fatwa – in 10 Activities of the Palestinian Resistance Movement around Gaza on 7 March – rejecting discrimination between civilians and military personnel; responding to attempts to condemn Hamas on the pretext of committing war crimes and killing Israeli civilians.

Then, shortly after the Israeli war broke out, we saw official and unofficial Israeli statements denying this discrimination against Gaza residents and holding them—all of them—accountable for what happened. Some Jews even spoke of rejecting such modern ideas as being inconsistent with the Old Testament. To justify the killing of people in Gaza, young and old, civilians and military, this is what is happening and will continue to happen.

These facts and discussions raise several questions, such as: Can historical moral concepts transcend modern legal provisions governing the ethics of warfare? If all parties deviate from the principle of distinction between civilians and military recognized by international law, then on what basis should we formulate ethical standards for war? Is it possible to deny the principle of military-civilian distinction on the one hand and condemn the other side on the other hand? How do we respond to the international reality where the balance of power imposes good and bad consequences? Is it politically and morally correct to target all enemy citizens?

These are big questions that cannot be addressed here, but I am interested in discussing here the problem of invoking pre-modern state jurisprudence in a modern context, particularly by creating conflicting dichotomies between civil and military dichotomies and military and non-war Law.

First, it must be clear that we are faced with two different and incompatible dualities. The first duality: Law (civil and military) emerges in modern states, and international humanitarian law and the Geneva Conventions are the main references for distinguishing civil and military law. There are procedural standards to differentiate between civilian and military personnel related to dress, location, and activities.

The concept of “military” is very clear to the public. Refers to regular military personnel as originals, and those who assisted in combat missions during the war joined him, even if they were civilians. Because – in this case only – he lost his citizenship. Reservists were also civilians, but they lost this status only when they went to war. The criterion here is participation in combat operations or assistance in combat operations during wartime, so that the modern concept of “military” is different from the broader de jure concept of “military”.

As for the second duality: (militant and non-militant), it belongs to the law before the modern state and it was part of the vision of the ancient world divided into the House of Islam and the House of War (or mainly Islam The House of Unbelief) The House of War).

The concept of “war” involves a certain complexity, because in the vision of the world before the modern state it was matched by two concepts: they were: non-Muslims and Mu'ahed. For a Dhimmi, he is a person who enjoys membership in the House of Islam and accepts its authority, and for a Covenanter, he is a member of a country that has entered into a covenant (or treaty) with the House of Islam. House of Islam. ” But there is a third concept here, which is contrary to the concept of war – even if it overlaps with the concept of war – and that is Mustaman, the person from the people of “Dar Al-Harb” who temporarily entered Dar Al-Islam, He is given security by the guardians of the House of Islam or any of them.

Obviously, “war” is an adjective that refers to both a legal and a political situation, and at the legal level, the infallibility of Blood and Treasure revolves around the existence of a legal contract. (contract, treaty or temporary security). At the political level, issues revolved around the relationship between war and peace between the Islamic House of Representatives and the War House.

If one of the above contracts occurs, it constitutes a necessary condition to exclude the state of war, which is the origin of “war”; therefore, it is called Harbiyya, which means war or the people of the land of war. A warlike person is a non-Muslim who has not signed a dhimmah contract and does not enjoy the security or covenant of a Muslim, that is, he has maintained a warlike relationship without establishing one of the first three covenants. A state of peace, permanent or temporary.

A point that shows the synthesis of the concept of war is that, for example, “Mustamin” was a veteran without a contract of responsibility and without any covenant linking his country to the abode of Islam, but he received a temporary guarantee ( Something similar to a visa) has a certain period. If you exceed the period, you will be warned and the guarantee may be reversed. Over time, it becomes a contract of responsibility, and its temporary guarantee turns into a relationship that establishes permanent peace. On the contrary, if the insured travels to his country to trade or visit (not to live and settle), his trust applies to him.

Today, the scope of application of the “trustee” concept includes embassy staff, tourists, company workers, etc., even if their country is one of war people. Because they are safely in the Islamic country; attacking them is not allowed.

It now seems – evident – ​​that there is a difference between these two dualities. Each dualism has its own logic, operates within its own system, belongs to a specific worldview and a different legal and moral system. The first duality revolves around the actual participation or absence in the war (called combatants in the classical expression) on the one hand and the validity of civilians who are not on the other side of the war on the other.

As for the second duality, it revolves around two issues: first: membership in Darhab, even if there is no actual war in this case; second: the absence of any commitment to any kind of contract: ( obligations, contracts and security). The first thing (membership of Dar al-Harb) will make every member of Dar al-Harb a warrior, so that the dichotomy of war and non-war is different from the dichotomy of civil and military, which is here Seems more specific.

