c) Respect for Monasteries and Priests
It is also forbidden to kill priests according to the recommendations of the 1st Caliph Abu Bakr Essedik (632-634 A.D.). Abu Bakr, first companion and father in-law of Prophet Mohammed stated to his soldiers during the conquest of Syria and Iraq, ".... As you move forward, you will meet monks who live in monasteries and who serve God in retreat. Leave them alone, do not kill them and do not destroy their monasteries".
d) Absolute Respect for Vulnerable Persons
Under Muslim Law, it is forbidden to kill old people, women and children. Prophet Mohammed had repeated: "Do not kill children. Do not kill them...." The second Caliph Omar (634 - 644 A.D.) reiterated those instructions in these terms: "Do not kill either old people or women or children and fear killing them in squadron clashes or in cavalry incursions."
e) Treachery and Ruses of War
Treachery or perfidy and treason are strictly forbidden: "God does not like traitors" (Sura 8:58). In Islam, the custom prohibits cheating the
Muslim jurists are unanimous in condemning all forms of treachery/perfidy. For them, "if the artifices of war are always permitted, still treachery deserves to be blamed". And Prophet Mohammed added, "Good faith in exchange of perfidy is better than perfidy to perfidy ". It can be affirmed that the prohibition of treachery/perfidy is a customary rule in Islamic Law. This rule is in principle respected in both relations between Muslims and non - Muslims. On the other hand, tricks which aim to mislead the enemy or cause him to be careless are not forbidden in Muslim Law. The prophet said, "war is a ruse", therefore, the fact for example, of using a camouflage, simulated operations or false information in order to mislead the enemy is not forbidden in Islam.
f ) Looting
In Islam, the rules of hostilities prohibit the destruction of civil properties (palm trees, wheat fields, houses, fruit trees) and the seizing of civil properties. Indeed, the Sunna of the Prophet prohibits the looting of cattle of the enemy and the consumption of it for pleasure and not under constraint of hunger. During one inspection of his soldiers after a victorious battle, Prophet Mohammed noted that the soldiers were celebrating the end of hostilities by eating the cattle taken from the enemy. He immediately ordered them to stop the feasting then stated:
" Eating of the meat of pillaged livestock is no more lawful than eating the meat of live animals”.
The basic teaching of the prophet is clear about the prohibition of the booty. From the above stated principle, the Muslim Law constantly, prohibited the soldiers from looting or stealing the properties abandoned by the enemy. The looting or "ghulul" is a form of war crime, which is severely punished.
Within the purview of "Taazir" another category of norms may apply
against acts called "blameworthy in times of war", it is the act, for example, of destroying the civil properties (cities, non-military equipment of the enemy, etc...)
Generally, for all these breaches, we can conclude that the judge (Cadi) may .give the following sentences:
· death by hanging in front of the headquarters of the penal jurisdiction;
· banishment from the city or being exposed seated on a donkey
· shaving of the beard (this act was a supreme humiliation for men), etc...
The Islamic Humanitarian Law is well developed concerning the situations regarding internal conflicts, as well as inter-states conflicts. The Islamic Humanitarian Rules follow a strict hierarchy and have to be carefully interpreted, especially with regards to the rules of the "Hadd". These rules are very accurate, more advanced and detailed than the actual positive law concerning the non-international conflicts. Islamic law forms by its spirit, the common heritage of humanity. It does not contradict the standards of humanitarian law or the main human principles of the great civilisations.
BY Dr. ZIDANE MERIBOUTE
© All Rights Reserved
Africa Legal Aid
Accra / Maastricht
S.EL DAKKAK, « International humanitarian law lies between the concept and positive law », in International Review of the Red Cross (March-April 1990), p.101; and M.ABUZALMA," La theorie de la guerre en islam", Revue égyptienne du droit international (1958) p. 30.