Why does the Shafi'i Madhab permit killing all non Muslim adult males during Jihad?

Question

Why does the Shafi'i Madhab permit killing all non Muslim adult males during Jihad? Is it just because of their disbelief? Isn't that too cruel?

Bidayat al-Mujtahid

Ibn Rushd writes:

They disagreed about the case of hermits cut off from the world, the blind, the chronically ill, the old who cannot fight, the idiot, and the peasants and serfs. ... According to al-Shafi'fs most authentic opinion, all of these categories (of people) are to be put to death.

The Distinguished Jurist's Primer Vol. 1 p. 458 translated by Imran Ahsan Khan Nyazee

Ibn Rushd writes elswhere:

The basis for their disagreement stems from the conflict of the specificity in some traditions with the general implication of (some verses of) the Qur'an, and also the generality of the authentic saying of the Prophet (God's peace and blessings be upon him), "I have been commanded to fight mankind until they say, 'There is no God but Allah.'" The words of the Exalted, "Then, when the sacred months have passed, slay the idolaters wherever ye find them", imply the slaying of every nonbeliever whether or not he is a monk, and so does the saying of the Prophet (God's peace and blessings be upon him), "I have been commanded to fight mankind until they say, 'There is no God but Allah'".

The Distinguished Jurist's Primer Vol. 1 p. 458-459 translated by Imran Ahsan Khan Nyazee

Al-Hidayah

A woman, minor, enfeebled old man, an invalid, and a blind man are not to be killed. ... Al-Shafi'i (God bless him) goes against our opinion in the case of the enfeebled old man, the invalid, and the blind. The reason is that permitted killing in his view is based upon unbelief

Al-Hidayah Vol. 2 p. 293 translated by Imran Ahsan Khan Nyazee

Reliance of the Traveller

It is permissible to kill old men ... and monks.

Reliance of the Traveller o9.10 translated by Nuh Ha Mim Keller

Follow Up Question

Does this mean that not all non combatants are impermissible to kill?

Answer 1

Ruling on prisoners:

Regarding prisoners, the stance of the majority including the four madhabs is that caliph has the right to do with prisoners according to what suits the interest of the Muslims and he has the right between effecting on them execution, enslavement, ransom or release. Just as your citation states:

The majority of the jurists maintained that the imam has different types of choices regarding the prisoners of war including their pardon, enslavement, execution, demand for ransom, and the imposition of jizya (poll tax) on them.

• (https://archive.org/details/BidayatAl-mujtahidTheDistinguishedJuristsPrimer/page/n437/mode/2up)

The criterion of execution:

The people who can be killed as prisoners are mostly the same as those who can be killed in the war. They must be:

• Harbi. And not musta’min.
• Kafir.
• Those to whom dawah has reached they have refused both Islam and Jizyah.

Who can not be executed:

• The women and children - this is agreed upon by the vast majority including the four madhabs. The reason is the ahadith:

  فنهى رسول الله صلى الله عليه وسلم عن قتل النساء والصبيان

  Allah's Messenger (ﷺ) forbade the killing of women and children.

  ^{— Bukhari}

  However there are exceptions such as: (i) If they take part in the fighting, in this case it is permitted to kill them during the fight when they have not been overpowered. And according to the majority it is also permitted to execute them after they have been captured. (ii) If the tactic or weapon used in war is indiscriminate then killing them by it is forgiven. Examples of this include night raids, showering arrows, bombardment with catapults, laying sieges which involve withholding food and water etc. (iii) If they contribute to war in a way other than physical fighting, such as when they are rulers, or when they give advice.

• Old men and others who fall into this ruling such as monks, handicapped etc. There is difference on them. Especially the Shafi'is and Zahiris hold that they can be killed.

• Anyone who accepts Islam. Even if this happens after being captured.

Evidence of the Shafi'is on executing old men and others who come under this category:

• The Quran and ahadith permit executing 'all' disbeliever in general and do not differentiate between any of them:

  فاقتلوا المشركين حيث وجدتموهم

  kill the polytheists wherever you find

  ^{— Quran 9:5}

  واقتلوهم حيث ثقفتموهم ... كذلك جزاء الكافرين

  And kill them wherever you overtake them ... such is the recompense of the disbelievers.

  ^{— Quran 2:191}

  فإذا لقيتم الذين كفروا فضرب الرقاب

  So when you meet those who disbelieve [in battle], strike [their] necks

  ^{— Quran 47:4}

  أمرت أن أقاتل الناس حتى يشهدوا أن لا إله إلا الله وأن محمدا رسول الله ... فإذا فعلوا ذلك عصموا مني دماءهم وأموالهم

  I have been ordered (by Allah) to fight against the people until they testify that none has the right to be worshipped but Allah and that Muhammad is Allah's Messenger ... so if they perform that, then they save their lives and property from me.

  ^{— Bukhari}

  The words Mushrik and Kafir are inclusive of all disbelievers. And these texts have conditioned killing to disbelief alone. While evidence exists in ahadith to exclude women and children, there is no authentic evidence which excludes any of the other categories. Hence the general permission will apply to them.

• There are ahadith which imply that the Prophet (ﷺ) executed all adult males:

  وأقر قريظة ومن عليهم، حتى حاربت قريظة، فقتل رجالهم

  (The Prophet) allowed Bani Quraiza to remain at their places till they fought against the Prophet (ﷺ) again. He then killed their men.

  ^{— Sahih Bukhari}

  عرضنا على النبي صلى الله عليه وسلم يوم قريظة فكان من أنبت قتل، ومن لم ينبت خلي سبيله

  We were presented to the Messenger of Allah (ﷺ) on the day of (the battle of) Quraizah. Whoever had pubic hair was killed and whoever did not was left to his way.

  ^{— Jami at-Tirmidhi}

  The apparent meaning is that no one except the women and children were spared. Elderly, monks and other categories are included in males who have pubic hair.

• The same is also evident from some traditions about the actions of the caliphs. For example:

  كتب عمر إلى أمراء الأجناد أن لا تقتلوا امرأة ولا صبيا وأن تقتلوا من جرت عليه المواسي

  Umar Ibn Khatab wrote to the generals of the armies to not kill a woman or child and to kill whoever has pubic hair.

  ^{— Musannaf Ibn Abi Shaybah}

  The apparent meaning is that everyone other than women and children could be killed.

• There are explicitly permitted by some ahadith such as:

  اقتلوا شيوخ المشركين واستحيوا شرخهم

  Kill the old men who are polytheists, but spare their children

  ^{— Jami at-Tirmidhi}

• Any ahadith or athar which forbid the killing of these categories (such as this one) have disputed authenticity.

---

Ref:

وقال الشافعي، في أحد قوليه، وابن المنذر: يجوز قتل الشيوخ؛ لقول النبي - صلى الله عليه وسلم -: «اقتلوا شيوخ المشركين، واستحيوا شرخهم» . رواه أبو داود، والترمذي، وقال: حديث حسن صحيح. ولأن الله تعالى قال: {فاقتلوا المشركين} [التوبة: 5] . وهذا عام يتناول بعمومه الشيوخ. قال ابن المنذر: لا أعرف حجة في ترك قتل الشيوخ يستثنى بها من عموم قوله: {فاقتلوا المشركين} [التوبة: 5] . ولأنه كافر لا نفع في حياته، فيقتل كالشاب

^{— المغني لابن قدامة}