However, the permissibility of each member of Dar al-Harb is questionable. Since the jurists agree that the categories of citizens of Darhab are unmistakable, this is what is added to the first three descriptions or contracts: (dhimma, contract and security). These groups include: women and boys; if they do not fight, then they do not make a mistake, and according to the consensus of scholars, it is forbidden to kill them in war. But if women fought, most scholars believe that those who fought would be killed. The issue here revolves around actual combat (i.e., the transformation of women into “soldiers” in the modern sense).

Conversely, jurists also differed regarding other types of warriors. For example, Hanafi jurists do not allow the killing of an old mortal, a paralyzed old man, a lame person, a blind person, a person whose hands or legs are cut off from both sides, a person whose right hand is cut off, an imbecile, a monk in a cell, or a person who is not in contact with others in the mountains. travelers, or anyone in a house or church. They were scared and the door was closed to them. It is well known among Maliki jurists that the killing of workers, farmers and craftsmen is not allowed. This explains two things:

• First: According to jurists, not all fighters may die in war. Several factors and criteria must be considered.
• Second: Not every civilian (in modern terms) is a warrior (in legal terms), and bloodshed in war is permissible.

War is a descriptive concept. According to jurists, it is not enough, in itself, to allow the blood of its owner to be admitted. Instead, two criteria must be met here:

• First: As we have said, there is no legal or political obligation; a warlike person is one who does not belong to the people of Dhimmah and has not entered into a covenant or guarantee.
• Second: This soldier must belong to the “war people” in reality or sense. Anyone who is not among the war people is not allowed to kill people in war. Unless he fights (through opinion and incitement) against fact or meaning. Thus, premodern state jurists excluded the previously mentioned categories. (e.g. women and children); because they were not yet a warring people at that time; given the arrangements of pre-modern states and the nature of fighting, its tools and organization. Likewise, mortal chiefs are excluded. Because there was nothing left to fight in it, monks or nuns were excluded; because they were so isolated that they were not captured or enslaved by Malik's teachings.

All of these questions illustrate the problems faced by some contemporary fatwa enforcers who came out in the aftermath of October 7 to say: There are no civilians in Israel. This confusion between concepts is evident by:

• First: The civil concept is a modern legal concept, established and established in international practice, and applies to the people of Gaza just as it applies to all Israelis who did not participate in or assist in fighting or incitement. This concept must not be confused with the concept of war.
• Second: From a jurisprudential perspective, applying historical jurisprudence terms to all Israelites is problematic. According to classical jurisprudence, not all Israelites were permitted warriors, and perhaps some scholars who adhere to the literalism of the integrity of the jurisprudence would argue that the guardians had contracts with the Israelites that would affect the depiction of the Israelites . The Israelites themselves, so that they might move from describing warriors to describing them as warlike. Another description that corresponds to this, such as agency and trustee? This is a problematic view, just as the view of eliminating civilian and military distinctions entirely is equally problematic. For example, since according to the consensus of jurists, children are not allowed to be targets of war, how can this duality be completely wasted!

Investing in legal heritage in today’s world can create obligations for investors that they often overlook. Although these obligations were part of the pre-modern Sharia system; they can be seen in the following ways:

• First: Lack of systematic vision. Revealing the jurisprudence that inheritance in the modern context, despite its integrity, would lead to the rest of the systems that preceded the modern state, such as slavery, captivity, and the Imams' rejection of the covenant (for those who established it within it) The conditions mentioned in and other details of the system, these investors did not pay attention to the extent of these problems and difficulties. They may be trapped if they are legally bound by pre-state jurisprudence; removed from the fragments of their comfort; serving a variant that is at odds with what I call a “jurisprudence” and with the modern state: a limited set of concepts and laws that are incompatible with vision, but it presents a hybrid vision that is inconsistent with any system!
• Second: These issues are political and self-interested from a jurisprudential point of view. Even if some of these issues are mentioned in hadiths, according to the imam’s assessment and from the perspective of predecessors, they are also subject to public Calculation of benefits. modern state. Guardians could provide protection to different categories of soldiers and could issue orders to the military not to execute certain individuals, or give them specific descriptions to distinguish them from others. Based on interest or compliance with a prior agreement.

Here we find ourselves faced with a modern application of this classic idea, in the form of international agreements signed by nations today. If classical jurists allowed certain individuals to provide security for warriors, what would that look like today in our highly complex world linked by complex legal and political agreements and systems?

• Third: Failure to take into account the political and military transformations in the transition from pre-modern to modern states and the development of tools and techniques of warfare will have a significant impact on the importance of distinguishing individuals in warfare, which from a procedural point of view The criteria for this distinction, as well as the changes in the modern concept compared to the pre-modern concept of the state, that is, the classic criterion of a “war people” will differ today due to the formation of war. Regular army, concept of war and its destructive military tools.

Failure to take these variables into account may result in war crimes being prosecuted under international law, even if the proceedings in the matter are subject to the balance of power and great power policies, but this does not undermine the principle itself.