– Al-Tatarrus: Al-Qa’eda’s Manipulation of the “Law on Using Human Shields”.

(© Zubair Qamar 2013)

Al-Qa’eda and other militants manipulate the issue of human shields in Sunni Islam to justify their killing of masses of civilians. It is well-known that most of al-Qa’eda’s victims have been civilians. Their claim that such “collateral damage” is necessary belies the Sunni tradition they claim to follow.

Using classical Sunni sources, Egypt’s Mufti, Ali Gomaa, said,

“It is impermissible to use human shields save in state of war and under specific conditions detailed by jurists.”
[Bahr Ra`iq 80\5, Hashiyat ibn ‘Abī Dīn 223\3, Rawdat al Tablibīn 239\10, Mughnī al Muhtāj 223\4, Mughni ibn Qudāma 449\8, 386/10]

Classical Sunni jurists differed in their understanding of what these “conditions” were. Regarding “Muslim individuals, in general, or Muslim prisoners of war, or individuals from ahl al-dhimmah (non-Muslim citizens of the dar al-Islam), or any individuals” living in countries that have peace accords, Ahmed al-Dawoody in The Islamic Law of War (p.117) says, in regards to targeting them in a legitimately sanctioned war against the enemy:

“al-Awza’i, the Maliki jurists, al-Lu’lu’i, Abu Thawr, al-Layth, and Ahmed ibn Hanbal, it is impermissible to attack the enemy if they take as human shields Muslims, dhimmis, or any individuals who belong to a country which which Muslims have a peace accord.”

However, according to

“…the majority of… jurists, including Abu Hanifah, Abu Yusuf… and al-Thawri, advocate that it is permissible … to attack the enemy because of military necessity, provided that the Muslim army intends to direct its attack against the combatants and avoid the human shields.”

While Sunni jurists differ in their views of al-tattarus, their disagreements lay within the confines of their understandings of what constitutes a legitimate combative jihad. Many of these conditions, including having a ruler proclaim jihad, not killing civilians, having war between two armies (and not vigilante groups like al-Qa’eda) are violated by terrorists today. Therefore, the discussion of al-tattarus by terrorists is misplaced because it does not apply to the actions of terrorists who have violated conditions that are required for any discussion of al-tattarus and related aspects of war to take place. (Read this post to learn the differences between combative jihad and terrorism, and this post to understand how classical Sunni Islam is against terrorism.)

Moreover, Sayyed Imam al-Sharif, the radical who was considered a religious guide to al-Qa’eda, and who had a fallout with al-Zawahiri, also spoke against al-Qa’eda’s methods in regards to human shields. In describing Sayyed Imam’s understanding of the matter, researcher Marwan Shehadeh, says:

“The second concept that Sayyed Imam criticizes is al-tatarrus, an important concept in the context of the combative jihadist doctrine of al-Qaeda and the violent jihadist Salafist movement. Al-tatarrus refers to enemy soldiers’ practice of using in­nocent Muslim civilians as shields directly or indirectly during confrontation, which entails, in cases of clashes with non-Muslim soldiers, killing the civilians. Historically, Muslims experienced al-tatarrus in many battles, and therefore scholars determined precise conditions for permitting the killing of shielded soldiers. They also obligated military leaders not to expand the application of this concept themselves, i.e. not to use non-Muslim civilians as shields for Muslim soldiers in order to preserve human life. Scholars classified al-tatarrus under the “necessities” that can only be resorted to in cases of absolute need. However, al-tatarrus has been greatly abused by contempo­rary jihadist groups who ignored most of the constraints and conditions that scholars agreed upon unanimously. Killings started to target innocent civilians without ob­serving those restrictions and conditions or considering the preventions that guard against the spilling of “protected” blood based on insubstantial excuses and argu­ments. Perhaps all post Sept. 11 bombings involved lack of commitment on behalf of these groups to the concept of al-tatarrus and its constraints.”

