Abstract: This article seeks to enumerate and explain that in the Islamic laws of armed conflict, apart from combatants, non-combatants and civilians, there exist another category – ‘forced-combatants’. Forced-combatants are combatants who can be specifically identified to have had no intention to partake in armed hostilities and were forced to become combatants against their will. Despite them taking an active part in hostilities, they cannot be attacked unless as a last resort. They are thus accorded special protected status and can only be taken as prisoners of war.

This article further argues that the concept of forced-combatants has practical implications in the modern world, and therefore there is ample room to consider whether it may potentially be incorporated into International Humanitarian Law to broaden its scope with the ultimate objective of limiting the human sufferings of war.

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THE GENERAL PRINCIPLES OF DISTINCTION IN ISLAMIC LAWS OF ARMED CONFLICT

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The Islamic laws of armed conflict, which fundamentally predate modern International Humanitarian Law (IHL) by over a millennia, share very similar rules and principles.

The fundamental basis of IHL is the principle of distinction between civilians and combatants. More specifically, under IHL there are specific distinctions between combatants who are taking a direct part in hostilities; non-combatants who are members of the armed forces but do not take a direct part in hostilities; and civilians who are neither part of the armed forces, nor taking a direct part in hostilities.

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The Islamic laws of armed conflict mirror the principles of IHL, wherein civilians and non-combatants, are accorded certain protection during armed conflicts. Thus both in IHL and in Islamic law, in case of armed conflicts, fighting can only be directed towards enemy combatants; civilians and non-combatants must not be deliberately harmed. Furthermore, under Islamic law if during an ongoing battle enemy combatant(s) seek protection (or amān), they must be granted such protection by the Muslim State. They can live as civilian temporary residents, and cannot be treated as prisoners of war. Until they can safely go back to their own lands/country, their special protected status will remain. Parallels can be drawn between this group of combatants who seek amān under Islamic law and hors de combat in IHL.

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Under Islamic law, an additional category can be added: that of forced-combatants – those members of the armed forces who are forced to take part in direct hostilities against their will. This rule first emerged and was applied in the famous Battle of Badr, as will be explored in detail below.

 

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THE BATTLE OF BADR AND THE EMERGENCE OF THE RULE OF FORCED-COMBATANTS

 

The Battle of Badr was a monumental event in Islamic history and is a major source of the Islamic laws of war. The event at Badr in relation to forced-combatants is well reported – by Ibn Isḥāq in his Seerah/Biography of the Prophet Muhammad (peace be upon him) [A. Guillaume, The Life of Muhammad, A transation of Sīrat Rasūl Allāh by Ibn Isḥāq (Oxford University Press, 1998), pp. 301-303]; by Tabari in his Annals [W. Montgomery Watt and M. V. McDonald, The History of al-Tabari, Volume VII, The Foundation of the Community, A translation of Ta'rikh al-rusul wa 'l-muluk by Abu Ja`far Muhammad b. Jarir al-Tabari (State University of New York Press, 1987), pp. 57-58]; and it is also included in Tafsir Ibn Kathīr in relation to the exegesis of Surah 8 Ayah 70 of the Qur’ān.

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However the event has not had a great deal of academic analysis in scholarly circles, and therefore is reproduced in detail below.

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In Badr, as reported by ‘Abdullah bin ‘Abbas, just before the battle began the Prophet Muhammad (pbuh) gave a very specific command to the Muslim fighters:

“I have come to know that some people from Bani Hashim and others were forced to march against us, although they had no desire to fight us. Therefore, whoever meets any of them (Bani Hashim), do not kill him. Whoever meets Abu Al-Bukhtari bin Hisham, should not kill him. Whoever meets Al-`Abbas bin `Abdul-Muttalib, let him not kill him, for he was forced to come.”

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During the battle a Muslim fighter named Al-Mujadhdhar met Al-Bukhtari accompanied by Junada bin Mulayha. Al Mujadhdhar made it clear to Al-Bukhtari that he will only fight Junada, and not with Al-Bukhtari because of the very specific aforementioned prohibition by the Prophet Muhammad (pbuh). Yet Bukhtari was persistent not to leave his friend, and insisted on fighting. They both fought and Al-Mujadhdhar eventually killed Al-Bukhtari.

After the battle Al-Mujadhdhar went to the Prophet Muhammad (pbuh) and told him:

“By him who sent you with the truth, I tried to make him give himself up so that I could bring him to you, but he insisted on fighting, and I fought him and killed him."

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As for Al-‘Abbas, he was captured as a prisoner by Abul-Yasar Ka’b bin ‘Amr. Two nephews of the Prophet Muhammad (pbuh), Nawfal bin Al-Harith bin `Abdul-Muttalib and `Aqil bin Abu Talib bin `Abdul-Muttalib, presumably also members of Bani Hashim, were also captured as prisoners.

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It should be noted that Al-‘Abbas was an uncle of the Prophet Muhammad (pbuh), and some of the companions asked the Prophet (pbuh) that he should be set free without ransom (ransom was customary in those times), given his family ties with the Prophet (pbuh). However, the Prophet (pbuh) refused to give him preferential treatment and maintained that they must pay the ransom similar to other captives.

 

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THE RULE OF FORCED-COMBATANTS

 

Since Islamic law is, in part, derived from the actions-&-sayings (Sunnah) of the Prophet Muhammad (pbuh), the commandments that he gave during that battle and his actions therein form part of Islamic law.