Abdullah Warius and Jarret Brachman were on the mark and in line with traditional Sunni Islam when they explained the twisted understanding of al-Tatarrus by al-Qa’eda, and how it contradicted the understanding of 14 centuries of Islamic scholarship:

“In the course of defending al-Qa`ida against charges of unjustly killing innocent Muslims during his April 2, 2008 “open interview,” Dr. Ayman al-Zawahiri reintroduced Hukm al-Tatarrus (the law on using human shields) into the debate. A relatively unfamiliar term to non-Muslims and Muslims alike, al-Tatarrus refers to God’s sanctioning of Muslim armies that are forced to kill other Muslims who are being used as human shields by an enemy during a time of war. Al-Tatarrus is a religiously legitimate, albeit obscure, Islamic concept that al-Qa`ida ideologues have been increasingly using in order to exculpate themselves from charges of apostasy. The method in which al-Qa`ida is promoting al-Tatarrus, however, seeks to facilitate the sacrifice of Muslim lives in contravention of 14 centuries of religious teachings. For instance, both al-Qa`ida in the Arabian Peninsula and the al-Qa`ida Organization in Yemen hid behind the protections offered by al-Tatarrus in their justification of terrorist attacks that resulted in significant Muslim casualties.”

Warius and Brachman continue to explain in detail how Abu Yahya al-Libi manipulated the traditional Islamic understanding of al-Tatarrus to serve his own (read: al-Qa’eda’s) nefarious ends:

“Abu Yahya begins his theological upheaval by explaining that…early thinkers [of Islam] were not specific enough in their discussions on the use of human shields nor did they adequately articulate the conditions under which it is permissible to shed Muslim blood in the course of warfare against a non-Muslim enemy when they take Muslims as human shields. This perceived historical failure of the early scholars to deal with al-Tatarrus honestly and comprehensively, whether due to their fear or embarrassment, he says, has led to a condition wherein the unjustified spilling of Muslim blood has become pervasive.”

The authors then explain the arrogant rejection of al-Qa’eda of the law of al-Tatarrus through their selective and manipulative understanding of Sunni tradition:

“As if criticizing 14 centuries of Islamic thought on the matter was not enough, Abu Yahya decides to reject the premise, saying, “I have never seen [al-Tatarrus as an explicit concept] mentioned in hadiths of the Prophet or in the biographies of the fighting companions in this same particular way that scholars have expressed it.” By calling the conditions placed on al-Tatarrus by Islamic scholars something “new” (and thus an “innovation”), he grants himself the religious authority to not only reject the entire body of Islamic literature (and accompanying restrictions) on the killing of innocent Muslims, but he positions himself as the sole arbiter of what constitutes “permissibility” with regard to killing.”

They go on to explain how Abu Yahya al-Libi chose to omit what did not serve his agenda. Namely, incorporating the human body in al-Tatturus but omitting property:

“Abu Yahya’s essay contains several major oversights that one can only believe are intentional given the depth of his knowledge on the issue. The first oversight is regarding the fact that al-Tatarrus is not limited to the human body, but is commonly extended to the enemy’s use of Muslim property, including buildings, infrastructure and vehicles as a deterrent in times of war. Abu Yahya’s decision to leave out Muslim property becomes clearer when viewed in the light of his second major oversight: compensation for damage caused.”

The authors then discuss how the issue of “compensation” is completely ignored by militants:

“Most discussions of al-Tatarrus during the past 14 centuries include reference to the necessary compensation required by God for damage caused to Muslim lives, property or wealth. The most blatant evidence of Abu Yahya’s intentional avoidance of compensatory damages appears in the peculiar way that he cites the Qur’an, noting: “Never should a believer kill a believer but (if it so happens) by mistake.” Had Abu Yahya continued his quote to the next verse of the sura, he would have been forced to reveal it as,

“Never should a believer kill a believer but if it so happens by mistake, compensation is due: If one so kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased’s family, unless they remit it freely. If the deceased belonged to a people at war with you, and he was a believer, the freeing of a believing slave (is enough). If he belonged to a people with whom ye have treaty of Mutual alliance, compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, is prescribe a fast for two months running: by way of repentance to Allah: for Allah hath all knowledge and all wisdom.”

“As the above verse suggests, there are two general forms of compensation that are relevant to the al-Tatarrus discussion. The first is kaffara, defined as the atonement to God or repayment made for some failure to act, or harm done to another. It usually mandates that the one who spilled Muslims’ blood either fast for a period of time (usually one or two months) or serve charitable acts (such as serving 60 poor Muslims food for a period of time). The second form of compensation is diyya (blood money), which is a monetary compensation paid as a fine to the next of kin of someone who was killed intentionally.”

This, in a nutshell, is the approach of militants: manipulating Sunni tradition to justify their terrorist actions.