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The general ruling that can be derived from this incident is this: combatants who can be specifically identified to have had no intention to partake in hostilities and were forced to become combatants cannot be attacked despite them taking an active part in hostilities. They cannot be attacked even if they do not surrender or seek amān or protection. Such combatants are what can be termed as ‘forced-combatants’.

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A few further rulings can also be derived: forced-combatants can only be taken as prisoners of war; and attacking them is permitted only as a last resort when all other avenues are closed.

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There is no other Islamic law in the Qur’ān or in the Sunnah that contradicts the ruling of forced-combatants, and as will be seen further below, this ruling is consistent with the general principles of the Islamic laws of armed conflict.

 

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THE RATIONALE FOR THE RULING ON FORCED-COMBATANTS

 

The reasoning behind this rule of forced-combatants seems to be that killing or attacking someone who is forced to fight against their will is not the fairest outcome of events.

Furthermore, this rule takes into account the reality that in the middle of an armed conflict, it may not always be possible for a forced-combatant, in the heat of the moment, to desist or to surrender for a plethora of circumstantial reasons.

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Thus the Islamic law of forced-combatants takes a holistic approach, and recognises that if the forced-combatants are captured and taken as prisoners of war, this will give effect to their natural state of mind as it existed before they were forced to partake in armed hostilities, and will, therefore, be the fairest outcome possible in the circumstances. Most importantly, this approach will eventually allow for the possibility to limit the number of casualties to the greatest extent possible and to limit the human sufferings of war.

 

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THE REQUIREMENT TO INVESTIGATE AND DISTINGUISH IN ISLAMIC LAW

 

To apply the rule of forced-combatants, it is required to find out specifically who are the forced combatants, with a certain degree of certainty. As will be seen below, the concept of forced-combatants is in perfect harmony with the very strict requirements in Islamic law to investigate and to distinguish (combatants, non-combatants, forced-combatants and civilians) both before and during an armed conflict.

 

The general requirement to investigate

Islamic laws of armed conflict require Muslims to investigate and thereby clearly discern whom they are fighting, so that any innocent person or group of people are not harmed. The general requirement of investigation in Islamic Law is onerous at all times, whether during an armed conflict or not. This is because killing anyone unlawfully, is a major sin in Islam. As mentioned in the Qur’ān 5:32:

“For that We have decreed upon the children of Israel that whosoever kills a single human soul, except in retribution of committing fasād (destruction, damage) in the land, it shall be as if he killed all of humanity, and whosoever saves a single human soul it shall be as if he saved all of humanity.”

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In relation to conducting a preliminary investigation before the conflict

As mentioned in the Qur’ān 49:6:

“O Believers if a troublemaker comes to you with information, investigate it first, lest you harm a people out of ignorance and later regret what you have done.”

This Verse makes it very clear that an innocent ‘qawm’/‘group of people’ may be inadvertently harmed if a proper investigation on a news/information received is not conducted.

 

Notably, the context/background of this specific Verse in the relevant exegesis in Maarif-ul-Quran explains that the Prophet Muhammad sent Khalid Ibn Walid to make a thorough investigation so that armed hostilities with the Muslim tribe of Banul Mustaliq does not break out without any lawful cause. Indeed, after the investigation, the allegations against Banul Mustaliq were cleared and the brewing armed conflict was avoided.

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In relation to investigation during a conflict

As mentioned in the Qur’ān 4:94:

“O you who have believed, when you go forth to fight in the cause of Allah, investigate; and do not say to one who gives you a greeting of peace, ‘You are not a believer’, aspiring for the goods of worldly life; for with Allah are many acquisitions. You [yourselves] were like that before; then Allah conferred His favour upon you, so investigate. Indeed Allah is ever, of what you do, Aware.”

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The aforementioned Verse mentions and then reiterates the need to ‘investigate’, making it a paramount duty for Muslims that whence armed conflict breaks out, the duty to investigate continues, so that no innocent person is harmed unlawfully.

 

 

CAN THE CONCEPT OF FORCED-COMBATANTS BE INCORPORATED INTO IHL?

 

Firstly, I have not come across any academic writing regarding the concept of forced-combatants and the special protection they may be accorded under Islamic law. I believe this article may be the first time anyone is writing about it, at least in the context of modern IHL. This highlights the unfortunate reality that there is very limited ongoing research and scholarship in the field of the Islamic laws of armed conflict.

 

Secondly, I must profess that there are very intrinsic and extrinsic benefits to this rule of forced-combatants. It has the potential to further limit the human sufferings of armed conflicts. Although not always very easy, nevertheless in the modern world forced-combatants can be specifically distinguished in certain cases. For instance, in many conflict areas around the world, including in Africa, children are abducted by armed militias and as they grow up therein they are forced to become armed soldiers, fighting at the behest of their commanders. Indeed, I have had the privilege of working for the prosecution team at the International Criminal Court, and I sat inside the courtroom and heard live testimonies of numerous witnesses mentioning that – they were forced to fight against their will; if they had the opportunity to escape or to not fight, they would have done so; however, they knew if they did not fight, or if they attempted to escape and got caught, they would almost inevitably be killed; this left them no choice but to remain in their respective armed groups and to fight when commanded to do so. These are, in my opinion, clear examples of forced-combatants.

 

Finally, I reiterate that the concept of forced-combatants has immense practical implications in the modern world. Therefore, it is imperative that more research and analysis is done by scholars and practitioners to determine whether and how the ruling related to forced-combatants may be potentially incorporated into modern IHL.

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